Introducing FIRE Summer Intern Kanisha Parthasarathy
June 18, 2013
Kanisha Parthasarathy is a rising junior at the University of Pennsylvania majoring in English. On campus, she sits on the executive boards of two student government branches: the Nominations & Elections Committee, a branch that administers fair elections and nominations processes for the university, and the Student Activities Council, which administers funding for student groups. She is also on the executive board for Penn for Youth Debate, a volunteer organization that teaches debate at Philadelphia high schools and middle schools.
On why she decided to intern at FIRE, Kanisha writes:
One of the most important lessons I've ever been taught was about the value of having an opponent in a debate. I was told that to understand the truth, you must hear both sides of the argument. This mantra is central not only to understanding debate (an activity that is near to my heart) but to learning in general. While the idea may be simple and appear to be a crucial feature of any institution of higher education, the freedom to express multiple points of view on a topic is one that has been suppressed in many colleges and universities around the country.
I learned about FIRE from a couple of previous interns who had come from my school, and after doing some research, I realized the importance and relevance of its mission. I am fortunate to attend a "green light" school, with policies that respect student speech rights; however, many students are not as lucky. The number of cases in which basic forms of expression are suppressed is shocking. Particularly as a member of Penn's student organization that allocates funds to other student groups, reading about cases where student groups were threatened with de-funding as a result of their viewpoints (such as the College Republicans at Central Washington University) made FIRE's mission seem even more salient. What made these types of cases stand out to me was that the First Amendment rights of students were being stripped by other students. These students are losing sight of what makes a complete education and imposing unconstitutional mandates on other students, so that only some viewpoints can be heard.
Understanding an issue is not only about having an argument, but being able to defend your stance when challenged. As a debater, you learn the value in having an opponent who is able to critique your positions, as you are forced to find multiple layers of reasoning as to why your arguments are better or true. When students are unable to even express their stance, the preferred opinion goes untested, thus creating an environment that is free from productive or educational discussion. FIRE's mission is central to keeping academic discourse alive and I'm eager to work for that cause.
Welcome, Kanisha! Help support our 2013 interns by visiting thefire.org/interns.
Permalink | E-mail comments | Posted by Jaclyn Hall on June 18, 2013, at 4:25 PM
Bemidji State Revises 'Speech Code of the Month,' Sheds 'Red Light' Rating
June 18, 2013
On June 5, FIRE announced that Minnesota's Bemidji State University was our June 2013 Speech Code of the Month for language in its student conduct code prohibiting "offensive" speech. Happily, less than a week later, Bemidji State tweeted at FIRE a notification that it had revised the objectionable language in its code.
When we named it Speech Code of the Month, the relevant section of Bemidji State's conduct code prohibited
engaging in any offensive, obscene or abusive language, or in boisterous or noisy conduct reasonably tending to arouse alarm, resentment, or anger in others on University-owned or controlled property or at University sponsored or supervised activities.
The university quickly removed the speech-restrictive language from that section, which now prohibits
[c]onduct that is disorderly, lewd, or indecent; breach of peace; or aiding, abetting, or procuring another person to breach the peace on University premises or at functions sponsored by, or participated in by, the University or members of the academic community.
Since this policy no longer addresses speech, FIRE has removed it from Spotlight altogether. This had been Bemidji State's only "red light" policy, so the university no longer earns an overall red light rating. The university still maintains, however, a number of "yellow light" policies (including a policy (PDF) requiring all student demonstrators to obtain a permit in advance from the university) that restrict student speech—not as severely as the old Speech Code of the Month policy but enough to prevent the university from earning FIRE's highest rating, a "green light."
Since Bemidji State's administration seems so amenable to revising its policies to better protect student speech, we would like to encourage the administration to work with FIRE to revise its remaining yellow light policies and become Minnesota's first green light institution! In the past, we have collaborated successfully with universities such as the University of Virginia, the University of Mississippi, and Eastern Kentucky University to bring all of their policies in line with the First Amendment, and we hope to have many more such collaborations in the future, perhaps starting here!
Permalink | E-mail comments | Posted by Samantha Harris on June 18, 2013, at 2:12 PM
The $3,500 Question: Why Do Universities Pay Consultants to Advise Them on Speech Codes When FIRE Will Help for Free?
