1024px-US-DeptOfEducation-SealCollege free speech controversies are raging. Is an office at the Department of Education responsible for some of the problems?

In comments filed with the House Judiciary Committee's Subcommittee on the Constitution and Civil Justice, NCAC Executive Director Joan Bertin argued that the Education Department's Office of Civil Rights (OCR) has offered poor guidance to institutions concerning harassment and civil rights law—leaving institutions vulnerable to costly investigations and possible litigation.

The OCR, tasked under Title IX with the laudable goal of eliminating discrimination in education, has adopted an expansive and vague definition of harassment that encompasses speech clearly protected under the First Amendment. Given its enforcement powers, and the threat of charges, investigations, and possible disciplinary action, the OCR is unfortunately helping to foster the climate of fear on some campuses.

This is a relatively recent development. For years, the office's pronouncements carefully balanced protecting speech rights and promoting equality. In 1997, the OCR explained that harassment must be

Sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity," and cautioned that “if the alleged harassment involves issue of speech or expression, a school’s obligations may be affected by the application of First Amendment principles." It went on to say, in plain language, that "Title IX is intended to protect students from sex discrimination, not to regulate the content of speech.


But in 2010 the OCR took a markedly different approach:

Harassing conduct may take many forms, including verbal acts and name-calling; graphic and written statements, which may include use of cell phones or the Internet; or other conduct that may be physically threatening, harmful, or humiliating.  Harassment does not have to be directed at a specific target, or involve repeated incidents. Harassment creates a hostile environment when the conduct is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school.

This definition departs in significant ways from both Supreme Court language and prior statements issued by OCR. Where harassment had previously been "severe, pervasive, and objectively offensive," now it was "severe, pervasive, or persistent"—a major shift. 

And the argument that harassment may consist of “verbal acts and name-calling… that may be harmful or humiliating” could encompass precisely the kind of language that the Supreme Court and lower courts have said is protected by the First Amendment.

Institutions that rely on Education Department guidance—and wish to avoid lawsuits—must grapple with these shifting standards. In February of this year, Northwestern University professor Laura Kipnis published an article, “Sexual Paranoia Strikes Academe,” criticizing campus sexual harassment policies and commenting more broadly on contemporary attitudes about feminism and sexuality.  She referred to well-known charges of sexual assault that had been made against one professor. In response to her piece, two students involved in that incident–who were not named by Kipnis–claimed that her article constituted created a hostile environment in violation of Title IX. The students filed a Title IX complaint, and Northwestern initiated an investigation (as it claims it was required to do) for which it retained outside counsel.  While the matter was pending, Kipnis asked a fellow faculty member to accompany her to a meeting with investigators, and the university president defended free speech rights in an essay in the Wall Street Journal. The students reportedly filed Title IX complaints against both Kipnis’s colleague and the university president.

Even though the charges against Kipnis were ultimately dismissed, the whole ordeal offered a dramatic illustration of how an expansive definition of harassment that includes clearly protected speech invites complaints against the expression of unpopular or controversial ideas, resulting in an extensive, expensive, and disruptive investigation. This was never the intent of Title IX, and it does nothing to serve the interests of equality.

Although her case is fairly well-known, Kipnis is hardly the only victim. University of Colorado professor of sociology Patti Adler was the subject of an investigation into a possible violation of the school's sexual harassment policies during a classroom presentation on the subject of prostitution in a course on “Deviance in U.S. Society." Adler was suspended from teaching the course; in response to the charges and subsequent actions, Adler—whose course was among the most popular on campus–resigned from the university. And Teresa Buchanan, a tenured professor at Louisiana State University, was fired, allegedly for violating university rules against sexual harassment because of a few off-color remarks.

It is dangerous to the cause of equality to stretch the meaning of harassment in this way. Anyone familiar with the history of the civil rights movement, the effort to expand women’s right to equality, and other movements that challenged entrenched patterns of discrimination knows that those efforts could not have achieved anything without vigorous protection for the right to free speech, even if that speech was considered provocative and offensive – as it was by many observers. Champions of civil rights undermine free speech at their peril, and ours.

Read Joan Bertin's comments to the House Subcommittee on the Constitution and Civil Justice below; click here for a full-screen view


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