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May 13, 2013

The Feds Mandate Abolition of Free Speech on Campus

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By Harvey Silverglate and Juliana DeVries

In a breathtakingly bold move, the civil rights offices of both the Department of Education and the Department of Justice have mandated the effective abolition of free speech on college campuses, as well as the almost certain conviction of large numbers of students, many of whom will be innocent, of "harassment." Neither justice nor education will be well served.

The ED/DOJ's disturbing and unconstitutional May 9th letter, mandating changes in sexual assault and harassment procedures and standards, arose out of a joint ED/DOJ investigation and evaluation at the University of Montana, Missoula. The ED and DOJ addressed their letter to the university president, but more broadly described it as "a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault." In other words, any college or university receiving federal funding (which includes nearly all of them) risks losing that funding, if it does not comply with the standards laid out in the letter. 

The turgid 31-page, single-spaced letter, made up largely of bureaucratic gibberish - with the couple of censorial sentences hidden like trace gold amidst tons of ferrite - will effectively establish a culture of censorship and self-censorship on our nation's campuses, where only officially-approved attitudes will lead to survival. Henceforth, "sexual harassment," for which a student must be investigated according to federal regulations, will be defined on campuses throughout the nation as engaging in "any unwelcome conduct of a sexual nature." Moreover, the "unwelcome conduct" need not be gauged by the perceptions and reactions of a "reasonable person." Instead, a student may - and if a college wants to avoid trouble with the Feds, must - be brought up on harassment charges if his conduct is, quite simply, "any unwelcome conduct of a sexual nature," including "verbal conduct" (more commonly known as "speech"), from the vantage point of the "victim." It doesn't matter if the victim happens to be exceptionally brittle, or subjectively feels "sexually harassed" in situations that other students would deem nothing more than the normal interactions of daily life in a college community.

Everyone Guilty Three Times a Day

The inevitable result of this seemingly innocuous, or at least hyper-technical, rule is that all students would arguably be guilty of harassment several times a day. According to ED/DOJ standards, even playing uncensored rap music at a college party, posting something controversial on Facebook, or defending former U.S. Representative Todd Akin in class could now constitute "harassment." (And engaging in satire or parody is just inviting expulsion!) It is now up to "victims" - presumably the more oversensitive or even neurotic members of the student community - to decide when unwelcome words constitute actionable harassment. In other words, in a hypothetical 500-person lecture on gender disparities in the workplace, the one person who takes offense to slide five has the power to silence the professor, and to keep the 499 other students from hearing the speech in question. The Supreme Court some time ago referred to this tactic as "burning the house to roast the pig," and has consistently ruled it unconstitutional.

Indeed, the ED/DOJ mandate would not stand a chance of surviving a constitutional challenge if one were brought by either a dissatisfied university or a student punished by his or her college for uttering protected speech or engaging in innocuous personal conduct. (The letter even misquotes the Supreme Court decision in the seminal case of Davis v. Monroe County.) But by the time a challenge makes its way up to the Supreme Court - a process that typically takes half a decade or more, assuming that discretionary high court review is in fact granted - the bureaucrats will have already succeeded in establishing a permanent cultural change such that students won't even be tempted to say something of a sexual or even, very likely, a gender-related nature, nor engage in dating activity, that might possibly disturb an overly sensitive fellow student.

Campus free thought and academic freedom have already been on virtual life-support for some 25 years and counting. In a 2013 study of 409 American colleges and universities, the Foundation for Individual Rights in Education (FIRE) found that three-fifths maintain policies that infringe upon the free speech rights of students. FIRE President Greg Lukianoff lists numerous examples of students being punished for seemingly innocuous conduct and speech in his October 2012 book Unlearning Liberty: Campus Censorship and the End of American Debate. Lukianoff writes, for example, of a student punished for making a collage critical of a parking garage, another for publicly reading a book about the defeat of the Ku Klux Klan in a street fight, and of a professor labeled a dangerous threat to campus safety for posting a pop-culture quote on his doorway. This latest ED/DOJ letter is the culmination of a decades-long trend of censorship on campuses - a trend that is discouraging debate and homogenizing the minds of our future leaders.

Can Things Get Worse?

As one long-time close observer of the college campus scene with years of experience teaching at Harvard wrote to Silverglate: "Just when you thought things could not get worse, the government...instructs universities to criminalize bad jokes, clumsy flirtation, and unpopular social science. Amazing! And appalling!" And so it is.