June 18, 2013
Recently I went to the website of the National Center for Higher Education Risk Management, ("NCHERM"), which describes itself as "the umbrella for eight linked organizations which serve to advance holistic, proactive prevention and risk management within K-12 schools and on college and university campuses." NCHERM has put out some white papers and other publications that I thought might be informative. During my browsing, I found NCHERM's "Code of Conduct Revision Services," which states the following:
UNDER FIRE? MAKE SURE YOUR CONDUCT CODE WON'T BE SEEN BY THE COURTS AS A SPEECH CODE: This policy review service is for colleges and universities that value free speech and want to ensure that their codes of conduct do not inadvertently prohibit speech protected by the first amendment. Today, colleges are being attacked and sued by interest groups such as the Foundation for Individual Rights in Education (FIRE) and the National Association of Scholars. It is possible to create reasonable expectations for campus civility without trampling on the rights of free speech. Let NCHERM help you strike a Constitutional and workable balance. This policy review service examines only those areas of your code that address speech and expressive conduct (such as discrimination codes, creeds, mission statements, freedom of speech statements, harassment provisions, and the like) to help you guarantee the constitutional rights of your students. You may be surprised at what we might find. A written report will detail problem areas and offer suggestions for alternative language and phraseology. COST = $2,500 to $3,500 depending on extent of review.
This sounds like a useful service. That's why FIRE provides it for free. Indeed, we have done exactly what NCHERM describes for several colleges already, and we would be very pleased to do it for as many more colleges as request it.
And that's not all! FIRE provides a handbook (available in full on our website, as well as in print) free of charge specifically for university administrators seeking to revise their policies that impact student and faculty speech. FIRE's Correcting Common Mistakes in Campus Speech Policies addresses common problems with university speech codes. We are always available to discuss specific issues with university administrators, faculty members, and students via email or phone. (Of course, we do not provide legal advice.) We also provide a form that anyone with a question about a policy can fill out; we provide answers to these inquiries promptly.
The cost to colleges and universities for these services? Nothing. Helping college administrators revise their policies to protect student and faculty rights is part of FIRE's mission as a nonprofit organization. FIRE employs First Amendment attorneys with several decades of combined experience, and we are excited to help when administrators come to us proactively to address their policies. We'd certainly rather be doing that than issuing press releases about collegiate abuses of free speech.
FIRE has a solid track record of working productively and proactively with universities. This past January, FIRE completed its collaboration with Eastern Kentucky University to eliminate provisions in its student code that violated the First Amendment. After the changes were made, we were proud to award EKU "green light" status and to issue a national press release announcing this excellent development. Similarly, we have worked closely and cooperatively with administrators at the University of Mississippi, Mississippi State University, and the University of Virginia (to name just a few schools) to ensure that their policies accurately reflect their institutional commitments to freedom of expression on campus.
But don't take our word for it. Check out the feature story from the April 2011 issue of Higher Education Legal Alert, providing an in-depth look at FIRE's work with colleges and universities. Or read the kind words for FIRE from Eastern Kentucky University President Dr. Doug Whitlock from this past February. The administrators who work with FIRE will tell you that we're knowledgeable, helpful, and very accessible.
We understand why some colleges and universities might view FIRE as an opponent. And we won't stop calling out institutions when they violate student and faculty rights. However, we vastly prefer working collaboratively with college and university administrators to ensure that their school's conduct code provides meaningful due process protections and respects First Amendment rights, so that the abuses we're concerned about never take place. Our goal is to put ourselves out of business. Help us do that, colleges!
When it comes to evaluating speech codes, FIRE and NCHERM offer the same service. The difference is that FIRE will do it for free. Choose wisely.
Permalink | E-mail comments | Posted by Catherine Sevcenko on June 18, 2013, at 11:46 AM
Introducing FIRE Summer Intern Shafaq Hasan
June 18, 2013
Shafaq Hasan, Brandeis University
Shafaq Hasan is a rising senior at Brandeis University, where she is studying art history and English. She is an editor for The Justice, the independent student newspaper of Brandeis University, and has been a participating member of the Brandeis University Mock Trial Association for the past three years. She is also a research assistant at the Schuster Institute for Investigative Journalism.
