The Big Chill

By June 1, 2013

by Charlotte Allen

The Weekly Standard


It’s a well-known fact that on most college campuses, supposedly havens of academic freedom, you really have to watch what you say.

The vast majority of America’s universities, both public and private, have speech codes that regulate the utterances of their students, professors, and administrators. Some of those codes at private universities spring from the religious or ethical missions of the institution, and it’s understandable that those campuses might want to forbid, say, swearing or pornography or insulting the institution’s faith tradition. But most campuses are avowedly secular, and what the speech codes enforce is political correctness. That means curtailing expressions deemed “offensive” (a word that appears in many a speech code) to the easily aroused sensibilities of a range of fashionable victim groups, especially militant feminists, for whom, say, fraternity pledges carrying posters reading “WE LOVE YALE SLUTS” outside the Yale Women’s Center constitutes “sexual harassment” (this actually happened in 2008). Some of the codes are laughably extreme. At California State University, Chico, for example, the definition of sexual harassment can include “reinforcement of sexist stereotypes through subtle, often unintentional means” and “continual use of generic masculine terms .  .  . to refer to people of both sexes.”

In recent years, thanks to ridicule and lawsuits challenging the constitutionality of the codes, the free-speech watchdog Foundation for Individual Rights in Education (FIRE) has tracked a slight but encouraging trend among colleges toward getting rid of them. That is, until this May 9, when the Obama administration’s Justice and Education Departments jointly issued a directive that essentially makes speech codes mandatory on all college campuses that accept federal funding. That means all U.S. colleges and universities except for a tiny handful that eschew federal grant money and refuse to participate in the federal student-loan program.

The directive came in the form of a 31-page letter to the University of Montana from the Justice Department (DOJ) and the Education Department’s Office for Civil Rights (OCR), which have authority to enforce antidiscrimination provisions in Title IV and Title IX of federal civil-rights and education laws. DOJ and OCR had conducted sexual-harassment investigations after two female students reported having been sexually assaulted by football players on the university’s Missoula campus in 2011. During the course of the investigation nearly three dozen other complaints about sexual assaults and harassment surfaced, and the DOJ and the OCR took the position that the University of Montana’s procedures for handling those complaints were inadequate.

The May 9 letter reflected the terms of a settlement with the two federal agencies to which the university had agreed. But the letter also declared that those settlement terms were to be “a blueprint for colleges and universities throughout the country.” And the core language of that “blueprint” consisted of a brand-new and sweepingly broad definition of sexual harassment as any “unwelcome conduct of a sexual nature,” including “verbal .  .  . conduct of a sexual nature.” The letter contained no thresholds, limits, or standards for construing what “unwelcome” might mean. “Unwelcome” to whom? The chair of the women’s studies department? A charter member of the Society for Cutting Up Men? Does telling an off-color joke count if someone gets offended?

Furthermore, the DOJ/OCR letter makes it mandatory for the University of Montana—and by extension nearly all universities—to nip sexual harassment in the bud by conducting their own Title IX investigations of any dubious conduct they hear about “regardless of whether a student has complained, asked the university to take action, or identified the harassment as a form of discrimination.” Miami Herald columnist Glenn Garvin joked that a professor could get into trouble for assigning the bawdier bits of Shakespeare.

The new DOJ/OCR definition of campus sexual harassment seems to fly in the face of previous court and administrative interpretations of both sex-discrimination law and the Constitution. Courts have traditionally regarded sexual harassment as grounds for finding an employer or educational institution in violation of prohibitions against sex discrimination, specifically forbidden by Title IX and a range of federal employment laws. But the courts have also interpreted sexual harassment fairly precisely: as either demanding a quid pro quo (sexual favors in return for a good grade) or maintaining a “hostile environment” (permitting sexual assaults, innuendos, or an otherwise sexually unpleasant atmosphere).

In a 1999 decision, Davis v. Monroe County Board of Education, the Supreme Court, following the lead of its earlier decisions on employment law, ruled that for a hostile environment to exist, the harassment of a student must be “so severe, pervasive, and objectively offensive that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the school.” The implication was that an occasional sexual taunt by a fellow student or a stray dirty joke told on campus wouldn’t be enough to hold an institution liable for sex discrimination. In addition, the Supreme Court’s requirement that the words or conduct in question be “objectively offensive” eliminated the possibility that an educational institution could be liable for sex discrimination on the basis of a student’s feeling offended over a classmate’s bringing a copy of the Sports Illustrated swimsuit issue to campus.

Furthermore, the First Amendment’s free-speech guarantees come into play once an educational institution stands in danger of being penalized for permitting expression that would be clearly permissible in a noncampus setting. Public colleges and universities, like other government entities, must afford full First Amendment protection to those on their grounds, and constitutional challenges to absurd speech codes at public universities have been extremely successful.

