In an April 22, 2016, findings letter concluding its investigation into the University of New Mexico’s policies and practices regarding sex discrimination, the Department of Justice (DOJ) found the university improperly defined sexual harassment. DOJ flatly declared that “[u]nwelcome conduct of a sexual nature”—including “verbal conduct”—is sexual harassment “regardless of whether it causes a hostile environment or is quid pro quo.”
To comply with Title IX, DOJ states that a college or university “carries the responsibility to investigate” all speech of a sexual nature that someone subjectively finds unwelcome, even if that speech is protected by the First Amendment or an institution’s promises of free speech.
The shockingly broad conception of sexual harassment mandated by DOJ all but guarantees that colleges and universities nationwide will subject students and faculty to months-long investigations—or worse—for protected speech.
This latest findings letter doubles down on the unconstitutional and controversial “blueprint” definition of sexual harassment jointly issued by DOJ and the Department of Education’s Office for Civil Rights in a May 2013 findings letter to the University of Montana. FIRE and other civil liberties advocates at the time warned that the controversial language threatens the free speech and academic freedom rights of students and faculty members.
‘TWISTING TITLE IX’ WEEK: Title IX Enforcement Has Continued Negative Effect on Freedom of Expression
September 29, 2016
As my colleague Samantha Harris wrote yesterday, students’ due process rights have been endangered by the Office for Civil Rights’ (OCR’s) guidance relating to, and enforcement of, Title IX over the past five years. Unfortunately, OCR has also taken several steps in recent years that have spurred colleges and universities to violate students’ and professors’ free speech rights under the guise of protecting students from sexual harassment. Title IX requires schools to respond to allegations of sexual harassment in order to ensure no students are denied access to an education because of their sex. Accordingly, ensuring that schools understand the […]» Read More
May 5, 2016
Since the release of the U.S. Department of Justice’s (DOJ’s) April 22 findings letter to the University of New Mexico (UNM), my colleagues have been analyzing many of its problematic aspects. From the overbroad definition of sexual harassment that threatens First Amendment rights on campus to the micromanaging of Title IX compliance, one thing is clear: The federal government is simply asking too much of campus administrators. Although we’ve been focusing largely on the First Amendment implications, the UNM findings letter presents other serious problems as well. One such problem is that colleges and universities are increasingly under pressure to […]» Read More
May 3, 2016
Last week on The Torch, my colleagues examined several alarming aspects of the April 22, 2016 findings letter released by the U.S. Department of Justice (DOJ) concluding its investigation of the University of New Mexico’s (UNM’s) handling of sex discrimination complaints by students. Today, we shift focus from the burden that DOJ’s findings will likely have on the speech and academic freedom of students and faculty, to the burden they will place on university administrations struggling to keep up with the ever-more-specific requirements of Title IX compliance imposed by federal agencies. After its exhaustive investigation of UNM’s Title IX enforcement […]» Read More
April 28, 2016
Last month, the American Association of University Professors (AAUP) released a draft report titled “The History, Uses and Abuses of Title IX” detailing tensions between the federal government’s interpretation of Title IX and the academic freedom and speech protections that faculty require. The group accused the Department of Education’s Office for Civil Rights (OCR) of overreach in its enforcement of the anti-sex-discrimination law, saying its actions effectively force universities to choose between following federal Title IX guidance and “protecting academic freedom, free speech, and due process.” The AAUP wrote: Critically, the current focus of Title IX on sexual violations has […]» Read More
April 28, 2016
As has been covered extensively on The Torch by my colleagues, the Department of Justice (DOJ) significantly harmed free speech on college campuses recently with its findings letter to the University of New Mexico (UNM) concluding an investigation into the university’s policies and practices regarding sex discrimination. Unfortunately, DOJ’s letter doesn’t just create a new problem, nor is its impact limited to UNM’s campus. Rather, the letter adds to the already prevalent problem of colleges and universities throughout the country, under federal guidance, adopting overbroad definitions of sexual harassment in their policies and jeopardizing student and faculty free speech rights […]» Read More
April 27, 2016
This week on The Torch, FIRE is providing an in-depth look at the letter of findings the Department of Justice (DOJ) sent to the University of New Mexico (UNM) last week at the conclusion of its investigation into the university’s sexual misconduct policies. Among DOJ’s objections to UNM’s policies is the following troubling observation: “At the outset of [DOJ’s] investigation, the University had in place a labyrinth of 17 outdated policies and procedures related to sexual assault and sexual harassment, many in conflict with each other and with federal regulations and guidance on Title IX.” FIRE agrees with DOJ that […]» Read More
April 26, 2016
Free speech on college campuses was dealt a significant blow last week when the Department of Justice (DOJ) issued a findings letter against the University of New Mexico (UNM). The letter, reminiscent of the 2013 findings letter and resolution agreement with the University of Montana (proclaimed to be “a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault”), instructs UNM to adopt an unconstitutional definition of sexual harassment. In its letter, the DOJ criticized UNM’s sexual harassment policies because they: mistakenly indicate that unwelcome conduct of a sexual nature does not constitute sexual […]» Read More
April 25, 2016
WASHINGTON, April 25, 2016—The Department of Justice now interprets Title IX to require colleges and universities to violate the First Amendment. In an April 22 findings letter concluding its investigation into the University of New Mexico’s policies and practices regarding sex discrimination, the Department of Justice (DOJ) found the university improperly defined sexual harassment. DOJ flatly declared that “[u]nwelcome conduct of a sexual nature”—including “verbal conduct”—is sexual harassment “regardless of whether it causes a hostile environment or is quid pro quo.” To comply with Title IX, DOJ states that a college or university “carries the responsibility to investigate” all speech […]» Read More