On her decision to join FIRE's internship program this summer, Shafaq writes:
As a journalist on my college campus, I have developed a clear idea of the type of productive environment that can nurture and cultivate a community's opinions and thoughts. Luckily, Brandeis University has afforded me and other members of the student body and faculty the forum to openly and actively voice our opinions without fear of retribution. University presidents for the past six decades have undoubtedly assured students that Brandeis is and always will be a facilitator of the important academic discussions necessary for continued intellectual growth. But while my own experiences in the past three years have certainly aligned with the promise of open and honest discourse that the university makes to every incoming first-year class, there is one blemish in Brandeis' recent history that has unfortunately undermined its message.
I remember doing research for one of my columns for the school paper when I came across the Donald Hindley case on FIRE's website. I felt like I had struck gold. Did other people know about this?
In 2007, Donald Hindley, a professor in the politics department, taught a class on Latin American culture. In that class, he allegedly used the term "wetbacks" in the course of an academic discussion. After said class, two students individually registered their concern for Hindley's use of the word. In response to the complaints, the administration installed an administrator to monitor him as he continued to teach his classes. While the Committee on Faculty Rights and Responsibilities condemned then-Provost Marty Krauss and President Jehuda Reinharz's handling of the case, neither the old administration nor the new administration under President Frederick Lawrence have issued an apology to Hindley for the admittedly fumbled investigation.
As a freshman, I wondered how this could have happened at Brandeis, the college where "social justice" is emblazoned on every university memo and instilled into every student. How could I be expected to carry and practice the principles of truth and justice the administration holds so close when they themselves so casually dispensed with them in this case? It was a stunning contradiction of the open-minded discussions my home institution (and many other universities) claims to be a priority on campus.
However, this case represents a much larger problem enveloping private and public colleges alike. Academic freedom and First Amendment rights are summarily violated and ignored. And yet, the general public and, perhaps more significantly, much of the population within higher education is unaware of these cases targeting tenured professors, students, and on-campus groups alike. Now, three years later, I join FIRE's team of interns and hope to contribute to FIRE's mission not only by exposing these violations but also by educating other students about the pervasive free speech violations on college campuses across the country.
Welcome, Shafaq! For more on FIRE's internship program, visit thefire.org/interns.
Permalink | E-mail comments | Posted by Jaclyn Hall on June 18, 2013, at 10:20 AM
'West Virginia State Board of Education v. Barnette' Turns 70
June 17, 2013
Supreme Court - Shutterstock
Last Friday, Flag Day, marked the 70th anniversary of the Supreme Court's decision in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). In Barnette, the Court held that requiring schoolchildren to salute the American flag and recite the pledge of allegiance violated their First Amendment rights. Writing for the majority, Justice Robert H. Jackson (the namesake of FIRE's Jackson Legal Fellowship) stated:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.
In establishing that even children share First Amendment rights to free exercise of their religion and freedom of expression (including the right not to be compelled to speak), this decision set the stage for many other critical cases that have protected students' rights for decades, like Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
Previously on The Torch, FIRE's Will Creeley pointed to an inspiring roundtable discussion with plaintiffs Gathie Barnett Edmonds and Marie Barnett Snodgrass, whose admirable decision to stand up for their rights has affected generations of students across the country.
The full Barnette opinion is well worth reading, as is the transcript of "Recollections of West Virginia State Board of Education v. Barnette," available on the St. John's University website.
Permalink | E-mail comments | Posted by Susan Kruth on June 17, 2013, at 2:54 PM
New Jersey Cyber-Harassment Bill Would Criminalize 'Indecent' and Annoying Speech
June 17, 2013
A proposed bill in the New Jersey state legislature would define the crime of "cyber-harassment" as "send[ing], post[ing], comment[ing], request[ing], suggest[ing], or propos[ing] any lewd, indecent, or obscene material to or about a person" online "with the purpose to harass another." Because the terms "indecent" and "harass" could both be read broadly under this law, and because the statute prohibits speech about a person (like, say, a state legislator) even if it is simply said in public and not to that person specifically, the statute would criminalize a significant amount of protected speech.
