FIRE announces its Speech Code of the Month for April 2016: Clemson University.
At Clemson, sexual harassment is defined as “unwelcome conduct of a sexual nature,” including “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature . . . .” This definition includes a vast amount of protected speech, as a single joke or comment that someone subjectively finds to be unwelcome “verbal . . . conduct of a sexual nature” would fall under its breadth. As such, the policy is a clear violation of students’ rights under the First Amendment, which Clemson—as a public university—is legally required to uphold.
Clemson’s policy is yet another troubling example of the adoption of the overbroad “blueprint” sexual harassment standard set forth by the Department of Education’s Office for Civil Rights (OCR) in 2013.
Torch readers may recall that in May 2013, OCR and the Department of Justice issued a findings letter announcing a settlement agreement with the University of Montana, ending an investigation into its policies and procedures addressing sexual harassment and sexual assault. The findings letter said the agreement would “serve as a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” In turn, it defined sexual harassment as “any unwelcome conduct of a sexual nature,” including “verbal conduct.” The agreement even instructed that such harassment need not be “objectively” offensive, meaning that a person’s subjective feeling about what constitutes harassment is sufficient to meet the standard. Under this broad definition, just about any sex- or gender-related speech that an individual finds to be offensive could be punishable and the subject of a university investigation.
This standard represents a radical departure from the U.S. Supreme Court’s controlling standard for student-on-student (or peer) hostile environment harassment in the educational setting, set forth in Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999). Under the Court’s decision in Davis, alleged harassment must be conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”
In contrast, the OCR blueprint fails to incorporate the essential elements of “severe,” “pervasive,” and “objectively offensive” conduct, rendering it an overbroad definition that threatens the protection of free speech.
In a November 2013 letter to FIRE, OCR backed off from the characterization of the standard as a national blueprint, insisting that the standard represented only an agreement between the departments and the University of Montana, rather than official policy. However, simply responding to FIRE that this was not, as OCR had previously indicated, a national blueprint, was insufficient to clarify the agency’s position to federally funded institutions, as is evidenced by the continued adoption and use of the blueprint’s language into 2016.
Clemson represents just one of the many schools using a form of OCR’s overbroad blueprint standard. The pressure to comply with what colleges and universities see as a mandate from the federal agency—particularly where federal funding is on the line—creates dramatic incentives for university policy makers.
Followers of FIRE will remember that, in January of this year, we sponsored the lawsuit of professor Teresa Buchanan against the Louisiana State University (LSU) administration after she was fired for occasionally using profanity and sexual language as a pedagogical tool in her classroom. LSU found that her language constituted sexual harassment under its sexual harassment policy, which mirrors OCR’s blueprint definition. Buchanan’s case is just one example of OCR’s blueprint being used to punish protected speech.
We continue to call on OCR to clarify that its agreement with the University of Montana is not binding on other colleges and universities, and we encourage Clemson and other institutions to abandon the unconstitutional blueprint standard and stand up for their students’ First Amendment rights.
For these reasons, Clemson is our April 2016 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 firstname.lastname@example.org 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 the FIRE Student Network, an organization of college faculty members and students dedicated to advancing individual liberties on their campuses.