This Month in FIRE History: OCR Reinforces First Amendment Protections on Campus

By August 11, 2011

While FIRE’s criticisms of the federal Department of Education’s Office for Civil Rights (OCR) have been manifold of late, nine years ago this month we saluted OCR for its statement in defense of free speech on campus. The episode serves as an excellent lesson for today’s debate over OCR’s recent guidance regarding campus adjudication of sexual harassment and sexual assault cases.

In late July 2003, OCR dealt a major blow to campus censorship when it issued a "Dear Colleague" letter to colleges and universities nationwide that clarified the need for university administrators to respect students’ individual rights and freedom of expression when addressing matters of campus harassment and discrimination. Then-Assistant Secretary Gerald A. Reynolds wrote:

No OCR regulation should be interpreted to impinge upon rights protected under the First Amendment to the U.S. Constitution or to require recipients to enact or enforce codes that punish the exercise of such rights. There is no conflict between the civil rights laws that this Office enforces and the civil liberties guaranteed by the First Amendment.

In light of ongoing university violations of student rights, predominantly in the form of speech codes aimed at "offensive" speech supposedly proscribed by federal policies, OCR’s letter reminded universities that regulatory efforts to end discrimination and harassment do not justify encroachment on the First Amendment. Far from requiring censorship, OCR clarified that its regulations and policies are carefully crafted to balance the need to address and punish true cases of harassment with the need to allow for the full expression of ideas on college campuses. Since OCR has the power to determine the status of federal funding for every college and university in the country based on their compliance with the agency’s policies, the letter marked a major step for upholding the First Amendment on campus. Schools were put on notice—respect students’ speech rights or risk the loss of valuable federal funding.

Unfortunately, nine years later, we are faced with another challenge to individual rights on campus, and this time OCR is on the wrong end of the fight. OCR’s April 4 letter issuing new requirements for the adjudication of sexual harassment and sexual assault cases on campus (most centrally, its imposition of the dangerously low "preponderance of the evidence," or "more likely than not," standard of proof) represents a major threat to students’ free speech and due process rights. Greg laid out what these federal mandates will mean in his article for The Daily Caller:

While OCR’s April 4 letter is aggressive and specific in requiring universities to police harassment, it took little to no notice of the fact that most university harassment policies, and many university sexual misconduct (a euphemism for various kinds of sexual assault, including rape) policies, are dangerously broad…. By making it clear that OCR would be aggressively pursuing harassment claims, by mandating extensive changes to many universities’ due process protections, but not requiring universities to adopt a uniform standard for harassment, OCR has supercharged the power of existing campus speech codes. OCR could have done our nation’s colleges a favor if it required universities to adopt a uniform definition of harassment in the same breath as it required them to aggressively police it. Instead, it’s created a perfect storm for rights violations.

OCR’s effort to ensure that those guilty of misconduct on campus are punished is a worthy one, but unfortunately its letter did little to improve conditions for justice on campus. In fact, the new regulations threaten to turn back the progress made since 2003. This August, OCR should look back on its own history and consider revising its new policies to comport with its defense of the First Amendment in 2003. After all, it was OCR itself which wrote that freedom of expression is of "central importance to our government, our heritage of freedom, and our way of life."

Cases: U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections