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'Blueprint' No More? Feds Back Away from New Campus Speech Restrictions

WASHINGTON, November 21, 2013鈥擳he federal government is backing away from the nationwide 鈥渂lueprint鈥 for campus speech restrictions issued this May by the Departments of Education and Justice. The agencies鈥 settlement with the University of Montana sought to impose new, unconstitutional speech restrictions, due process abuses, and an overbroad definition of sexual harassment and proclaimed the agreement to be 鈥渁 blueprint for colleges and universities throughout the country.鈥

But in a letter sent last week to the Foundation for Individual Rights in Education (果冻传媒app官方), the new head of the Department of Education鈥檚 Office for Civil Rights (OCR), Catherine Lhamon, said that 鈥渢he agreement in the Montana case represents the resolution of that particular case and not OCR or DOJ policy.鈥

鈥淎ssistant Secretary Lhamon鈥檚 clear statement that the Montana agreement does not represent OCR or DOJ policy鈥攎eaning it鈥檚 not much of a 鈥榖lueprint鈥欌攕hould come as a great relief to those who care about free speech and due process on our nation鈥檚 campuses,鈥 said FIREPresident Greg Lukianoff. 鈥淐olleges have been  trying to reconcile their obligations under the First Amendment with the requirements of the 鈥榖lueprint鈥欌攅ssentially an impossible task. OCR and DOJ now need to directly inform our nation鈥檚 colleges and universities that they need no longer face that dilemma.鈥

Recent actions from OCR further suggest that the worst features of the Montana settlement are not being required of public colleges, indicating that OCR no longer regards the controversial components of its May agreement as a blueprint for all colleges. Indeed, the actual policies adopted by the University of Montana itself this fall depart from the broad definition announced by the blueprint.

For example, the Montana agreement included an overly broad definition of punishable sexual harassment: 鈥渁ny unwelcome conduct of a sexual nature,鈥 including 鈥渧erbal conduct鈥 (i.e., speech). This definition could potentially cover risque movies, stand-up comedy routines, and even books like Lolita. Yet a comparable agreement reached in late September between OCR and the State University of New York system lacked this provision, instead recognizing that Title IX only prohibits behavior that rises to the level of creating a 鈥渉ostile environment鈥濃攁 far more specific, speech-protective threshold.

Further, in Lhamon鈥檚 letter to 果冻传媒app官方, she states that OCR鈥檚 understanding of hostile environment harassment is 鈥渃onsistent鈥 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)鈥攁 definition FIREand other civil liberties organizations have repeatedly urged OCR to recognize.

鈥淎fter 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 鈥榮exual harassment.鈥 This is a welcome development,鈥 said FIREDirector of Legal and Public Advocacy Will Creeley. 鈥淎 great deal of work remains to be done, but advocates of free speech and academic freedom on campus should be cheered by this progress.鈥

Serious First Amendment and due process problems remain with the blueprint and other recent OCR pronouncements on sexual harassment, however. For example, Lhamon鈥檚 letter defended a provision in the Montana agreement allowing the university to discipline students for sexual misconduct before a hearing to determine whether misconduct occurred.

Additionally, an unjustifiable requirement in the Montana agreement specified that faculty members who do not attend trainings on the university鈥檚 new, questionable policies will have their names and titles reported to the Department of Justice, sparking complaints from University of Montana faculty. University of Montana Legal Counsel Lucy France told the Missoulian earlier this month the requirement has been dropped; , rather than on an individual basis. Concerns remain, however, that individual faculty members will still be identifiable.

鈥淭he sooner that OCR informs colleges nationwide that the Montana agreement does not require the abandonment of civil liberties on campus, the better,鈥 said Creeley. 鈥淐ombating the problem of sexual assault on campus does not require sacrificing student and faculty rights. FIREstands ready to work with OCR and campuses nationwide towards lasting, lawful policies that will actually address the challenges our campuses face.鈥

FIRE is a free speech nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, freedom of expression, academic freedom, due process, and rights of conscience at our nation鈥檚 colleges and universities. 果冻传媒app官方鈥檚 efforts to preserve liberty on campuses across America can be viewed at thefire.org.

CONTACT:
Will Creeley, Director of Legal and Public Advocacy, 果冻传媒app官方: 215-717-3473; will@thefire.org

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