As Eugene Volokh notes at The Volokh Conspiracy, "'[P]urpose to harass' seems to be treated by New Jersey courts as simply meaning, purpose 'to annoy or alarm.'" With such a broad definition, cyber-harassment would include online sharing of political commentary and parodies like the fake Campari ad that the Supreme Court held protected in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).
This isn't the first time attempts to combat bullying in New Jersey have threatened constitutionally protected speech. Earlier this year, Montclair State University student Joseph Aziz was suspended for his Facebook comments about another classmate's body and ordered not to make any further comments about the woman on social media. In trying to justify the punishment, Montclair State initially cited New Jersey's anti-bullying law but eventually conceded that Aziz's comments fell short of the law's definition of bullying and rescinded the suspension.
New Jersey's anti-bullying law (PDF) comes with its own problems, as FIRE's Will Creeley has discussed here on The Torch. As with New Jersey's proposed cyber-harassment bill, this law puts students at risk for engaging in a substantial amount of speech that, while perhaps uncomfortable or offensive to some students, is nevertheless protected by the First Amendment. Will explained:
Simply put, the law is both impermissibly vague and startlingly broad. By outlawing all student speech that "is reasonably perceived as being motivated either by any actual or perceived characteristic" and that "a reasonable person should know" will "have the effect of ... emotionally harming a student" or "placing a student in reasonable fear of ... emotional harm," New Jersey is mandating that adult students appraise the sensibilities and frailties of their fellow students before speaking. This is a bizarre requirement, and one that is impossible to square with the Supreme Court's clear holdings with regard to offensive speech.
FIRE hopes that New Jersey legislators recognize that freedom of speech cannot be sacrificed by a state government in this manner. Students—and citizens—do not have a right to never be uncomfortable, or to be shielded from ideas or statements that they find merely annoying or alarming.
Permalink | E-mail comments | Posted by Susan Kruth on June 17, 2013, at 2:26 PM
'Chronicle' Review Praises 'Unlearning Liberty,' Criticizes Blueprint
June 17, 2013
Chronicle of Higher Education critic-at-large Carlin Romano praises FIRE President Greg Lukianoff's book Unlearning Liberty: Campus Censorship and the End of American Debate in a piece published in "The Chronicle Review" today. Romano writes that the book is "underappreciated" and provides a big-picture view of how American universities stifle speech in the name of comfort and preventing offense.
As a professor of philosophy at Ursinus College in Pennsylvania, Romano has seen the benefits of the kind of robust, uninhibited debate Lukianoff calls for in his book:
Over the spring, listening to my students debate gay marriage, prostitution, polyamory, monogamy, loyalty, love at first sight, and enough fetishes to shock a stadium full of anxious parents, I came to understand something crucial: Allowing students to speak without fear, without concerns about being immediately sanctioned (as opposed to criticized) for a bad choice of words, or unpopular conviction, or dumb joke, provoked divergent voices and changed many minds.
But Romano worries that a recent federal speech code mandate will compromise his future ability to engage his students in controversial, often salacious, subjects. The mandate, which calls for colleges and universities across the country to define sexual harassment as "any unwelcome conduct of a sexual nature," including "verbal conduct," risks defining any sexual expression as sexual harassment if someone subjectively finds it offensive.
"The [federal] commissars think the healthiest campus sexual environments are those in which everyone—students, professors, staff—walks on eggshells," Romano writes.
Romano calls for Lukianoff to continue to "monitor and confront" those in the federal government who would limit campus speech. He also reflects upon a note he received from a student in his spring class:
One of my students commented at the end of the term: "Thank you for making the class feel so safe for discussing these difficult subjects." I wish I could thank my government for encouraging the same feeling.
To read Romano's full piece, visit "The Chronicle Review".
Permalink | E-mail comments | Posted by Nico Perrino on June 17, 2013, at 2:00 PM
Introducing FIRE Summer Intern Madeline Gootman
June 17, 2013
Madeline Gootman is a rising junior at Vanderbilt University, where she is double majoring in political science and women and gender studies. She is also pursuing a minor in Spanish, her love for which she recently reaffirmed by studying abroad in Peru. In addition to studying abroad, Madeline has enhanced her education through courses in the university's College Scholars Program, her own independent research, and an undergraduate summer position with the Vanderbilt Ad Rating Project. Madeline is a member of Kappa Delta social sorority and serves as the chapter's Academic Excellence Chair. She also works at the Margaret Cuninggim Women's Center on Vanderbilt's campus and previously interned for their Kitchen Table Series program. She will also be joining the Women's Center's newly formed Peer Sex Educators program this fall.
