New Speech Code Template Threatens Free Speech

A new definition of sexual harassment proposed by the Department of Education and the Department of Justice could drastically change acceptable speech at schools across the nation. This change comes after the University of Montana was investigated for its handling of sexual abuse charges against several members of its football team, and it was found that the University’s conduct code wasn’t working to eliminate harassment.

What happened at UM is unfortunately nothing new. Colleges often hold their athletes to a less rigorous standard than other students, and turn a blind eye to some of their misconduct. However, when the university received reports that two female students had been sexually assaulted by male students who were involved with the football team, the school decided to hire former Montana Supreme Court Justice Diane Barz to investigate.

The investigation turned up some startling facts. Six football players had been accused of aiding, attempting or committing sexual assault between spring 2009 through spring 2011. Furthermore, three of these players did not go through the school’s judicial system, until more than a year after their coach was notified of a complaint having been filed with the Missoula Police Department.

While exploring the initial assault case, seven additional reports of student-on-student sexual assault were discovered. Clearly these athletes were taking their untouchable status too far, and subsequent investigations led to the conclusion that the campus’ police officers were both incompetent and biased against the girls involved. Justice Barz reasonably concluded that the Missoula campus “has a problem with sexual assault on and off campus and needs to take steps to address it to insure the safety of all students as well as faculty, staff and guests.”

In order to comply with the mandatory Title IX obligations, the school began a host of anti-sexual assault themed events and instituted reforms. They held community forums on and off campus to discuss sexual assault and hosted the national organization Men Can Stop Rape. The school also implemented a series of reforms, such as requiring all University employees, short of those who are statutorily barred from doing so, to report any sexual assault charges to the designated University official. The University also developed a mandatory twenty minute online training program for students called “Personal Empowerment through Self Awareness”.

If the story stopped here, most people could agree that the school was notified of a very serious problem and, with the assistance of the Department of Justice (DOJ), made some very appropriate changes. So why is the Foundation for Individual Rights in Education (FIRE) outraged?

Prior to FIRE stepping into the fray, the Assistant Secretary of the Department of Education’s Office for Civil Rights (OCR) sent a letter to the University on May 4, 2012, explaining that OCR was opening a Title IX compliance review to assess whether or not the University’s new policies and procedures would “ensure the elimination of sexual harassment and sexual violence, appropriately respond to such harassment and violence, prevent future harassment, and eliminate the hostile environment and its effects that result from such harassment”. This led to the DOJ and OCR releasing what they have called a “blueprint” for all campuses in regards to a the new definition of sexual harassment:

“Sexual harassment is unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence”.

FIRE was quick to point out that words “verbal conduct” means speech is now included. Greg Lukianoff,  president of FIRE, commented: “It’s a complete disaster for what you can and can’t say on college campuses […] The new standards are so vague and broad that virtually any student can now be charged with sexual harassment.”  He asserts that a definition this vague “implicates a vast amount of expressive conduct protected by the First amendment.”  Simply put, FIRE believes this definition can and will easily compromise free speech. The implications of this, when carried out to their logical extent, mean that many presentations, debates and expressions on campuses can now be viewed as sexual harassment. FIRE points to a recent Johns Hopkins University controversy in which a pro-life group was not allowed certain rights on campus, because some students were uncomfortable with the group’s stance.

Despite John Hopkins reversing its stance, FIRE believes that the new definition would give John Hopkins the right to ban such groups on a whim. As an example, Lukianoff believes campus performances of “The Vagina Monologues” could cease to exist; a public discussion about sexual morality or gay marriage could become the subject of discipline should the wrong person be in earshot. One of the biggest worries is that flirting could now be considered sexual harassment. “It has bad long-term effects on speech,” Lukianoff said. “[It] empowers people to punish the people they dislike”.

The OCR has yet to directly address the speech implications of the broadened definition, but touted the “blueprint” as a step in the right direction. However, the DOJ did release a statement to assuage the fear of rampant sexual harassment suits. “To determine whether a hostile environment based on sex exists, the United States considers whether there was harassing conduct that was sufficiently serious—that is, sufficiently severe or pervasive—to deny or limit a student’s ability to participate in or benefit from the school’s program based on sex.” While it is still unclear what is meant by “sufficient”, it is clear that FIRE has made a very strong argument against the new definition. When the final version of the new definition is officially implemented, students at federally funded schools may face unreasonable, arbitrary punishment for what is otherwise benign and protected speech.

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