Fighting for civil liberties on campus can sometimes be a lonely job, but FIRE has been buoyed by the outpouring of concern in recent weeks about the new mandates handed down in April by the federal Department of Education’s Office for Civil Rights (OCR). It seems like we’re not the only ones concerned by the rights-eroding regulations coming out of Washington, D.C.; just ask these commentators what they think about the threats to due process and free speech presented by the new regulations. And it’s not just FIRE and the punditocracy speaking out—add Virginia Tech Vice President for Student Affairs Ed Spencer to the growing chorus of concerned voices.
Last week, Spencer told Roanoke, Virginia’s local NBC affiliate WSLS that he was concerned about the implications of the new guidance for both student speech and student due process rights:
And the new requirements allow for the alleged victim to appeal any university decision. That’s something that concerns administrators like Ed Spencer.
"In a student conduct system or in any system, that’s pretty unusual. And there’s some concerns that there might be some double jeopardy kinds of issues," said Spencer, who is the Vice President for Student Affairs at Virginia Tech.
Spencer says not only do the directives create a challenge for university officials, but he fears they may create a chilly climate on campus.
"I think [there's] a delicate balance here between what is free speech, and what is sexual harassment. And we’ll probably see some court case down the road a little bit," said Spencer.
I’d be surprised if Spencer were the only college administrator who harbors these kinds of concerns about due process. After all, administrators like Spencer have a proverbial front row seat for judicial proceedings on campus, so they’re most attuned to any shift away from hearings that protect the rights of all parties—like that mandated by the new OCR guidance.
As for the sexual harassment/free speech question, there’s no need to wait for a court case: It’s already been litigated many times. I would first point Spencer in the direction of the Supreme Court’s 1999 decision in Davis v. Monroe County Board of Education, wherein the Court established a fair, speech-protective standard for determining when expression loses First Amendment protection and becomes discriminatory harassment (i.e., when the conduct in question is "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities.") I’d next suggest that Spencer check out the United States Court of Appeals for the Third Circuit’s decisions in DeJohn v. Temple University (2008) and McCauley v. University of the Virgin Islands (2010). In each case, the Third Circuit struck down university policies—including harassment policies—on First Amendment grounds. The Third Circuit is of course not the only court to do so, but these opinions, coming from a federal appellate court, would be a good place to start.
Of course, I’d love to hear from other administrators out there who share Spencer’s sense of concern. Feel free to drop me a line anytime.