Citing Centrality of ‘Robust and Discordant Expressions’ to University Life, OCR Dismisses Complaint of Anti-Semitism Against Berkeley

August 30, 2013

Last week, the Department of Education’s Office for Civil Rights (OCR) dismissed a complaint (PDF) by Jewish students against the University of California, Berkeley. The complaint had alleged that anti-Israel protests on Berkeley’s campus created a hostile environment for Jewish students.  Explaining its decision to dismiss the complaint, OCR wrote: In the university environment, exposure to such robust and discordant expressions, even when personally offensive and hurtful, is a circumstance that a reasonable student in higher education may experience. In this context, the events that the complainants described do not constitute actionable harassment. It is stunning to hear OCR speak in such reverent terms about the importance of free speech on campus in light of the fact that, since 2003, OCR’s communications with universities on the subject of harassment have barely mentioned free speech at all. For example, on June 15, 2012, OCR sent Yale University a resolution letter (PDF) related to a complaint filed against Yale for, among other things, an October 2010 incident in which members of a Yale fraternity engaged in “misogynistic chanting.” In that letter, OCR wrote approvingly of the various actions Yale had taken to “address” the fraternity’s conduct, including suspending the fraternity for five years and penalizing individuals with written reprimands. Not once in its letter did OCR consider whether the fraternity pledges’ chants might have been protected speech rather than actionable harassment. Then, of course, there’s the May 9, 2013, settlement with the University of Montana—the federal “blueprint”—in which OCR offered a dramatically expanded definition of sexual harassment without once mentioning free speech. We hope that this new language from OCR about the importance of “robust and discordant expressions,” even when “personally offensive and hurtful,” represents a new direction for the agency’s guidance to universities on complying with its regulations while upholding students’ constitutional rights. While it would have been nice to see this language in earlier communications regarding harassment on campus, it’s better late than never.

Schools:  University of California, Berkeley

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