FIRE announces its Speech Code of the Month for January 2017: the University at Albany, State University of New York (SUNY Albany).
According to SUNY Albany’s Sexual Harassment Policy, “sexual harassment in the educational setting” is defined as “unwelcome conduct of a sexual nature,” including “verbal” conduct. This is an extremely broad definition that effectively encompasses any speech about sex or gender that someone subjectively finds offensive—rendering a great deal of constitutionally protected speech subject to punishment.
SUNY Albany’s policy mirrors language put forth by the federal government in a 2013 resolution agreement among the University of Montana (UM) and the Departments of Justice and Education over UM’s policies and practices regarding sexual assault—an agreement the government referred to as a “blueprint” for colleges and universities nationwide. In that agreement, the federal government, like SUNY Albany, defines sexual harassment as “any unwelcome conduct of a sexual nature.”
The government initially appeared to back away from the “blueprint” following criticism from FIRE and other civil liberties groups, but recently, the DOJ doubled down on the language in an April 2016 findings letter concluding its investigation into the University of New Mexico’s policies and practices regarding sex discrimination. In that letter, DOJ stated that “[u]nwelcome conduct of a sexual nature”—including “verbal conduct”—is sexual harassment “regardless of whether it causes a hostile environment or is quid pro quo.”
Last Friday, FIRE sent an open letter to President Donald Trump, urging him and his administration to protect the free speech and due process rights of students and faculty on America’s college campuses. Among other things, FIRE’s letter explained how the “blueprint” prohibits constitutionally protected speech, and urged the Departments of Justice and Education to instead adopt the narrower, speech-protective definition of peer harassment set forth by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999): targeted, discriminatory 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.”
We hope that the new administration will take FIRE’s concerns seriously. In the meantime, however, schools like SUNY Albany and many others continue to maintain overly broad harassment policies that they likely believe are necessary to avoid investigation by the Departments of Justice and Education. But no federal law—much less a findings letter by an administrative agency—can trump the Constitution. See Marbury v. Madison, 5 U.S. 137 (1803) (holding that “a law repugnant to the Constitution is void”). So even if the federal government does not take the necessary steps to distance itself from this obviously unconstitutional definition of sexual harassment, public universities like SUNY Albany—which are legally bound to uphold the First Amendment rights of their students and faculty—should bring their policies in line with the First Amendment.
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, a coalition of college faculty members and students dedicated to advancing individual liberties on their campuses.