The April 4, 2011, "Dear Colleague" letter from the Department of Education’s Office for Civil Rights raises questions about OCR’s continued respect for the free expression rights enjoyed by students at our nation’s college campuses.
In discussing the legal obligations borne by colleges and universities under Title IX to respond to both sexual harassment and sexual violence committed against students, OCR fails to sufficiently recognize the fact that public universities may not violate the First Amendment rights of their students and that private universities must honor their promises of freedom of expression to their students. Nowhere in Assistant Secretary Russlyn Ali’s letter are free expression concerns mentioned, nor is OCR’s 2003 "Dear Colleague" letter regarding the intersection of freedom of expression and harassment policies referenced or cited for further guidance. In that 2003 letter, former Assistant Secretary Gerald A. Reynolds made clear that "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."
Worryingly, this letter fails to replicate the exacting, speech-protective understandings of hostile environment sexual harassment contained in previous OCR guidance letters, including both the 2001 Guidance and the 2003 Dear Colleague letter. In the 2001 Guidance, OCR made clear that in determining whether a hostile environment has been created, the severity, pervasiveness, and both objective and subjective offensiveness of the behavior in question must be considered. OCR explicitly noted that its understanding of hostile environment harassment was informed by the United States Supreme Court’s decision in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), in which the Court found that behavior may constitute hostile environment sexual harassment if it is "so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits." In the 2003 Dear Colleague letter, OCR noted that "OCR has recognized that the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment under the statutes enforced by OCR."
While referring recipients to the 2001 Guidance, the new letter does not itself discuss these more speech-protective conceptions of hostile environment sexual harassment. As a result of this deficiency, FIRE worries that schools seeking to comply with OCR’s increased emphasis on sexual harassment education and prevention will fail to promulgate and disseminate sexual harassment policies that provide sufficient protection for student speech. This result would run counter to previous OCR guidance and legal precedent.
While the concerns about sexual violence emphasized in the letter and concerns about free speech may seem unrelated, it is important to understand that overly broad, vaguely constructed campus definitions of sexual harassment have served as a major justification for abuses of student free speech rights for over two decades. Unless sexual harassment is properly defined, it is FIRE’s experience that such vague regulations too often serve to excuse the punishment of protected speech. For example, a student at the University of New Hampshire was found guilty of "harassment" for posting fliers in his dormitory making fun of women who used the elevators. In another case, a student at William Paterson University in New Jersey was charged with sexual harassment for privately replying to an email from his professor promoting a film about a lesbian relationship. Further, overbroad and vague sexual harassment policies have consistently been invalidated by federal courts on constitutional grounds. In the past three years, the United States Court of Appeals for the Third Circuit has twice found university sexual harassment policies in violation of students’ First Amendment rights.
Colleges and universities are both legally and morally obligated to address sexual harassment and sexual violence on campus. The vast majority are also legally and morally obligated to protect freedom of expression. These responsibilities need not be in tension. FIRE will be submitting a letter to OCR expressing our concerns.