Free speech on campus? Not if it’s ‘unwelcome’

Title IX’s ban on sexual speech harassment trumps the First Amendment on college campuses, according to an April 22 Justice Department letter. “Unwelcome” conduct or speech of a sexual nature is sexual harassment  — and must be investigated — “regardless of whether it causes a hostile environment,” the letter told the University of New Mexico.
“The Department of Justice has put universities in an impossible position: violate the Constitution or risk losing federal funding,” said Foundation for Individual Rights in Education (FIRE) President Greg Lukianoff.

“An enormous amount of everyday speech” would be sexual harassment under this definition, writes Joseph Cohn on FIRE’s site.

Did you overhear someone retelling an Amy Schumer joke about sex that you found unpleasant? According to the DOJ, that makes them a harasser—even if they only did it once and didn’t do it again after you asked. If that’s harassment, the term is devoid of meaning.

If a professor argues for transgender restroom access, conservative students might complain ze has made unwelcome comments about a sexual issue. Is Camille Paglia a sexual harasser? “Leaving sex to the feminists is like letting your dog vacation at the taxidermist” must be unwelcome to somebody.

Much narrower definitions of sexual harassment have been struck down as “unconstitutionally overbroad” in previous cases, writes Hans Bader, a former Office of Civil Rights attorney, on Liberty Unyielding. “Hostile or offensive” speech about sexual issues is protected speech unless it “objectively denies a student equal access to a school’s education resources,” these decisions have found.

Investigations chill free speech, adds Bader.

Northwestern Professor Laura Kipnis suffered through a “Title IX inquisition” last year after writing an essay on “sexual paranoia” that offended some students. She was cleared of all charges — after an ordeal that will discourage others from writing anything the least bit controversial.

Campus cop censors penis on ‘free speech ball’


To promote a showing of Can We Take a Joke?, a documentary about censorship of comedy on college campuses, University of Delaware’s Young Americans for Liberty chapter created a giant “free speech beach ball” for students’ comments, reports Reason‘s Hit & Run. A campus police officer told students to scribble over a penis drawn on the free-speech ball because it was “meant to provoke” and might offend some students.

Foundation for Individual Rights in Education, which sponsored the documentary, pointed out that the University of Delaware, a public university, “must abide by the First Amendment, which has very few exceptions — and subjectively offensive words or images are not one of them.”

Feds push colleges to limit free speech

Spotlight-2015-graphMost American colleges and universities maintain unconstitutional speech codes, concludes a report by the Foundation for Individual Rights in Education (FIRE).

More than 55 percent maintain severely restrictive, “red light” speech codes, according to the report. Another 39 percent have “yellow light” restrictions.

“The greatest threat to free speech on campus may now be the federal government,” said FIRE President Greg Lukianoff. Federal efforts to end “sexual harassment on campus are leading a number of universities to adopt flatly unconstitutional speech policies.”

FIRE: Stand up for free speech

The Foundation for Individual Rights in Education (FIRE) has launched a litigation campaign against “free speech zones” and other First Amendment restrictions on college campuses.

Friends’ jokes deemed ‘harassment’

A black guy and a white guy are joking around while playing beer pong in a college dorm room. The black student shouts “Team Nigga” when his team scores a point. The white student, a football team mate, says, “How about a white power?,” an inside joke. The black student replies, “White power!” Someone down the hall hears the jokes. Both students were found guilty of creating a “hostile and discriminatory environment” at Lewis & Clark College.

“If it really wants to fight racism on campus, Lewis & Clark should stop wasting its time on jokes among friends who happen to have different skin colors,” said Robert Shibley of the Foundation for Individual Rights in Education (FIRE).

FIRE: 59% of colleges restrict free speech

Nearly 60 percent of U.S. colleges and universities restrict free speech rights, according to Spotlight on Speech Codes 2014 by FIRE (Foundation for Individual Rights in Education).

The good news: For the sixth consecutive year, however, this percentage has dropped.

The federal government is sending confusing messages about the relationship between harassment and free speech, the report notes.

Feds to students: You can’t say that

The Obama administration’s move to “dramatically undermine students’ and faculty rights at colleges across the country” is another government scandal, writes Greg Lukianoff of the Foundation for Individual Rights in Education (FIRE) in the Wall Street Journal.

The Education Department and Justice Department rewrote the federal government’s rules about sexual harassment and free speech on campus in a May 9 letter to the University of Montana. To retain federal funding, colleges and universities must punish

“unwelcome conduct of a sexual nature,” including “verbal conduct,” otherwise known as speech.

Till now, sexual harassment had to be “objectively offensive” to a “reasonable person.” That’s gone. Anyone who claims to be offended is a victim of harassment. Furthermore, colleges must respond to “student-on-student harassment” off campus and on, and may discipline the accused before the harassment charge has been investigated.

Last week’s letter is part of a decades-long effort by anti-“hate speech” professors, students, activists and administrators to classify any offensive speech as harassment unprotected by the First Amendment. Such speech codes reached their height in the 1980s and 1990s, but they were defeated in federal and state court and came in for public ridicule.

Still, a FIRE survey of 409 colleges this year found 62 percent maintain speech codes that violate First Amendment standards. Students aren’t the only victims.

In 2011, the University of Denver suspended a professor and found him guilty of sexual harassment because his class discussion on sexual taboos in American culture (in a graduate-level course) was considered too racy. Last year, Appalachian State University suspended a professor for creating a “hostile environment” after she criticized the university’s treatment of sexual-assault cases involving student-athletes and screened a documentary critical of the adult-film industry.