In 2008, for example, a federal appeals court struck down a sexual-harassment policy at the public Temple University in Philadelphia that banned “expressive, visual or physical conduct of a sexual or gender-motivated nature” after a former graduate student in history sued the university, alleging that the policy prevented him from expressing his views on women in the military in class. Private colleges enjoy no First Amendment protection per se and are free to adopt the speech codes of their choice, although some, such as Yale, have internal policies that at least in theory protect students’ freedom of expression. Still, the Constitution forbids the government from mandating infringements of students’ or professors’ free-speech rights at both private and public institutions.

It was with the First Amendment in mind that in 2003 the George W. Bush-era OCR issued a “Dear Colleague” letter addressed to university presidents reminding them that “the statutes that [the OCR] enforces are intended to protect students from invidious discrimination, not to regulate the content of speech.” The letter by then-OCR chief Gerald A. Reynolds reiterated the standards that the Supreme Court had set forth in the Davis ruling and added this clarification: “OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances, including the alleged victim’s age.” Reynolds borrowed the “reasonable” language from a 1993 Supreme Court decision defining sexual harassment in a workplace context.

The DOJ/OCR letter seemed to have made mincemeat out of the educational harassment standards that had been carefully crafted by the Supreme Court and interpreted by the Bush administration. For one thing, the letter smashed together the tines of the two-pronged test that the Supreme Court had created in the Davis ruling: that the alleged victim must not only feel subjectively harmed or threatened but that the speech or conduct in question must also be objectively harmful under the “reasonable person” standard. Instead the letter said that “the United States considers a variety of factors, from both a subjective and objective perspective, to determine if a hostile environment has been created.”

“The letter widens the universe of things to be considered,” said FIRE’s president, Greg Lukianoff, in a telephone interview. (Lukianoff is the author of a 2012 book, Unlearning Liberty: Campus Censorship and the End of American Debate.) “Now, there’s a balancing test,” Lukianoff said. “You’re effectively getting rid of the ‘objectively offensive’ requirement that’s supposed to be met separately from the requirement that a victim feels subjectively harmed.”

Worse still, according to Eugene Volokh, a professor of First Amendment law at UCLA, the DOJ/OCR letter unmoored the legal concept of “sexual harassment” from the legal concept of a “hostile environment” with its objective and subjective components that the Supreme Court said were necessary to prove a sexual-harassment case in court. Now, effectively, said Volokh, it won’t matter for federal enforcement purposes whether the offensive speech or conduct on a college campus ever gets to the point that it’s “severe” or “pervasive” or “objectively offensive” by “reasonable person” standards. “The OCR says that sexual harassment need not be limited to creating a hostile environment,” said Volokh in a phone interview. “It’s saying that sexual harassment is any unwelcome conduct of a sexual nature. And it’s telling universities that you need to punish that conduct: We expect you to set up a speech code.”

The penalty for a college that fails to follow OCR rules is severe: the loss of all federal educational funding. It is not surprising, then, that the University of Montana scrambled to comply with whatever the two federal agencies demanded as conditions of settlement, even though it remains unclear whether there was any foundation to the numerous complaints about sexual misconduct that allegedly occurred there. The May 9 letter mandated that the university take such measures as “separating the accused harasser and the complainant” and “taking disciplinary action against the harasser”—all on the basis of, say, a ribald speculation about the sex life of the gender-studies professor. When the OCR flexes its muscles in the sexual-harassment arena, academia capitulates. In April 2011 the OCR ordered all colleges to lower their standards of proof in campus disciplinary proceedings for determining whether sexual misconduct had occurred. Not a single college protested.

Right now, the OCR seems to be vaguely embarrassed about the negative publicity that greeted the May 9 letter (a May 16 op-ed by Lukianoff in the Wall Street Journal jeered at the letter’s apparent constitutional deficiencies). On May 22 Education Department spokesman Jim Bradshaw issued a statement insisting that both the letter and the settlement agreement with the University of Montana were “entirely consistent with the First Amendment and did not create any new or broader definition of unlawful sexual harassment under Title IX or Title IV.” He asserted that the OCR remained committed to the hostile-environment standard. But Bradshaw added, “At the same time, it is important that students are not discouraged from reporting harassment because they believe it is not significant enough to constitute a hostile environment.”

In other words: Universities had better set up those speech codes. They’d better start disciplinary proceedings against that professor who assigned Tropic of Cancer in his American literature class and incurred the wrath of feminist grad students. An investigation of this sort might go nowhere, “but professors would start watching what they’re saying in their classrooms,” said UCLA’s Volokh. “That’s a classic ‘chilling effect’ on free speech. It’s why I think this is a very dangerous situation.”

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