Say Anything Sexual That Offends Anyone on Campus, You Must Be Punished or School Can Lose Federal Funding

May 10, 2013

The Foundation for Individual Rights in Education (FIRE) is alarmed today at a letter from the Departments of Justice and Education to the University of Montana. 

Here are some of the reasons why, from a FIRE press release:

In a letter sent yesterday to the University of Montana that explicitly states that it is intended as "a blueprint for colleges and universities throughout the country," the Departments of Justice and Education have mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment. The mandate applies to every college receiving federal funding—virtually every American institution of higher education nationwide, public or private. 

The letter states that "sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature’" including "verbal conduct" (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an "objectively reasonable person of the same gender in the same situation"—if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished….

Among the forms of expression now punishable on America’s campuses by order of the federal government are: 

  • Any expression related to sexual topics that offends any person. This leaves a wide range of expressive activity—a campus performance of "The Vagina Monologues," a presentation on safe sex practices, a debate about sexual morality, a discussion of gay marriage, or a classroom lecture on Vladimir Nabokov’s Lolita—subject to discipline.
  • Any sexually themed joke overheard by any person who finds that joke offensive for any reason.
  • Any request for dates or any flirtation that is not welcomed by the recipient of such a request or flirtation.

There is likely no student on any campus anywhere who is not guilty of at least one of these "offenses." Any attempt to enforce this rule evenhandedly and comprehensively will be impossible.

"The federal government has put colleges and universities in an impossible position with this mandate," said [FIRE president Greg] Lukianoff. "With this unwise and unconstitutional decision, the DOJ and DOE have doomed American campuses to years of confusion and expensive lawsuits, while students’ fundamental rights twist in the wind."

The full letter, for them that like to read and weep. Universities that do not attempt to prohibit those novel definitions of "sexual harassment" are liable to losing federal funds under Title IX and Title IV which "prohibit discrimination on the basis of sex" since sexual harassment is considered a form of sex discrimination under those acts, says the departments.

Yet another reason to get government money out of education, if more were needed.

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