From FIRE (Foundation for Individual Rights in Education), on a controversy we’ve followed closely over the course of the year:
The federal government is backing away from the nationwide “blueprint” for campus speech restrictions issued this May by the Departments of Education and Justice. The agencies’ settlement with the University of Montana sought to impose new, unconstitutional speech restrictions, due process abuses, and an overbroad definition of sexual harassment and proclaimed the agreement to be “a blueprint for colleges and universities throughout the country.”
But in a letter sent last week to the Foundation for Individual Rights in Education (FIRE), the new head of the Department of Education’s Office for Civil Rights (OCR), Catherine Lhamon, said that “the agreement in the Montana case represents the resolution of that particular case and not OCR or DOJ policy.”
FIRE adds that the Department’s recent actions in cases involving public colleges no longer insist on “the worst features of the Montana settlement.”
“…because housing officer didn’t report alleged domestic abuse” [ABA Journal]
His new column for Bloomberg concludes:
One danger is that speech that should be allowed will effectively be banned by the federal government. Another is that even when allegations concern things that should be banned, the process will be unfair to accused students and professors who are innocent of them.
No one doubts that some victims of genuine harassment — and worse — get treated badly by university administrators. And sometimes “he said, she said” conflicts just don’t generate enough evidence to determine who’s in the right, and real misconduct can therefore go unpunished. But there are also false accusations, misinterpretations, ambiguities. Whatever the solution to the problem is, the system that President Barack Obama’s administration is creating isn’t it.
Recommended. (Earlier here, etc.)
Commentary has un-paywalled my July article on the feds’ “blueprint” for how colleges and universities must deal with charges of sexual misconduct. I explain why despite a retreat to a seemingly less extreme interpretation of the law, the dangers remain that the Department of Education and Department of Justice will arm-twist academic institutions into stacked disciplinary methods and new curbs on speech. Read it here (and also consider subscribing to Commentary, gates aside). Earlier here, here, etc.
Two points worth noting: first, while the Obama administration has pushed the new plan hard, the wider trend of gradually stepped-up federal supervision over university life has been going on for decades under Republican and Democratic administrations alike. There is not much resistance: university officials and organized professors themselves are relatively half-hearted about sticking up for their own institutional autonomy. Indeed, the federal prescriptions represent in some ways a consolidation of power by already-powerful elements within the academy, as opposed to a perceived hostile takeover from the outside. In the same July issue of Commentary, Philip Hamburger has an excellent article outlining how university researchers have for decades now tamely submitted to federally prescribed controls — overseen by so-called IRBs, or institutional review boards — over such relatively innocuous forms of “human-subjects research” as interviewing politicians and observing passersby in public places. In 2007, David Hyman wrote for Cato’s Regulation magazine on “The Pathologies of Institutional Review Boards.”
P.S. Much more on IRBs from George Mason’s Zachary Schrag (book, another interview, more, blog).
At the Foundation for Individual Rights in Education, Greg Lukianoff offers “Four Key Points About Free Speech and the Feds’ ‘Blueprint’“. He notes that overbroad notions of harassment have been the key driver of university speech codes and disciplinary action against dissenting and unpopular speakers, that DoJ and ED lack credibility in their new claim that the rules are only meant to encourage reporting as distinct from discipline, and that the implications go far beyond sexually oriented speech or flirtation to include wide swaths of controversial speech having nothing to do with sex. More: “OCR Descends into Self-Parody in Front of Incredulous College Lawyers” [Robert Shibley, FIRE; Chronicle of Higher Education] and Sen. John McCain demands answers.
Separately, FIRE has kind words for my new Commentary article on this controversy:
In the July/August issue of Commentary, Cato Institute Senior Fellow Walter Olson puts the Departments of Education (ED) and Justice’s (DOJ’s) May 9 Title IX compliance “blueprint” in its historical context and emphasizes several of its alarming repercussions….
Olson continues, explaining that the purported distinction between reporting speech and punishing speech under OCR’s definition of harassment is negated by other troubling side effects of the blueprint:
This is a distinction without a difference. To begin with, the process itself amounts to punishment: Once people realize that a certain type of joke or gossip can get them summoned involuntarily into a grievance process of indefinite length and destination, many will get the message and shut up. Second, in defining such speech as harassment while claiming the intent is merely to record and document but not to suppress it, OCR is departing from the commonly shared meaning of the word harassment as something objectionable that should be stopped.
It’s also covered in Italian-language ThinkNews (“il magazine ‘Commentary’, uno dei più prestigiosi mensili di analisi della vita americana.”) Earlier here, etc.
Defending the Obama administration’s new rules governing discipline at colleges and universities, ThinkProgress makes it all sound more reasonable by erroneously reporting that the crackdown is on “unwanted contact”; the actual phrase is “unwanted conduct,” with “verbal conduct,” i.e. speech, very much part of that [Will Creeley, FIRE]
In the July Commentary I have an article on the controversy over the new blueprint (“Sentence First, Verdict Afterward“). It’s behind a paywall, but you can purchase it individually, or better yet subscribe to Commentary which is full of other great articles as well.
My colleagues Roger Pilon and Ilya Shapiro (and more) analyze the Supreme Court’s unexpectedly narrow 7-1 decision in Fisher v. University of Texas, and Stuart Taylor, Jr. and Richard Sander also write about the case for USA Today. More: Ilya Somin.
Alexandra Petri dissects the new federal campus speech and discipline code [Washington Post]:
Forget history (too much sex there, and such unenlightened attitudes towards women). Forget pretty much anything by the ancient authors, especially the “Iliad.” …
Maybe that guy who replaces all the plots of classic literature with zombies can get a job going through these great books and removing all the allusions to unwelcome conduct of a sexual nature with zombies….
It is vital that campus administrators take sexual assault and sexual harassment seriously. But is diluting the label of sexual harassment really the way to go?
More: Peter Wood/Minding the Campus. Earlier here, here, etc.
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.”
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.
Cathy Young checks out a much-told anecdote of misogyny, and finds that there isn’t much there. [Minding the Campus]
FIRE, Hans Bader, Eugene Volokh and other free speech advocates are sounding the alarm about remarkable and extreme guidelines on university discipline emanating from the Department of Justice Civil Rights Division and Education Department Office of Civil Rights. I’ve got more details at Cato at Liberty. Earlier here, here, etc.