by Hans Bader
The Washington Times
The Washington Times rightly criticizes the Obama administration for demanding unconstitutional college speech codes (“Repealing free speech,” Comment & Analysis, May 17). The Department of Education wrongly claims that any “unwelcome” speech about sexual topics is “sexual harassment” — even if it does not offend an “objectively reasonable person.”
As a former Department of Education lawyer, I am shocked by this claim. It contradicts both the Supreme Court’s Davis decision defining sexual harassment in the educational setting and federal court rulings striking down campus harassment codes that restrict speech about sexual issues.
The Supreme Court emphasized that sexual speech must be “objectively offensive” and “severe” to constitute sexual harassment under Title IX. In Dambrot v. Central Michigan University (1995), a federal appeals court struck down a harassment code as unconstitutionally vague because it defined harassment in “subjective” terms. In DeJohn v. Temple University (2008), an appeals court declared a sexual-harassment policy unconstitutional because it reached beyond speech that was “objectively” harmful, and it banned even speech that did not unreasonably interfere with an education.
Competitive Enterprise Institute