‘Washington Post’ Rolls Up the ‘Blueprint’

June 7, 2013

The Washington Post ran a great online piece yesterday taking apart the Departments of Justice’s and Education’s May 9 "blueprint" letter that mandates speech codes on college campuses nationwide. The must-read effort, written by Alexandra Petri, exposes the many ways in which the problematic federal blueprint threatens students’ and professors’ free speech rights. Detailing the obvious flaws with defining campus sexual harassment as "any unwelcome conduct of a sexual nature," including "verbal conduct" (problems which are fully explained in FIRE’s "Frequently Asked Questions" document), Petri examines the breadth of what is truly banned:  Good news for English majors — the reading list just got a lot shorter. The list of books to which an unreasonable person might object because of their "verbal conduct" when it came to sex is — that’s pretty much the syllabus right there. Goodbye, pretty much every work of literature ever. "The Great Gatsby"? "At his lips’ touch she blossomed for him like a flower"? I don’t think so. Knock that off the books. Also, ew. To understand the full impact of the federal mandate, Petri quotes FIRE Director of Legal and Public Advocacy Will Creeley:  As FIRE’s Will Creeley told me via e-mail: "In addition to classifying protected speech as harassment, a deeply problematic result in and of itself, the broad definition renders virtually every student and faculty member on campus guilty of sexual harassment prohibited by Title IX; constrains permissible discussion of sexual and gender-based topics to only that speech deemed acceptable by the most unreasonably hypersensitive student on campus; trivializes real harassment and mandates the waste of institutional resources on mandatory investigations of any complaint of subjectively offensive sexual or gender-based speech, eliminates any possible conception of academic freedom as we now know it; chills campus speech; and empowers university administrators to investigate and potentially punish merely unwanted student or faculty speech." But other than that, it’s a really great approach to dealing with the serious problem of sexual assault and harassment on campus.  She also aptly illustrates the overreaching by the feds on this issue: Look, sexual harassment is a serious problem. But labeling literally everything that is sexual and unwelcome as sexual harassment is not the solution, or we would have shut Michael Douglas up a long time ago. Some behaviors are obnoxious, grating, and ugly, but not against the law. Consider the Westboro Baptist Church, or Nickelback. […] "[S]exual harassment" is a specific category of behavior that is prohibited, and cavalierly tossing "verbal conduct" in a heap of prohibited behaviors seems like trying to kill a grizzly bear by nuking the whole mountain. The grizzly is serious trouble. But that’s not how you get rid of one — not if you don’t want to destroy all kinds of lovey [sic] and necessary types of speech. [Emphasis added.]  Well said, and we couldn’t have made it any clearer ourselves. (Indeed, invoking Michael Douglas and a grizzly bear to illustrate the problems with the blueprint is rather impressive.)  The entire Washington Post piece is well worth a read, and I encourage you to check it out. For now, though, I’ll simply let Petri have the last word:  This is, at best, a careless and poorly thought-through definition where someone failed to make the distinction between sexual harassment that creates a hostile environment (definitely punishable under Title IX) and unwelcome behavior that falls short of that standard (still icky, but not against the law.)Vague speech is the enemy of free speech. Harassment is a serious term. It has to be carefully defined so it can carry all the weight it should. And this is not the way to do it.

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