Letter from FIRE to Assistant Secretary for Civil Rights Catherine Lhamon

By September 12, 2013

This letter can be viewed in PDF format here.

September 12, 2013

Catherine Lhamon
Assistant Secretary for Civil Rights
Office for Civil Rights
United States Department of Education
Lyndon Baines Johnson Department of Education Building
400 Maryland Avenue, SW
Washington, D.C. 20202

Sent via U.S. Mail and Facsimile (202-453-6012)

Dear Assistant Secretary Lhamon:

The Foundation for Individual Rights in Education (FIRE; thefire.org) is a non-partisan, non-profit organization dedicated to defending students’ and faculty members’ civil liberties. FIRE unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, academic freedom, due process, freedom of speech, and freedom of conscience on our nation’s campuses.

I am very pleased to write you today to congratulate you on your new position and to discuss FIRE’s concerns regarding the threat to campus freedom of expression and due process rights presented by certain recent statements from the Department of Education’s Office for Civil Rights.

Given your extensive experience defending civil liberties in several capacities, I very much look forward to working with you and your office in the interest of protecting student and faculty rights. Like OCR, FIRE strongly believes that our nation’s colleges and universities must meet their moral and legal obligation to respond promptly, fairly, and effectively to allegations of sexual misconduct. As we have repeatedly stated, however, this important and necessary commitment does not require colleges and universities to violate student and faculty rights. In the hope of continuing our dialogue and correcting the problems raised by OCR’s recent policy decisions, FIRE’s concerns are explained below.

EXECUTIVE SUMMARY

 

FIRE and allied signatories wrote to OCR on July 16, 2013; February 25, 2013; and December 6, 2012 to express serious concern for campus civil liberties in light of recent pronouncements from OCR. Specifically, our letters discussed the threats to freedom of expression and due process presented by OCR’s April 4, 2011 “Dear Colleague” letter and the May 9, 2013 findings letter and resolution agreement signed by OCR, the Educational Opportunities Section of the Department of Justice’s Civil Rights Division, and the University of Montana.

OCR Acting Assistant Secretary Seth Galanter sent two responses to these letters on July 29, 2013, and August 23, 2013. Galanter’s two replies focused in turn on our concerns regarding the impact of OCR’s recent proclamations on freedom of expression and due process protections. As you know, the Supreme Court has long affirmed that the protection of free speech at our nation’s colleges and universities is essential for the health of our democracy.1 Accordingly, we were very pleased to receive Galanter’s assurance in his letter of July 29 that OCR is committed to respecting First Amendment rights on campus.

However, while we appreciated Galanter’s recognition of the primacy of freedom of expression in higher education, his letters did not fully allay our concerns. His July 29 response argued that the University of Montana “blueprint” is consistent with the First Amendment and past OCR guidance, but the legal analysis supporting the blueprint cannot be squared with either. Similarly, we disagree with Galanter’s August 23 defense of OCR’s decision to mandate use of the “preponderance of the evidence” standard of proof in campus adjudications of sexual misconduct, and we remain deeply concerned about the impact of OCR’s 2011 “Dear Colleague” letter on campus due process rights.

I. Freedom of Expression 

A. OCR’s Broad Definition Establishes a New Form of “Sexual Harassment”

Acting Assistant Secretary Galanter’s response failed to correct OCR’s deeply problematic requirement that recipient institutions recognize a new form of “sexual harassment,” as set forth in the May 9 findings letter to the University of Montana. In that letter, OCR and DOJ state:

Sexual harassment is a form of sex discrimination prohibited by Title IX and Title IV. Sexual harassment is unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence.2

The May 9 findings letter makes clear that this sweeping conception of sexual harassment—which implicates a vast amount of expressive conduct protected by the First Amendment—is not simply a general description. Rather, the letter specifically requires the University of Montana to adopt this exact language as the institution’s operative, actionable definition of sexual harassment. Indeed, the letter rejects existing University of Montana sexual harassment policies as “inadequate” for failing to “accurately define[] ‘sexual harassment’” as specified.3

Further, the May 9 findings letter explicitly draws a distinction between “sexual harassment” and “hostile environment harassment,” stating:

The confusion about when and to whom to report sexual harassment is attributable in part to inconsistent and inadequate definitions of “sexual harassment” in the University’s policies. First, the University’s policies conflate the definitions of “sexual harassment” and “hostile environment.” Sexual harassment is unwelcome conduct of a sexual nature. When sexual harassment is sufficiently severe or pervasive to deny or limit a student’s ability to participate in or benefit from the school’s program based on sex, it creates a hostile environment. The University’s Sexual Harassment Policy, however, defines “sexual harassment” as conduct that “is sufficiently severe or pervasive as to disrupt or undermine a person’s ability to participate in or receive the benefits, services, or opportunities of the University, including unreasonably interfering with a person’s work or educational performance.” Sexual Harassment Policy 406.5.1. While this limited definition is consistent with a hostile educational environment created by sexual harassment, sexual harassment should be more broadly defined as “any unwelcome conduct of a sexual nature.”4

This new and previously unidentified distinction threatens student and faculty rights in serious ways and cannot be justified as a means of encouraging students to report potentially harassing conduct.

1. OCR’s newly mandated definition of “sexual harassment” breaks with legal precedent and contradicts prior OCR guidance. 

 

Prior to the Findings Letter, sexual harassment under Title IX has been understood as encompassing either “quid pro quo” harassment or “hostile environment” harassment. This conception has been shared by federal courts and the Office for Civil Rights. In Klemencic v. Ohio State University, for example, the United States Court of Appeals for the Sixth Circuit stated:

For a plaintiff to proceed on a claim against an educational institution under Title IX, a plaintiff must establish a prima facie case showing that: [a)] she was subjected to quid pro quo sexual harassment or a sexually hostile environment; b) she provided actual notice of the situation to an “appropriate person,” who was, at a minimum, an official of the educational entity with authority to take corrective action and to end discrimination; and c) the institution’s response to the harassment amounted to “deliberate indifference.”5

Similarly, OCR has stated in previous guidance that under Title IX, sexually harassing conduct in the educational context takes the form of either quid pro quo harassment or hostile environment harassment. For example, in OCR’s 2001 Revised Sexual Harassment Guidance (2001 Guidance), OCR characterized quid pro quo and hostile environment harassment as solely constituting “the different types of harassment”:

 

In each case, the issue is whether the harassment rises to a level that it denies or limits a student’s ability to participate in or benefit from the school’s program based on sex. However, an understanding of the different types of sexual harassment can help schools determine whether or not harassment has occurred that triggers a school’s responsibilities under, or violates, Title IX or its regulations.

