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.