The ADF Center for Academic Freedom joined a broad coalition of organizations today calling on the U.S. Department of Education to clarify when colleges may and may not investigate and punish student “harassment.” The letter, written by our friends at FIRE, is available here.
We’ve told you before how to spot a speech code, the majority of which involve anti-harassment policies. And these unconstitutional policies are nothing new. So why did FIRE send today’s letter? FIRE’s president, Greg Lukianoff, explains in today’s Washington Post:
[Last year, the Department of Education Office of Civil Rights] issued a 19-page letter in April dictating to colleges the procedures they must follow in sexual harassment and assault cases. Among its many troubling points, including a requirement that sexual harassment cases be adjudicated using the lowest possible standard of evidence allowable in court, is the fact that the letter makes no mention of the First Amendment or free speech. This ignores the role that vague and broad definitions of harassment have played in justifying campus speech codes and censorship over the past few decades. By mandating so many procedural steps colleges must take to respond to allegations of sexual harassment while simultaneously failing to mandate a consistent, limited and constitutional definition of harassment, the OCR encourages those on campus who are already inclined to use such codes to punish speech they simply dislike.
Rather than proffer shifting rules, the OCR should end the threat of harassment-based campus speech codes once and for all. The Supreme Court offered its only guidance on the thorny issue of student-on-student harassment in the 1999 case Davis v. Monroe County Board of Education. The justices recognized the necessity of carefully defining what constitutes “harassment” in the educational context, lest everyday interactions be rendered a federal offense. The court defined harassment as discriminatory conduct, directed at an individual, that is “so severe, pervasive, and objectively offensive” that “victim-students are effectively denied equal access to an institution’s resources and opportunities.”
This definition, if applied fairly, poses little threat to free speech and effectively prohibits real harassment.
We hope the OCR takes notice and works to protect student free speech on campus.