The type of harassment traditionally referred to as quid pro quo harassment occurs if a teacher or other employee conditions an educational decision or benefit on the student’s submission to unwelcome sexual conduct. Whether the student resists and suffers the threatened harm or submits and avoids the threatened harm, the student has been treated differently, or the student’s ability to participate in or benefit from the school’s program has been denied or limited, on the basis of sex in violation of the Title IX regulations.

By contrast, sexual harassment can occur that does not explicitly or implicitly condition a decision or benefit on submission to sexual conduct. Harassment of this type is generally referred to as hostile environment harassment. This type of harassing conduct requires a further assessment of whether or not the conduct is sufficiently serious to deny or limit a student’s ability to participate in or benefit from the school’s program based on sex.

Teachers and other employees can engage in either type of harassment. Students and third parties are not generally given responsibility over other students and, thus, generally can only engage in hostile environment harassment.6

Among students, the 2001 Guidance makes no appreciable distinction between “sexual harassment” and “hostile environment” harassment. Rather, the 2001 Guidance states that with regard to student-on-student conduct, sexual harassment is hostile environment harassment. If the University of Montana’s policy conflated “sexual harassment” and hostile environment harassment, so too did the 2001 Guidance.

The findings letter also criticizes a University of Montana sexual harassment policy for “improperly suggest[ing] that the conduct does not constitute sexual harassment unless it is objectively offensive.”7 But this sharp rebuke cannot be reconciled with OCR’s 2003 “Dear Colleague” letter regarding anti-harassment policies and the First Amendment. In that letter, OCR stated that “OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances, including the alleged victim’s age.”8

Galanter’s July 29 letter tacitly deemphasizes the blueprint’s newly operational, broad definition of “sexual harassment,” instead focusing specifically on hostile environment harassment and OCR’s understanding of the elements of such harassment. As Galanter writes, “to constitute unlawful harassment … conduct must create a hostile environment.” While this formulation is correct and consistent with previous OCR guidance, it cannot be reconciled with the blueprint’s insistence that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature.’”

Nevertheless, Galanter confusingly claims that the blueprint is “consistent with the principles articulated in prior OCR guidance,” and argues that both the 2001 Guidance and the 2003 “Dear Colleague” letter remain “fully in effect.” But by mandating that the University of Montana recognize a new, broad category of sexual harassment, distinct from either quid pro quo or hostile environment harassment, OCR has contradicted both federal courts and its own statements, breaking troubling new ground.

Finally, OCR’s creation of a separate category of sexual harassment is wholly unsupported by the agency’s previous Title IX guidance. As FIRE wrote in our open letter to OCR on July 16:

OCR’s response insists that previous agency statements, including its 2001 Revised Sexual Harassment Guidance and its 2003 “Dear Colleague” letter, “remain fully in effect.” But the blueprint contradicts both. For example, the blueprint rejected a University of Montana sexual harassment policy because it included an objectivity component, stating that the policy “improperly suggests that the conduct does not constitute sexual harassment unless it is objectively offensive.” In sharp contrast, the 2003 “Dear Colleague” letter makes clear that an objective evaluation of the allegedly harassing conduct is required:

Harassment, however, to be prohibited by the statutes within OCR’s jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. Under OCR’s standard, the conduct must also be considered sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program. Thus, OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances, including the alleged victim’s age. [Emphasis added.]

The 2001 Guidance similarly instructed institutions to use a number of factors, including an objectivity component, “to evaluate conduct in order to draw commonsense distinctions between conduct that constitutes sexual harassment and conduct that does not rise to that level.” Tellingly, both the 2001 Guidance and the 2003 “Dear Colleague” letter explicitly recognize the First Amendment and emphasize the importance of expressive rights, whereas the First Amendment and freedom of expression are not once mentioned in the blueprint’s forty-seven pages. And of course, the blueprint’s broad definition of sexual harassment is not constitutional simply because OCR declares it so in an email response to concerned citizens.

Unfortunately, OCR’s July 29 response to FIRE fails to adequately address these issues or to point to any other past guidance from the agency that would support the creation of a third category of sexual harassment under Title IX. Therefore, FIRE remains concerned about the implications of OCR’s agreement with the University of Montana for student and faculty free speech rights at universities across the country.

 

2. OCR’s definition renders protected expression “sexual harassment” and is therefore an impermissible means of encouraging reporting.

 

By requiring the University of Montana to adopt a broad, new definition of “sexual harassment,” unmoored to previous guidance or legal precedent, and by labeling the resolution agreement a “blueprint” for colleges and universities nationwide, OCR has endangered freedom of expression and academic freedom on campus. Deeming any and all speech of a sexual nature “sexual harassment” because a single student unreasonably finds it unwelcome subjects a vast swath of constitutionally protected speech to mandatory investigation and potential discipline. This result is plainly unconstitutional.

Attempting to explain this sharp break with both prior practice and common sense, OCR has repeatedly argued that the adoption of the broad definition is necessary to encourage students to report potentially harassing conduct.9 For example, Galanter’s July 29 letter states that “it is important that students are not discouraged from reporting harassment because they believe it is not significant enough to constitute a hostile environment.” To solve this problem, Galanter explains that “[t]herefore, under the Agreement, students will be allowed to bring complaints when they have been subjected to unwelcome sexual conduct.”

However well-intentioned such a motivation may be, it cannot and does not justify the broad definition’s blatant encroachment upon student and faculty First Amendment rights. As we explained in our letter of July 16, classifying protected speech as “harassment” for the purpose of encouraging reporting will have punitive consequences:

Students and faculty accused of sexual harassment must be immediately subjected to a “thorough” mandatory investigation, even if the accusation solely concerns speech protected by the First Amendment. The names of the accused must be recorded indefinitely in a university database as a result of the accusation alone, even if no wrongdoing is found.

Even if those accused never receive formal discipline, labeling protected expression “sexual harassment” is deeply problematic. There can be no doubt that students and faculty will be deterred from expressing themselves on matters pertaining to sex and gender if doing so in a manner protected by the First Amendment may nevertheless result in an accusation of “sexual harassment” and mandatory investigation.

