Notre Dame Settles with OCR, Adopts Preponderance Standard, Restricts Free Speech

By July 6, 2011

The University of Notre Dame has settled an investigation by the Department of Education’s Office for Civil Rights into its sexual assault policies and procedures, The Chronicle of Higher Education reports. Predictably, the settlement involved Notre Dame agreeing to use the preponderance of the evidence standard in sexually related cases (FIRE explains its objections to this low standard of evidence here.) According to the OCR press release, the settlement "furthers the goals of OCR and the university to have in place procedures and practices that are designed to prevent a sexually hostile environment from occurring on campus."

FIRE has been worried that OCR’s failure to mention free speech at all in its most recent guidance letter to universities would lead to restrictions on "politically incorrect" speech on campus, and it appears that our concerns are being borne out. I’m still looking at the settlement agreement in detail, but I couldn’t help notice this gem from page 2:

4. The Code contains examples of the types of sexual misconduct that are prohibited by the University and includes a detailed definition of consent. The Code states that prohibited sexual misconduct/assault offenses include: non-consensual sexual intercourse, nonconsensual sexual contact,  and other forms of sexual misconduct including, but not limited to, sexual exhibitionism, prostitution, voyeurism, non-consensual video or audio taping of sexual activity. The Procedures also include examples of prohibited conduct such as dirty jokes and display of pictures with sexual content.  [Emphasis added.]

It is not at all reassuring that the federal government has negotiated a settlement with Notre Dame that specifically ensures that its policy will ban what would clearly be protected speech were it not at a private university. Indeed, with this settlement, it may now be impossible for Notre Dame to grant its students the same constitutional rights guaranteed by law to students of neighboring Ivy Tech Community College in South Bend, Indiana, even if it wished to do so. Notre Dame and its students will surely be worse off for it, and if OCR continues down this path, the rights of America’s students at large will suffer.    

Schools: University of Notre Dame