Two years ago this month, Gerald A. Reynolds of the Office for Civil Rights of the U.S. Department of Education (OCR) wrote a letter of clarification to colleges and universities regarding whether federal harassment laws, which form the basis of universities’ student harassment policies, “are intended to restrict speech activities that are protected under the First Amendment.” The letter explained clearly that OCR’s regulations could not be applied so as to interfere with the right to free expression, and that “the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment under the statutes enforced by OCR.”
Unfortunately, colleges and universities do not seem to have gotten OCR’s message. In the two years since that letter was written, FIRE has continued to receive numerous complaints from students who have been punished under harassment policies for engaging in protected speech. For a prime example of this, see FIRE’s ongoing case at Occidental College. OCR has made clear that colleges and universities will not be held liable under OCR’s regulations for conduct that is protected by the First Amendment. Why, then, do schools persist in their repressive policies?