To encourage reporting of potentially harassing behavior, OCR should simply encourage students to report potentially harassing behavior. Rather than defining “sexual harassment” so broadly as to prohibit protected speech—a result that conflicts with the First Amendment and oversteps OCR’s legal authority under Title IX—OCR should encourage colleges and universities to increase student awareness of their sexual harassment policies. A well-known and clearly stated sexual harassment policy that complies with the First Amendment will prove at least as effective in prompting student reporting as an obscure but overly broad policy.

 

3. OCR’s new category of lawful “sexual harassment” will sow confusion and invite administrative overreaction.

Unfortunately, OCR’s insupportable distinction between reportable “sexual harassment” and punishable hostile environment harassment will not survive contact with reality. The blueprint places recipient institutions in the untenable position of either being viewed as tolerating milder, non-actionable forms of alleged “sexual harassment,” or taking disciplinary action against protected speech that falls well short of the legal standard for hostile environment harassment in the educational setting. Moreover, given the confusion that OCR’s guidance will engender among university administrators—and the public pressure that recipient institutions face to adequately address and punish alleged harassment—there is a great likelihood that OCR’s distinction will be ignored and abused on campus.

FIRE makes this argument from experience. We have spent over a decade fighting against the misuse and abuse of overbroad sexual harassment policies at colleges and universities. Despite clarity in the law with respect to student-on-student harassment in the educational setting—both in the form of the Supreme Court’s decision in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), and in lower federal courts’ uniform rejection of overbroad and vague campus sexual harassment policies10—we have seen one institution after another apply such policies to restrict and punish protected speech.

For example, the University of Denver found a tenured professor guilty of sexual harassment in 2011 for teaching about sexual topics in a graduate-level course on “The Domestic and International Consequences of the Drug War,” one of the themes of which was “Drugs and Sin in American Life: From Masturbation and Prostitution to Alcohol and Drugs.”11 In 2012, a professor at Appalachian State University was placed on administrative leave after students alleged that she had created a hostile environment in her sociology class by, among other things, showing a documentary that critically examines the adult film industry.12 Likewise, East Georgia College ordered a professor to resign his position or be fired simply for criticizing the institution’s sexual harassment policy during a faculty training session.13 Perhaps most shockingly, the University of New Hampshire once evicted a student from his dormitory for posting satirical fliers joking that female students could lose the “Freshman 15” by taking the dormitory stairs instead of the elevator.14

Nor is restriction of protected speech likely to be limited to the enforcement of sexual harassment policies; FIRE is sadly confident that other discriminatory harassment policies will be similarly applied to censor or punish protected student and faculty expression. Indeed, OCR’s own letter of July 29 draws little distinction between racial and sexual harassment, citing the agency’s 1994 guidance regarding harassment on the basis of race, color, or national origin for the proposition that OCR’s analyses regarding the creation of a racially hostile environments “have direct corollaries in the area of sexual harassment.”

Based on FIRE’s experience, colleges and universities are likely to seize upon this opening and to continue to label protected speech as harassment. We have seen this occur in cases such as one involving a student-employee at Indiana University-Purdue University Indianapolis who was found guilty of racial harassment for silently reading during work breaks a book that a co-worker found to be offensive.15 Brandeis University, similarly, labeled a veteran professor a racial harasser after he used the word “wetbacks” in his Latin American Politics course in order to criticize its use.16 Just last fall, a student at the State University of New York at Oswego who emailed hockey coaches at rival schools as part of his research for a class assignment about the university’s men’s hockey coach was charged with violating a prohibition against “defam[ing], harass[ing], intimidat[ing], or threaten[ing] another individual.”17

The problem almost certainly will not remain cabined to allegations of sexual harassment and sexual misconduct. Rather, under the terms of OCR’s Findings Letter, institutions across the country will erroneously label and punish protected student and faculty expression as “harassment,” whether it be sexual harassment, racial harassment, or harassment based on another protected category. OCR’s July 29 response to FIRE fails to adequately address this problem.

B. Conflating Sexual Harassment and Sexual Assault

FIRE strongly believes that universities are better positioned to create fair and accurate sexual harassment policies and procedures when they address the issue of sexual harassment separately from the issue of sexual assault. While both sexual harassment and sexual assault constitute gender-based discrimination under Title IX, they present substantially different issues and challenges for a responding institution. Sexual assault is violent criminal behavior and often involves complex and fact-intensive allegations—challenges that colleges and universities typically struggle to deal with, and that, in the eyes of FIRE and other commentators, may be better left to law enforcement possessing the requisite expertise and experience. Sexual harassment, on the other hand, presents its own complications and concerns, including the issue of potentially protected speech. At minimum, institutions should maintain separate standards for each offense.

OCR’s Findings Letter notes at the onset that the federal investigations of the University of Montana date back to the fall of 2011, when “the University received reports that two female students had been sexually assaulted on campus by male students.”18 The university then “received seven additional reports of student-on-student sexual assault that had occurred between September 2010 and December 2011.” 19 Former Montana Supreme Court Justice Diane Barz—hired by the university to conduct an independent investigation—“concluded that the University ‘has a problem with sexual assault on and off campus and needs to take steps to address it to ensure the safety of all students as well as faculty, staff and guests.’”20

While sexual harassment is indeed a serious matter, this factual background suggests that the University of Montana’s most critical problems concerned sexual assault—a crime that does not implicate expressive rights. OCR would have been better served by addressing the issues of sexual assault and sexual harassment separately. Doing so would have allowed the agency to more carefully consider the First Amendment implications of its definition of sexual harassment and to ensure that constitutionally protected speech and expression do not get swept into that definition. By instead defining sexual harassment as any “unwelcome conduct of a sexual nature,” including “verbal conduct,” OCR has left student speech rights in jeopardy—both at the University of Montana and at colleges and universities throughout the country, the overwhelming majority of which currently receive federal funding.

