MENU

Reason.com

Free Minds & Free Markets

VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Speech Codes and “Twisting Title IX”

The weird interrelationship between harassment law and campus free speech

This week, we are exploring legal issues around Greg's new book with Jonathan Haidt, The Coddling of the American Mind. The previous two posts have been about the rise and fall and potential return of unconstitutional campus speech codes.

One of the many surprises of working to defend freedom of speech on college campuses over the last 18 years is how frequently harassment rationales have been used to justify clearly unconstitutional campus speech codes — and how little this is known outside of relatively small circles. For example, it's not uncommon for Greg talk to lawyers who are familiar with the rise of "politically correct speech codes of the late 1980s and early '90s," but who are seemingly unaware virtually all of those codes were presented as anti-harassment codes.

Even Doe v. Univ. of Michigan, the first speech code challenge in the era of "politically correct" codes (very roughly, 1985-1995), involved a code with the lofty title of "The University of Michigan Policy on Discrimination and Discriminatory Harassment." The policy prohibited a great deal of protected speech, including "demeaning" speech. In a list of theoretical examples, it said a student group would violate the policy by inviting a hypothetical comedian who tells race-based jokes. In practice, the policy was frequently invoked against students of color, rather than to improve their environment. (That is a recurring theme of speech regulations in general. Granting authority figures the ability to regulate speech rarely accrues to the benefit of the marginalized.)

Some universities tried to combine the anti-harassment rationale and the fighting words doctrine. Among them was Greg's alma mater, Stanford Law School, whose speech code was defeated in court just two years before he started there. (Somehow, he had heard nothing about that lawsuit until after he had graduated.) Judges, however, were not fooled by the sleight-of-hand. Even Judge Avern Cohen, who was highly sympathetic to the speech code before him in Doe v. U. of Michigan, had to conclude that the attempt was incompatible with the First Amendment:

While the Court is sympathetic to the University's obligation to ensure equal educational opportunities for all of its students, such efforts must not be at the expense of free speech. Unfortunately, this was precisely what the University did.

Despite early and consistent losses in court like these, the perceived need to impose anti-harassment rules has been the go-to rationale for many cases in which campus administrators, despite being bound by the First Amendment, try to punish professors or students for clearly protected speech. A few examples:

  • In 2004, the University of New Hampshire evicted a student from his dorm for "acts of dishonesty," violation of "affirmative action" policies, "harassment," and "lewd" and "disorderly" conduct. Frustrated with the slow elevators, he had posted flyers suggesting girls walk off the "Freshman 15" by taking the stairs.
  • In 2006, the University of Central Florida charged a student with "harassment" and "personal abuse." He had made a facebook group where he called a student running for student government a "jerk and a fool."
  • In 2010, Syracuse accused a law student of "harassment" for running a satirical mock news blog about campus life, written in the style of The Onion.
  • In 2012, Appalachian State University placed a tenured professor on leave for "harassment" and "creating a hostile environment." She had criticized the university and student-athletes accused of sexual assault, and also showed part of a documentary critical of the pornography industry.
  • In 2017, Howard University found a law professor responsible for "sexual harassment" after a 504-day investigation because he had used a hypothetical on an exam that included someone sleeping through a bikini wax.

This pattern shows up again and again. In a May 2015 Chronicle of Higher Education essay, Northwestern University professor Laura Kipnis criticized what she saw as "sexual paranoia" on her campus and the university's handling of a Title IX lawsuit; after her article was published, Kipnis was subjected to a Title IX investigation for, among other things, creating a "hostile environment" and a "chilling effect" on new reports.

When Kipnis wrote a book critical of that process, she was subjected to another Title IX investigation. From beginning to end, the process took over two years. (A defamation suit filed against Kipnis by a student continues.)

In 2015, Louisiana State University fired professor Teresa Buchanan (despite a contrary recommendation of a faculty panel) for "sexual harassment." Buchanan's offense was to occasionally use profanity and sexual language in front of her adult students. She sued; a district court ruled in favor of the school at summary judgment, and she is appealing that decision. (FIRE is sponsoring Buchanan's case as part of our Stand Up For Speech Litigation Project.)

This last example highlights the strange interaction between the Department of Education, advocates of restrictive speech codes, and federal law. Louisiana State University fired Buchanan under an astonishingly broad definition of harassment: "unwelcome verbal, visual, or physical behavior of a sexual nature." But its use was no accident; the definition tracks the one proposed by the Department of Education and Department of Justice in a supposed May 2013 "blueprint" for anti-harassment codes included in a settlement letter with the University of Montana.

