Defending ‘Blueprint’? Better Read the Actual Text

July 5, 2013

In New York Magazine’s “The Cut” Wednesday, Kat Stoeffel reassured readers who might be concerned about problems with the Departments of Education (ED) and Justice’s (DOJ’s) May 9 “blueprint” letter. Unfortunately, her reassurances are based on incorrect information, making arguments contradicted by the text of the letter itself.

Stoeffel writes:

For reporting purposes, the agreement defined sexual harassment as “any unwelcome conduct of a sexual nature,” an expansion from the separate, legal standard for sexual harassment under Title IX: harassment “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”

The good news? Stoeffel cites the correct legal standard for sexual harassment in the educational context; the language she quotes is from the Supreme Court’s decision in Davis v. Monroe County Board of Education (1999). The bad news? The blueprint rejects this standard entirely! There’s not a single mention of Davis’ “so severe, pervasive, and objectively offensive” standard in the blueprint, let alone any reference to it as a “separate, legal standard for sexual harassment under Title IX.” (The blueprint dismisses Davis in a footnote, and misquotes it while doing so.)

In fact, the Departments explicitly rejected one of UMT’s sexual harassment policies because it approximated the Davis standard:

[UMT’s sexual harassment policy] states that conduct becomes sexual harassment when it is “sufficiently severe or pervasive as to disrupt or undermine a person’s ability to participate in or to receive the benefits, services, or opportunities of the University, including unreasonably interfering with a person’s work or educational performance.” As explained above, this is the standard for hostile environment — not the definition of sexual harassment. Sexual harassment is unwelcome conduct of a sexual nature.

Not much ambiguity there, so I’m not sure where Stoeffel’s claim that the Davis standard is “the separate, legal standard for sexual harassment under Title IX” comes from. It sure isn’t found in the actual text of the blueprint.

But Stoeffel and other readers should know that FIRE supports use of the Davis standard to define sexual harassment! We think it’s a good, balanced standard that outlaws harassment while protecting speech. It’s also controlling, as the Supreme Court’s only statement on student-on-student harassment in the educational context. Unfortunately, the Departments of Education and Justice disagree.

Similarly, Stoeffel’s assertion that “unwelcome conduct of a sexual nature” is not the Departments’ asserted legal standard for sexual harassment under Title IX is also plainly contradicted by the actual text of the May 9 findings letter (PDF). With no statement that the following is only “for reporting purposes,” the letter declares simply:

Sexual harassment is a form of sex discrimination prohibited by Title IX and Title IV. Sexual harassment is unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence.

The Departments have made clear in their later comments that they are aiming to encourage student reporting. But there’s no language in the blueprint stating that the broad definition of sexual harassment isjust for reporting, as explained earlier this week.

Still, Stoeffel joins ThinkProgress in claiming that the Department of Education’s Office for Civil Rights’ (OCR’s) subsequent email to concerned citizens and DOJ’s statement to The Huffington Post settle the matter:

But, as ThinkProgress explains, the Education Department’s Office of [sic] Civil Rights has said over and over that the new definition will not govern the enforcement of sexual harassment policies. It’s just to prevent students from being discouraged from reporting sexual harassment or assault…. Then let the universities decide whether it constitutes a hostile environment or not.

OCR’s May 29 email and DOJ’s July 1 statement can’t be viewed as an authoritative or binding clarification of the May 9 letter given the fact that they were sent to private citizens and a reporter, not the University of Montana or the thousands of colleges nationwide that accept federal funding. And these later comments from OCR and DOJ don’t actually clarify the May 9 letter. Instead, they flatly contradict it, sowing confusion and raising still more questions.

The real problem here is that Stoeffel and ThinkProgress believe that reporting protected speech for mandatory investigation is acceptable. But as we’ve stated before: the federal government may no more require the reporting of subjectively offensive but constitutionally protected speech as “harassment” than it may require the reporting of “unpatriotic” speech as treason. And remember, the Departments have explicitly authorized disciplinary action even before an investigation is conducted.

Stoeffel and ThinkProgress fail to acknowledge that under the blueprint, students are left vulnerable to the whims of university administrators, who have proven after decades of punishing student and faculty speech protected by the First Amendment that they cannot be trusted to respect civil liberties in deciding whether speech may be punished. Nor can we rely on administrators to use common sense. The University of Alabama, for example, requires 10 days’ notice for students to simply hand out leaflets, and the University of North Carolina at Chapel Hill’s harassment code put a student at risk of punishment for criticizing her school’s handling of sexual assault cases. Appalachian State University professor Jammie Price and University of Denver professor Arthur Gilbert were both suspended for classroom speech on sexual issues that directly pertained to their course subjects. Sadly, FIRE’s website is overflowing with examples like these. Only very naive or uninformed readers would be comfortable entrusting university administrators with the task of enforcing a sloppily written “blueprint” in a way that would avoid intruding on protected speech.

Finally, Stoeffel repeats ThinkProgress’ mistake of characterizing critics of the blueprint as solely “conservative,” ignoring the fact that folks from across the ideological spectrum have expressed alarm at the broad definition. For example, Senator John McCain’s letter explicitly cites concerns voiced by the American Association of University Professors’ Committee on Women in the Academic Profession, which sent its own open letter to the government.

The bottom line is that ED and DOJ are authorizing universities to punish speech that is protected by the First Amendment. Students, faculty, and the general public should not be reassured by claims to the contrary that fail to accurately describe or quote the UMT findings letter and resolution agreement. Unfortunately, the blueprint’s actual text and the depressing history of campus censorship make the threat to student and faculty speech all too clear.

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