From: OCR-PLG@ED <OCR-PLG@ed.gov>
Date: Wed, May 29, 2013 at 12:20 PM
Subject: Your recent inquiry to the U.S. Department of Education
Thank you for your email regarding the resolution agreement and letter issued to the University of Montana by the Department of Education’s Office for Civil Rights (OCR) and the Department of Justice (DOJ) on May 9, 2013. OCR shares your commitment to the First Amendment. We have always maintained that the civil rights laws OCR enforces must be interpreted in ways that are consistent with constitutionally protected First Amendment rights.
Furthermore, as we have said in the past, OCR’s regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment.” (See 2003 First Amendment Dear Colleague letter at p. 1.) This guidance, as well as OCR’s 2001 Revised Sexual Harassment Guidance, which also addressed First Amendment issues, remain fully in effect, and are available on OCR’s web site (see, for example, the materials in “OCR’s Reading Room” at [ ] http://www2.ed.gov/about/offices/list/ocr/publications.html).
OCR and DOJ’s May 9 resolution agreement and letter to the University of Montana require that the University take steps to prevent sexual harassment from creating a hostile environment for any student, and to eliminate and redress any hostile environment that arises. The agreement and letter are entirely consistent with the First Amendment, and did not create any new or broader definition of unlawful sexual harassment under Title IX or Title IV.
Consistent with OCR’s previous, well-established guidance, the May 9 letter explains that “sexual harassment” is unwelcome conduct of a sexual nature but that sexual harassment is not prohibited by Title IX unless it creates a “hostile environment” — that is, unless the harassment is sufficiently severe, pervasive, or persistent such that it denies or limits the student’s ability to participate in or benefit from the school’s program. To create a hostile environment, something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive must exist. Rather, the conduct or speech must also deny or limit a student’s ability to participate in or benefit from the educational program.
Our letter and agreement require that the University of Montana’s policies and procedures consistently articulate the University’s prohibition of sexual harassment that creates a hostile environment. At the same time, it is important that students are not discouraged from reporting harassment because they believe it is not significant enough to constitute a hostile environment. Students will be allowed to bring complaints when they have been subjected to unwelcome sexual conduct, and the University will evaluate whether that harassment has created a hostile environment. Making this determination requires, as it has in the past, the University to examine both whether the conduct is objectively offensive and its subjective impact on an individual.
In preventing and redressing discrimination, schools must formulate, interpret, and apply their rules in a manner that respects the legal rights of students and faculty, including the First Amendment. We will support the University of Montana in its efforts ensure that any policies it adopts will comply with the Constitution.
Thank you for contacting us. I hope this information is helpful.
Office for Civil Rights
U.S. Department of Education