ThinkProgress’ Defense of ‘Blueprint’ Misses the Mark

By and June 7, 2013

Earlier this week, ThinkProgress intern Kumar Ramanathan posted a blog entry on the organization’s website arguing that FIRE and others have misconstrued the Departments of Justice’s (DOJ) and Education’s (ED) May 9 blueprint for college and university sexual misconduct policies. In his piece, Ramanathan writes:

The charge against the resolution has been led by the Foundation for Individual Rights in Education (FIRE), which alleges that the [Department of Education's Office for Civil Rights; "OCR"] OCR and DOJ have created unconstitutional speech restrictions by imposing “a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser,” citing examples of what sort of conduct should be reported rather than punished. Contrary to the assertions of FIRE and subsequent commentators, the OCR agreement only calls for punishment of harassment that meets the legal definition of “severe or pervasive” and demonstrably creates “a hostile environment.” It encourages reporting of other kinds of conduct so that students will be more likely to over- rather than under-report and allow the University to determine what meets the legal definition of punishable harassment.

Ramanathan’s criticism is misleading and incorrect. Worse still, it suggests that the author is troublingly comfortable with both the prohibition of protected speech and with government-mandated reporting of protected speech for official investigation. And, frustratingly, it ignores the threat presented to expression from every point across the ideological spectrum—including a vast range of advocacy that ThinkProgresswould presumably support.

Of course, students can and should be able to report conduct that makes them uncomfortable—but if the offending conduct is solely speech protected by the First Amendment, it cannot be labeled as “sexual harassment” by order of the federal government. Labeling protected speech “sexual harassment” and stating that protected speech is “prohibited under Title IX” undoubtedly chills speech. Chilling the exercise of First Amendment freedoms is unconstitutional, no matter the impetus. As the Supreme Court stated inElrod v. Burns, 427 U.S. 347, 373 (1976): “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”

Not only does the blueprint’s definition chill speech—a grave harm in and of itself—the document requires that schools investigate student and faculty speakers for protected speech. Page 5 of the blueprint states that “[i]n all cases, however, the college or university must conduct a prompt, thorough, and impartial inquiry designed to reliably determine what occurred.” In other words, under OCR’s newly required expansive definition, every report of “sexual harassment”—even if it obviously and only includes protected speech—must be “thoroughly” investigated. It’s a shocking result: a public university will be required by the federal government to thoroughly investigate obviously protected student or faculty speech simply because it offended someone. Ramanathan’s apparent comfort with this outcome is difficult to fathom.

As former Office for Civil Rights attorney Hans Bader has pointed out, federal courts have held that investigating protected speech can violate the First Amendment. And as the Supreme Court made clear inBantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963), “the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation” may also violate the First Amendment. Informing a student or faculty member that his or her speech—despite being protected by the First Amendment—legally constitutes sexual harassment, as defined by the Department of Education, and must therefore be thoroughly investigated surely constitutes such a threat, and thus violates the First Amendment.

Under Section VI of the resolution agreement, the University of Montana must maintain a database containing the names of all students and faculty members accused of sexual harassment, even if the charge is determined to be baseless, or solely concerns protected speech, or doesn’t create a hostile environment. There’s no requirement that these records ever be cleared, leaving baseless charges of “harassment” for simply engaging in protected speech on an official university record seemingly forever. That’s unacceptable.

Being branded a sexual harasser under federal law and being subjected to a mandatory investigation sure sounds like punishment to us, but apparently OCR and Ramanathan feel differently. OCR’s response from last week attempted to argue that deeming speech protected by the First Amendment to be “sexual harassment” and requiring its investigation is justifiable because doing so might encourage more reporting. But again, the federal government may no more require the reporting of subjectively offensive but constitutionally protected speech as “harassment” than it may require the reporting of “unpatriotic” speech as treason.

Also, recall that the blueprint states that in some circumstances, universities may take “disciplinary action against the harasser” even “prior to the completion of the Title IX and Title IV investigation/resolution.” In other words, students and faculty may be punished even before they are found guilty of harassment, and perhaps even before they are charged with infractions. Of course, that’s an incredible violation of a student or faculty member’s right to due process.

Given the absolutely atrocious record of abuse of overly broad and vague harassment policies on our nation’s campuses, FIRE is sadly confident that administrators will fail to observe the niceties of OCR’s poorly articulated distinction between sexual harassment that is “merely” prohibited by Title IX, and thus requires investigation but not punishment, and sexual harassment that rises to the level of a hostile environment and thus warrants punishment. Once an administrator deems speech “sexual harassment” by reference to OCR’s newly mandated definition, he or she will (perhaps understandably) feel themselves required to discipline the “harasser.” Imagine explaining the result otherwise: “Yes, the student engaged in sexual harassment, but we cannot punish the student, because the sexual harassment did not create a hostile environment.” This distinction will not survive contact with campus reality.

