The Department of Education's Office for Civil Rights (OCR) released a letter yesterday in response to mounting criticism over new sexual harassment guidelines that critics claim raise more questions than it answers.
After two weeks of continued pressure from the nonpartisan Foundation for Individual Rights in Education (FIRE), coverage in the media, letters from students, faculty and administrators sent to the OCR regarding its new speech codes, the OCR responded with another letter.
As previously reported, FIRE claimed the new guidelines would make nearly every student a sexual harasser. The new mandate would make flirting, sexual jokes, and even many debates, presentations, and other expressions on campus fall under the expanded definition of sexual harassment.
"OCR’s regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment," the agency stated in its letter.
The office said its May 9 letter to the University of Montana and the subsequent agreement between the OCR and the school "are entirely consistent with the First Amendment, and did not create any new or broader definition of unlawful sexual harassment under Title IX or Title IV."
The DOJ and DOE’s explanation letter appears to contradict its original letter sent on May 9, which called for sexual harassment to include "verbal" conduct and suggested the new guidelines would serve as a "blueprint" for all universities and colleges.
FIRE said OCR’s statement contradicts its May 9 letter in a statement released today.
"OCR contends that ‘the May 9 letter explains that "sexual harassment" is unwelcome conduct of a sexual nature but that sexual harassment is not prohibited by Title IX unless it creates a "hostile environment."’ But the May 9 letter includes no such explanation," the statement said.
"To the contrary, the May 9 letter flatly states that ‘[s]exual harassment is a form of sex discrimination prohibited by Title IX and Title IV’—and then proceeds to define ‘sexual harassment’ as ‘any unwelcome conduct of a sexual nature,’ including ‘verbal’ conduct," according to FIRE.
FIRE is demanding a complete retraction of the May 9 letter.
"The Office for Civil Rights' weak attempt to walk back its disastrous May 9 letter is too little, too late," said FIRE President Greg Lukianoff. "OCR's belated lip service to freedom of expression following a national firestorm of criticism is hardly sufficient to undo the damage of a 47-page ‘blueprint' that doesn't once mention the First Amendment or freedom of speech. FIRE calls on OCR to immediately issue a swift and detailed retraction and clarification to every college and university in the country."
FIRE claims that OCR’s May 9 letter betrays core First Amendment rights by "imposing a new mandate on colleges and universities to adopt and enforce a breathtakingly broad definition of sexual harassment."
When approached for comment on FIRE's call for a retraction of the May 9 letter, the Department of Education forwarded the letter released by OCR yesterday.