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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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In a 1999 decision, Davis v. Monroe County Board of Education, the Supreme Court, following the lead of its earlier decisions on employment law, ruled that for a hostile environment to exist, the harassment of a student must be “so severe, pervasive, and objectively offensive that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the school.” The implication was that an occasional sexual taunt by a fellow student or a stray dirty joke told on campus wouldn’t be enough to hold an institution liable for sex discrimination. In addition, the Supreme Court’s requirement that the words or conduct in question be “objectively offensive” eliminated the possibility that an educational institution could be liable for sex discrimination on the basis of a student’s feeling offended over a classmate’s bringing a copy of the Sports Illustrated swimsuit issue to campus.

Furthermore, the First Amendment’s free-speech guarantees come into play once an educational institution stands in danger of being penalized for permitting expression that would be clearly permissible in a noncampus setting. Public colleges and universities, like other government entities, must afford full First Amendment protection to those on their grounds, and constitutional challenges to absurd speech codes at public universities have been extremely successful. 

In 2008, for example, a federal appeals court struck down a sexual-harassment policy at the public Temple University in Philadelphia that banned “expressive, visual or physical conduct of a sexual or gender-motivated nature” after a former graduate student in history sued the university, alleging that the policy prevented him from expressing his views on women in the military in class. Private colleges enjoy no First Amendment protection per se and are free to adopt the speech codes of their choice, although some, such as Yale, have internal policies that at least in theory protect students’ freedom of expression. Still, the Constitution forbids the government from mandating infringements of students’ or professors’ free-speech rights at both private and public institutions.

It was with the First Amendment in mind that in 2003 the George W. Bush-era OCR issued a “Dear Colleague” letter addressed to university presidents reminding them that “the statutes that [the OCR] enforces are intended to protect students from invidious discrimination, not to regulate the content of speech.” The letter by then-OCR chief Gerald A. Reynolds reiterated the standards that the Supreme Court had set forth in the Davis ruling and added this clarification: “OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances, including the alleged victim’s age.” Reynolds borrowed the “reasonable” language from a 1993 Supreme Court decision defining sexual harassment in a workplace context.

The DOJ/OCR letter seemed to have made mincemeat out of the educational harassment standards that had been carefully crafted by the Supreme Court and interpreted by the Bush administration. For one thing, the letter smashed together the tines of the two-pronged test that the Supreme Court had created in the Davis ruling: that the alleged victim must not only feel subjectively harmed or threatened but that the speech or conduct in question must also be objectively harmful under the “reasonable person” standard. Instead the letter said that “the United States considers a variety of factors, from both a subjective and objective perspective, to determine if a hostile environment has been created.”

“The letter widens the universe of things to be considered,” said FIRE’s president, Greg Lukianoff, in a telephone interview. (Lukianoff is the author of a 2012 book, Unlearning Liberty: Campus Censorship and the End of American Debate.) “Now, there’s a balancing test,” Lukianoff said. “You’re effectively getting rid of the ‘objectively offensive’ requirement that’s supposed to be met separately from the requirement that a victim feels subjectively harmed.”

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