In his latest piece for PolicyMic, Peter Bonilla—Assistant Director of FIRE’s Individual Rights Defense Program—explains exactly how the April 4 "Dear Colleague" letter from the U.S. Department of Education’s Office for Civil Rights (OCR) will negatively impact student speech rights on campus.
As Torch readers know, we’ve been focusing primarily on the due process implications of the letter’s mandates. But, echoing Greg’s piece for The Daily Caller earlier this week, Peter points out that OCR’s failure to reaffirm that its enforcement of civil rights laws must respect First Amendment rights compounds the threat to student speech already presented by many universities’ overbroad and vague sexual harassment policies. Peter writes:
What about incidents of "harassment" based on speech and expression, which also fall under OCR’s regulatory authority? Here the picture is grim, as well. OCR’s letter completely fails to recognize that its civil rights enforcement in higher education must be consistent with university students’ First Amendment rights, which the Supreme Court recognizes time and again as important to society’s well-being.
As I have discussed on PolicyMic before, a significant majority of universities maintain speech codes that flatly violate its students’ free speech rights, often in the form of overbroad and sloppily written "harassment" policies. While it’s true that harassment should not be tolerated by students or universities, such poorly conceived policies result in investigations and punishments because students express opinions that only some find offensive. The problem here isn’t that universities may use too low a standard of proof to investigate such expression; it’s that they investigate it at all. This is part of the reason why OCR’s 2003 "Dear Colleague" letter stressed that its regulations did not permit universities to trample on students’ free speech rights.
Unfortunately, OCR’s mandate ensures that more protected expression will be investigated. This bodes ill for students in a university system that has already demonstrated its willingness to punish free speech.
Torch readers are strongly encouraged to check out Peter’s piece in full.