On May 6, the Department of Education issued new regulations governing the way colleges and universities must address claims of sexual misconduct under Title IX. As part of those regulations, the department mandated that institutions use a speech-protective definition of sexual harassment — one adopted by the Supreme Court in 1999 in a case called Davis v. Monroe County Board of Education (the “Davis standard”). On May 14, the ACLU filed a lawsuit to block the use of that definition of harassment from becoming the department’s official policy.
I don’t often find it necessary to publicly disagree with the ACLU on a free speech issue. However, the Supreme Court’s Davis standard, which skillfully drew a line between harassment and protected free speech, remains the best bulwark against the creeping reach of speech codes on college campuses. If the ACLU’s lawsuit were to succeed, it would erase one of the biggest victories for campus free speech in decades.
The ‘Davis’ standard and the ACLU’s position
As put forth by the new regulations, the Davis standard defines peer-on-peer harassment as “[u]nwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” Following Davis, the Department of Education’s new regulations also prohibit schools from being “’deliberately indifferent’ to sexual misconduct.”
The ACLU’s position is that the Davis standard is insufficiently protective of accusers. FIRE’s position is that anything less is insufficiently protective of speech.
The Davis standard was crafted by Justice Sandra Day O’Connor in a majority opinion joined by Justices Ruth Bader Ginsberg, John Paul Stevens, David Souter, and Stephen Breyer to avoid providing schools an incentive to censor protected speech in order to “over-comply” with their Title IX obligations. While the question in Davis was if and when an institution could be held liable for damages under Title IX for failing to address peer-on-peer harassment, several federal courts have subsequently used it in cases involving equitable relief for harassment and in evaluating the constitutionality of campus anti-harassment policies.
There have been a series of pieces from writers and publications criticizing the ACLU’s Title IX lawsuit. On May 21, ACLU national legal director David Cole responded. In general, critics suggested that the ACLU’s lawsuit effectively puts them at odds with providing due process to those accused of sexual misconduct on campus. Cole countered that the ACLU’s objections to the regulations are primarily with its use of the speech-protective Davis standard, not its due process protections.
The ACLU’s lawsuit argues that the new Title IX regulations’ use of the Davis standard is unlawful and discriminatory against women because the regulations do not require colleges to use the same standard in gender discrimination cases as they do in racial discrimination cases. The argument asserts that if it is harder for a complainant to prevail in a sexual harassment claim than a racial harassment claim, complainants in sexual harassment claims are being discriminated against.
The theory that all harassment is the same and should be subject to the same legal standard has a certain appeal. Unfortunately, for all its elegance, it is an ahistorical view. The Supreme Court itself applies different levels of scrutiny to gender-based discrimination claims than it does to race-based claims.
Whether this difference is a feature or a flaw is something law review articles have debated for decades. However, no one debates that the standards are different. They are different bodies of law directed at resolving different problems that were enacted at different times, amended at different times, and subject to different precedents.
If the ACLU is now taking the position that this disparity is discriminatory, it must have quite a few more lawsuits in mind — as it opposes not just Title IX reform, but decades of discrimination law more generally.
In order to understand why the Davis standard is so important to protecting free speech on campus — and why the ACLU’s lawsuit is misguided — one must understand the history of campus speech codes.
What follows is a history of those codes, how they have been used by the federal government and colleges to censor speech for decades, and why the Davis standard — contrary to the ACLU’s position — is the appropriate antidote. At the end, I will draw some additional conclusions about the ACLU’s position on Title IX and the Davis standard based upon this history, and point out how that position has been inconsistently applied since 2011.
The history of harassment-based speech codes: 1980s to 2011
The speech-chilling problems related to campus harassment codes are not hypothetical.
The use of harassment codes (or codes combining harassment with other doctrines, like “fighting words”) began to gain traction on campus in the 1980s. They were popularized, quite explicitly, as a way to punish sexist and racist speech on campus that might otherwise be protected by the First Amendment off campus.
The ACLU understood this, because for many years, it actively opposed this abrogation of civil rights. The ACLU filed many of the early campus speech code lawsuits that involved the use of unconstitutional harassment-based speech codes. Just as any First Amendment lawyer would predict, the codes were used and abused in ways their authors did not intend, including against minority groups and women — the very people the codes were intended to protect.
