In a May 9 letter to the University of Montana, the federal government said it would require nearly every college and university in America, public and private, to institute a reporting system for students to report all speech they see as unpatriotic to campus authorities. College administrators will to be required to conduct a thorough investigation of any such report and save all reports in a database.
Outrageous, isn’t it? It recalls totalitarian regimes where neighbors are encouraged to inform on one another, and the authorities have wide discretion to determine whether you are free to speak your mind—and punish you if your expression does not meet with their approval.
So you’ll be relieved to hear that the first paragraph of this column is not true. Your relief should be brief, though, because there’s actually only one incorrect word in it—the word “unpatriotic.” Replace that word with the phrase “sex- or gender-related and offensive” and the first paragraph is utterly true. And it’s most likely coming to a campus near you this fall. Outrageous, isn’t it? It recalls totalitarian regimes where neighbors are encouraged to inform on one another, and the authorities have wide discretion to determine whether you are free to speak your mind—and punish you if your expression does not meet with their approval.
“Hold on,” you say. “That sounds like sexual harassment, and sexual harassment is not like unpatriotic speech. Sexual harassment is a real problem and should be prohibited!”
Agreed. Unfortunately, as of May 9, what you call “sexual harassment” and what the feds call “sexual harassment” are probably two vastly different things.
In concluding a joint investigation into the University of Montana’s mishandling of sexual assault accusations, the Departments of Justice and Education issued what they described as a “blueprint for colleges and universities throughout the country” for how the departments now expect campuses to treat sexual misconduct charges. As part of this “blueprint,” the feds declared that universities receiving federal funding (virtually all of them) must define sexual harassment as any “unwelcome conduct of a sexual nature,” including “verbal conduct” (a.k.a. speech). They further stated that this amazingly broad definition is not even limited by a “reasonable person” test, but rather hinges on the subjective feelings of the “victim.” The fact that a reasonable person would not be offended by the expression is no longer a bar to a harassment claim.
Expression about the morality of gay sex or marriage (for or against), works of literature such as Ulysses and The Catcher in the Rye, a performance of “The Taming of the Shrew,” a sexually themed joke from Louis CK or Chris Rock, even an unwelcome request for a date—all can now be deemed sexual harassment if someone says he or she finds them offensive. This rule puts campus expression about sex or gender at the mercy of the most sensitive or easily offended person on campus—a ridiculous and destructive result.
It’s no surprise, then, that this mandate has been nearly universally condemned, by everyone from George Will to the Los Angeles Times editorial board. Speech simply isn’t free if it’s put at the mercy of those who’d rather not hear it. An argument that this definition of sexual harassment is workable doesn’t pass the laugh test with people on the left or the right. That’s probably why when the Department of Education’s Office for Civil Rights (OCR) sent out a short response in late May to the criticism it had received, it attempted to play off the rules as a simple reporting requirement while ignoring and contradicting many of the things it said just weeks before.
So what’s wrong with a reporting system? Ask yourself this: How free will students feel to speak on controversial topics once they know their neighbors (or, more likely, their political opponents on campus) might be sending reports into a government database? In fact, the federal “blueprint” demands that the school “maintain records of all complaints, investigations, findings, the basis for those findings, and appeals,” including the name of the complainant and accused—and it says nothing about deleting those records. Ever. That’s right, an account of your having offended somebody with an unwelcome request for a date or participation in a debate about gay marriage could be in your school’s database forever.
To be clear: If expression is protected by the First Amendment, the federal government cannot nevertheless label it “sexual harassment.” The two are mutually exclusive, which may be why OCR’s response seems to suggest that colleges may have to label some expression sexual harassment but not take any steps to punish it. That’s ridiculous. There’s no way any campus is going to decline to punish a “sexual harasser,” whether or not his or her expression is in fact constitutionally protected. Declaring a student a sexual harasser but refusing to punish him or her would basically be inviting either a lawsuit from the “harassed” student or an investigation from OCR, which would be more than happy to second-guess the college’s determination about the speech.
Sexual harassment is a problem that deserves to be combated. But the lengths to which colleges and workplaces go to fight it have already made the subject popular fodder for comedy. Expanding the definition to further absurd lengths and instituting Orwellian reporting schemes will only trivialize real harassment and erode our liberties. The Departments of Education and Justice must rescind and clarify their new rules as soon as possible.