On her decision to join the FIRE staff as a summer intern, Madeline writes:
To explain why I came to FIRE, I turn to a joke my friends commonly make about me: "I hope you like feminist rants because that's kinda my thing." Apparently, it is a quote from a television show, and I like it. The statement is fitting. I do have a lot of angry, liberal, feminist rants under my belt; subsequently many of my peers and coworkers were surprised to learn in April that I accepted an internship at FIRE for the summer. While they knew of FIRE's work defending the rights and liberties of students on campus, they were uncomfortable with FIRE's analysis of sexual harassment policies as "overbroad" and FIRE's public opposition to Vanderbilt's "all-comers" policy. The confusion of my coworkers allowed me the perfect opportunity to express the basis of my political beliefs: the guarantee of liberty. I came to FIRE this summer in order to protect my right to freely rant about hardcore, second-wave, feminist ideology. However, in order to protect my rants, I must also defend the rights of those individuals whose views are the complete opposite of my own to freely rant themselves.
The skill that I hope to gain from working at FIRE is the professionalism that comes from objective casework. Defending speech that conflicts with my belief system's core will shape my experience at FIRE. While I may hold different views from those I will defend, the opportunity to express my views is dependent on the opportunity of all to voice their opinions.
What is the purpose of uncontested expression? Without contrast and opposition in debate, my views will have nothing to fight against, nothing to mold them into stronger and better informed arguments, no audience to educate or improve in turn.
When I debated in high school, my coach always assigned me the position with which I disagreed. Her method of teaching required me to become a better debater by forming arguments in order to defend a position that I abhorred. However, the most important skill that this practice taught me was the ability to look at an issue from all angles and all perspectives. This new understanding of the opposition strengthened my previously held beliefs. It is an axiom of strategy that in order to improve one's plan, one must know the opposition. When universities limit the expression of unpopular opinions on their campuses, they deny their students the opportunity to grow as academics and individuals. In the absence of conflict, there cannot be any idea, proposal, or belief that is strengthened to a point of resilience. Humanity's best ideas are those that have been torn down and rebuilt a thousand times. The wisdom found in Proverbs 27:17 expresses this age-old sentiment: "As iron sharpens iron, so one person sharpens the wits of another."
Welcome, Madeline! Support FIRE's internship program today at thefire.org/interns.
Permalink | E-mail comments | Posted by Jaclyn Hall on June 17, 2013, at 1:19 PM
Defending 'Blueprint,' SUNY Lawyer Tells Students, Faculty: 'Trust Us'
June 14, 2013
Andrea Stagg, an associate counsel in the State University of New York's Office of General Counsel, took to Inside Higher Ed yesterday to defend the Departments of Education and Justice's May 9 "blueprint" for college sexual misconduct policies and practices.
I was pleased to see that the blueprint finally has a defender. After all, it's been five weeks since the blueprint's issuance—and while the newly mandated definition of "sexual harassment" has sparked a storm of criticism from commentators, attorneys, professors, and civil libertarians, it's been very difficult to find anyone willing to publicly defend the constitutionality or wisdom of prohibiting protected speech as sexual harassment.
But I was surprised that the blueprint's defense comes from the ranks of university general counsel, let alone counsel of the nation's largest public university system. Given the impossible choice the blueprint's unconstitutional mandate forces upon public universities—violate the First Amendment, or violate Title IX—and the Department of Education's Office for Civil Rights' (OCR's) conspicuous refusal to subject the blueprint's new requirements to public notice and comment, as required by the Administrative Procedure Act, one would expect that university counsel would be particularly frustrated by the federal government's ever-shifting goalposts and onerous compliance requirements.
At any rate, Stagg's argument is disappointingly devoid of substance.
Let's start at the beginning.
"Holding Colleges Responsible" is the latest example in a slew of articles - many of them quoting the Foundation for Individual Rights in Education - that are meant to alarm anyone with a voice, and the author's use of selective quotes out of the Education Department's Office for Civil Rights's response to FIRE only fans the flame.
