Cross Posted from the Volokh Conspiracy
The Justice Department’s Civil Rights Division and the Department of Education’s Office for Civil Rights is telling universities to institute speech codes. And not just any old speech codes: Under these speech codes, universities would be required to prohibit students from, for instance,
1. saying “unwelcome” “sexual or dirty jokes”
2. spreading “unwelcome” “sexual rumors” (without any limitation to false rumors”
3. engaging in “unwelcome” “circulating or showing e-mails of Web sites of a sexual nature”
4. engaging in “unwelcome” “display or distributi[on of] sexually explicit drawings, pictures or written materials”
5. making “unwelcome” sexual invitations.
This is not limited to material that a reasonable person would find offensive. Nor is limited to material that, put together, creates a “hostile, abusive, or offensive educational environment.” (I think even speech codes that would have these requirements are unconstitutional, but the speech codes that the government is urging would in any event not have these requirements.) Every instance of such material of a “sexual nature,” under the government’s approach, would be “sexual harassment” and would need to be banned.
Why do I say this? The explanation has quite a few moving parts, because of how the government has articulated its theory. But here’s a brief summary.
1. The OCR has long taken the view that, just as Title VII’s ban on employment discrimination has been read as prohibiting speech or conduct that is “severe or pervasive” enough to create a “hostile, abusive, or offensive environment” based on sex for plaintiff and for a reasonable person, so Title IX (the educational analog) does the same for speech and conduct in educational institutions. Colleges and universities, according to the government, must therefore institute speech and conduct codes that ban such speech and conduct.
Those courts that have considered the issue have held that such speech codes in public universities violate the First Amendment on their face (to the extent they cover speech), because they are too vague or overbroad (i.e., apply beyond the few unprotected categories of speech, such as threats or “fighting words”). See, for instance, some of the cases cited in this guest post by FIRE’s Greg Lukianoff. The government’s pressuring the creation of such codes in either public institutions or private institutions would likewise violate the First Amendment. But the government takes a different view. Though it agrees that “harassment” codes shouldn’t be read in ways that violate the First Amendment (which is tautologically true), they apparently think that a great deal of speech “of a sexual nature” on campuses is unprotected by the First Amendment, as suggested by the materials discussed below.
2. Now, in an investigation involving the University of Montana (and see also this document, the government has apparently gone further:
a. The government has specifically faulted the University for defining “sexual harassment” as being limited to conduct or speech that is severe or pervasive enough to create a hostile environment, or conduct or speech that would be objectively offensive to a reasonable person. “Whether conduct is objectively offensive is a factor used to determine if a hostile environment has been created, but it is not the standard to determine whether conduct was ‘unwelcome conduct of a sexual nature’ and therefore constitutes ‘sexual harassment.'”
b. Instead, according to the government, “sexual harassment” is simply “unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence.” And what constitutes “unwelcome conduct of a sexual nature”? An earlier OCR document, defining, conduct “sexual in nature” as “sexual conduct,” says that “Examples of sexual conduct include”:
1. making sexual propositions or pressuring students for sexual favors;
2. touching of a sexual nature;
3. writing graffiti of a sexual nature;
4. displaying or distributing sexually explicit drawings, pictures, or written materials;
5. performing sexual gestures or touching oneself sexually in front of others;
6. telling sexual or dirty jokes;
7. spreading sexual rumors or rating other students as to sexual activity or performance; or
8. circulating or showing e-mails or Web sites of a sexual nature.
Incidentally, the “sexually explicit drawings, pictures, and materials” do not have to be punishable obscenity, or even displays of sex; pictures of nude suggestive pictures even if not nude, since the government routinely analogizes to workplace harassment cases, in which nudity has not been required for material to be found to be unduly suggestive.
Finally, the government does not limit such “sexual conduct” to conduct said directly to the offended person. Speech displayed or said to people generally may qualify if one of the viewers finds it offensive (as one can again tell by looking at hostile work environment cases, given that the government routinely analogizes to them).
c. So “sexual harassment” is defined that broadly — and though the government concedes that such sexual harassment is legally actionable only if it is objectively offensive, and “severe or pervasive” (or perhaps both “severe and pervasive,” as Hans Bader’s post on this argues), the government insists that universities should punish each such instance of conduct:
1. “The Agreement will serve as a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.”
2. “To resolve the concerns identified in the Letter of Findings, the University will take effective steps designed to: prevent sex-based harassment [defined to include ‘sexual harassment’ -EV] in its education programs and activities ….”
3. “By July 15, 2013, the University will update its program to provide regular mandatory training ….. [that] will … make students aware of the University’s prohibition against sexual harassment, sexual assault, and retaliation.”
4. “On May 4, 2012, the Assistant Secretary of the Department of Education’s Office for Civil Rights mailed notification to the University indicating that OCR was opening a Title IX compliance review to assess whether … the University’s implementation of [its] policies and procedures ensure the elimination of sexual harassment and sexual violence, appropriately respond to such harassment and violence, prevent future harassment, and eliminate the hostile environment and its effects that result from such harassment.”
5. “To improve the campus climate, the University is providing more training for students that defines sexual harassment, including sexual assault, and makes clear it isunacceptable.”
6. “Other actions [following a sexual harassment complaint] may also be necessary to address the educational environment, including special training, the dissemination of information about how to report sexual harassment, new policies, and other steps designed to clearly communicate the message that the college or university does not tolerate, and will be responsive to any reports of, sexual harassment.
And I assume the government means exactly what it says here — that even individual instances of “conduct of a sexual nature” that aren’t severe or pervasive or objectively offensive must be punished — and isn’t just using “sexual harassment” to mean “speech that creates a legally actionable hostile environment.” After all, the government expressly condemned the University of Montana (see 2a above) for using “sexual harassment” to mean speech that creates a legally actionable hostile environment; “sexual harassment,” the government stressed, is simply “unwelcome conduct of a sexual nature” (whether or not objectively offensive “and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence.” And though some of the statements I quote above discuss what the University of Montana is about to do, it’s clear from context that the government is arguing that universities must in general be doing this.
These individual instances, then — sexual jokes, sexually themed posted material, sexual propositions, and so on — is what the government is saying should be treated as “unacceptable,” should not be “not tolerate[d],” and should be “prevent[ed],” “prohibit[ed],” and “eliminat[ed].”
3. In the University of Montana situation, as well as in others in the past, the core issue has had to do with alleged sexual assault of varying degrees. No specific speech-cases were discussed.
But that’s a big part of the problem: Serious problems involving alleged physical assaults, and university’s potential failure to properly deal with such assaults, have long been merged — by the government and others — with sexually themed speech. The policies the government is seeking deliberately aren’t limited to physical assault, but expressly cover speech. How universities should deal with alleged physical assaults by students against other students is a difficult question. But the government’s demands of universities go far beyond those questions, and extend to speech that is protected by the First Amendment and that, in any event, ought not be the subject of university discipline (even if it’s juvenile and rude).