June 3 2013
We still think of college campuses as oases of free speech, even though, in fact, most have speech codes that bar politically incorrect expressions.
Thanks to a number of recent lawsuits and the work of the Foundation for Individual Rights in Education (FIRE), a free speech watchdog, this was beginning to change. So naturally the Obama administration stepped in to prevent this from happening.
The Justice and Education Departments joined together to issue a directive that makes anti- free speech codes mandatory at colleges and universities. Colleges that don’t have such strictures will not be eligible for federal funding. The letter was issued May 9.
In a Weekly Standard piece headlined “The Big Chill,” Charlotte Allen writes:
The directive came in the form of a 31-page letter to the University of Montana from the Justice Department (DOJ) and the Education Department’s Office for Civil Rights (OCR), which have authority to enforce antidiscrimination provisions in Title IV and Title IX of federal civil-rights and education laws. DOJ and OCR had conducted sexual-harassment investigations after two female students reported having been sexually assaulted by football players on the university’s Missoula campus in 2011. During the course of the investigation nearly three dozen other complaints about sexual assaults and harassment surfaced, and the DOJ and the OCR took the position that the University of Montana’s procedures for handling those complaints were inadequate.
The May 9 letter reflected the terms of a settlement with the two federal agencies to which the university had agreed. But the letter also declared that those settlement terms were to be “a blueprint for colleges and universities throughout the country.” And the core language of that “blueprint” consisted of a brand-new and sweepingly broad definition of sexual harassment as any “unwelcome conduct of a sexual nature,” including “verbal . . . conduct of a sexual nature.” The letter contained no thresholds, limits, or standards for construing what “unwelcome” might mean. “Unwelcome” to whom? The chair of the women’s studies department? A charter member of the Society for Cutting Up Men? Does telling an off-color joke count if someone gets offended?...
In other words: Universities had better set up those speech codes. They’d better start disciplinary proceedings against that professor who assigned Tropic of Cancer in his American literature class and incurred the wrath of feminist grad students. An investigation of this sort might go nowhere, “but professors would start watching what they’re saying in their classrooms,” said UCLA’s [Eugene] Volokh. “That’s a classic ‘chilling effect’ on free speech. It’s why I think this is a very dangerous situation.”
Charlotte quotes Glenn Garvin joking that a professor could find himself in hot water for asking students to read the “bawdier bits of Shakespeare.” Believe me, I am a stuffy southern gal, and I don’t like rudeness and I certainly abhor sexual harassment. However, there have to be objective standards. A young woman can’t just say she is offended and expect the law to tumble down on the person who has allegedly behaved offensively. Except that after this letter from the Obama administration—maybe she can.
Do read the entire article—Charlotte details how this letter contradicts previous law.