FIRE announces its Speech Code of the Month for December 2014: Pennsylvania State University (Penn State).
At Penn State, “Sexual Harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwanted, inappropriate, or unconsented to.” This is a staggeringly broad definition that includes a tremendous amount of protected speech. According to the plain language of this policy, a single off-color joke or comment is sufficient to constitute sexual harassment if someone subjectively finds it inappropriate, or merely doesn’t consent to hearing it. This is a clear violation of students’ First Amendment rights, which Penn State—as a public university—is legally bound to uphold.
Unfortunately, Penn State is just one of a growing number of schools that have adopted exactly this kind of restrictive sexual harassment policy in response to pressure from the U.S. Department of Education’s Office for Civil Rights (OCR).
You may recall that in May 2013, OCR reached an agreement with the University of Montana regarding its sexual assault policies and practices that OCR described as a “blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” In that agreement, OCR told the University of Montana that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature’” including “verbal conduct” (that is, speech). FIRE immediately warned of the blueprint’s dire implications for free speech, stating in a press release:
In a shocking affront to the United States Constitution, the U.S. Departments of Justice and Education have joined together to mandate that virtually every college and university in the United States establish unconstitutional speech codes that violate the First Amendment and decades of legal precedent.
In a November 2013 letter to FIRE, OCR backed away from its characterization of the University of Montana agreement as a “blueprint,” telling FIRE that “the agreement in the Montana case represents the resolution of that particular case and not OCR or DOJ policy.” As FIRE President Greg Lukianoff noted at the time, however, simply telling FIRE was insufficient:
Colleges have been bewildered trying to reconcile their obligations under the First Amendment with the requirements of the ‘blueprint’—essentially an impossible task. OCR and DOJ now need to directly inform our nation’s colleges and universities that they need no longer face that dilemma.
OCR didn’t take FIRE’s advice, and now the chickens have come home to roost; a distressing number of universities, including Penn State, have adopted new sexual harassment policies that closely mirror the language of the “blueprint.” Because the stakes are high—OCR can ultimately move to withdraw federal funding from schools that do not heed its mandates— FIRE expects that this trend will continue in the absence of crystal-clear guidance from OCR to the contrary. This alarming development threatens to reverse years of progress towards fewer campus speech codes.
For these reasons, Penn State is our December 2014 Speech Code of the Month. If you believe that your college’s or university’s policy should be a Speech Code of the Month, please email email@example.com with a link to the policy and a brief description of why you think attention should be drawn to this code. If you are a current college student or faculty member interested in free speech, consider joining FIRE’s Student Network, an organization of college faculty members and students dedicated to advancing individual liberties on their campuses.