II. Solution: Require Adoption of the Supreme Court’s Davis Definition

Given the myriad problems with the Findings Letter’s definition of sexual harassment, FIRE reiterates our support for the controlling legal standard for student-on-student hostile environment harassment in the educational context, as set forth by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). FIRE has repeatedly emphasized the utility and clarity of the harassment standard Davis establishes. In our May 5, 2011, letter to OCR in response to the 2011 “Dear Colleague” letter, for example, we stated:

In Davis, the Court found that behavior constitutes hostile environment sexual harassment when it is “so severe, pervasive, and objectively offensive, and … so undermines and detracts from the victims’ educational experience, that the victim- students are effectively denied equal access to an institution’s resources and opportunities,” and that institutions displaying deliberate indifference to actual knowledge of such behavior could be found liable for monetary damages. This exacting, speech-protective definition ensures an appropriate balance between freedom of expression on campus and the importance of establishing an educational environment free from harassment. [Citation omitted.]

Similarly, in our May 7, 2012, open letter, we wrote:

[T]he April 2011 DCL’s lack of concern for freedom of expression stands in disappointing contrast to OCR’s 2003 “Dear Colleague” letter, which more accurately reflects the state of the law then, and now. In that letter, former Assistant Secretary Gerald A. Reynolds made clear that “OCR’s regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment.” To provide much-needed definitional clarity, while simultaneously recognizing an institution’s twin obligations to protect free speech and prevent harassment, we once again urge OCR to make clear that institutions satisfy Title IX by adopting no more and no less than the definition of prohibited harassment in the educational context set forth by the Supreme Court of the United States in Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999).

We again emphasize now that the Supreme Court’s Davis standard, including each of its operative elements, is the controlling standard for hostile environment peer harassment in the educational setting. To be consistent with both harassment law and the First Amendment, therefore, OCR must make clear to recipient institutions that peer harassment on campus should always be defined as no more and no less than the Davis standard.

A. Elements of the Davis Standard

The Supreme Court’s Davis standard properly balances universities’ dual obligations to prevent true harassment and protect freedom of speech, and is thus far preferable to the definition of hostile environment sexual harassment provided in OCR’s July 29 letter to FIRE—i.e., conduct that is “sufficiently serious as to limit or deny a student’s ability to participate in or benefit from an educational program.”

1. Harassment should be targeted. 

First, Davis suggests that to properly constitute harassment, the conduct in question should be targeted. Davis’ plaintiff student was subjected to a months-long, “prolonged pattern of sexual harassment” by one of her classmates.21 While Galanter’s July 29 letter argues that harassment “does not have to … be directed at a specific target,” requiring that the allegedly harassing conduct be targeted is necessary to avoid harassment allegations arising from speech that the complaining individual simply happens to overhear or witness. For example, a student should not be charged with hostile environment sexual harassment simply because he or she wrote an op-ed in the campus newspaper about a sexually related issue such as reproductive choice or gay marriage. Such a result would have a harmful chilling effect on campus discourse.

It is true that in the employment context, some federal courts have held that speech or conduct that someone overhears, even though not directed or targeted at that person, can create a hostile environment.22 However, federal courts have held in other cases that it is insufficient to allege that one is disparately impacted, as a male or female, by speech or conduct in the workplace, and that someone must allege that he or she was actually the target of such speech or conduct.23 Additionally, legal commentators including Professor Eugene Volokh of the University of California, Los Angeles School of Law24 and former American Civil Liberties Union President Nadine Strossen25 have argued in favor of the requirement of targeted conduct even in the employment setting.

More importantly, there are reasons to require that allegedly harassing behavior be targeted in the context of student-on-student harassment that are not present in the employment setting. Courts and commentators alike have recognized the paramount importance of freedom of speech on college campuses, providing students with a level of protection that is inapposite in the workplace setting.26 Simply importing workplace precedent fails to recognize the unique considerations present on campus, chief among them the Supreme Court’s consistent recognition of the importance of First Amendment rights in the university setting and the qualitative difference in the relationships between students and their peers and employees and their employers.

In the Title IX context, hostile environment harassment is properly understood as the creation of a discriminatory atmosphere so antagonistic towards a student on the basis of his or her gender that he or she cannot receive an education. It cannot be understood as simply an all-purpose civility code, unmoored from the specific requirements of both the First Amendment and Title IX itself. Indeed, such an understanding would be incompatible with Davis and the Court’s holding in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973) that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’”

It is difficult to imagine what would constitute untargeted student-on-student harassment. If speech is untargeted, how might it be discriminatory on the basis of sex? If OCR regards Title IX as allowing for untargeted student-on-student harassment, what conduct may be prohibited? A newspaper column? A controversial question in class? An online posting? Sadly, FIRE has seen far too many instances of administrators abusing harassment codes to silence speech they find offensive, inconvenient, or simply disagreeable to be comfortable with a broad ban on untargeted “harassment.”

2. Harassment must be unwelcome. 

Second, Davis requires that the conduct at issue be unwelcome. This requirement ensures that the allegedly harassing conduct is subjectively unwanted and offensive to the target. It is not enough, for example, that the alleged harasser have the intent to create a hostile environment or directly target an individual. The conduct must be subjectively unwelcome from the perspective of the target. In Davis, the victim-student made the unwelcome nature of the conduct in question clear by reporting the incidents to her mother and to various teachers.27 In contrast, OCR’s proffered definition of hostile environment harassment as conduct that is “sufficiently serious as to limit or deny a student’s ability to participate in or benefit from an educational program” fails to specify that the conduct must be unwelcome.

3. Harassment must be severe. 

Third, Davis requires that truly harassing conduct be “severe.” OCR’s July 29 response to FIRE worryingly states that “harassing conduct can take many forms, including verbal acts and name-calling, and graphic and written statements.” Yet the Supreme Court took the opposite position in Davis:

[I]n the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it. Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender. Rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect. 28

OCR’s broad classification encompasses a wide swath of constitutionally protected expression. Under Davis, the vast majority of “verbal acts” and “graphic and written statements”—whether or not they involve “name-calling”—are not severe enough to create a hostile environment unless they are part of a larger pattern of harassing conduct. Here, the distinction between conduct and pure speech is key. To ensure a proper balance of the interests involved and to protect students’ First Amendment rights, peer harassment law requires an extreme and usually repetitive pattern of conduct, as illustrated by the factual background of Davis itself.29 Indeed, one federal court after another has struck down university harassment policies for restricting speech protected by the First Amendment.30

Again, the special nature of student interaction on campus requires this exacting standard. Students are engaged in the search for truth, not the production of widgets, and thus policing student dialogue involves substantially different considerations than those faced by employers overseeing a workplace. The campus standard for severity must accordingly be higher to provide students the breathing room they need to engage with one another and to prevent colleges from feeling forced to monitor student dialogue to an unreasonable and counterproductive degree.