Very little about the 2013 "blueprint" makes sense, starting with whether it's a "blueprint" or not. The letter describes itself as "a blueprint for colleges and universities throughout the country." FIRE strongly opposed the "blueprint" as soon as it went public, both for substantive reasons (which we'll discuss shortly) and because announcing a dramatic regulatory change in a letter to a specific college seemed like an attempt to circumvent the "notice and comment" period that such rules would normally require. (The purpose of notice-and-comment, after all, is to avoid making bad policies — like this one.)

In November of 2013, FIRE received a letter from the Department of Education's Office for Civil Rights (OCR) dismissing FIRE's concerns because, supposedly, the "blueprint" was "not OCR or DOJ policy." Yet in 2016, the DOJ sent a letter to the University of New Mexico finding that the school's sexual harassment policy was insufficient because it didn't use a broad enough definition of harassment — and it proposed, without directly referencing it, the standard articulated in the 2013 "blueprint."

So, to sum up the government's argument: The law mandates that colleges comply with Title IX. The 2013 letter is a blueprint on compliance; but it's not the official policy that colleges use it; but colleges that don't use it might be found non-compliant.

And yet this is only the second biggest problem with the letter.

The biggest problem is that the blueprint definition doesn't track the Supreme Court's standard for harassment in this context — that the conduct be "so severe, pervasive, and objectively offensive... that the victim-students are effectively denied equal access to an institution's resources and opportunities." Without the requirement that the conduct be objectively offensive, anything can be a form of harassment, if you happen to find an unreasonable enough student.

The most frustrating part for those of us at FIRE was that it reversed a decade of clear guidance that anti-harassment codes could not be an end-run around the First Amendment. After cases like the ones involving speech codes at Michigan and Stanford, in 2003, the Department of Education sent guidance to every campus it administers directing them that "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." While that stopped short of imposing the constitutional standard, it at least prevented schools from using OCR's interpretation of Title IX as a justification for violating the First Amendment. The 2013 "blueprint" retreated from that commitment to the First Amendment without admitting it was a major policy change.

Fortunately, this is one problem that may soon be resolved. Last month, the New York Times reported that it obtained a leaked draft of the new Title IX regulations the Department of Education apparently plans to offer soon for notice and comment. According to that report, the proposed rules will directly include the requirement that harassment be severe, pervasive, and objectively offensive. As our colleague at FIRE Robert Shibley observed, such a change "may well be the single greatest blow to campus speech codes in [FIRE's 20 year] history."

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Sarcastr0||

    So, to sum up the government's argument: The law mandates that colleges comply with Title IX. The 2013 letter is a blueprint on compliance; but it's not the official policy that colleges use it; but colleges that don't use it might be found non-compliant.

    Isn't this how the common practice of safe harbor provisions work? Not a requirement, but you don't at your own risk?

    I don't know that your as-applied examples mean that the Title IX guidance is to blame, either.

  • JesseAz||

    No, it's not extortion when the mob was requesting security fees from businesses!

  • Sarcastr0||

    The very fact that you jumped from my explanation of what the law is to just rail at what the law should be tells a great deal about the legality of the guidance detailed.

  • Rossami||

    A decent point Sarcastr0 but if it were a recognized safe harbor, the creation of it still should have gone through the proper notice-and-comment process.

  • Sarcastr0||

    My knowledge is dim and comes from a pre-law school time at a radio station, but I don't think that's required for such guidance.

  • Bob from Ohio||

    Title IX bans official acts [by a college or school] of sexual discrimination only.

    There is nothing in the text that indicates it applies to other students as students in their private acts.

    So, we should not have to reach the Constitution.

  • Stephen Lathrop||

    Whatever you think about this as a defense of the 1A, it is also an attack on the notion that anyone, anywhere, in any setting, public or private, can be required, even by voluntary association, to conform to a standard of civility.

    A lot of traditional pro-free-speech arguments rely heavily on supposed slippery slopes. This OP is a slippery slope descending in the opposite direction, toward an ungovernable swamp of incivility deep enough to engulf private purposeful institutions along with the public ones.

  • Brett Bellmore||

    Well, you know, if the left hadn't seized upon the tactic of declaring any expression of dissent from their views as a violation of civility, maybe we could all just agree to be civil.

