Yale, the Department of Education, and the looming free speech crisis

At some point or another, we have all made someone else feel uncomfortable, whether intentionally or not. We have caused someone else emotional distress. And yes, all of us have likely flirted with someone who isn’t interested and may have even made an innuendo. The thinking behind these absurdly broad codes seems to be if you make every student guilty, you can let campus administrators decide who to punish. In the “risk management” industry, which provides legal consulting to universities, this guilty-until-proven-innocent mentality is cutely referred to as “wiggle room.”

There is a pernicious feedback loop between OCR, the risk management industry, and campus judicial systems. In the 1980s, universities and legal scholars were at the vanguard of the speech codes movement which argued that in an effort to combat racist, sexist, or other forms of offensive speech, the definition of harassment needed to be broadened to include anything that might offend.

The policies constructed by this movement were struck down by courts as being so vague and broad as to prohibit huge swaths of speech protected by the First Amendment from campus. That trend has continued — since 1989, a dozen universities have lost legal battles over these codes. Many believe that speech codes went the way of the dodo because of these courtroom defeats. If only that were true.

In part because universities could claim that they were required to pass speech codes under OCR requirements to investigate claims of hostile environment harassment, speech codes based on the harassment model flourished. My organization, the Foundation for Individual Rights in Education (FIRE, a nonpartisan nonprofit defending free speech on college campuses), found in the most extensive study yet conducted that 67% of 390 top colleges surveyed in 2010 still maintain policies that were laughably unconstitutional under First Amendment standards. Despite courtroom lessons, a dangerous synergy exists between campus ideologues who believed that free speech is incompatible with a just society, and between campus lawyers who wanted to insulate their universities from OCR liability and harassment lawsuits.

Indeed, the problem whirled out of control so badly that in 2003 (under different leadership), OCR made it clear that its attempts to stamp out real harassment could not be used as an excuse for universities to pass speech codes that punish merely offensive speech. OCR explained that the First Amendment categorically made it impossible for OCR to require universities, whether public or private, to pass codes that punish protected speech. The 2003 letter did an excellent job of taking away from universities the ability to invoke “the government made me do it” argument when they passed their speech codes. This did not stop universities from passing speech codes, but the 2003 letter may have been in part responsible for the slight decrease in campus speech codes in the past several years.

It is therefore remarkable that the April 4 OCR letter makes no mention of this crucial 2003 letter. By making it clear that OCR would be aggressively pursuing harassment claims, by mandating extensive changes to many universities’ due process protections, but not requiring universities to adopt a uniform standard for harassment, OCR has supercharged the power of existing campus speech codes. OCR could have done our nation’s colleges a favor if it required universities to adopt a uniform definition of harassment in the same breath as it required them to aggressively police it. Instead, it’s created a perfect storm for rights violations.