Since the Departments of Education and Justice released their new "blueprint" for campus sexual misconduct policies on May 9, FIRE and other free speech advocates have done their best to explain exactly what the ED and DOJ have done and why it is so dangerous for free speech and due process on campus. With scores of pages of directions from these agencies, much of it conflicting with past guidance from the Department of Education’s Office for Civil Rights, it is understandable that there are misunderstandings about this blueprint. That said, writers reporting on the matter should be exceedingly careful not to downplay what is a significant and harmful development.
In a May 18 article ("Feds rooting out ‘unwelcome speech’ on campus: But what is that?") for The Christian Science Monitor, Patrik Jonsson reviews reactions to the blueprint. Before relaying the responses of various free speech advocates to the blueprint, Jonsson errs in his reading of the documents (emphasis added):
To be sure, the new rules still require that sex crime allegations suggest either pervasive or severe acts or language, and still require an objective standard before allegations are upheld, according to the Department of Education’s letter to the University of Montana.
This is incorrect. The findings letter explicitly states on page 9 that it is "improper [to] suggest that the conduct does not constitute sexual harassment unless it is objectively offensive." One of the policies that the ED and DOJ ordered UMT to revise prohibited only conduct that was sufficiently offensive as "determined from the perspective of an objectively reasonable person of the same gender in the same situation." According to the ED and DOJ, this policy is fatally flawed and must be revised because "[w]hether conduct is objectively offensive … is not the standard to determine whether conduct was ‘unwelcome conduct of a sexual nature’ and therefore constitutes ‘sexual harassment.’"
In other words, according to the blueprint, the fact that speech is subjectively offensive to a listener—even if that listener is being unreasonable or hypersensitive—can render that speech "sexual harassment," regardless of whether it is objectively offensive. The ED and DOJ need to realize that the Constitution does not allow such a broad restriction on speech and expression. And citizens and reporters need to be aware of what the ED and DOJ have done.