New OCR Letter Completely Ignores Earlier OCR Guidance on First Amendment

By on May 15, 2013

If you are a Torch reader, you are by now probably familiar with the fact that last week, the U.S. Departments of Education and Justice issued a letter to the University of Montana—a letter explicitly intended to serve as "a blueprint for colleges and universities throughout the country"—requiring that universities adopt a staggeringly broad definition of "sexual harassment." 

According to that letter, universities must prohibit, as sexual harassment, "any unwelcome sexual conduct"—including "verbal conduct"—that is subjectively offensive to the listener. In other words, to be in compliance with Title IX, universities, including public universities legally bound by the First Amendment, must now prohibit protected speech. 

What makes this new guidance all the more bizarre is that in the past, OCR has said exactly the opposite.

In 2003, OCR issued a "Dear Colleague" letter to all university presidents on the subject of the First Amendment. The letter was issued because of "inquiries regarding whether OCR’s regulations are intended to restrict speech activities that are protected under the First Amendment." In that letter, OCR’s then-assistant secretary wrote:

I want to assure you in the clearest possible terms that OCR’s regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution … 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. [Emphases added.]

In last week’s letter—which does not contain the term "First Amendment" or "free speech" anywhere in its 31 pages—OCR says the opposite. Now, according to OCR, to be in compliance with its Title IX obligations (which is necessary to avoid a loss of federal funding), a university must prohibit all of what OCR calls "sexual harassment," which includes subjectively offensive but protected speech that does not rise to the level of creating a hostile environment. (For more specifics, see Professor Eugene Volokh’s excellent analysis.) Indeed, the letter specifies that at the University of Montana, students must even receive "regular mandatory training" to ensure that they are aware of the university’s "prohibition" of "sexual harassment." 

Sometime between 2003 and last week, OCR seems to have completely forgotten that public universities, in addition to their obligation to prevent sex discrimination, have a legal obligation to uphold the First Amendment rights of their students and faculty. Last week’s letter, which conditions the receipt of federal funds upon committing First Amendment violations, leaves those universities in a virtually impossible and unenviable position.  

FIRE is fully committed to ensuring the First Amendment remains in its rightful place on the university campus, and we will keep you posted on our efforts in the coming days, weeks, and months.

Cases: Departments of Education and Justice: National Requirement for Unconstitutional Speech Codes