Overly broad and vague harassment policies have been consistently struck down on constitutional grounds by federal courts for nearly two decades, and yet FIRE continues to see serious abuses of harassment policies every semester. Just ask SUNY Oswego student Alex Myers, charged with “harassment” last fall for writing a letter to a rival colleges hockey coach for a journalism class assignment. Or Professor Jammie Price, suspended for creating a “hostile environment” after criticizing her university’s response to sexual assault cases involving student-athletes and showing a documentary critically examining the adult film industry in her sociology class. Or Professor Arthur Gilbert, found guilty of sexual harassment after two students anonymously complained about a section on “Drugs and Sin in American Life: From Masturbation and Prostitution to Alcohol and Drugs” in his class on “The Domestic and International Consequences of the Drug War,” which discusses the harms of “purity crusades.”

Speaking of professors, the American Association of University Professors’ Committee on Women wrote OCR yesterday, expressing deep concern about the blueprint’s threat to academic freedom. One wonders if Ramanathan would so cavalierly dismiss them as “conservatives” “hijacking” OCR’s efforts by “conflat[ing] cultural findings with policy prescriptions and invok[ing] the First Amendment as a bogeyman,” too.

Ramanathan’s attempt to dismiss FIRE’s concerns about civil liberties on campus as a somehow partisan endeavor is ridiculous and unworthy of response. We are proudly nonpartisan and our long record of defending speech without regard to content or ideology speaks for itself.

And of course, attempts to apply this blueprint evenly will prove disastrous for student and faculty speech of all types, including speech advocating for many of the causes ThinkProgress champions. For example, if the blueprint is applied across the board, it’s not hard to imagine universities fielding countless complaints from socially conservative students and faculty who may find pro-LGBT rallies, university sex weeks, “slut walks,” Planned Parenthood lectures, poetry readings, comedians, and a vast amount of other protected expression to be “unwelcome” and thus “sexual harassment.” As The Washington Post‘s Alexandra Petri writes today:

The blueprint is so vague that almost anything you say can be used against you — “unwelcome verbal conduct of a sexual nature” could just as easily be a Slut Walk trying to take back a campus as one of the exhibits of fratty jerkishness that the Slut Walk sought to respond to.

We doubt ThinkProgress writers will be so sanguine about the blueprint’s impact when complaints about speech they support prompt mandatory formal investigations, and each investigated student’s record permanently notes that he or she engaged in “sexual harassment” as defined by the federal government’s interpretation of Title IX—even assuming no additional punishment results. File this as a case of “be careful what you wish for.”

The blueprint sets up an administrative nightmare for institutions. If the blueprint is applied in a viewpoint-neutral manner, when conservative students’ complaints are filed, institutions following the blueprint will have to label, say, pro-LGBT speech as “sexual harassment.” On the other hand, institutions that follow the blueprint when it comes to speech that is offensive to progressives, but decline to similarly treat speech that offends conservatives, will be unconstitutionally engaging in viewpoint-based discrimination. Talk about a lose-lose scenario.

FIRE’s position is well-established: Speech on behalf of progressive and conservative causes alike—or on behalf of no cause at all—is protected under the First Amendment and does not constitute harassment unless the speech meets the definition put forth by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), or fits within one of the other narrow categories of unprotected speech. According to Davis, speech or conduct only constitutes actionable harassment when it is part of a pattern of targeted, unwelcome conduct that is discriminatory and so severe, pervasive, and objectively offensive and that so undermines and detracts from the victim’s educational experience that the victim-student is effectively denied equal access to an institution’s resources and opportunities. This exacting definition prohibits truly harassing behavior while protecting student and faculty speech.

Regardless of their partisan affiliation, citizens should recognize that efforts to advance their causes—whether those causes be campaigns for equality, justice, religious liberty, or whatever else—are best served by a robust interpretation of the First Amendment that allows for political debates to unfold without being limited by the most unreasonably hypersensitive individual’s threshold for offense. It is important for all advocates to recognize that the First Amendment has played a prominent and essential role in movements for political change. Both theoretically and in practice, promises of free speech are meaningless if they do not apply evenly to all voices, even voices articulating messages some find offensive, unwanted, or unwelcome.

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