Free Speech Under Fire

Free speech advocate: New guideline on sexual harassment at universities threatens First Amendment

May 15, 2013

The Obama administration’s Departments of Justice and Education earlier this month issued new guidance on sexual harassment on college campuses that is so broad it makes nearly every student a harasser, according to a nonpartisan group that specializes in campus speech codes.

The new sexual harassment definition was issued by the agencies in a letter to the University of Montana late last week. The letter states that sexual harassment now will be defined as "any unwelcome conduct of sexual nature" and will include "verbal" conduct, meaning speech is now included.

The letter states that the new broadened definition of sexual harassment will serve as a "blueprint for colleges and universities throughout the country." The new mandate now applies to every college that receives federal funding, which, according to the Foundation for Individual Rights in Education (FIRE), is virtually every American institution of higher education nationwide, public or private.

"It’s a complete disaster for what you can and can’t say on college campuses," said Greg Lukianoff, president of FIRE. He said the new standards are "so vague and broad" that virtually any student can now be charged with sexual harassment.

Lukianoff said he is appalled at the attack on "free speech on campus from our own government." He said the DOJ and DOE have now established speech codes that violate the First Amendment and completely ignore decades of legal precedent.

Lukianoff said a student could be charged with violating the new conduct standards if he asks another student out on a date and the other student deems that request offensive. He also said that if a sexual joke is told, and someone who overhears it is offended, the student who told the joke could be charged with sexual harassment.

FIRE claims many presentations, debates, and expressions on campuses can now be viewed as sexual harassment. Campus performances of "The Vagina Monologues," debates about sexual morality, or discussions on gay marriage could now be subject to discipline.

Additionally, unwelcome flirtation could be viewed as sexual harassment.

"It has bad long-term effects on speech," Lukianoff said. He also said the new standard "empowers people to punish the people they dislike."

He pointed out a recent Johns Hopkins case in which a pro-life group was not granted certain rights on campus because some students were "uncomfortable" with their stance. While the university has since reversed its decision, Lukianoff said this expanded definition could give free reign to similar instances.

The Washington Free Beacon asked the DOE for comment. They responded, asking for guidance as to where the word "speech" appeared in their letter to the university. The Free Beacon referred them to the page of their letter that now defined sexual harassment to include "verbal conduct."

After that email exchange, they did not respond to further requests for comment.

The DOE did not indicate in its press release on the matter the new broadened definition of sexual harassment. Rather, it touted the agreement as a positive step toward achieving student safety on campuses.

"For students to feel safe and welcome on college campuses, sexual assault and harassment must be swiftly and effectively addressed," said Jocelyn Samuels, principal assistant attorney general for the Civil Rights Division of the Department of Justice. "We applaud the university for its cooperation and for taking the steps necessary to maintain a safe learning environment for all students. These agreements provide a blueprint for colleges and universities across the country to take effective steps to prevent and address sexual assault and harassment on their campuses."

The letter also states that "sexual harassment should be more broadly defined as any unwelcome conduct of a sexual nature," and the expression need not be offensive to an "objectively reasonable person of the same gender in the same situation."

The new guidance contradicts the 2003 Department of Education’s Office of Civil Rights guidance on sexual harassment. That guidance stated that harassment must "include something beyond the mere expression of views, words, symbols, or thoughts that some person finds offensive."

"The federal government has put colleges and universities in an impossible position with this mandate," said Lukianoff. "With this unwise and unconstitutional decision, the DOJ and DOE have doomed American campuses to years of confusion and expensive lawsuits, while students' fundamental rights twist in the wind."

"All options are on the table" in fighting this attack on free speech on campuses, he said.

College students were also critical of the decision.

"I think considering what someone says as sexual harassment is going a little too far," said Megan Gallagher, a freshman at Towson University. "Most of the time I hear people making jokes and they don't mean any of it. It's just difficult to determine when someone's joking and when they aren't."

"My take on this is that the definition of sexual harassment on college campuses is too broad," said Joseph Pareres, a junior in Manhattanville College. "This definition puts students at risk of being accused of sexual harassment for no valid reason."

"A college campus is often a place where students make jokes about sexuality with no real threat," Pareres said. "A person should be accused of sexual harassment when there is real and imminent danger. Flirting or joking should not be reason for someone to file a charge just because they feel offended. Anyone who is offended should not take this to a higher power but simply avoid the specific person."

"The ambiguity that this new letter injects into university codes will result in lots of confusion, lots of people punished for slim reason, and litigation at universities for years to come," said Lukianoff. "I don’t know if they realize what they’ve done here."