Federal Rules Run Afoul of First Amendment

September 2, 2015

By George Leef at The John William Pope Center

They say “the road to Hell is paved with good intentions,” but that doesn’t really describe the whole mechanism. The reason that good intentions can cause so many problems is because they lead to actions with unintended consequences.

One stark example is when federal politicians passed the Higher Education Act, they thought they were only going to help good students who couldn’t otherwise afford college to go. Certainly, they didn’t mean to make college far more expensive, to undermine academic standards, or to give bureaucrats leverage to dictate to colleges and universities.

But all of that has happened. I’m going to focus on the last consequence—the way federal intervention in higher education has empowered bureaucrats to whittle away at free speech on (and even off) campus.

One case involving a student at the University of Kansas illustrates the problem.

Navid Yeasin was enrolled in June, 2013 when he was charged by his former girlfriend (“Ms. W.”) of having committed criminal restraint and battery against her. Consequently, university officials imposed a no-contact order on Yeasin. He was not to approach her or to have any direct or indirect communication with her.

But when the fall semester began, she complained to school officials that, because of Yeasin’s abuse and sexual harassment, she was still experiencing fear, anxiety, depression, and nightmares. Therefore, the university repeated the no-contact order against Yeasin and warning him that he could be disciplined not only for contacting Ms. W, but even speaking about her.

And that perturbed him into sending out a number of angry, insulting tweets while off campus. He evidently called Ms. W. names like “bitch” and “psycho,” but he neither specifically named her nor sent the tweets to her. Some of the students who did receive the tweets, however, told Ms. W., who immediately brought them to the attention of university administrators.

In an extreme overreaction, the university then decided to expel Yeasin. But can a public institution expel a student merely for off campus speech that doesn’t threaten anyone?

That is what the court will have to decide in Yeasin v. University of Kansas, currently before the Kansas Court of Appeals. Amicus briefs have been filed by the Student Press Law Center and the Foundation for Individual Rights in Education and, strangely enough, Kansas State University, arguing that the University of Kansas far overstepped its authority.

The SPLC/FIRE brief gets the core of the case exactly right, stating, “[A]cross the country, colleges are seeking to expand their punitive authority over students’ off-campus, online lives. Students routinely face life-altering disciplinary charges for misunderstood jokes or crude comments—even with no connection to the college—incurring penalties once reserved for violent criminal behavior.”

But the university counters that it acted “appropriately and in accordance with its obligations under Title IX.” We can call this the “Title IX made us do it” defense.

That defense must not succeed. The Department of Education’s bureaucrats cannot override the First Amendment and college officials cannot be allowed to hide behind Title IX in order to impose subjective and overbroad rules against free speech.

Back on June 2, the House Subcommittee on the Constitution and Civil Justice held a hearing devoted to the issue of “First Amendment Protections on Public College and University Campuses.” Among those who testified was Hans Bader, a senior attorney at the Competitive Enterprise Institute and a former attorney in the Education Department’s Office for Civil Rights (OCR).

Bader observed that the problem of broad, vague speech codes and harassment policies is widespread and not limited just to cases like Yeasinwhere nothing more than personal feelings are involved. “The danger that overly broad definitions of harassment will stifle campus debate about important political and social issues is very real, since students have been charged with racial or sexual harassment for discussing issues such as affirmative action, feminism, homosexuality, and the death penalty under broadly worded campus harassment policies,” he stated.

In short, in trying to avoid liability for “sexual harassment” under Title IX, many schools have gone way too far. They have allowed hyper-sensitive or vindictive students to use Title IX regulations as a weapon against anyone whose speech offends or annoys them.

Even though the Education Department officially has advised colleges (in a 2003 guidance letter) that Title IX may not be used to regulate the content of speech, it is being used expressly for that purpose. This occurs because the Department’s Office for Civil Rights has control over federal money flowing to schools, giving it power to “influence” school officials. Again, Bader explains: “Using this massive leverage, OCR is now forcing some colleges to pay large amounts of compensation to students who allege harassment or sexual assault, even though it lacks statutory authority to award such compensatory damages.”

The court in Yeasin can act as a brake on this government overreach by ruling that his speech was protected under the First Amendment and that the university cannot hide behind the “Title IX made us do it” defense.

Congress, however, has the bigger part to play. It could head off future cases like Yeasin by clarifying what should already be (but unfortunately isn’t) clear: the First Amendment rights of students are not overridden by anything in Title IX. A good step in the direction would be for it to codify the Supreme Court’s definition of harassment in Davis v. Monroe County Board of Education. 

Under Davis, speech cannot be a Title IX violation unless it is unwelcome, aimed at individuals based on their sex, and so “severe, pervasive, and objectively offensive” that it interferes with the student’s ability to get an education. Unfortunately, as Bader observes, the Office for Civil Rights has “thumbed its nose” at Davis by weakening the definition so that a lot of speech that is protected under the First Amendment seems to constitute “sexual harassment.”

On college campuses, the standard should be that speech is protected, even if it is no more than angry tweeting, and only under extraordinary circumstances can cause the student to be punished or even expelled. The Department of Education has turned free speech into a minefield; the courts and Congress need to sweep that minefield clean.

Schools: University of Kansas