Federal Government Moves Away From Campus Free Speech Blueprint

Federal Government Moves Away From Campus Free Speech Blueprint
  • Opening Intro -

    American college and university campuses have long been bastions of free speech, but the federal government has not always supported academic institutions accordingly.

    Indeed, earlier this year the government endorsed a University of Montana "blueprint" to restrict speech, one that would have also limited due process and expanded the definition of sexual harassment.

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The US Departments of Education and Justice also began to push for the new restrictions nationwide, a move that had alarmed free speech advocates who also vowed to fight the initiative.

Fighting Restrictions With FIRE

Those free speech advocates included representatives from the Foundation for Individual Rights in Education (FIRE), a non-profit group that focuses on civil liberties in academia. FIRE quickly responded to halt the anti-free speech initiative and its work has apparently paid off.

Last week, FIRE received a letter from the Department of Education’s Office for Civil Rights (OCR), Catherine Lhamon, who wrote that “the agreement in the Montana case represents the resolution of that particular case and not OCR or DOJ policy.” That letter was hailed by FIRE President Greg Lukianoff who said that it “…should come as a great relief to those who care about free speech and due process on our nation’s campuses.” Further, the University of Montana later adopted a policy that is far removed from the blueprint that was under consideration earlier this year.

Specifically, the earlier Montana agreement included the following definition: “any unwelcome conduct of a sexual nature,” including “verbal conduct” (i.e., speech). FIRE argued that this very broad definition could cover certain movies, stand-up comedy routines and even books. This past fall the OCR and the State University of New York system reached an agreement that did not include the questionable provision, choosing to focus on behavior that rises to the level of creating a “hostile environment”—what FIRE says is a far more specific, speech-protective threshold.

Supreme Court Context

Lhamon, in her letter to FIRE, stated the the OCR’s position on hostile environment harassment is “consistent” with the definition of sexual harassment in the educational context provided by the U.S. Supreme Court in Davis v. Monroe County Board of Education (1999). That’s a definition endorsed by FIRE and other civil liberties organizations, one that they have urged, repeatedly, for OCR to recognize.

“After a national outcry from concerned citizens and civil liberties groups this summer, OCR appears to be rethinking its ill-conceived attempt to deem vast swaths of student and faculty speech ‘sexual harassment.’ This is a welcome development,” said FIRE Director of Legal and Public Advocacy Will Creeley. “A great deal of work remains to be done, but advocates of free speech and academic freedom on campus should be cheered by this progress.”

Protecting Free Speech

FIRE still believes that much more needs to be done to protect students’ rights on campus. The organization noted that Lhamon still stood behind a Montana provision that allows the university to discipline students for sexual misconduct even before a hearing is held to determine whether misconduct occurred. Moreover, University of Montana faculty remain vulnerable if they do not attend meetings about the new policies as their names and titles may be reported to the US Department of Justice despite receiving assurances that the university has amended that requirement. Under its currently requirement, the university can still report attendance by department instead of on an individual basis. However, faculty remain worried that their names might still be discovered if they choose not to appear.

“The sooner that OCR informs colleges nationwide that the Montana agreement does not require the abandonment of civil liberties on campus, the better,” said Creeley. “Combating the problem of sexual assault on campus does not require sacrificing student and faculty rights. FIRE stands ready to work with OCR and campuses nationwide towards lasting, lawful policies that will actually address the challenges our campuses face.”

Rating Educational Institutions

FIRE also grades America’s college and universities with a “speech code rating” assigning green light, yellow light and red light scores to reflect progressively restrictive rights on free speech. A green light score is the most favorable, but that does not mean that the school actively endorses free expression. Rather, the score means FIRE is “currently not aware of any serious threats to students’ free speech rights in the policies on that campus.” In some cases institutions may not be rated as there may not be enough information available to assign an accurate rating.

See AlsoIs College Free Speech Under Fire?

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