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The Big Chill

An Obama administration ‘blueprint’ targets free expression on campuses.

Jun 10, 2013, Vol. 18, No. 37 • By CHARLOTTE ALLEN
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It's a well-known fact that on most college campuses, supposedly havens of academic freedom, you really have to watch what you say.

Dave Malan

Dave Malan

The vast majority of America’s universities, both public and private, have speech codes that regulate the utterances of their students, professors, and administrators. Some of those codes at private universities spring from the religious or ethical missions of the institution, and it’s understandable that those campuses might want to forbid, say, swearing or pornography or insulting the institution’s faith tradition. But most campuses are avowedly secular, and what the speech codes enforce is political correctness. That means curtailing expressions deemed “offensive” (a word that appears in many a speech code) to the easily aroused sensibilities of a range of fashionable victim groups, especially militant feminists, for whom, say, fraternity pledges carrying posters reading “WE LOVE YALE SLUTS” outside the Yale Women’s Center constitutes “sexual harassment” (this actually happened in 2008). Some of the codes are laughably extreme. At California State University, Chico, for example, the definition of sexual harassment can include “reinforcement of sexist stereotypes through subtle, often unintentional means” and “continual use of generic masculine terms .  .  . to refer to people of both sexes.”

In recent years, thanks to ridicule and lawsuits challenging the constitutionality of the codes, the free-speech watchdog Foundation for Individual Rights in Education (FIRE) has tracked a slight but encouraging trend among colleges toward getting rid of them. That is, until this May 9, when the Obama administration’s Justice and Education Departments jointly issued a directive that essentially makes speech codes mandatory on all college campuses that accept federal funding. That means all U.S. colleges and universities except for a tiny handful that eschew federal grant money and refuse to participate in the federal student-loan program.

The directive came in the form of a 31-page letter to the University of Montana from the Justice Department (DOJ) and the Education Department’s Office for Civil Rights (OCR), which have authority to enforce antidiscrimination provisions in Title IV and Title IX of federal civil-rights and education laws. DOJ and OCR had conducted sexual-harassment investigations after two female students reported having been sexually assaulted by football players on the university’s Missoula campus in 2011. During the course of the investigation nearly three dozen other complaints about sexual assaults and harassment surfaced, and the DOJ and the OCR took the position that the University of Montana’s procedures for handling those complaints were inadequate.

The May 9 letter reflected the terms of a settlement with the two federal agencies to which the university had agreed. But the letter also declared that those settlement terms were to be “a blueprint for colleges and universities throughout the country.” And the core language of that “blueprint” consisted of a brand-new and sweepingly broad definition of sexual harassment as any “unwelcome conduct of a sexual nature,” including “verbal .  .  . conduct of a sexual nature.” The letter contained no thresholds, limits, or standards for construing what “unwelcome” might mean. “Unwelcome” to whom? The chair of the women’s studies department? A charter member of the Society for Cutting Up Men? Does telling an off-color joke count if someone gets offended?

Furthermore, the DOJ/OCR letter makes it mandatory for the University of Montana—and by extension nearly all universities—to nip sexual harassment in the bud by conducting their own Title IX investigations of any dubious conduct they hear about “regardless of whether a student has complained, asked the university to take action, or identified the harassment as a form of discrimination.” Miami Herald columnist Glenn Garvin joked that a professor could get into trouble for assigning the bawdier bits of Shakespeare.

The new DOJ/OCR definition of campus sexual harassment seems to fly in the face of previous court and administrative interpretations of both sex-discrimination law and the Constitution. Courts have traditionally regarded sexual harassment as grounds for finding an employer or educational institution in violation of prohibitions against sex discrimination, specifically forbidden by Title IX and a range of federal employment laws. But the courts have also interpreted sexual harassment fairly precisely: as either demanding a quid pro quo (sexual favors in return for a good grade) or maintaining a “hostile environment” (permitting sexual assaults, innuendos, or an otherwise sexually unpleasant atmosphere).

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