WASHINGTON, October 1, 2013—The University of Montana’s (UM’s) new sexual harassment policy threatens the First Amendment rights of students and faculty. Drafted in consultation with the Department of Education’s Office for Civil Rights (OCR) and the Department of Justice (DOJ), the policy was approved by the agencies last week. Faculty members are also alarmed that a list of faculty who refuse to attend the university’s trainings on the new policy will be reported to the federal government.
“Not only has the federal government approved an unconstitutional speech code, it has demanded a list of the names of faculty members who don’t attend a training session about it,” said FIRE President Greg Lukianoff. “Worse still, students and faculty may face discipline even if they are cleared of harassment and discrimination charges. Couple these flaws with broad, vague definitions, and the result is that UM has vast discretion to silence students and faculty members, to the detriment of fairness, clarity, and free speech.”
The federally approved policy empowers UM to “take appropriate action”—apparently including discipline—against a student or faculty member “to prevent the creation of a hostile environment,” even after a university investigation has failed to find the student or faculty member responsible for “discrimination or harassment that creates a hostile environment.” This means that even if UM believes a student or faculty member’s expression is protected by law, it may still prevent that person from speaking.
Making things worse, the names of faculty who do not attend mandatory training sessions regarding this constitutionally suspect policy will be reported to the Department of Justice. The Missoulian newspaper reported that faculty members have sent a letter to UM President Royce Engstrom expressing alarm about this requirement, and that Faculty Senate Chairwoman Liz Putnam believes the concerns are shared throughout the faculty.
“The history of government officials’ compiling lists of dissenters is not a happy one,” noted Lukianoff.
UM agreed to change its sexual assault policies as part of a resolution agreement signed in May that concluded a year-long federal investigation into the university’s handling of sexual misconduct allegations. The 47-page resolution agreement and findings letter—labeled a “blueprint” for campus sexual harassment policies nationwide—requires UM to take a series of burdensome, confusing, and intrusive steps in an effort to address the real problem of sexual assault on campus.
The “blueprint” was criticized by civil liberties organizations and distinguished civil libertarians,national commentators, First Amendment experts, editorial boards, and even Senator John McCainafter the Foundation for Individual Rights in Education (FIRE) pointed out that its definition of sexual harassment contradicts longstanding legal precedent from federal courts—including the Supreme Court of the United States—and endangers speech protected by the First Amendment.
The new policy represents a notable departure from the requirements specified in the “blueprint.” For example, the policy’s definition of prohibited harassment includes an objective standard, which had been rejected by the “blueprint.” The new policy also explicitly exempts curricular materials and promises that the university will “comply with free speech requirements for students and employees.”
Nevertheless, the policy still poses First Amendment concerns. For instance, UM’s definition of “discrimination” includes “treat[ing an] individual differently” on the basis of 17 different characteristics, including an individual’s “political ideas.” This definition could classify protected speech—for example, satirizing fellow students’ political beliefs—as “discrimination.”
FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, freedom of expression, academic freedom, due process, and rights of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America can be viewed at thefire.org.
Image: “University of Montana” - Flickr user Wesley Fryer