4. Harassment must be pervasive. 

Fourth, Davis requires that harassing conduct be “pervasive.” This element establishes the need to demonstrate a pattern of repetitive behavior and, crucially, ensures that isolated instances of protected speech will not, standing alone, be incorrectly labeled as “harassment.” Indeed, the U.S. Court of Appeals for the Third Circuit invalidated an overbroad sexual harassment policy at Temple University in large part on these grounds.31 The appellate court declared that “[a]bsent any requirement akin to a showing of severity or pervasiveness—that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work—the policy provides no shelter for core protected speech.”32 Thus, the Third Circuit found that the terms of Temple’s sexual harassment policy were “sufficiently broad and subjective that they ‘could conceivably be applied to cover any speech’ of a ‘gender-motivated’ nature ‘the content of which offends someone,’” including “‘core’ political and religious speech, such as gender politics and sexual morality.”33

5. Harassment must be objectively offensive. 

Fifth, Davis requires that the conduct in question be “objectively offensive.” This requirement ensures that speech or conduct is not erroneously labeled as harassment because it offends the subjective sensibilities of a complaining individual, no matter how unreasonable or hypersensitive he or she may be. As FIRE wrote in our open letter to OCR on January 6, 2012:

If merely “offensive” expression constituted harassment, then a student might be punished for telling a sensitive student a joke, reading a poem aloud, or simply voicing a dissenting political opinion. Instead, Davis requires the harassment not only to seem offensive, but to be objectively so. By incorporating this “reasonable person” element, the Davis standard frees campus discourse from the tyranny of the student body’s most sensitive ears, as well as those feigning outrage to silence viewpoints they dislike.

Once again, this component of the Davis standard is missing from the standard set forth in OCR’s July 29 response letter to FIRE: conduct that is “sufficiently serious as to limit or deny a student’s ability to participate in or benefit from an educational program.” While Galanter’s letter adds that “[i]n determining whether harassment has created a hostile environment, OCR considers the conduct in question from both a subjective and objective perspective,” this explanation does not set forth the requirement of objective offense as clearly as Davis, which reduces its efficacy. OCR would avoid unnecessary confusion among recipient institutions if it made the crucial requirement of objective offense an express element of its standard for hostile environment sexual harassment.

6. Harassment must deny victims equal access to resources and opportunities. 

Sixth, Davis requires that harassing conduct “so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”34 This threshold differs significantly from OCR’s requirement, as stated in Galanter’s July 29 letter to FIRE, that the alleged conduct “limit or deny a student’s ability to participate in or benefit from an educational program.” The chief benefit of the Davis standard is that it affords certainty and precision to an institution’s determination of whether hostile environment sexual harassment took place by requiring that the conduct in question must “undermine[] and detract[]” from the alleged victim’s educational experience to such a degree that he or she is “effectively denied equal access” to educational resources and opportunities. Comparatively, OCR’s language is vague, giving institutions unchecked discretion to determine whether given conduct “limit[s]” the alleged victim’s “ability to participate in or benefit from an educational program.” The term “limit” in this context could mean virtually anything, affording institutions a less precise standard to apply and leaving accused students with less certainty in the protection of their First Amendment rights.

B. Certainty and Precision

 

For these reasons, we ask that OCR make clear to recipient institutions that the Supreme Court’s Davis standard, including each of its crucial elements, is the controlling standard for hostile environment peer harassment in the educational setting, and that, to be consistent with both harassment law and the First Amendment, peer harassment on campus should always be defined as no more and no less than the Davis standard. Doing so would afford both students and the institutions they attend the certainty and precision they require with respect to this issue.

As FIRE observed in our letter to OCR of January 6, 2012:

[T]he Davis standard is still the Supreme Court’s only guidance regarding student-on-student harassment—and it remains the best definition of harassment for both students and colleges. Davis’ central benefit is its precise balance between a school’s dual responsibilities to prohibit harassment that denies a student equal access to an education and to honor freedom of expression. … Davis protects the dialogue we expect universities to foster in the search for truth. Under the Davis standard, heated discussion is acceptable, but the truly harassing behavior that federal anti-discrimination laws are intended to prohibit is not.

We reiterate the request we made to OCR in that letter:

We ask that OCR recognize Davis as the controlling standard for student-on-student harassment in the educational context. Further, in order to protect free speech and prevent harassment, we ask that OCR require that institutions adopt no more and no less than the Davis standard if they are to be deemed fully compliant with federal anti-discrimination laws. “No more and no less” is necessary because many colleges maintain conflicting harassment policies; a constitutional policy in the student handbook may be contradicted by an unconstitutional one posted online. Using the Supreme Court’s definition would prohibit harassing behavior, safeguard student speech rights, and provide institutions with legal certainty. No court will find the Davis standard to be insufficiently protective of First Amendment rights or a student’s ability to receive an education free from harassment. By insisting on Davis, OCR would not only eliminate a vast swath of campus speech restrictions, but would also confirm that the American campus remains what Supreme Court Justice William Brennan deemed “peculiarly the ‘marketplace of ideas.’” [Emphasis in original.]

These points remain as true today as they did then, and we again call on OCR to secure recipient institutions the certainty and precision provided by Davis.

III. Due Process 

FIRE has repeatedly raised due process concerns with OCR, both in our July 16 open letter and in response to OCR’s April 4, 2011 “Dear Colleague” letter (DCL).

In our open letter, we objected to the provisions in the University of Montana agreement allowing for university disciplinary action, prior to the completion of an investigation and hearing, against a student or faculty member accused of sexual harassment. However, Galanter’s responses to FIRE of July 29 (concerning freedom of expression) and August 23 (concerning due process protections) fail to address this issue. This is deeply disappointing, as such a serious concern warrants an answer. We therefore restate our concern at this time.

