Departments of Education and Justice: National “Blueprint” for Unconstitutional Speech Codes

Category: Free Speech

The U.S. Departments of Justice and Education have joined together to mandate that virtually every college and university in the United States establish unconstitutional speech codes that violate the First Amendment and decades of legal precedent.

After proclaiming itself to be a “blueprint” for all schools, the Departments’ May 9, 2013, letter to the University of Montana states that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature’” including “verbal conduct” (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the same gender in the same situation.” If the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.

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 doubled down on the unconstitutional blueprint language. DOJ flatly declared in that letter 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.”

The blueprint requires university staff to relay all sexual harassment complaints to a Title IX Coordinator, who must keep records of the complaints indefinitely, even if the alleged speech is obviously protected by the First Amendment. Further, every case must be investigated by the school. In some circumstances, universities may even punish a student before he or she is found guilty of any offense.

With the very real threat that a student could be punished for speech about sex regardless of the context, campus speech will be substantially chilled. Further, at universities that attempt to follow the Departments’ “blueprint,” students might find their educational careers interrupted or even ended because of the school’s response to speech that is protected by the First Amendment.

ED and DOJ have effectively encouraged the abuse of harassment policies—abuse that has already been taking place for decades. At the same time, the agencies have imposed a long list of requirements with which it would be nearly impossible for UMT to comply. It is in the best interest of all members of the academic community that colleges and universities fight back against this unconstitutional mandate.