The picture looks bleak, unless the bureaucrats have gone so far this time that those who value preserving our nation's universities and a free society's values will finally be galvanized to do something. Without major push-back, dissimulation and cynicism will surely replace frankness and honest discussion on our campuses. As the wily French diplomat and functionary Talleyrand is reported to have said, in explaining how it was that he survived all of the turbulent twists and turns before, during and after the French Revolution, keeping his power perch and his head attached to his neck throughout: "Language was given to man to disguise his thoughts." And so it will be on college campuses everywhere. So much for what the Supreme Court has called "the market place of ideas."

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Harvey Silverglate, a Boston criminal defense and civil liberties lawyer and writer, is the co-founder and Chairman of the Board of Directors of The Foundation for Individual Rights in Education (www.thefire.org). He co-authored The Shadow University: The Betrayal of Liberty on America's Campuses). Juliana DeVries, who graduated from Columbia University in 2011, is a Program Associate at FIRE.


(Photo: Eric Holder. Credit: Fox.)



Comments (4)

I totally agree with you.

I used to work at the Department of Education's Office for Civil Rights, as an attorney handling Title IX issues, and I totally agree with you.

I explain in more detail why this action by the Education and Justice Departments violates the First Amendment, and is not a fair reading of Title IX:

http://libertyunyielding.com/2013/05/11/obama-administration-demands-unconstitutional-campus-speech-codes-defines-college-dating-and-flirting-as-sexual-harassment/

Eugene Volokh, a leading law professor and First Amendment expert whose writings have been cited in opinions joined in by most members of the U.S. Supreme Court, has also explained why the government's demand for censorship violates the First Amendment, in his post here at Minding the Campus ("The Administration Says Universities Must Implement Broad Speech Codes," Minding the Campus, Short Takes, May 13, 2013).

Jonathan Cohen:

This latest development is accurately described as just when you think things could not get any worse, this letter is sent out. The ray of hope that the Supreme Court would throw out any actions taken in line with the DOJ and DOE request is far from guaranteed. If the current administration gets to choose the next Supreme Court justices, it is unlikely that someone will be chosen who would oppose this. In fact, it is likely that the screening process to choose the next nominee will include eliminating any candidate who would oppose the letter.

There is a big campaign on campus against sexual assault. While there may be only one or two reported assaults a year, many campuses have changed April from the month of love to the month of sexual assault awareness. Ignoring the fact of no reported actual assaults, offices of student affairs and some departments are sponsoring events to prevent the fifty assaults per month they claim are actually happening. There is no attempt to provide evidence of rampant sexual violence and people who might be expected to be made uncomfortable by such monstrous lies simply look the other way. Basically, the attitude is that since rape is a terrible crime, what is the harm in protesting the rampant occurrence of rape even if virtually no such violence is actually occurring.

Devin Hosea:

I think this is atrociously unconstitutional action by the ED/DOJ. The question is how to react.

I do think it is important to BEGIN court action against policies and mandates like these. As the Silverglate article points out, it can take years and the highest courts can deny review, but ultimately they can also provide PERMANENT RELIEF from these absurd infringements on individual liberty.

Organizations like FIRE and the ACLU need to fight this in the courts.

Furthermore, individuals closely involved with private universities, especially those that do really establish a blueprint for policies at other schools, including students, faculty, administration, and alumni, need to take action to ensure that their schools do everything possible to negate federal bureaucratic infringement on first amendment rights. I really doubt Princeton or Harvard is going to lose out on research dollars from the government because it fails to punish someone who criticizes Todd Akin on Facebook! If the schools themselves simply have the backbone to stand up to the government, they will prevail.

I think a two-pronged approach is the best -- fight the government in court, and fight its policies on campus. At this point, it is getting absurd, and prima facie unconstitutional. I'm quite alarmed!

Devin Hosea

Eric Roth:

This edict to reward unreasonable perceptions of harassment seems more Orwellian than American. Given the many possible, even probable absurd injustices that could be caused by this peculiar mandate, is it possible that the decision has been made without an awareness of its practical consequences? The language seems so misguided that it's difficult to fathom brilliant American legal scholars of good will embracing such a dubious concept. Is there evidence that ED/DOJ actually intend to enforce the more problematic implications? Or are they just claiming this power hoping to prevent universities from overlooking sexual harassment on campus?

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