Further, Galanter’s August 23 response to our worries regarding the DCL’s reduction of due process protections for students and professors accused of sexual harassment or sexual assault fails to allay our concerns. In our May 5, 2011, letter to OCR, FIRE argued against the DCL’s imposition of the “preponderance of the evidence” standard of proof in all such adjudications on college campuses, writing:

In cases involving allegations of criminal misconduct such as acts of sexual violence, the preponderance of the evidence standard fails to sufficiently protect the accused’s rights and is thus inadequate and inappropriate. Given the unequivocal value of a college education to an individual’s prospects for personal achievement and intellectual, professional, and social growth, OCR’s insistence that schools reduce procedural protections for those students accused of sexual harassment and sexual violence is deeply troubling. Because of the seriousness of these charges, virtually all institutions will punish those students found guilty with lengthy suspensions, if not immediate expulsion. The interest held by both the accused student and society at large in ensuring a correct and just result is therefore far greater than that implicated by a simple “monetary dispute,” and a higher standard of proof is demanded. It is unconscionable, given the prospect of life-altering punishment, to require only that those accused of such serious violations be found merely “more likely than not” to have committed the offense in question. [Citations omitted.]

FIRE wrote in the same letter that the DCL’s requirement that “[i]f a school provides for appeal of the findings or remedy, it must do so for both parties” threatens the due process rights of accused individuals. In pertinent part, we wrote:

Given that accused students will now face an inappropriately low standard of proof, FIRE fears that allowing the accusing student to appeal a finding or remedy in favor of the accused tilts the scale still further toward the accusing student. We worry that because of the publicity that often surrounds claims of this nature and the resulting pressure on judiciary panelists to return a guilty verdict, such appeals would often essentially be reheard de novo.

We repeated many of these same arguments in an open letter sent to OCR a year later, on May 7, 2012, in which we were joined by a coalition of 19 other signatories. We wrote, for example:

Adjudicating accusations of serious sexual misconduct requires equally serious procedural protections. By mandating that institutions use the weak preponderance of the evidence standard, OCR has undermined the reliability, integrity, and basic fairness of disciplinary proceedings and invited error. Given the divergence in quality and competency of school disciplinary hearings and the potential for life-altering punishment, it is unconscionable to require that those accused of such serious violations be found merely “more likely than not” to have committed the offense in question. If OCR is to mandate an evidentiary standard for the adjudication of allegations of sexual harassment and sexual assault, it must be no less protective of the rights of the accused than the “clear and convincing” standard.

Responding to these letters, Galanter’s reply of August 23 makes three arguments. None is convincing.

First, Galanter argues that because the preponderance of the evidence standard is used in certain civil cases, including those adjudicating “issues involving sexual violence” and those where penalties may involve expatriation, OCR is justified in interpreting Title IX to mandate its use in campus sexual misconduct hearings. But as FIRE has repeatedly pointed out, campus hearings are simply not comparable to civil proceedings in terms of the protections afforded to both parties, the governing legal doctrines, and the professional expertise of presiding authorities. As FIRE Legislative and Policy Director Joseph Cohn wrote for The Chronicle of Higher Education:

While it is true that most civil cases in federal court are decided under the preponderance standard, due process requires that this low burden of proof be offset by procedural safeguards—lots of them.

For example, to ensure fairness, reliability, and constitutionality, civil trials are presided over by experienced, impartial, and legally educated judges. At either party’s request, facts are determined by a jury of one’s peers. The parties have the right to representation by counsel, and a mandatory process of “discovery” ensures that all relevant evidence will be made available if the opposing party asks for it.

And speaking of evidence, strict rules apply that exclude hearsay, evidence of prior bad acts or crimes, and other information that is either irrelevant or unreliable. Moreover, all depositions and testimonies are given under oath or affirmation, with witnesses subject to perjury charges if they intentionally lie about material issues. The list goes on and on.

So which of those procedural protections are guaranteed in college disciplinary hearings? None. The procedural safeguards used at most colleges are embarrassingly minimal.

Colleges decide for themselves who will preside over these hearings and serve as fact finders. In some instances it’s a panel of faculty, students, and/or administrators, the last of whom may have a powerful incentive to come to the conclusion that is most convenient for the institution. (In the real court system, we are very careful to avoid any hint of this bias from our judges and juries.) Even worse, some colleges have a single administrator designated to serve as both judge and jury.

Similarly, the parties to these hearings frequently have no right to counsel—even if they are able to pay for representation. Neither party has the benefit of discovery, and the rules of evidence don’t apply. Hearsay and even irrelevant “evidence” are regularly considered. Parties are usually not placed under oath and may not be subject to discipline if they lie.

Without any of the safeguards designed to increase the reliability and fairness of civil trials, the risk of erroneous findings of guilt increases substantially, especially when a fact finder is asked to decide only if it is merely 50.01 percent more likely that a sexual assault occurred. The absence of the protections listed above makes the preponderance standard inappropriate and renders the comparison of campus sexual-misconduct hearings to civil suits in federal court inexact.

If anything, because there are so few procedural protections in place during sexual-misconduct hearings on campuses, the burden of proof should be higher, to offset the increased risk of error. After all, a guilty finding for sexual misconduct on campus may result in life- and career-altering punishment.35

Galanter justifies his dismissal of these concerns by arguing that he is “not aware of any case that has held the Due Process Clause requires a higher standard be used” when adjudicating sexual misconduct in campus courts. But FIRE is unaware of any case that has held that Title IX requires use of the preponderance of the evidence standard in adjudicating campus claims of sexual misconduct, as OCR has mandated.

Citing Herman & Maclean v. Huddleston et al., 459 U.S. 375, 389–90 (1983), Galanter acknowledges that the Supreme Court has found that due process requires use of the clear and convincing standard in cases “where particularly important individual interests or rights are at stake.” But, again citing Herman & Maclean, Galanter notes that the Court has allowed the “imposition of even severe civil sanctions that do not implicate such interests” in hearings using the preponderance of the evidence standard. Galanter’s reliance on Herman & Maclean for this proposition is telling, as that case concerned a civil action involving allegations of securities misconduct—“a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, plaintiff’s burden of proof is a mere preponderance of the evidence.”36 In cases involving “quasi-criminal wrongdoing by the defendant”—such as campus sexual misconduct—the Court has allowed use of the clear and convincing standard because the “interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff’s burden of proof.”37 Galanter’s easy dismissal of the “particularly important individual interests” so obviously at stake for students accused of sexual misconduct is deeply disappointing and cannot be reconciled with our national commitment to fundamental fairness.

