The Department of Justice’s recent interpretation of Title IX after its investigation into the University of New Mexico’s (UNM) sexual discrimination policies will require colleges and universities to violate the First Amendment, according to a free speech advocacy group.
The DOJ found the UNM improperly defined sexual harassment, and declared in its findings letter that sexual harassment is “(u)nwelcome conduct of a sexual nature” including “verbal conduct” –- “regardless of whether it causes a hostile environment or is quid pro quo.”
“The Department of Justice has put universities in an impossible position: violate the Constitution or risk losing federal funding,” said Greg Lukianoff, the Foundation for Individual Rights in Education (FIRE) president and CEO, in a statement.
According to Lukianoff, “the federal government’s push for a national speech code is at odds with decades of legal precedent. University presidents must find the courage to stand up to this federal overreach.”
The DOJ stated that colleges and universities, to comply with Title IX, carry “the responsibility to investigate” all speech of a sexual nature someone may find unwelcome — even if it is protected by the First Amendment.
In 2013, the Departments of Education and Justice pushed for colleges and universities to establish unconstitutional speech codes that violated the First Amendment and decades of legal precedent, according to FIRE. The DOE, however, walked back its mandate in its private correspondence with FIRE following a firestorm of criticism, according to Nico Perrino, director of communications for FIRE.
“Three years ago, the DOJ and Ed. Department imposed a similar settlement on the University of Montana, and produced a national backlash — including strong condemnation from Senator McCain,” said KC Johnson, history professor at Brooklyn College, told The Daily Caller. “But rather than learning from its mistakes, it seems as if the administration is intent on repeating them.”
Johnson and Perrino are referring to the DOE and DOJ’s letter to U of Montana in May of 2013, which defined sexual harassment in the same broad terms as the UNM interpretation.
“The New Mexico settlement elevates the administration’s idiosyncratic interpretation of Title IX over the requirement of all public universities to respect the First Amendment,” said Johnson.
The fallout from the implementation of the DOJ’s recent interpretation could have a profound impact on campuses across the country.
“Its implementation will chill campus speech — especially for students and untenured faculty who challenge the status quo–on all questions relating to gender. In this respect, the settlement is sadly consistent with the administration’s attacks on campus civil rights and civil liberties, which began with the ‘Dear Colleague’ letter in 2011.”
The DOJ’s interpretation leaves open the possibility that every student is a sexual harasser with its broad definition. Any speech deemed offensive of a sexual nature — whether it be a joke overheard between two students by another student who finds it offensive or a lecture by a professor on how one could contract AIDs — could all be defined as sexual harassment.
“Requiring colleges to investigate and record ‘unwelcome’ speech about sex or gender in an effort to end sexual harassment or assault on campus is no more constitutional than would be a government effort to investigate and record all ‘unpatriotic’ speech in order to root out treason,” Robert Shibley, FIRE’s executive director, said in a press statement. “Students, faculty, and administrators must not give in to this kind of campus totalitarianism — and FIRE is here to fight alongside them.”