The Reality of the Government’s Reporting Requirement

June 12, 2013

Over the past month, FIRE has examined almost every angle of the federal government’s new sexual harassment "blueprint," demonstrating its myriad defects time and again. In his most recent article, Senior Vice President Robert Shibley tackles yet another one—the blueprint’s reporting requirement. The Office for Civil Rights has attempted to dismiss concerns about the mandate by arguing that it simply requires schools to report claims of sexual harassment, not necessarily punish those involved in such complaints. In a piece published today on, Robert argues that such a distinction is completely unfounded. He writes:

To be clear: If expression is protected by the First Amendment, the federal government cannot nevertheless label it "sexual harassment." The two are mutually exclusive, which may be why OCR’s response seems to suggest that colleges may have to label some expression sexual harassment but not take any steps to punish it. That’s ridiculous. There’s no way any campus is going to decline to punish a "sexual harasser," whether or not his or her expression is in fact constitutionally protected. Declaring a student a sexual harasser but refusing to punish him or her would basically be inviting either a lawsuit from the "harassed" student or an investigation from OCR, which would be more than happy to second-guess the college’s determination about the speech.

For more on this point—and the entire blueprint—visit

Want to know more about the ED/DOJ "blueprint"?  Check out FIRE’s Frequently Asked Questions here!

Cases:  Departments of Education and Justice: National “Blueprint” for Unconstitutional Speech Codes