Second, Galanter argues that OCR’s interpretation of Title IX to require use of the preponderance of the evidence standard is necessary because of the “significant interests for a victim” of sexual misconduct. But until the hearing has been held, whether the accusing student is indeed a “victim” has not been determined; shockingly, Galanter’s justification presumes guilt as a function of the accusation. Galanter contends that use of the standard “represents an appropriate balancing of the important interests of both complainant and the accused” and is thus “equitable to both parties,” again citing Herman & Maclean for the proposition that “use of any other standard expresses a preference for one side’s interests.” But again, when more than monetary damages are at stake, fundamental fairness and the presumption of innocence demand protection for the interests of the accused. As we wrote in our May 5, 2011, letter to OCR:

Requiring a lower standard of proof does not provide for the “prompt and equitable” resolution of complaints regarding sexual harassment and sexual violence. Rather, the lower standard of proof serves to undermine the integrity, accuracy, reliability, and basic fairness of the judicial process. Insisting that the preponderance of the evidence standard be used in hearing sexual violence claims turns the fundamental tenet of due process on its head, requiring that those accused of society’s vilest crimes be afforded the scant protection of our judiciary’s least certain standard. Under the preponderance of the evidence standard, the burden of proof may be satisfied by little more than a hunch. Accordingly, no matter the result reached by the campus judiciary, both the accuser and the accused are denied the necessary comfort of knowing that the verdict reached is accurate, trustworthy, and fair. The lack of faith in the judicial process that such uncertainty will likely engender should be of great concern to OCR and recipient institutions.

Finally, Galanter argues that OCR’s decision to mandate the use of the preponderance of the evidence standard is permissible because many colleges and universities employed the preponderance standard prior to the DCL, citing FIRE’s research. But Galanter ignores that FIRE’s research indicated that many of the nation’s most prestigious institutions—including nine of the top 10 colleges as ranked that year by U.S. News & World Report—did not use the “preponderance of the evidence” standard. Further, an institution’s decision to adopt our judiciary’s lowest standard of proof voluntarily, following careful consideration of its unique campus circumstances and needs, is qualitatively different than an institution’s being forced to do so by a federal agency’s new interpretation of a federal statute. This difference is particularly acute when the agency’s new interpretation breaks with prior practice and is announced unilaterally, without being subjected to the notice-and-comment requirements of the Administrative Procedure Act, as was the case with this new mandate. As we wrote in our May 5, 2011, letter:

In mandating that schools adopt a preponderance of the evidence standard in their grievance procedures governing sexual harassment and sexual violence allegations, OCR has broken significant—and troubling—new ground. In contrast to the April 4 mandate, the 2001 Guidance is silent with regard to the standard of proof required of schools’ grievance procedures. While the 2001 Guidance stated that recipient institutions must maintain “grievance procedures providing for prompt and equitable resolution of complaints of discrimination on the basis of sex,” it did not specify that a specific burden of proof must be employed in university grievance procedures. Indeed, the 2001 Guidance granted schools considerable autonomy in determining the particular protocols to be utilized on their campuses, noting that “[p]rocedures adopted by schools will vary considerably in detail, specificity, and components, reflecting differences in audiences, school sizes and administrative structures, State or local legal requirements, and past experience.” However, the April 4 letter’s mandate revokes this discretion—and with it, schools’ ability to grant students due process protections that are appropriate for the gravity of the offenses of which they are accused.

Given the May 9 blueprint’s problematic definition of sexual harassment and the threat it poses to campus free speech rights nationwide, the lack of due process protections afforded to students and professors accused of sexual misconduct under the DCL is that much more troubling. By combining the blueprint’s expansion of the definition of sexual harassment with the DCL’s lowering of the certainty with which an institution finds an accused individual guilty of sexual misconduct—in other words, coupling the broadest imaginable definition of sexual harassment with our judiciary’s lowest standard of proof—OCR has created the perfect storm for labeling innocent students and professors as sexual harassers.

IV. Conclusion

 

In the months since the blueprint’s issuance, colleges and universities have begun taking steps to ensure that their policies are compliant with its requirements. Given OCR’s recent emphasis on enforcement and the failures of colleges and universities like the University of Montana to effectively address sexual assault, this proactive response is unsurprising. Indeed, such a prompt response should be encouraging, but the blueprint’s lack of clarity with regard to core student and faculty rights makes the mobilization to comply with its highly publicized interpretation of Title IX deeply problematic.

Despite OCR’s subsequent clarifications in the form of private letters sent to concerned citizens and to groups like FIRE and the American Association of University Professors’ Committee on Women in the Academic Profession, OCR must recognize that the confusion engendered by the blueprint’s statements requires clarification. The blueprint should be retracted and new guidance should be issued, clarifying the issues discussed above for college administrators and establishing bright-line rules that align with Supreme Court precedent. In so doing, OCR can create a safer, freer environment at colleges nationwide.

 

FIRE deeply appreciates OCR’s attention to our concerns about students’ and faculty members’ civil liberties. We hope that under your leadership, OCR and FIRE can work together to achieve our shared goals of preventing and addressing sexual misconduct on campus while preserving the civil rights of all members of the college community. To that end, I would be very grateful for a chance to meet with you and further discuss our concerns so that together we may find a solution that will best serve the interests of all students and faculty. I thank you again for your time and attention, and I very much look forward to hearing from you.

Sincerely,

Greg Lukianoff
President


END NOTES

[1] See, e.g., Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (“To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.”).

[2] Letter from Anurima Bhargava, Chief, U.S. Dep’t of Justice, Civil Rights Division, and Gary Jackson, Regional Director, U.S. Dep’t of Educ., Office for Civil Rights, to Royce Engstrom, President, Univ. of Montana, and Lucy France, Univ. Counsel, Univ. of Montana 4 (May 9, 2013), available at http://www.justice.gov/opa/documents/um-ltr-findings.pdf (emphases added) [hereinafter Findings Letter].

[3] Id. at 8–9.

[4] Id. at 8.

[5] Klemencic v. Ohio State Univ., 263 F.3d 504, 510 (6th Cir. 2001) (citations omitted) (emphasis added).

[6] U.S. Dep’t of Educ., Office for Civil Rights, Revised Sexual Harassment Guidance (Jan. 19, 2001), available at http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf (emphases added).

[7] Findings Letter at 9.

[8] Letter from Gerald A. Reynolds, Assistant Sec’y, U.S. Dep’t of Educ., Office for Civil Rights, to Colleagues (July 28, 2003), available at http://www2.ed.gov/about/offices/list/ocr/firstamend.html.

