Administrator Joins OCR in Forgetting the Constitution’s Supremacy

Earlier this month, Michigan Technological University (MTU) found itself at the center of some unwanted attention after unconstitutionally disciplining a student newspaper based on the content of one of its articles.

The Daily Bull, a satirical publication, was placed on probation for two years by the MTU administration and had part of its funding revoked by the student government after publishing a satirical article titled “Sexually Harassed Man Pretty Okay with Situation,” accompanied by a list of “Signs that she wants the D.”

FIRE is unfortunately all too familiar with attacks on the First Amendment rights of student publications and journalists, from both meddling administrators and overzealous student governments. Justifying the decision to sanction The Daily Bull, MTU maintained that even though the administration knew the offending article was satirical, some might construe it as “advocating sexual violence” and MTU was therefore required to take action based on—you guessed it—Title IX. This interpretation of Title IX’s requirements is troubling enough; satirical articles related to sex are generally entitled to full First Amendment protection.

But what was most notable and troubling about MTU’s intrusion on the First Amendment was a claim made by MTU Vice President for Student Affairs Les Cook regarding Title IX’s alleged primacy in these matters:

"(The Constitution) doesn't supersede it," he said. "Title IX is a federal compliance policy. Those policies supersede anything else."

Let’s be clear about one thing: The Constitution of the United States, including the First Amendment, is “the supreme Law of the Land,” and does in fact supersede any federal regulation that violates it.

But perhaps we can forgive Cook for forgetting this very basic, high school level civics lesson—after all, this is exactly what the federal government wants him to think.

Back in 2013, the U.S. Departments of Justice and Education teamed up to issue a “blueprint” for colleges and universities, defining sexual harassment as “any unwelcome conduct of a sexual nature” (including speech) that offends another person, no matter how irrationally or unreasonably. FIRE quickly pointed out that such a broad definition of sexual harassment would unequivocally infringe on students’ First Amendment rights at public universities.

Sure enough, numerous colleges and universities—understandably fearful of a potentially very costly investigation at the hands of the Department of Education’s Office for Civil Rights (OCR) that could result in the loss of all federal funding—rushed to enact precisely the type of overbroad, unconstitutional policies mandated by the “blueprint.” Administrators were pressured into overreacting to any complaint about campus expression that could conceivably relate to sex or gender.

In 2013, for example—in a case remarkably similar to The Daily Bull’s—the University of Alaska Fairbanks (UAF) repeatedly investigated its student newspaper for nearly an entire year due in part to a satirical April Fool’s Day article describing the university’s plan to construct a vagina-shaped building, which included a picture from the 1998 PG-13 rated film Patch Adams. Only after FIRE wrote to UAF was the speech-chilling inquisition called off for good.

FIRE has loudly and repeatedly warned OCR, the United States Congress, college administrators, students, and the general public about the threat to freedom of expression on campus posed by the unprecedented and unconstitutional expansion of the federal government’s definition of sexual harassment. And although OCR has privately walked back from its unconstitutional “blueprint,” it has steadfastly refused to do so publicly, or to inform colleges and universities that they are not bound to follow it.

OCR appears to want to achieve through pressure and willful omission what it cannot achieve by law. The tactic, it seems, is working.