On May 9, the Departments of Justice and Education tried to sneak through a national speech code for college campuses by way of a settlement with the University of Montana. They called it a “blueprint for colleges and universities throughout the country.” The “blueprint” makes practically everyone on campus guilty of harassment while inviting the most sensitive person on campus to decide what speech may be allowed. And in response, 17 organizations banded together yesterday to send a letter asking the feds to please back off their unconstitutional demands.
How bad is this national speech code? Really bad. The blueprint guts the reasonable standard for sexual harassment complaints, putting what speech is to be permitted on campus in the hands of the most sensitive or easily offended person. It defines sexual harassment as broadly as possible: all “unwelcome conduct of a sexual nature,” including “verbal conduct,” aka speech. It also requires colleges to record indefinitely all accusations of harassment, whether or not they are truthful. It even provides that students accused of sexual harassment may be punished before the investigation is complete, lending a true Alice-in-Wonderland quality to the whole endeavor. As the Queen of Hearts said: “Sentence first—verdict afterwards!”
Commentator after commentator has remarked on how gridlocked and stalemated our politics seems these days. But when it comes to our First Amendment rights, there’s a shocking amount of common ground. Signatories to yesterday’s letter include conservative, liberal, and libertarian organizations, as well as individuals ranging from a former president of the ACLU to a former judge appointed by George W. Bush. The blueprint has also been criticized by commentators across the political spectrum and across the country, from George Will in the Washington Post to the editorial board of the Los Angeles Times.
Why is there such agreement that the Departments got it terribly wrong? As the coalition letter points out, “Under the blueprint’s mandate, sexual or gender-based speech that is offensive to only the most unreasonable student constitutes ‘sexual harassment’…despite being protected by the First Amendment. The threat to free expression and academic freedom is obvious; per the blueprint’s definition, 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.”
This is no way to run a university. In fact, taken at its word, the blueprint makes it impossible to run anything we’d recognize as a university today. The only way to keep running a college under these rules is to enforce the rules only sporadically—which guarantees that they will be enforced unjustly.
The Department of Education has made several lame attempts to wave away concerns about the clearly unconstitutional mandates in the blueprint. Perhaps its lamest effort was to attempt to tell a group of college lawyers that the departments merely said the Montana settlement was “a blueprint, not the blueprint.” (Yes, that actually happened.) But it has more recently attempted to justify its breathtakingly broad definition of harassment as merely an effort to encourage reporting of speech that might be harassment so that actual harassment can be punished.
This is a pretty brazen attempt to glide over evidence to the contrary in the blueprint. For instance, if this broad definition is just for reporting, why does it specify that students can be punished before the investigation into their speech is even complete? But even if it weren’t a weak bureaucratic attempt at a Jedi mind trick, the idea that the government would urge citizens to report perfectly legal speech to the authorities is appalling. As yesterday’s letter says, “The federal government may no more require the reporting of subjectively offensive but constitutionally protected speech as ‘harassment’ than it may require the reporting of ‘unpatriotic’ speech as treason.”
And remember, every single report of supposedly “harassing” speech is to be recorded by universities—indefinitely. If you love the idea that a dirty joke you told when you were 19 can be dug out of a database when you’re running for city council at 40, you’ll love this national speech code.
While the Foundation for Individual Rights in Education (FIRE, where I work) and the organizations and individuals who joined us in the letter deserve an answer, Senator John McCain has asked for some answers about the blueprint as well. The national speech code is indefensible. With yesterday’s letter, the Departments of Justice and Education have yet another opportunity to retract the blueprint’s unconstitutional terms. They’d be wise to take it.
Robert Shibley is senior vice president at the Foundation for Individual Rights in Education.