[9] See, e.g., Letter from Seth Galanter, Acting Assistant Sec’y, U.S. Dep’t of Educ., Office for Civil Rights, and Jocelyn Samuels, Principal Deputy Assistant Attorney Gen., Dep’t of Justice, to Professor Ann Green and Professor Donna Potts, American Ass’n of Univ. Professors (July 12, 2013), available at http://www.aaup.org/file/DoE_Respons_%20to_6-6-13_letter.pdf.

[10] See McCauley v. Univ. of the V. I., 618 F.3d 232 (3d Cir. 2010) (invalidating university speech policies, including harassment policy, on First Amendment grounds); DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008) (striking down unconstitutional sexual harassment policy); Dambrot v. Cent. Mich. Univ., 55 F.3d 1177 (6th Cir. 1995) (declaring university discriminatory harassment policy facially unconstitutional); College Republicans at San Francisco State Univ. v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) (enjoining enforcement of university civility policy); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004) (finding university sexual harassment policy unconstitutionally overbroad); Bair v. Shippensburg Univ., 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoining enforcement of university harassment policy due to overbreadth); Booher v. Bd. of Regents, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. July 21, 1998) (finding university sexual harassment policy void for vagueness and overbreadth); The UWM Post, Inc. v. Bd. of Regents of the Univ. of Wis. Sys., 774 F. Supp. 1163 (E.D. Wis. 1991) (declaring university racial and discriminatory harassment policy facially unconstitutional); Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989) (enjoining enforcement of university discriminatory harassment policy due to unconstitutionality); Corry v. Leland Stanford Junior Univ., No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip op.) (declaring “harassment by personal vilification” policy unconstitutional).

[11] Letter from Adam Kissel, Vice President of Programs, Foundation for Individual Rights in Education, to Robert Coombe, Chancellor, Univ. of Denver (Nov. 4, 2011), available at http://thefire.org/article/13833.html.

[12] Letter from Adam Kissel, Vice President of Programs, Foundation for Individual Rights in Education, to Kenneth E. Peacock, Chancellor, Appalachian State Univ. (May 8, 2012), available at http://thefire.org/article/14498.html.

[13] Letter from Adam Kissel, Director, Individual Rights Defense Program, Foundation for Individual Rights in Education, to Erroll B. Davis Jr., Chancellor, Univ. System of Georgia (Aug. 27, 2009), available at http://thefire.org/article/11071.html.

[14] Letter from Greg Lukianoff, Director of Legal and Public Advocacy, Foundation for Individual Rights in Education, to Ann Weaver Hart, President, Univ. of New Hampshire (Oct. 22, 2004), available at http://thefire.org/article/5006.html.

[15] Letter from Adam Kissel, Director, Individual Rights Defense Program, Foundation for Individual Rights in Education, to Charles R. Bantz, Chancellor, Indiana Univ.-Purdue Univ. Indianapolis (Mar. 28, 2008), available at http://thefire.org/article/9191.html.

[16] Letter from Adam Kissel, Director, Individual Rights Defense Program, Foundation for Individual Rights in Education, to Jehuda Reinharz, President, Brandeis Univ. (July 9, 2008), available at http://thefire.org/article/9503.html.

[17] Letter from Peter Bonilla, Associate Director, Individual Rights Defense Program, Foundation for Individual Rights in Education, to Deborah F. Stanley, President, State Univ. of New York at Oswego (Oct. 26, 2012), available at http://thefire.org/article/15094.html.

[18] Findings Letter at 2.

[19] Id.

[20] Id.

[21] Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999) (internal quotation marks omitted).

[22] See, e.g., Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 811 (11th Cir. 2010); Patane v. Clark, 508 F.3d 106, 114 (2d Cir. 2007); Huff v. Sheahan, 493 F.3d 893, 903 (7th Cir. 2007).

[23] See, e.g., Duncan v. Manager, Dep’t of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1312 (10th Cir. 2005); Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 332 (4th Cir. 2003); Scusa v. Nestle U.S.A. Co., Inc., 181 F.3d 958, 965 (8th Cir. 1999). See also Lyle v. Warner Bros. Television Prod., 132 P.3d 211, 229 (Cal. 2006).

[24] Professor Volokh has proposed drawing a line in the employment context “between directed speech—speech that is aimed at a particular employee because of her race, sex, religion, or national origin—and undirected speech, speech between other employees that is overheard by the offended employee, or printed material, intended to communicate to the other employees in general, that is seen by the offended employee.” Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791, 1846 (1992) (emphasis in original). “The state interest in assuring equality in the workplace would justify restricting directed speech, but not undirected speech.” Id.

[25] Strossen has argued that harassment, properly construed, is “a type of conduct which is legally proscribed in many jurisdictions when directed at a specific individual or individuals and when intended to frighten, coerce, or unreasonably harry or intrude upon its target.” Nadine Strossen, The Tensions Between Regulating Workplace Harassment and the First Amendment: No Trump, 71 Chi.-Kent L. Rev. 701, 706 (1995) (quoting ACLU, Policy Guide of the American Civil Liberties Union, Policy No. 72a (rev. ed. 1995)) (emphasis added). She therefore advocates distinguishing “generalized statements of opinion—which should enjoy absolute protection no matter how sexist—from gender-based verbal abuse that … is targeted on a particular employee.” Id. at 717 (quoting Kingsley R. Browne, Stifling Sexually Hostile Speech: To What Extent Does the First Amendment Limit the Reach of Sexual Harassment Law When the Hostile Environment is Created by Speech?, Conn. L. Trib., Nov. 29, 1993, at 19).

[26] See Azhar Majeed, The Misapplication of Peer Harassment Law on College and University Campuses and the Loss of Student Speech Rights, 35 J.C. & U.L. 385 (2009).

[27] Davis, 526 U.S. at 633–34.

[28] Id. at 651–52 (emphasis added).

[29] Id. at 633–34.

[30] See supra note 10.

[31] DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008).

[32] Id. at 317–18.

[33] Id. at 317 (citation omitted).

[34] Davis, 526 U.S. at 651.

[35] Joseph Cohn, Campus Is a Poor Court for Students Facing Sexual-Misconduct Charges, Chron. of Higher Educ., Oct. 1, 2012, available at http://chronicle.com/article/Campus-Is-a-Poor-Court-for/134770.

[36] Addington v. Texas, 441 U.S. 418, 423 (1979).

[37] Id. at 424, 425.

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Cases: Departments of Education and Justice: National “Blueprint” for Unconstitutional Speech Codes