After furor, feds walk back campus speech/discipline code a bit

by Walter Olson on June 5, 2013

Following a widespread outcry, the Education Department’s Office of Civil Rights appears to be backtracking a bit in its very ambitious “blueprint” which colleges and universities must follow in the name of combating sexual assault. In particular, it now says it does not intend to require universities to punish speech and other conduct that is not objectively offensive, or that is too trivial or transitory to create a “hostile environment” as defined by court precedent. However, it does continue to insist that such behavior is “harassment” and that schools must make it “reportable,” that is, be willing to open grievance and complaint processes to document it. This is really no more acceptable than its first position, for reasons outlined by the Foundation for Individual Rights in Education (FIRE), which has been following the issue. [FIRE, more, Robby Soave]

I’ve got an article on the controversy due to appear in a forthcoming issue of Commentary. Earlier here, here, and here.

More: Rob Jenkins in Chronicle of Higher Education on “Purging My Syllabus.”

{ 1 comment }

1 Hans Bader 06.05.13 at 3:37 pm

It’s worth noting that a protracted investigation of speech can violate the First Amendment even if it doesn’t lead to any formal discipline. See White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (holding federal civil-rights officials liable for investigating protected speech that allegedly discriminated against the disabled).

It’s also worth noting that some core political speech is protected even if it DOES create a hostile environment and offend a reasonable person. For example, a federal appeals court dismissed a racial-harassment lawsuit over a professor’s racially charged immigration emails, holding that they were protected speech, especially since they were not aimed at any specific Hispanic plaintiff who sued over them alleging a hostile work environment. (See Rodriguez v. Maricopa Community College, 605 F.3d 703 (9th Cir. 2010).)

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