    But once you transform daring to dissent into "incivility" you can't expect bipartisan concern for civility, so redefined.

  • apedad||

    Well when the 'views' are racist, bigoted, homophobic proselytization, then yes, any expression of dissent of those views is actually a step towards civility.

  • Bob from Ohio||

    Bigoted like against people from the South? You better watch out then.

  • apedad||

    Not at all!

    There's plenty of ignorant people in the northern tier too (e.g. Montana, North Dakota, Wyoming, etc.).

  • mad_kalak||

    The NE and Midwest are as bad, if not worse, than the South.

    You know what city is the most racially segregated in America? Chicago. Most people don't know Illinois was a slave state for a time, and the only reason there was no race problems for much of the IL history is that the state prohibited free blacks from migrating in. You know what city is responsible above all others, for ending real school integration efforts? Boston.

  • JesseAz||

    We get it apedad, you don't bother with intelligent conversations.

  • Seamus||

    So we all agree that the government *can* ban wearing a shirt that says "Fuck the draft"? Cuz that sounds pretty incivil to me.

  • Brett Bellmore||

    Only during Republican wars, or so I understand.

  • JesseAz||

    More often when Republicans are cleaning up wars started by Democrats.

  • Stephen Lathrop||

    You mean a government institution like Stanford University? Lukianoff opposes a speech code at Stanford.

  • nonzenze||

    He can oppose a specific policy at Stanford as a prudential or normative matter without believing that the 1A prohibits Stanford from adopting it.

  • Stephen Lathrop||

    Yes, he could do that. But that is not what he does do. Read the "defeated in court," link in the OP.

  • jph12||

    Why are you telling people to read a decision that you clearly haven't read? If they read it they will know that you don't have a clue what you are talking about.

    And I'm really curious what you think Greg Lukianoff had to do with the lawsuit against Stanford. I mean, the post clearly states that the lawsuit happened before he enrolled in the law school.

  • JesseAz||

    Last I checked Stanford received federally backed loans, pell grants, and other Federal sources/guarantees of funding.

  • David Nieporent||

    Last I checked Stanford received federally backed loans, pell grants, and other Federal sources/guarantees of funding.

    Which has nothing to do with the 1A -- receiving government funding does not make one a state actor -- though it can be relevant for statutory purposes.

  • TwelveInchPianist||

    Unless Stanford is a religious school, it it required to grant its students the rights protected by the first Amendment

  • Michael Ejercito||

    By which law?

  • David Nieporent||

    By which law?

    California's Leonard Law. It requires private schools in the state to abide by the same limits on censorship as public schools.

  • Stephen Lathrop||

    Does the Leonard Law have a carve out for religious schools?

  • TwelveInchPianist||

    Yup. IMO, the law is unconstitutional, but Stanford sued and lost.

  • David Nieporent||

    Does the Leonard Law have a carve out for religious schools?

    Yes.

    "(c) This section does not apply to a private secondary school that is controlled by a religious organization, to the extent that the application of this section would not be consistent with the religious tenets of the organization."

  • Rev. Arthur L. Kirkland||

    One more reason legitimate academia should never have begun to provide accreditation to schools that teach nonsense.

  • nonzenze||

    Whatever you think about this as a defense of the 1A, it is also an attack on the notion that anyone, anywhere, in any setting, public or private, can be required, even by voluntary association, to conform to a standard of civility.

    What in the name of god are you talking about? Private institutions (universities or otherwise) can adopt almost whatever standard of conduct or civility they want.

  • Michael Ejercito||

    Correct.

    They could, for example, require female students, but not male students, to remain virgins until marriage.

    They could expel female students for being raped (because it counts as sexual activity outside as marriage) while not doing the same for males.

  • JesseAz||

    Technically you're wrong since most private colleges have a standard contract of expected behavior or rules that can lead to expulsion. They can't just change rules after the fact.

  • Michael Ejercito||

    If there is a contract, then contract law controls.

    The Constitution does not restrain what codes of conduct private universities may adopt.

  • David Nieporent||

    The Constitution does not restrain what codes of conduct private universities may adopt.

    No, but statutes do.

    Other than for religious schools, which are partially exempt from Title IX, sex discrimination is not legal except in admissions.

  • Stephen Lathrop||

    I'm talking about what the author of the OP advocates. Read the, "defeated in court," link in the OP.

