Obama Administration Mandates Campus Speech Censorship: More

We recently reported on an initiative by the Obama Departments of Justice and Education to require colleges to impose speech codes on campus speech that is in any way “sexual” or references gender.

Basically, it defined as “sexual harassment” any speech that some person on campus finds “offensive.” Established law dictates that speech, to be considered “sexual harassment,” must be offensive to a “reasonable person of the same gender in the same situation.” The new definition means that anything that somebody takes offense at has to be considered “sexual harassment” notwithstanding that no reasonable person would consider it such.

The Federal government has tried to defend this policy, and it doing so has tripped all over itself.

In a form letter sent to people to write the Office for Civil Rights, the claim is made that:

Furthermore, as we have said in the past, OCR’s regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment.

Then the letter tries to walk back the mandate, by explaining that:

Consistent with OCR’s previous, well-established guidance, the May 9 letter explains that “sexual harassment” is unwelcome conduct of a sexual nature but that sexual harassment is not prohibited by Title IX unless it creates a “hostile environment” — that is, unless the harassment is sufficiently severe, pervasive, or persistent such that it denies or limits the student’s ability to participate in or benefit from the school’s program.

Note that “conduct” includes “verbal conduct” (speech).

And of course, what constitutes a “hostile environment” is entirely a matter of a student’s subjective response to speech he or she does not like.

Back in December, 2011, we were charged with “sexual harassment” by some prissy little feminist in our introductory American Government class because we debunked bogus rape statistics that feminist professors and activists are always touting.

She apparently felt the “environment” was “hostile” because she heard views expressed that were out of sync with her feminist worldview.

The explanation of the policy by the Office for Civil Rights actually makes clear that purely subjective offense is something that universities ought to punish:

Students will be allowed to bring complaints when they have been subjected to unwelcome sexual conduct, and the University will evaluate whether that harassment has created a hostile environment. Making this determination requires, as it has in the past, the University to examine both whether the conduct is objectively offensive and its subjective impact on an individual.

So the “subjective impact” on the individual is sufficient for a finding of “sexual harassment.” Thus students who are intolerant of speech with which they disagree, and feel the speech is “hostile” have a right to have the university punish the speaker.

Marquette’s Non-Response

We queried Chris Miller, Vice President for Student Affairs, about this. He is out of the country, and gave us only a brief reply:

You are correct; we have no formal correspondence on it yet however I am in discussion with General Counsel on the matter. Let us try to connect upon my return.

It would be nice to believe that Marquette (and lots of other universities) would challenge this is court. There is not a snowball’s chance in hell of that happening.

In the first place, there are a large number of administrators (largely in offices that have “diversity” in their names) and quite a large number of faculty who very much like the idea of silencing people who say politically incorrect things about sex and gender. To come out against these rules would inflame them, and start them declaring that Marquette is “soft on sexual harassment.”

Further, as the current scandals surrounding the IRS show, Federal bureaucrats (and especially the “civil rights” enforcers) are liberal, capable of being very vindictive, and capable of causing huge trouble for anybody whom they dislike.

So these rules (like the absurd “Dear Colleague” letter about sexual assault) will probably remain in place, at least until they victimize some student, faculty member or staff member who is defiant enough to challenge them in court.

It’s important to remember that these rules will never be enforced in a neutral and consistent way. They will only be used to punish speech offensive to the politically correct activists who dominate most college campuses.

The Foundation for Individual Rights in Education notes, for example, that “The Vagina Monologues” could be outlawed for its lewd sexual content. That will never happen. “The Vagina Monologues” is an expression of politically correct feminism, and the socially conservative students who might object quickly learn that, on a modern college campus, they are to shut up and take what is imposed on them.

Likewise, we are very unlikely to ever be harmed by this rule, because (as Provost John Pauly learned the hard way) we can’t be harassed or bullied into silence.

A more likely outcome is that students will learn that any statements or expressions of opinion to which the campus feminists or the campus gay lobby object are voiced only at great personal risk.

And that, of course, would create the exact kind of campus that liberals and leftists want.

Obama Administration Mandates Campus Speech Censorship

From the Foundation for Individual Rights in Education:

WASHINGTON, May 10, 2013—In a shocking affront to the United States Constitution, the U.S. Departments of Justice and Education have joined together to mandate that virtually every college and university in the United States establish unconstitutional speech codes that violate the First Amendment and decades of legal precedent.

“I am appalled by this attack on free speech on campus from our own government,” said Greg Lukianoff, president of the Foundation for Individual Rights in Education (FIRE), which has been leading the fight against unconstitutional speech codes on America’s college campuses since its founding in 1999. “In 2011, the Department of Education took a hatchet to due process protections for students accused of sexual misconduct. Now the Department of Education has enlisted the help of the Department of Justice to mandate campus speech codes so broad that virtually every student will regularly violate them. The DOE and DOJ are ignoring decades of legal decisions, the Constitution, and common sense, and it is time for colleges and the public to push back.”

In a letter sent yesterday to the University of Montana that explicitly states that it is intended as “a blueprint for colleges and universities throughout the country,” the Departments of Justice and Education have mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment. The mandate applies to every college receiving federal funding—virtually every American institution of higher education nationwide, public or private.

The letter states that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature’” including “verbal conduct” (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the same gender in the same situation” — if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.

This result directly contradicts previous Department of Education guidance on sexual harassment. In 2003, the Department of Education’s Office for Civil Rights (OCR) stated that harassment “must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.” Further, the letter made clear that “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.”

Among the forms of expression now punishable on America’s campuses by order of the federal government are:

• Any expression related to sexual topics that offends any person. This leaves a wide range of expressive activity—a campus performance of “The Vagina Monologues,” a presentation on safe sex practices, a debate about sexual morality, a discussion of gay marriage, or a classroom lecture on Vladimir Nabokov’s Lolita — subject to discipline.
• Any sexually themed joke overheard by any person who finds that joke offensive for any reason.
• Any request for dates or any flirtation that is not welcomed by the recipient of such a request or flirtation.

There is likely no student on any campus anywhere who is not guilty of at least one of these “offenses.” Any attempt to enforce this rule evenhandedly and comprehensively will be impossible.

That, of course, is the main point. When a vast array of speech is illegal, and only a small proportion of potentially “offensive” speech is punished, what will be punished is unpopular speech.

Thus, “The Vagina Monologues” is absolutely safe. Discussion of “safe sex” practices will always be protected. But a Christian ethical critique of homosexual sex will be punished. Criticism of feminism will be punished. Politically incorrect speech will be punished, but politically correct speech, no matter how objectively offensive, will be allowed.

“The federal government has put colleges and universities in an impossible position with this mandate,” said Lukianoff. “With this unwise and unconstitutional decision, the DOJ and DOE have doomed American campuses to years of confusion and expensive lawsuits, while students’ fundamental rights twist in the wind.”

“The Departments of Education and Justice are out of control,” continued Lukianoff. “Banning everyday speech on campus? Eliminating fundamental due process protections? Ignoring its own previous statements? They even misquoted the Supreme Court. This cannot be allowed to continue. FIRE will use all of its resources to oppose this menace to our constitutional freedoms and to free speech and academic freedom on campus.”

It remains to be seen, of course, whether this mandate will survive a court challenge. If federal judges hue to precedent, it certainly will not.

But it is questionable how much longer the federal judiciary will protect free speech when liberal elites are more and more wanting speech they dislike censored.