These speech codes were shot down by courts consistently from 1989 to 1995, and by 1997, at least one prominent scholar dubbed them effectively finished. Unfortunately, national attention to campus free speech faded. But despite the previous court decisions — and at least one state law passed specifically to stop campus speech codes in the state of California — the number of harassment-based speech codes continued to increase.
The use of these codes as a tool to punish protected speech became so rampant that, in 2003, the Department of Education issued a “Dear Colleague” letter (DCL) to every school in the country condemning harassment policies that resulted in “the suppression of protected speech on public or private campuses.” A DCL is a letter from a federal agency used to explain existing laws and regulations. While the Department of Education’s standard was not identical to Davis, the department took the position that its policy was consistent with the Davis standard.
It took a non-stop public awareness campaign and dozens of lawsuits — many of them coordinated by FIRE, including several in which state chapters of the ACLU fought alongside us or on their own — to start seeing a decline in 2009 of the adoption and abuse of overbroad and vague harassment-based speech codes. But those victories would be short-lived.
Speech codes influenced by the Department of Education: 2011 to present
Unfortunately, despite progress against harassment-based speech codes, the Department of Education changed course starting in 2011.
Their April 4, 2011 DCL contained new directives to colleges and universities that, among other things, directed schools to use the lowest possible evidentiary standard in adjudicating complaints of sexual assault or harassment.
Then, in a 2013 resolution agreement with the University of Montana, the Department of Education (joined by the Department of Justice) cemented a dramatic departure from its 2003 guidance. In the findings letter accompanying the resolution agreement, the department recast the definition of sexual harassment as “any unwelcome conduct of a sexual nature,” an entirely subjective standard. In the same document, it referred to the agreement and the changed standard as “a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” A press release echoed the “blueprint” designation.
The end result is that colleges define harassment as unwelcome speech — and anything students don’t like is unwelcome.
This “blueprint” definition of harassment is ludicrously broad, easily far more egregious than anything struck down in a speech code lawsuit since 1989. It encompasses a great deal of activity, including expression, that does not meet the thresholds of pervasiveness, severity, and objective offensiveness that actual harassment would require. Accordingly, it encompasses a great deal of First Amendment-protected speech. Given the influence and power of Department of Education pronouncements, the department imposed a sort of national speech code on colleges and universities across the country.
This language is actively suppressing speech on college campuses right now. For example, both Fort Lewis College and Coastal Carolina University use language taken straight from the 2013 blueprint that broadens the definition of harassment to include all “unwelcome conduct of a sexual nature.” Many other colleges use standards that are equivalent, though their wording varies greatly.
Our concern about the broad blueprint definition is not limited to sexual harassment, either. The standard for sexual harassment at many colleges is often quickly applied to every other category of protected classes under a college’s harassment rules, which at some schools include everything from “race” and “religion” to “political beliefs.” The end result is that colleges define harassment as unwelcome speech — and anything students don’t like is unwelcome. The new regulations seek to correct this limitation on civil rights by mandating that schools use the Supreme Court’s Davis standard. The ACLU’s lawsuit seeks, specifically, to prevent that correction.
Harassment-based speech codes continue to be a major threat to protected speech on campus
The history of speech codes, both before and after the 2013 blueprint, provides ample evidence that harassment-based speech codes are frequently wielded against speech that isn’t harassing, or isn’t even about a protected class.
Before I first started at FIRE in 2001, I didn’t actually realize how often harassment rationales were used to punish protected speech on campus.
Here is an absolutely nonexhaustive list of some of the cases I saw:
- At Northwestern University, a professor was accused of violating the school’s policies on sexual harassment and retaliation and investigated twice: once for writing an essay critical of Title IX investigations, and once for writing a book about the first investigation. Hear from the professor here.
- At the University of Denver, a professor was found guilty of sexual harassment for teaching sexual topics in a graduate course about the consequences of the drug war.
- At Louisiana State University, a professor was fired for sexual harassment that amounted to the occasional use of profanity and references to sex in preparing her education graduate students for their intended careers as teachers.
- Student journalists at the University of Alaska Fairbanks were subjected to a 10-month investigation for sexual harassment over an April Fools’ Day article about plans to build a new campus building shaped like a vagina. Hear from the editor here.
- At the University of Oregon, a female student was hit with five conduct charges, including harassment, for yelling “I hit it first” at a couple passing by who she did not know. (The joke suggested she had sex with one of them.)