  • jph12||

    "Whatever you think about this as a defense of the 1A, it is also an attack on the notion that anyone, anywhere, in any setting, public or private, can be required, even by voluntary association, to conform to a standard of civility."

    No, it really isn't.

  • Rev. Arthur L. Kirkland||

    A "university" recently refused to permit a student to continue his studies because it learned the student is gay, and the right-wing response is to continue to nip at the ankles of our strong liberal-libertarian schools while disregarding the strident censorship that relegates conservative-controlled campuses to the fourth tier.

    Legitimate academia should never have begun to provide accreditation to hundreds of viewpoint-discriminatory, speech-code-shackled, dissent-stifling, science-disdaining, academic freedom-crushing, nonsense-teaching goober factories.

  • bevis the lumberjack||

    Now playing left field and batting ninth, Arthur Kirkland. Kirkland in left field.

  • Seamus||

    A public university? Then the student should win in a heartbeat. No? Then we're in Dale v. BSA territory.

  • Rev. Arthur L. Kirkland||

    I did not contend that Clarks Summit University should be obligated to refrain from denying readmission to this student. Bigots have rights, too.

    I contend that the discriminatory and intolerant Clarks Summit conduct code is more objectionable than the ostensible affronts to free expression at better (liberal-libertarian) schools that draw ceaseless sniping from right-wingers in general and Prof. Volokh in particular, but less objectionable than the partisan manner in which conservatives disregard, or at least pretend not to notice, severe censorship and diminution of academic freedom at conservative-controlled schools.

  • Eddy||

  • mad_kalak||

    Seems a bit stifling to me, with how they fine you for not going to church, but it is purely voluntary for someone to go there after all.

  • Eddy||

    Not a fan, but mandatory chapel was a feature of many universities for some time. Likewise rules about curfews, behavior with the opposite (or same) sex, etc. So do we date the greatness of modern universities from the date they scrapped these rules? Sounds like a research project for some ambitious grad student. Compare the academic quality of the schools before and after they dropped the restrictive rules.

  • mad_kalak||

    If everyone at Clark was a model Christian, I'd actually put up with it. To your point, the standards to mostly mimic "in loco parentis" from only 4 decades or so ago.

    The cancer-like spread of the Frankfurt School aside, my understanding is that the slide of the university system downhill started with the draft, and grade inflation to avoid sending off to war those that failed out, and lower standards to let those in who wanted to avoid the draft.

  • ||

    the slide of the university system downhill started with the draft, and grade inflation to avoid sending off to war those that failed out, and lower standards to let those in who wanted to avoid the draft

    The "slide" has largely occurred since the draft ended, which was roughly 45 years ago.

    The standards have been sliding in parallel with the standards for HS diplomas. As you got to the point that a HS diploma meant exactly zero as far as having any skill or education, a college degree came to be a "human right." Which meant the standards had to be lowered.

  • mad_kalak||

    Not that I disagree, because I have *also* seen the decline in H.S. diploma standards, but for colleges that does conflict with the narrative I've read elsewhere. Could you provide a link or source as I'd like to know more.

  • bevis the lumberjack||

    "I contend that the discriminatory and intolerant Clarks Summit conduct code is more objectionable than the ostensible affronts to free expression at better (liberal-libertarian) schools that draw ceaseless sniping from right-wingers in general and Prof. Volokh in particular, but less objectionable than the partisan manner in which conservatives disregard, or at least pretend not to notice, severe censorship and diminution of academic freedom at conservative-controlled schools."

    Kirkland, in summary form: Other side craps on somebody's rights = bad. My side craps on somebody's rights = OK.

    Fuck off, slaver. And by the way, the schools you're supporting that crap all over people's speech (and other) rights are not really "liberal-libertarian". Just because they say that they are doesn't really mean it's so. Similar to Antifa calling itself antifacist but acting in the worst tradition of fascists everywhere. Just putting a label on something doesn't mean the label is accurate.

  • JesseAz||

    Meanwhile you support the expulsion of an inordinate amount of black males accused of raping women at public colleges (often found to be no cause by the legal system and granted re-admittance) because... reasons?

  • MatthewSlyfield||

    No public university ever anywhere has been liberal-libertarian. A public university is inherently the polar opposite of libertarian.

  • JesseAz||

    University of Hard Knocks is often libertarian.

  • Eddy||

    "This institution which has no worthwhile educational program and should never have been accredited, refused this guy re-admission!"

