Furor continues over federal campus speech code

by Walter Olson on May 29, 2013

George Will:

When the Education Department was created in 1980 (Jimmy Carter’s payment to the National Education Association, the largest teachers union, for its first presidential endorsement), conservatives warned that it would be used for ideological aggression to break state and local schools to the federal saddle. … Most of academia’s leadership is too invertebrate and too soggy with political correctness to fight the OCR-DOJ mischief. But someone will. And it is so patently unconstitutional that it will be swiftly swatted down by the courts.

Hans Bader in the Chronicle of Higher Education:

In a guide to help colleges comply with Title IX, the Education Department has stated that “conduct of a sexual nature” includes many kinds of speech, such as “circulating or showing e-mails or Web sites of a sexual nature,” “displaying or distributing sexually explicit drawings, pictures, or written materials,” and “telling sexual or dirty jokes.” …

The government says the narrower definition of harassment laid down by the courts [i.e., liability only for failing to act against conduct that is "severe" and objectively offensive] applies only in sexual-harassment lawsuits, not in its Title IX investigations or the standard colleges must apply to their students or faculty. Colleges must declare “any unwelcome conduct” to be a reportable offense.

William Creeley, FIRE:

Unlike the 2001 Guidance [from OCR], the “blueprint” requires the broad definition to be adopted verbatim as university policy. …

Here’s why mandating this new distinction [between "hostile environment" and sexual harassment more generally] is important — and why it harms student and faculty rights. By separating “sexual harassment” from “hostile environment” harassment, OCR has also separated “sexual harassment” from the set of evaluative factors it uses to determine whether a hostile environment has been created. These factors include whether the conduct affected a student’s education, whether the conduct was part of a pattern of behavior, the identity of and relationship between the individuals involved, the context of the conduct, and more. By reviewing these and other factors to determine whether conduct created a hostile environment—and was thus sexual harassment—schools were able to separate truly harassing conduct from merely offensive or unwanted speech.

Earlier here and here.

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1 marco73 05.29.13 at 7:15 am

Something I don’t quite understand – lefties have been in total control of virtually all college campuses since the 1960′s. And yet somehow, to hear them tell it, these campuses continue to be hotbeds of attempted rape and sexual harrassment, populated by troglodytes who see all women as just objects. Come on lefties, you’ve had 50 years to empty the swamp, and yet you seek more and more power.
Why should we let you run anything if you cannot clean up your own back yard?

2 Mike 05.29.13 at 10:04 am

The troglodytes are male students…funny how the male professors, who occssionally seem to regard their female students as members of a harem, are never mentioned.

3 Richard Nieporent 05.29.13 at 10:25 am

Great observation Marco73. I too have wondered how universities, where Conservatives are at a minimum an endangered species if not already extinct, can be so infested with racism, sexism, and homophobia, that they must banish the First Amendment rights of the students. Even more astonishing, is the fact that universities refuse to hire the “correct” percentage of women and minorities. Why is it impossible for these progressives to not discriminate?

4 Hans Bader 05.29.13 at 10:54 am

I should note that, while it is indeed wacky, the Obama Administration’s position is not quite as wacky as some have suggested.

The Obama Administration wants colleges to treat “any” unwelcome sexual conduct (including speech) as a reportable offense, in their internal disciplinary proceedings (although it has not said that students must be expelled for every offensive utterance).

But in its Title IX investigations of colleges, it will generally find the college liable only if someone on campus experienced speech or conduct was “persistent” OR “pervasive” OR “severe.” (By contrast, the Supreme Court has said that Title IX harassment lawsuits must show more egregious conduct than that: conduct or speech that is BOTH “severe” AND “pervasive” and “objectively offensive.” See Davis v. Monroe County Bd. of Educ. (1999))

But if such “persistent” or “pervasive” but non-severe speech by a variety of student exists, the college might be deemed culpable in a Title IX investigation if it had not treated each individual instance of such speech by students, that is later viewed as being part of a “pervasive” or “persistent” category of expression, as reportable “harassment.” That would be viewed as potential negligence on the school’s part.

And to the Education Department, based on its recent letter, negligence plus “persistent” or “pervasive” conduct that creates a hostile environment equals liability in Title IX administrative investigations, even if nothing “severe” has occurred. (By contrast, the Supreme Court in Davis required “severe” conduct, interference with access to an education, and deliberate indifference as well, for liability in a harassment lawsuit).

Thus, the Education Department’s demand functions much like an unconstitutional zero-tolerance policy for offensive speech, in violation of federal court rulings like Saxe v. State College Area School District that say that a school generally cannot punish a student for a single instance of non-severe speech under a sexual-harassment policy, even if it is “unwelcome” to listeners.

As such, the Education Department officials themselves may be subject to First Amendment damages liability in suits by affected students. See White v. Lee (9th Cir. 2000) (individual liability against federal civil-rights officials); Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board (1978) (OCR could not force school board to restrict speech).

Disclosure: I used to work for the Education Department’s Office for Civil Rights.

5 David Woodbury 05.29.13 at 1:44 pm

Reminds me of the socialists’ motto: Your rights end where my feelings begin.

6 David Veatch 05.30.13 at 1:17 pm

Maybe someone can explain to me how “objectively” can be used as an adverb modifying “offensive”.

7 Conor McCartney 06.11.13 at 12:59 pm

This all springs out of a liberal censorship movement. It was a fringe feminist movement about 30 years ago but it has trickled its way into mainstream liberal consciousness that speech that is deemed ‘offensive’ or ‘hateful’ should be curtailed. The irony is if you read their opinions on the matter they make sure to point out how censoring ‘hate speech’ doesn’t violate the first amendment, although it clearly does.

8 David Schwartz 06.11.13 at 8:35 pm

David Veatch: “Objectively” just means that you ignore any unusual characteristics of the particular individuals involved. You may be offended by the word “moist”, but it wouldn’t be considered “objectively offensive” unless we would reasonably expect a typical person to be offended by the term in the context in which it was used. It basically means the test isn’t whether anyone was actually offended but whether a rational observer would have expected anyone to be.

9 Bob Lipton 06.12.13 at 9:21 am

If I read you right, David, then everything is “objectively offensive” since some one is sure to be offended by any sentence.

Bob

10 David Schwartz 06.12.13 at 9:59 pm

Bob Lipton: No, you don’t read me right. Please try reading again, particularly the “reasonably expect a typical person to be offended by the term in the context in which it was used” part.

11 Bob Lipton 06.12.13 at 10:24 pm

“Reasonable” and “typical”. There’s a couple of words that should clear up any ambiguity!

Bob

12 David Schwartz 06.13.13 at 4:18 am

Bob: Many legal principles can’t be turned into mechanical tests that can be easily applied ministerially. That’s why we need juries and judges — to exercise judgment.

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