The federal government is backing away from its previously issued guidelines on sexual harassment that it said would serve as a "blueprint" nationwide for colleges and universities.
The Departments of Justice (DOJ) and Education (DOE) previously issued guidelines to the University of Montana suggesting that "unwelcome" speech could constitute sexual harassment. The departments said in a letter to the university that the new definition would serve as a "blueprint for colleges and universities throughout the country."
However, in a letter sent to the Foundation for Individual Rights in Education (FIRE), Catherine Lhamon, the new head of the DOE’s Office for Civil Rights, reversed the Department of Justice and Office of Civil Right’s previous statements. She said the agreement it reached with the University of Montana "represents the resolution of that particular case and not [the Office of Civil Rights] or DOJ policy."
FIRE president Greg Lukianoff said that Lhamon’s backing down was welcome news.
"Assistant Secretary Lhamon’s clear statement that the Montana agreement does not represent [the Office of Civil Rights] or DOJ policy—meaning it’s not much of a ‘blueprint’—should come as a great relief to those who care about free speech and due process on our nation’s campuses," he said in a statement.
Will Creeley, FIRE director of legal and public advocacy, told the Free Beacon by email that the University of Montana is now only bound by the agreement despite the DOJ and DOE’s previous proclamations.
"While [the Office of Civil Rights] makes clear on its website that individual findings letters are only binding on the institution to which they are issued, DOJ and [DOE] had strongly indicated otherwise in this instance by proclaiming the University of Montana agreement to be ‘a blueprint’ for colleges and universities throughout the country."
The latest letter clarifies the government’s position.
"We’re pleased that Assistant Secretary Lhamon has clarified that the University of Montana resolution does not constitute [the Office of Civil Rights’] policy, and we ask her to issue a similar clarification to institutions nationwide," Creeley said.
"We are also cautiously optimistic that recent actions by [the Office of Civil Rights]—including approval of the policies eventually adopted by the University of Montana, which depart from the blueprint's requirements, and the terms of a recent agreement reached with the State University of New York—indicate that OCR is backing away from the most egregious components of the ‘blueprint,’" Creeley said.
The State University of New York’s agreement was reached in September and set forth a narrower definition of sexual harassment than the original blueprint reached with the University of Montana in May. That blueprint would have made nearly every student a sexual harasser as it defined sexual harassment as "any unwelcome conduct of a sexual nature," including "verbal conduct," as previously reported.
Creeley said the Office of Civil Rights "appears to be rethinking its ill-conceived attempt to deem vast swaths of student and faculty speech ‘sexual harassment.’ This is a welcome development."
Despite the latest development, faculty members are still concerned by one of the new requirements.
Faculty and students at the University of Montana were to be reported to the federal government if they failed to take sexual harassment training. Faculty told the Free Beacon the requirements were "Orwellian."
While that aspect of the settlement has also been eased—departments, and not individuals, will be reported to the government, as detailed in a report by the Missoulian—FIRE believes that individuals can still be identifiable by this requirement.
FIRE also has concerns about students being disciplined for sexual harassment before a hearing is even held to determine if misconduct has occurred. Lhamon defended that provision of the University of Montana agreement in her letter.