    That sounds like the remark attributed to Yogi Berra about a restaurant: "The food is lousy and the portions are too small."

  • JonFrum||

    "In 2017, Howard University found a law professor responsible for "sexual harassment" after a 504-day investigation because he had used a hypothetical on an exam that included someone sleeping through a bikini wax."

    He shouldn't have been fired for sexual harrassment. But maybe he should have been fired for being a clueless moron.

  • Careless||

    Why?

  • ReaderY||

    Our country has a long history of rights that exist only on paper. Think of black people's right to vote in the American South - a right that was frequently acknowledged and rarely enforced. There are many rules for which a court judgment is something like lightening striking. Lawyers tend to simply assume people behave lawfully and are aware of the law. But people tend to assume the law is what think is right. And when it isn't, cognitive dissonance makes the disparity quickly disappear from consciousness.

    Folks in today's academia have some of the same tools that people in the Old South did, and then some. I suspect the people suing are either unusually determined, or don't expect to need recommendations etc., and can live with being labeled and blacklisted as a troublemaker who harasses others.

    Although not as literally as in the Old South, an accusation of harassment can be a professional death sentence.

    Because the culture of lynching was based on perceptions, accusations, and rumors of black men disrespecting white women, and the current climate tends towards reviving that culture, I am surprised there haven't been racial discrimination suits in cases where harassment rules are disproportionately targeted at black men.

  • ||

  • JesseAz||

    Shhh... it's not racist when liberal administrators do it.

  • ScottK||

    So long as assholes like Milo Y, Ben Shapiro and their ilk blur the line between speech and assault, I'm not going to get too bent out of shape over whether the speech clause has a penumbra that works to dim the spotlight they so manically crave.

  • Eddy||

    I'm not sure what you mean by blurring the line between speech and assault. What specifically did they do which meets that description?

    Assault is already a crime, but I'm not aware of them being arrested for it, much less convicted.

  • mad_kalak||

    Ben Shapiro is about as mainstream, non-threatening traditional conservative as one can get. His debating skills are second to none, which might be what puts you off, because YouTubers make clips of him making fools out of snowflakes, and having actual dialogue with those who debate with honesty. Milo, well he is a troublemaker, but no better or worse than that fat slop Mike Moore. Would you apply your same standards to that clown Sacha Cohen? He needs some shade thrown his way.

  • bevis the lumberjack||

    "blur the line between speech and assault"

    The line between speech and assault is as wide as the Grand Canyon. It's impossible to blur. Unless you have reports of them punching somebody or hitting somebody in the head with a bike lock, you're just engaging in silly rhetoric.

    It's like saying they're blurring the line between tater tots and motorcycles. They're two completely different things, with no relationship to each other.

  • Perseus`||

    You called two distinct individuals "assholes." I demand that you be punished for assault!

  • JesseAz||

    Hey dummy... it's not ben shapiro and milo y chanting "speech is violence."

  • Sarcastr0||

    Lets talk about Kaepernick's cop-killing socks.

  • Longtobefree||

    "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

    It ain't that hard, folks.

  • Eric VonSalzen||

    I get the impression that a lot of modern "liberals" don't know their history. In the 1940's and 1950's, viewpoint discrimination was often aimed at liberals and other leftists. The ACLU and other free speech groups used the principles of the First Amendment to oppose suppression of unpopular leftist speech. Now that leftists are in charge of most (it seems) colleges and universities, they think that the First Amendment is no longer "relevant". Do this little thought experiment: Suppose that your college or university becomes governed by members of the editorial boards of National Review, Brietbart, and the New York Post; wouldn't you want the First Amendment to be in full forece and effect?

  • Eddy||

    I suppose that if you're convinced that Breitbard, et. al, would never give you a fair shake and would oppress you as much as possible if they had the power, with no common values to appeal to, then maybe you'd think in terms of "do unto them before they do unto me."

    I'm not always getting the vibe that people see each other as fellow-citizens who agree on some American values but differ as to other values or their application. It's more like "us (good guys) versus Them (bad guys," and the bad guys are of course totally ruthless so there's no way to achieve even a temporary modus vivendi with them. Some of this, I would imagine, is based on "I know that *I* have no interest in getting along with these haters, so I assume they don't want to get along with me either." Self-fulfilling prophecy.

  • BrotherMovesOn||

    Eddy you have mixed up Yogi Berra and Woody Allen.

  • Eddy||

  • Eddy||

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online