At issue is whether the Education Department's enforcement of a law and guidance that are designed to promote compliance with Title IX of the Education Amendments of 1972 and prevent sexual harassment put free speech at risk. In particular, the recent cause for concern is language in the agreement between OCR, the Department of Justice, and the University of Montana, which the government called a "blueprint for colleges and universities throughout the country."
Stagg implies that FIRE is somehow being alarmist by publicizing the obvious First Amendment problems with the federal government's decision to define protected speech as "sexual harassment" prohibited by Title IX. Frankly, if you're not alarmed by the prospect of students and faculty being labeled sexual harassers simply for offending the most unreasonably sensitive student on campus, you're either not paying attention or you don't care about freedom of expression. And of course FIRE is going to sound the alarm about an unconstitutional definition of sexual harassment. We're a civil liberties watchdog group! Stagg and OCR might have preferred us to stay quiet—but then again, we would have preferred OCR to recognize the existence of the First Amendment. Remember, neither the findings letter nor the resolution agreement contain any mention of the First Amendment or freedom of expression. OCR only grudgingly acknowledged the First Amendment in the face of public pressure.
As far as "selective quotes" are concerned, Stagg doesn't explain why she thinks that IHE reporter Allie Grasgreen's or FIRE's quotations from the findings letter, resolution agreement, or OCR's response are misleading. Tellingly, the only time Stagg herself quotes any of these documents is in acknowledging that the Departments intended the findings letter and resolution agreement to be a "blueprint for colleges and universities throughout the country."
In the absence of any meaningful or specific engagement with FIRE's arguments or the text of the blueprint itself, Stagg's op-ed is frustratingly unmoored from the source material. She expects readers to simply trust her interpretation of the blueprint—rather than quoting from it directly, so that they are afforded the opportunity to reach their own conclusions. In contrast, FIRE has demonstrated—with repeated and direct references to the texts—how the blueprint contradicts previous OCR guidance, how OCR's response is incompatible with both the blueprint itself and with previous OCR guidance, and how the blueprint violates the First Amendment at length. We are still waiting for any serious argument to the contrary, and Stagg doesn't provide one.
Stagg continues:
Readers should know that preserving free speech and academic freedom and ensuring an environment free from sexual harassment are not mutually exclusive goals, and OCR has never published guidance or decisions that aim to limit even the most explicitly sexual academic material.
Stagg is correct in one respect. The twin aims of protecting free speech and academic freedom and prohibiting harassment on campus need not be in tension—something FIRE has told OCR many times, most recently in an open letter sent to the agency in May 2012. But the only way to reconcile these two goals is to ensure that sexual harassment is not defined to encompass protected speech, a task at which the blueprint and OCR's response fail spectacularly.
Unfortunately, Stagg fails on this count, too, as she proceeds to attempt to justify "defining sexual harassment broadly":
The issue seems to be the department's acknowledgment that conduct that is not yet severe or pervasive may still constitute sexual harassment. OCR clarified in a letter to FIRE that only severe or pervasive sexual harassment actually violates Title IX. The department's view requires defining sexual harassment broadly and understanding the difference between an institution's obligation to educate and proactively problem-solve and the obligation to "bang the gavel."
The Office for Civil Rights's "Dear Colleague" letter from April 4, 2011 is less concerned with gavel-banging and more concerned with how the complainant is treated during the reporting and grievance process. The outcome sought is the elimination of the hostile environment, if one exists, and maintaining a campus climate free from sexual harassment and violence -- not the termination, suspension, or expulsion of each accused individual.
I'll ask again: If "only severe or pervasive sexual harassment actually violates Title IX," as Stagg writes, then by what authority may OCR lawfully require a public institution to prohibit conduct that does not meet that threshold, particularly when the alleged "sexual harassment" is speech protected by the First Amendment? Remember, the blueprint flatly states that "[s]exual harassment is a form of sex discrimination prohibited by Title IX and Title IV," and then defines "sexual harassment" as "any unwelcome conduct of a sexual nature," including speech. How can OCR reconcile the blueprint with its clarification on this crucial point? Stagg provides no answers.
