The U.S. Department of Education issued a “Dear Colleague” letter Tuesday which reportedly reinforces the Department’s commitment to curb bullying through federal harassment laws.  However, the letter confuses earlier Department policy, provides harassment examples that run into protected speech, and fails to adequately remind administrators of their First Amendment obligations. 

The letter is addressed to primary and secondary school administrators.  Yet the Department also makes clear that “the legal principles also apply to postsecondary institutions covered by the laws and regulations enforced by [Office for Civil Rights].”

The letter defines harassment adequately:  “conduct [that] 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 the school.”  (Actually, this definition is a bit broader than how the Supreme Court defined harassment in Davis v. Monroe County Board of Education.)  But the letter’s examples of harassment intrude on the First Amendment’s protected sphere.  The letter states that harassment includes “verbal acts and name-calling, graphic and written statements, which may include use of cell phones or the Internet.” 

University administrators will read these examples and no doubt expand their harassment speech codes accordingly.  In fact, the letter encourages them to do so:  “An effective response also may need to include the issuance of new policies against harassment….”  Those policies will not be limited to campus speech, but will now seek to control what college students can post on Facebook, blogs, emails and text to each other.  By providing these expansive definitions of harassment, the Department invites college administrators to violate students’ First Amendment rights.   

At the end of the letter, after you read through these definitions and examples, you learn that the Department issued another “Dear Colleague” letter in 2003 that addresses the balance between harassment law and free speech.  However, this week’s letter does nothing to reassert or reinvigorate that balance, even in the face of recent federal court decisions striking down college harassment policies.  The letters are quite different in their tone and concern for free speech.  The 2003 letter reminds universities of their constitutional obligations: 

Some colleges and universities have interpreted OCR’s prohibition of “harassment” as encompassing all offensive speech regarding sex, disability, race or other classifications. Harassment, however, to be prohibited by the statutes within OCR’s jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. Under OCR’s standard, the conduct must also be considered sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program. Thus, 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.

That acurately sums up federal law as interpreted by the courts.  This week’s letter does not.  Instead it encourages broadening the scope of harassment laws in the face of court precedent limiting their scope on university campuses.  This letter will lead to more litigation, and you can thank the Department of Education for it.