The government’s sweeping definition of sexual harassment will extend to other forms of speech, Lukianoff predicts.

At Tufts in 2007, a conservative student publication was found guilty of harassment for criticizing Islam. The same happened to a professor at Purdue University at Calumet in 2012, who faced a four-month investigation.

University administrators live in fear of discrimination and harassment lawsuits and costly investigations by the Education Department’s Office for Civil Rights, Lukianoff writes. You could call it harassment.

Ed student expelled for Facebook comment

A graduate education student at Syracuse University, Matthew Werenczak signed up to tutor at a predominantly black middle school. On his first day, a community leader said the school should hire teachers from historically black colleges.

“Just making sure we’re okay with racism,” wrote Werenczak on his Facebook page. “It’s not enough I’m … tutoring in the worst school in the city, I suppose I oughta be black or stay in my own side of town.”

The School of Education expelled him for “unprofessional, offensive, and insensitive” comments. When FIRE went public with the case, he was readmitted and earned his master’s degree.

U.S. rule makes every student a sex harasser

John asks Mary for a date. She says no. The request was unwelcome, so he’s a sexual harasser. Professor Smith discusses the risk of HIV transmission through anal sex, making one of his 500 students uncomfortable. He’s a sexual harasser. Just about everyone on campus is guilty of sexual harassment under rules set out May 9 by the U.S. Departments of Justice and Education, charges the Foundation for Individual Rights in Education (FIRE).

The University of Montana’s mishandling of sexual assault charges — assault, not jokes — triggered a Letter of Findings and Resolution Agreement intended to be “a blueprint for colleges and universities throughout the country.”  The DOJ and DOE declared that sexual harassment should be defined as “any unwelcome conduct of a sexual nature,” including “verbal conduct” (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.

Without a “reasonable person” standard, anyone can silence anyone else by claiming to be offended. FIRE lists some “forms of expression now punishable on America’s campuses by order of the federal government.”

 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.

Colleges and university that take federal funds — nearly all of them — must try to enforce the rule. “The federal government has put colleges and universities in an impossible position with this mandate,” said FIRE’s Greg Lukianoff. “The DOJ and DOE have doomed American campuses to years of confusion and expensive lawsuits.” And the federal letter misquoted a Supreme Court opinion to mandate an unconstitutional rule, he added.

Punishment may be required before a disciplinary hearing, writes Hans Bader, citing the letter of findings.

a university must take immediate steps to protect the complainant from further harassment prior to the completion of the Title IX and Title IV investigation/resolution. Appropriate steps may include separating the accused harasser and the complainant, providing counseling for the complainant and/or harasser, and/or taking disciplinary action against the harasser.

It appears that zero tolerance extends from sexual speech and dating requests to speech about the transgendered, writes Bader. “Gender-based harassment” is defined as “non-sexual harassment of a person because of the person’s sex and/or gender, including, but not limited to, harassment based on the person’s nonconformity with gender stereotypes.”

In a 2001 case, Saxe v. State College Area School District, an evangelical Christian successfully challenged a harassment policy that “forbade certain criticisms of homosexuality,” Bader writes.

If Saxe is kaput, any discussion of homosexuality could be banned. Mary speaks up for gay rights. John says her speech is unwelcome, gender-based verbal conduct that he finds offensive. He doesn’t have to be a “reasonable person” to make her guilty of harassment. Of course, she’s offended by the fact that he’s offended, so he’s a sexual harasser once again.

Update: Eugene Volokh, a UCLA law professor, has more on federally mandated speech codes.

College: Where free speech goes to die


Greg Lukianoff talks with Nick Gillespie on Reason TV.

Universities no longer encourage students to debate, disagree and dissent, writes Greg Lukianoff in Unlearning Liberty. Someone might feel uncomfortable.

As president of the Foundation for Individual Rights in Education (FIRE), Lukianoff has spent more than a decade fighting against censorship, speech codes, sex codes, intrusive “orientations,” mandatory “dispositions” and other checks on free expression. FIRE has defended students, professors and staffers who’ve fallen afoul of campus groupthink. One student was suspended for a cartoon protesting the decision to build an expensive new parking garage.

Just recently, DePaul put a student on probation for publicizing the names of students who admitted to vandalizing  a pro-life display. Kristopher Del Campo was found responsible for “disorderly, violent, intimidating or dangerous” behavior, which includes “creat[ing] a substantial risk of physical harm,” “causing significant emotional harm,” and “bullying,” because he named 13 admitted vandals on his group’s web site.

Unlearning Liberty explains that “free speech is important because debate is important” and debate is “the key tool of deliberative democracies,” writes Harry Lewis, dean of Harvard College

If we don’t train our students to argue with each other, without crying foul every time one side hurts the other’s feelings, we will wind up with … a dysfunctional Congress, maybe?

College graduates “will carry their conformist attitudes and unexamined political beliefs with them into their professions,” writes Bruce Thornton in College: Where Free Speech Goes to Die.

College students never have to leave the “echo chambers” of their own minds, writes Lukianoff.

 Instead, they have been subjected to a curriculum and campus life focused on “rewarding groupthink, punishing devil’s advocates, and shutting down discussions on some of the hottest and most important topics of the day.”

A “lifelong Democrat,” Lukianoff has worked for the ACLU and an environmental justice group. He backs gay marriage, abortion rights, legalizing marijuana, universal health care, etc. He belongs to a Brooklyn food co-op. Yet administrators and students assume that a defender of free speech must be a conservative — and a “fringe” conservative at that, he writes. It’s another way of shutting down debate.