In May the Departments of Justice and Education sent a joint settlement letter to the University of Montana regarding an investigation into sexual harassment and assault on that campus. The letter was explicitly intended as “a blueprint for colleges and universities throughout the country.” That alarmed the Foundation for Individual Rights in Education (FIRE), which saw it as a blueprint for attacking free expression.
In a May press release, FIRE charged that the Montana letter mandates “a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment.” Any college getting any federal funding would have to obey.
The letter defines sexual harassment as “any unwelcome conduct of a sexual nature,” including purely verbal overtures. Speech would be actionable harassment if a listener took offense for any reason.
In July, FIRE gathered 27 other people and organizations concerned about the First Amendment to sign a letter reminding the government that courts have tended to reject “overly broad and vague university harassment codes on First Amendment grounds.” While the departments have insisted the new policy follows old safeguards, FIRE notes that the Montana letter contradicts a previous rule that there must be reasonable grounds for taking offense. And unlike in earlier harassment policy, “The First Amendment and freedom of expression are not once mentioned in the blueprint’s forty-seven pages.”