How Obama Could Still Fix the Campus Free Speech Problem

It's not too late to rein in OCR.


Screenshot via Rutgers

During his commencement address at Rutgers University on Sunday, President Obama once again complained that "fragile" students shouldn't silence speakers with whom they disagree. 

"I believe that is misguided," he said. 

This isn't the first time Obama has levelled such a criticism. But it's difficult to take him at his word—to believe that he cares so much about free speech on college campuses—when his own Department of Education has played a pivotal role in empowering easily-offended students to censor their opponents and beseech university administrators to help them. 

Since 2011, ED's Office for Civil Rights has broadly interpreted a federal anti-harassment statute—Title IX—as requiring colleges to investigate the claims of students and faculty who claim to be victims of sexual harassment. OCR has defined sexual harassment in subjective terms, meaning that seemingly harmless—and constitutionally protected—kinds of expression can result in Title IX claims. And OCR has required that adjudication of sexual assault disputes use a preponderance of the evidence standard: a travesty for due process on campus. 

It's no accident that students have been increasingly successful at shutting down their opponents in the last five years. It's no surprise that the illiberal left has grown bolder on campus. Federal policy has aided the censors at every turn. 

On Monday, 21 law professors representing several different universities penned a letter to the government accusing OCR of exceeding its authority. 

"Through a series of subsequent directives and enforcement actions, OCR has steadily expanded the definition of sexual harassment and imposed a growing range of responsibilities on colleges to curb such conduct," wrote the professors. "As a result, free speech and due process on campus are now imperiled." 

Does Obama understand that his own government is responsible for the safe-space phenomenon he frequently decries? Is he aware that under Assistant Secretary Catherine Lhamon, OCR has violated the free speech and due process rights of countless students? 

We may never know. But if Obama is aware, and he actually does care about free speech on campus, he still has time left in his presidency to do something about it. The president needs to rein in Lhamon and remind OCR that administrative guidance does not supersede the Constitution. Obama should should instruct his Education Department to inform universities that their federal funding is not at risk—or better yet, that their federal funding is only at risk if they violate students' free speech and due process rights. 

Unless and until Obama brings OCR in line with his stated commitment to free speech, said commitment remains hollow.