Obama Admin Pressures Colleges to Adopt Unconstitutional Speech Codes
Under the Obama administration, the Education Department has pressured schools and colleges to restrict speech, including off campus speech, even when it is protected by the First Amendment, and is not severe and pervasive. It claims this is required by federal anti-discrimination laws such as Title IX and Title VI. It also expects colleges to investigate off-campus sexual misconduct by students, even though most federal appellate court rulings say schools have no such duty under Title IX.
As I recently noted in The Wall Street Journal, “the Education Department, where I used to work,” is
“pressuring colleges to adopt unconstitutional speech codes in the name of fighting sexual harassment. It has disregarded many court rulings in doing so.“For example, the Education Department has wrongly ordered schools to regulate off-campus speech and conduct. That contributed to the harassment charges against Prof. Laura Kipnis, who was accused over a politically incorrect essay she wrote in the Chronicle of Higher Education and statements she made on Twitter. Court rulings like Roe v. Saint Louis University (2014) reject Title IX claims over off-campus conduct, but the Education Department ignores them. It also ignores court rulings like Klein v. Smith (1986) emphasizing that the First Amendment usually bars public schools from restricting off-campus speech. For example, the Education Department told schools to regulate comments ‘on the Internet’ in an October 2010 letter. In 2014, it demanded that Harvard regulate off-campus conduct more.”
At Northwestern University, Professor Laura Kipnis was subjected to a bizarre Title IX investigation over an essay in the Chronicle titled “Sexual Paranoia Strikes Academe” (which hypersensitive students claimed offended them and constituted sexual harassment) and her subsequent statements defending herself on Twitter (which the students claimed constituted “retaliation” in violation of Title IX, even though she did not identify them by name). Kipnis was ultimately found not guilty.
Although it eventually became clear that nothing Kipnis did violated Title IX, Northwestern probably felt obligated to subject Kipnis to that chilling, lengthy, and extensive investigation due to improper mandates issued by the Education Department’s Office for Civil Rights (OCR), which make it hard to summarily dismiss weak or baseless Title IX complaints.
As I have discussed earlier, OCR issued such mandates in violation of the Administrative Procedure Act’s notice-and-comment provisions, a disturbing practice frequently committed by the Education Department. A federal appeals court in a different part of the country ruled in White v. Lee (2000) that lengthy, speech-chilling civil rights investigations by government officials can violate the First Amendment even when they are eventually dropped without imposing any fine or disciplinary action. But Northwestern is a private university.
OCR’s mandates wrongly extend Title IX to off-campus speech and conduct, and pressure colleges to investigate even if the speech or conduct alleged is not severe and pervasive. The Supreme Court's 1999 decision in Davis v. Monroe County Board of Education requires proof that conduct was severe andpervasive to violate Title IX, emphasizing five times that it must be “severe, pervasive, and objectively offensive.”
OCR, to the contrary, deems colleges liable for sexual harassment based on conduct that is merely “persistent” or “severe” or “pervasive.” Professor Kipnis may have been “persistent” in expressing her views, but there was nothing "severe" and "pervasive" about them, or the way she expressed them.
OCR sometimes expects colleges to nip harassment in the bud by taking draconian measures against speech that does not legally amount to sexual harassment, such as when it told the University of MontanaObama Admin Pressures Colleges to Adopt Unconstitutional Speech Codes | CNS News:
