By Harvey Silverglate and Juliana DeVries
In a breathtakingly bold move, the civil rights offices of both the Department of Education and the Department of Justice have mandated the effective abolition of free speech on college campuses, as well as the almost certain conviction of large numbers of students, many of whom will be innocent, of “harassment.” Neither justice nor education will be well served.
The ED/DOJ’s disturbing and unconstitutional May 9th letter, mandating changes in sexual assault and harassment procedures and standards, arose out of a joint ED/DOJ investigation and evaluation at the University of Montana, Missoula. The ED and DOJ addressed their letter to the university president, but more broadly described it as “a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” In other words, any college or university receiving federal funding (which includes nearly all of them) risks losing that funding, if it does not comply with the standards laid out in the letter.
The turgid 31-page, single-spaced letter, made up largely of bureaucratic gibberish – with the couple of censorial sentences hidden like trace gold amidst tons of ferrite – will effectively establish a culture of censorship and self-censorship on our nation’s campuses, where only officially-approved attitudes will lead to survival. Henceforth, “sexual harassment,” for which a student must be investigated according to federal regulations, will be defined on campuses throughout the nation as engaging in “any unwelcome conduct of a sexual nature.” Moreover, the “unwelcome conduct” need not be gauged by the perceptions and reactions of a “reasonable person.” Instead, a student may – and if a college wants to avoid trouble with the Feds, must – be brought up on harassment charges if his conduct is, quite simply, “any unwelcome conduct of a sexual nature,” including “verbal conduct” (more commonly known as “speech”), from the vantage point of the “victim.” It doesn’t matter if the victim happens to be exceptionally brittle, or subjectively feels “sexually harassed” in situations that other students would deem nothing more than the normal interactions of daily life in a college community.
Everyone Guilty Three Times a Day
The inevitable result of this seemingly innocuous, or at least hyper-technical, rule is that all students would arguably be guilty of harassment several times a day. According to ED/DOJ standards, even playing uncensored rap music at a college party, posting something controversial on Facebook, or defending former U.S. Representative Todd Akin in class could now constitute “harassment.” (And engaging in satire or parody is just inviting expulsion!) It is now up to “victims” – presumably the more oversensitive or even neurotic members of the student community – to decide when unwelcome words constitute actionable harassment. In other words, in a hypothetical 500-person lecture on gender disparities in the workplace, the one person who takes offense to slide five has the power to silence the professor, and to keep the 499 other students from hearing the speech in question. The Supreme Court some time ago referred to this tactic as “burning the house to roast the pig,” and has consistently ruled it unconstitutional.
Indeed, the ED/DOJ mandate would not stand a chance of surviving a constitutional challenge if one were brought by either a dissatisfied university or a student punished by his or her college for uttering protected speech or engaging in innocuous personal conduct. (The letter even misquotes the Supreme Court decision in the seminal case of Davis v. Monroe County.) But by the time a challenge makes its way up to the Supreme Court – a process that typically takes half a decade or more, assuming that discretionary high court review is in fact granted – the bureaucrats will have already succeeded in establishing a permanent cultural change such that students won’t even be tempted to say something of a sexual or even, very likely, a gender-related nature, nor engage in dating activity, that might possibly disturb an overly sensitive fellow student.
Campus free thought and academic freedom have already been on virtual life-support for some 25 years and counting. In a 2013 study of 409 American colleges and universities, the Foundation for Individual Rights in Education (FIRE) found that three-fifths maintain policies that infringe upon the free speech rights of students. FIRE President Greg Lukianoff lists numerous examples of students being punished for seemingly innocuous conduct and speech in his October 2012 book Unlearning Liberty: Campus Censorship and the End of American Debate. Lukianoff writes, for example, of a student punished for making a collage critical of a parking garage, another for publicly reading a book about the defeat of the Ku Klux Klan in a street fight, and of a professor labeled a dangerous threat to campus safety for posting a pop-culture quote on his doorway. This latest ED/DOJ letter is the culmination of a decades-long trend of censorship on campuses – a trend that is discouraging debate and homogenizing the minds of our future leaders.
Can Things Get Worse?
As one long-time close observer of the college campus scene with years of experience teaching at Harvard wrote to Silverglate: “Just when you thought things could not get worse, the government…instructs universities to criminalize bad jokes, clumsy flirtation, and unpopular social science. Amazing! And appalling!” And so it is.
The picture looks bleak, unless the bureaucrats have gone so far this time that those who value preserving our nation’s universities and a free society’s values will finally be galvanized to do something. Without major push-back, dissimulation and cynicism will surely replace frankness and honest discussion on our campuses. As the wily French diplomat and functionary Talleyrand is reported to have said, in explaining how it was that he survived all of the turbulent twists and turns before, during and after the French Revolution, keeping his power perch and his head attached to his neck throughout: “Language was given to man to disguise his thoughts.” And so it will be on college campuses everywhere. So much for what the Supreme Court has called “the market place of ideas.”
Harvey Silverglate, a Boston criminal defense and civil liberties lawyer and writer, is the co-founder and Chairman of the Board of Directors of The Foundation for Individual Rights in Education (www.thefire.org). He co-authored The Shadow University: The Betrayal of Liberty on America’s Campuses). Juliana DeVries, who graduated from Columbia University in 2011, is a Program Associate at FIRE.
(Photo: Eric Holder. Credit: Fox.)