Stagg's elaboration—that "[t]he department's view requires defining sexual harassment broadly and understanding the difference between an institution's obligation to educate and proactively problem-solve and the obligation to ‘bang the gavel'"—is irrelevant. When it comes to speech protected by the First Amendment, it doesn't matter what "the department's view" is, or whether that view requires "gavel-banging," or "proactive problem-solving," or "defining sexual harassment broadly." To be clear: Speech protected by the First Amendment cannot be labeled sexual harassment under Title IX. That's the law, no matter how Stagg tries to spin it.
It's also important to note that Stagg makes an error of fact here. She states that OCR responded to FIRE, but that's incorrect. OCR has not responded to FIRE, despite our repeated attempts to contact OCR ever since the April 4, 2011, "Dear Colleague" letter. Instead, OCR sent its recent response to concerned citizens who had contacted the agency directly. Why is this important? Because OCR's "clarification" was not made publicly available by the agency. Unless they're reading FIRE's website, college and university administrators nationwide are unaware that OCR subsequently "clarified" the blueprint.
Stagg continues:
It is not new for an institution to encourage reporting so that it may determine whether the report warrants action. "See something, say something." Surely not every forgotten bag contains explosives, but because citizen bystanders are not experts with bomb-sniffing German Shepherds, we are encouraged to report what we see.
Stagg's analogy is flawed and betrays a troubling disdain for freedom of expression. Encouraging the reporting of suspicious packages is not akin to encouraging the reporting of subjectively offensive speech. The problem here is the blueprint's expansive definition of sexual harassment. Law enforcement is under no obligation to classify a package as a bomb simply because a citizen has subjectively identified it as such. But under OCR's broad definition, a student's subjective offense—no matter how unreasonable—is enough to classify protected speech as "sexual harassment," which must then be investigated and recorded, with the accused's name listed permanently in a university database. The obvious chilling effect that results is antithetical to the Bill of Rights. Labeling protected speech as "sexual harassment" prohibited by Title IX simply because it offends an unreasonable student violates the First Amendment and is an impermissible means of encouraging reporting.
Setting constitutional harms aside, the fact that the federal government is encouraging students to report feelings of subjective offense as "harassment" bodes ill for our democracy. Teaching students to report protected speech they merely find unwelcome to authorities for mandatory investigation—as though an offensive remark was akin to a bomb-does immeasurable harm to our future leaders' ability to debate and solve the issues of their time.
One might think an attorney working for the SUNY system would recognize the readily apparent problem here, since Keyishian v. Board of Regents of the University of the State of New York, 385 U.S. 589 (1967), one of the U.S. Supreme Court's landmark cases in defense of campus First Amendment rights and academic freedom, was decided against that very university system. Writing for the Court in Keyishian, Justice William Brennan made abundantly clear that the First Amendment "does not tolerate laws that cast a pall of orthodoxy over the classroom" and that the "Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.'" Id. at 603. I doubt Justice Brennan would tolerate OCR's staggeringly broad definition of sexual harassment and the mandatory reporting system that accompanies it.
Stagg continues:
Despite OCR's recommendation for broad-based training and notification of sex discrimination definitions and procedures, students and employees are not experts in this area, and they are not expected to be equipped to make a final decision about whether actionable sex discrimination exists. That responsibility falls specifically to the Title IX coordinator or designee under the grievance procedures. By encouraging reporting of unwelcome conduct, the coordinator or designee also has the opportunity to spot patterns, which is a requirement of that job.
Imagine that 10 students report similar instances of sexual harassment (unwelcome conduct of a sexual nature) by another student or an employee that, individually, would not rise to the level of a hostile environment. Together, this conduct is a pattern of sexual harassment behavior that may create a hostile environment in a particular classroom, department or residence hall. Certainly, at the least, it warrants a conversation with and training for the accused individual.
Again, Stagg apparently sees no problem with mandated reporting and investigation of protected speech just because it subjectively offends a listener, and her comfort with this system is extremely troubling. As my colleague Joe Cohn and I wrote last week, the fact that "a public university will be required by the federal government to thoroughly investigate obviously protected student or faculty speech simply because it offended someone" is shocking. For more on the problems with the blueprint's misguided attempt to encourage reporting by deeming protected speech "sexual harassment," check out recent articles by my colleagues Robert Shibley and Samantha Harris.
