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Arne Duncan: Address Racial Harassment on Campus While Also Protecting Free Speech

By December 1, 2015

Last month, outgoing U.S. Secretary of Education Arne Duncan wrote an op-ed suggesting a number of steps colleges could take to respond to racial tensions that have been brought to light by college students protesting across the country in recent weeks.

The prospect of greater governmental involvement on campus—such as Duncan’s statement to Mic that the Education Department (ED) “want[s] to do more” to address the recent turbulence—should be met with caution, however, by anyone concerned about students’ rights. College students’ free speech and due process rights have suffered significant setbacks in recent years thanks to ED’s Office for Civil Rights’ (OCR’s) unprecedented intervention into colleges’ handling of sexual harassment and discrimination claims under Title IX. Any guidance from OCR must be careful—far more careful than the agency has been in recent years—to clarify to public institutions where they must draw the line between unprotected harassment and constitutionally protected speech, even if that line leaves student protesters dissatisfied. Therefore, we want to take this opportunity to explain how OCR can avoid making more mistakes in its efforts to combat racial harassment.

As Duncan acknowledged in his op-ed, “We must make real the First Amendment guarantee of free speech — which is vital to a life of ideas on college campuses.” We are happy to see Duncan remind readers of this principle. In FIRE’s statement on the protests this semester, we reiterate our longstanding position that whether at public universities bound by the First Amendment or private colleges promising free speech, restrictions on protected expression and compelled support for what an administration considers the “right” views on race are unacceptable and counterproductive.

With respect to addressing student-on-student harassment, OCR and colleges should look to Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), in which the Supreme Court set forth a standard that fully honors institutions’ twin responsibilities to protect free speech and prohibit actual harassment. In Davis, the Court determined that institutions may be held liable by student plaintiffs for “clearly unreasonable” responses to known instances of student-on-student harassment, defining harassment as discriminatory conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” This careful standard properly prohibits true harassment while respecting free speech. By incorporating this precise definition into their policies, colleges and universities can protect robust debate on sensitive topics while ensuring that students will not be subjected to targeted conduct that unlawfully interferes with their education.

Institutions must be prepared for the inevitable result that some, or perhaps many, students will be dissatisfied with an institution declining to punish a wider range of expression that offends, hurts feelings, or makes students uncomfortable. While critics sometimes claim that such speech creates a “hostile environment,” it often does not—at least not in the sense that a public university may legally punish it. In the 2010 case Rodriguez v. Maricopa County Community College District, the United States Court of Appeals for the Ninth Circuit considered a claim that community college professor Walter Kehowski’s emails on immigration and the “superiority of Western Civilization” created a racially hostile environment for his co-workers, and that the college’s administration was clearly required by law to respond by taking disciplinary action against Kehowski. The Ninth Circuit held that, to the contrary, the professor’s speech was precisely the sort of controversial minority viewpoint that the First Amendment was meant to protect. Because the emails did not constitute harassment, and particularly because of the importance of open discourse on college campuses, the college could not be compelled to punish Kehowski. Here on The Torch, we hailed the decision as a “resounding victory for the First Amendment on campus.”

But despite this precedent, other decisions like it, and the moral and practical principles underlying it, college students are now demanding punishment for similarly contentious but constitutionally protected ideas. Some are even requesting institutional responses to speech that, almost by definition, cannot possibly rise to the level of the Davis standard—so-called “microaggressions.” Judge Alex Kozinski’s concluding point in the Rodriguez opinion are particularly apt in this context:

It’s easy enough to assert that Kehowski’s ideas contribute nothing to academic debate, and that the expression of his point of view does more harm than good. But the First Amendment doesn’t allow us to weigh the pros and cons of certain types of speech. Those offended by Kehowski’s ideas should engage him in debate or hit the “delete” button when they receive his emails. They may not invoke the power of the government to shut him up.

A senior official at ED emphasized to Inside Higher Ed that in considering complaints of harassment, OCR looks for a result beyond just someone taking offense to complained-of remarks. That is a good start—but OCR must make crystal clear to administrators and students alike that OCR expects colleges to respect and enforce the important distinction between real harassment and merely offensive speech in practice.

With that in mind, some of Duncan’s suggestions for how colleges can take action (compiled from a meeting of university leaders, students, and legal experts earlier this month) are worthy of comment. Duncan suggests that colleges and universities should “[i]nstitute a statement of values.” Indeed, they may, but as FIRE has said before, public institutions must make such statements clearly aspirational in nature—that is, they can encourage certain attitudes, but they cannot threaten students with punishment for not comporting with institutional values. Duncan also writes that colleges can “[t]each cultural competency.” They may, but they may not require students and faculty to express agreement with certain messages.

Duncan goes on to write that “[p]rotecting free speech can sometimes mean protecting the right to hold and express views that are at odds with strongly held values” and that this “dissonance” can be an opportunity for “teachable moments.” FIRE agrees. However you define “progress,” it is sometimes slow, but it comes only when people make efforts to persuade and discuss rather than censor. We hope that with whatever steps OCR takes next, it reiterates the importance of open debate and points to the Davis standard as the way to protect students from both unlawful censorship and unlawful discrimination.