- At Indiana University-Purdue University Indianapolis, a student was found guilty of racial harassment for literally just reading the book “Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan” in public. Not reading out loud, just in a public place. Hear from him (and the book’s author) here.
- At Rutgers University, a professor was found guilty of racial harassment for Facebook posts complaining about gentrification and saying that he “resigned” from the white race.
- Babson College students were charged with harassment for driving around Wellesley College and chanting Trump campaign slogans after the 2016 election.
- A law professor at Howard University was found guilty of sexual harassment for including a hypothetical question about Brazilian waxes on a tort law quiz.
- At Tufts University, a conservative student newspaper was found guilty of harassment for having “targeted” black and Muslim students for “embarrassment” by publishing offensive satire.
- At Doane University in Nebraska, a faculty librarian was suspended and investigated for racial harassment for displaying the university’s own photos of a 1926 party where students wore blackface. The photos were part of a larger historical display.
- A Clemson University student faced harassment charges for joking that an administrator was “smoking crack” during a disagreement over his group’s choice not to participate in a student organization fair.
- A professor at East Georgia College was told to resign or face termination for sexual harassment for criticizing the college’s new sexual harassment policy.
- The University of New Hampshire evicted a student for harassment for posting fliers joking that freshmen women could lose the “Freshman 15” by taking the stairs.
- At Syracuse University, a student was charged with harassment for a satirical blog about law school in the style of The Onion. Hear from the student here.
- At Brandeis University, a professor teaching a Latin American Politics course was found guilty of racial harassment for criticizing an anti-Hispanic slur during a class.
- At Lewis & Clark College, two friends and football teammates (one black and one white) were found guilty of racial harassment and placed on probation after two racially themed jokes were overheard by another student outside a party.
- At Occidental College, a student radio show host was fired and found guilty of sexual harassment (in that order) for his on-air satire.
- At the University of Colorado at Boulder, a professor teaching “Deviance in U.S. Society” had her course cancelled, and was pressured to retire, after a lecture involving a skit where volunteer teaching assistants portrayed prostitutes.
I could go on. And these include only incidents that became public. In FIRE’s experience, most people accused of harassment are not eager to make that fact more public — even if doing so might vindicate them.
The ACLU should reconcile its current position with its past inaction and consistently support student rights in the future
The ACLU lawsuit against the Department of Education’s Title IX reforms should fail. Indeed, the ACLU should actually be on FIRE’s side in supporting the Davis standard, as it is the most free-speech protective harassment standard currently on offer. However, if the ACLU is not willing to change its position — given the history we discussed, the arguments in the ACLU lawsuit, and David Cole’s response to its critics — I have concluded the following:
- The ACLU should have joined us in opposing the 2011 “Dear Colleague” letter. The ACLU lawsuit accuses the Department of Education of creating a “double standard” by failing to treat “as parallel” a school’s obligation to prevent sexual harassment and racial harassment. But the 2011 DCL did the same thing when it mandated a “preponderance of the evidence” standard for sexual harassment ajudications without doing so for racial harassment adjudications. If the ACLU sincerely believes that these standards must be identical, it should have challenged the DCL.
- The ACLU should have joined us in fighting the 2013 blueprint. The broad 2013 blueprint definition of harassment is far less speech protective than even the ACLU’s recommended definition of harassment, and it directly imperiled free speech on campus.
- The ACLU can still work with us in opposing the blueprint, starting with supporting the expansion of free speech protections in the Higher Education Act (HEA). The blueprint is not a thing of the past; it still exists on campuses, and the ACLU can join us in opposing it at a number of colleges, including Adams State University, Coastal Carolina University, Fort Lewis College University of Massachusetts at Lowell, and Wichita State University. Additionally, the ACLU should join FIRE’s Legislative and Policy Director Joe Cohn — a former interim legal director of two state ACLU affiliates — in his efforts to include student free speech protections in any upcoming HEA reauthorization.
- If a future administration attempts to revert to the standards similar to those in either the 2011 DCL or the 2013 blueprint, we hope to have the ACLU’s support in opposing that erosion of student rights. According to its statements, the ACLU supports due process rights for the accused and opposes a return to the blueprint’s expansive definition of sexual harassment. If a future administration attempts to reverse current Title IX reforms in a way that returns to the old standards, we ask that the national ACLU stand by its stated positions and help us challenge those efforts.
Author’s note: I would like to thank FIRE’s Adam Goldstein and Ryne Weiss for their essential help in preparing this piece.