With regard to Stagg's hypothetical, if 10 students report instances of "sexual harassment" that are actually protected speech—for example, voicing criticism of or support for a planned "Slutwalk"—a public institution cannot require the accused student or faculty member to undergo "training." Further, by aggregating student complaints about an individual, Stagg discounts the key component of OCR's definition of hostile environment harassment: that the allegedly harassing conduct actually denies or limits a student's ability to participate in school activities. The findings letter (PDF) explains:
To determine whether a hostile environment based on sex exists, the United States considers whether there was harassing conduct that was sufficiently serious—that is, sufficiently severe or pervasive—to deny or limit a student's ability to participate in or benefit from the school's program based on sex. [Emphasis added.]
The conduct described in Stagg's hypothetical does not deny or limit any student's ability to participate or benefit from the school's program—as Stagg notes, the conduct "individually[] would not rise to the level of a hostile environment." OCR's 2001 Revised Sexual Harassment Guidance notes that "persistent unwelcome sexual conduct still may create a hostile environment if directed toward a group"—but it must still deny or limit those students' ability to participate or benefit from the school's program. And of course, the 2001 Guidance makes clear that "the protections of the First Amendment must be considered if issues of speech or expression are involved," and that "the offensiveness of a particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a sexually hostile environment under Title IX."
Finally, Stagg concludes:
The Education Department and higher education administrators are well aware of the First Amendment and academic freedom. Encouraging the campus community to report instances of sexual harassment and leaving the evaluation of such reports to designated experts is appropriate and lawful.
This final paragraph encapsulates Stagg's message to students, faculty, alumni, and citizens concerned about protecting campus speech from censorship: "Trust us! We are 'well aware' of the First Amendment and academic freedom! You have nothing to worry about!" Stagg seems to have forgotten that the animating impulse behind the Bill of Rights was a distrust of government authority with regard to core civil liberties like freedom of expression.
Stagg's reassurance rings hollow, particularly given the long and shameful history of campus censorship based on overbroad and vague harassment policies. Should Alex Myers, a student at the State University of New York College at Oswego suspended for "harassment" after writing a letter to rival schools' hockey coaches, have just trusted that administrators would eventually figure out that his speech was protected by the First Amendment? He would likely have been waiting a long time. Luckily—after intervention from FIRE and a well-deserved public shaming for SUNY Oswego—the charges were dropped. Otherwise, Stagg might have had the chance to make her "trust us, we're ‘well aware' of the First Amendment" argument in federal court, defending SUNY Oswego administrators.
Stagg's defense of the blueprint is unpersuasive and depressingly comfortable with defining protected speech as sexual harassment. Instead of answering concerns about freedom of expression, her dismissive attitude towards the First Amendment creates serious worries about how the federal government's mandate will be received on SUNY campuses this fall.
Permalink | E-mail comments | Posted by William Creeley on June 14, 2013, at 2:10 PM
Introducing FIRE Legal Intern Cara Gagliano
June 14, 2013
FIRE's legal intern for summer 2013 is Cara Gagliano, a rising second-year law student at New York University School of Law who is pursuing a career in constitutional litigation. At NYU she is involved in the Suspension Representation Project and the Know Your Rights Project, a student group that educates local high school students about their Fourth Amendment rights.
Before enrolling at NYU, Cara graduated from Northwestern University, where she spent her four years as a Linguistics major and a college radio DJ. After graduation, she received a Fulbright grant to teach English and American Studies at two high schools in Zlín, Czech Republic.
Cara became interested in constitutional rights at a young age, proudly showing off her ACLU membership card to her eighth-grade classmates. Unlike many of her other middle-school interests, this ardor for civil liberties has held firm and continued to develop, leading her to law school and now FIRE. Cara was drawn to FIRE by its principled stance that all students have rights to free speech and due process—no matter the content of their opinions. She especially appreciates the diversity of viewpoints within the organization and looks forward to a summer of being challenged intellectually while promoting the rights she values so deeply.
Permalink | E-mail comments | Posted by William Creeley on June 14, 2013, at 12:22 PM
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