FIRE Confronts the Justice and Education Departments

A wide array of public interest groups (ranging from the Electronic Frontier Foundation to the Pope Center for Higher Education Policy to the Student Press Law Center) and scholars (including me) have signed onto an open letter from FIRE urging the Education and Justice Departments to retract their Montana “blueprint,” which if applied would impose a speech code on every college or university that receives federal funds.

The letter reiterates–and clarifies–many of the objections raised by civil libertarians and academics since the Montana settlement was announced. Quite beyond issues of due process and free speech, the letter correctly notes the grave curricular threat posed by the blueprint, since “a classroom discussion of Lolita, a campus reading of Allen Ginsberg’s ‘Howl,’ a dorm-room viewing of a Sarah Silverman comedy routine, or a cafeteria debate about same-sex marriage will each constitute ‘sexual harassment’ if a single student is made uncomfortable.”

The letter also dismisses the administration’s two after-the-fact rationalizations for the blueprint: “that the blueprint’s broad definition is necessary to encourage student reporting and that the blueprint is consistent with prior OCR guidance and the First Amendment.” As the letter observes, nothing in the blueprint limits its terms to a reporting requirement, and some of the blueprint’s provisions require colleges to act against accused students before the truth of the claim is established. And even accepting the OCR’s self-serving, inaccurate description of the blueprint’s terms, “Reporting protected speech carries punitive consequences.”

As the letter concludes, “Colleges and universities have a moral and legal obligation to address and prohibit sexual misconduct. FIRE and the undersigned organizations appreciate the gravity of this responsibility and share the Departments’ desire to ensure that our nation’s colleges and universities fulfill it. But institutions need not–and must not–sacrifice the civil liberties of their students and faculty members to do so.”

How will the administration respond? If the events of the last three years have proved nothing else, opposition to campus due process is intense in the Education Department, and appeals to the contrary seem unlikely to succeed. Political, public, and media pressure therefore will be key.

As a reminder that it’s unlikely the higher-ed media will do much, coincidentally, the letter was released on the same day that Inside Higher Ed‘s Allie Grasgreen penned her latest article mischaracterizing the department’s 2011 “Dear Colleague” letter. Grasgreen characterized the letter’s demands that colleges lower the burden of proof in on-campus sexual assault proceedings, introduce double jeopardy if an accused student has the right to appeal, and strongly discourage allowing accused students to cross-examine their accuser as merely having “reminded all colleges . . . that they have myriad obligations under Title IX.”


  • KC Johnson

    KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

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