Campus free speech orgs seek to intervene in lawsuit to defend new Title IX regulations

June 24, 2020

WASHINGTON, June 24, 2020 — Today, a coalition of organizations that support free speech on campus filed a petition in federal court asking to participate in litigation surrounding the Department of Education’s new Title IX regulations

The petition from the Foundation for Individual Rights in Education, Speech First, and Independent Women’s Law Center seeks to defend the free speech protections established by the department against a lawsuit filed by the ACLU. The ACLU lawsuit, if successful, would stop the protections from going into effect.

Specifically, FIRE, Speech First, and Independent Women’s Law Center are asking the court’s permission to “intervene” in the lawsuit in order to argue that the Department of Education’s definition of peer-on-peer harassment is not only permissible but required by the First Amendment.

The department’s definition of harassment comes from the 1999 Supreme Court case Davis v. Monroe County Board of Education. In the case, actionable sexual harassment was defined as conduct “so severe, pervasive, and objectively offensive” that it effectively denies a person equal access to education. The majority opinion, authored by Justice Sandra Day O’Connor and joined by Justices Ruth Bader Ginsberg, John Paul Stevens, David Souter, and Stephen Breyer, emphasized that schools must take care not to “over-comply” with Title IX by censoring protected speech. 

Over the years, campus authorities have employed unconstitutional harassment policies that are inconsistent with Davis to stifle expression and punish students and faculty members. While the ACLU’s lawsuit argues that the new Title IX regulations’ use of the Davis standard is discriminatory toward women, the coalition argues that the Department of Education was required to adopt the Davis standard in order to ensure that college harassment policies are in line with the First Amendment. 

“For more than a generation, colleges have used bogus sexual harassment definitions and transparent double standards to punish students and faculty for expression that is protected by law and often not even that controversial off campus,” said FIRE Executive Director Robert Shibley. “By incorporating the Supreme Court’s definition of sexual harassment and finally complying with the First Amendment, the new Title IX regulations seek to end this abuse. This change should be cheered, not challenged, by civil liberties organizations.”

“For far too long, universities made a conscious decision to sacrifice the First Amendment on the altar of Title IX,” said Speech First President Nicole Neily. “Across the country, our student members’ speech rights have been chilled by overbroad harassment policies that were encouraged by the previous administration’s overreach. The Davis standard is not only the appropriate standard for campus speech — it is the constitutionally required one.”

Jennifer C. Braceras, director of Independent Women’s Law Center said, “Schools may not violate the First Amendment rights of faculty and students on the ground that certain speech offends the sensibilities of certain women on campus. The department’s new rule is not only good policy, it is compelled by law.”

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The Foundation for Individual Rights in Education is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of students and faculty members at America’s colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience — the essential qualities of liberty.

Independent Women’s Forum is the leading national women’s organization dedicated to developing and advancing policies that aren’t just well-intended, but actually enhance people’s freedom, opportunities, and well-being. IWF oversees the Independent Women’s Law Center, which advocates for equal opportunity, individual liberty, and respect for the American constitutional order.

Speech First is a nationwide membership organization of students, alumni, and other concerned citizens; the organization is dedicated to preserving civil rights secured by law, including the freedom of speech guaranteed by the First Amendment.

CONTACT:

Daniel Burnett, Assistant Director of Communications, FIRE: 215-717-3473; media@thefire.org

Elizabeth Tew, Communications Manager, Independent Women’s Forum: 910-988-0726; elizabeth.tew@iwf.org 

John Gage, Speech First Account Executive, CRC Advisors: 402-730-2637; jgage@crcadvisors.com 


Cases:  FIRE defends Title IX regs in court: Know Your IX et al. v. DeVos U.S. Department of Education enacts new Title IX regulations requiring procedural safeguards in campus disciplinary hearings, adopts Supreme Court sexual harassment definition Departments of Education and Justice: National “Blueprint” for Unconstitutional Speech Codes