There is a growing trend, spurred by the Federal government, on college campuses to restrict not only free speech, but also academic freedom. To understand what is happening, we need to look at the genesis of the government’s response and go back to 2011 and the University of Montana. In response to allegations of sexual assaults on and off campus, the government began an investigation of that school’s policies regarding responses to these allegations. They found that there was a systematic “turning of the head” leading to ignorance. Part of this “ignorance” was attributable to campus police being untrained in dealing with sexual assault allegations, and the local police were not much better.
The federal government became involved under Title IX of the 1972 amendments to the Education Act which prohibits sexual discrimination in any school that receives federal funds of any type. Considering that all colleges receive such funds in the form of student loans or research grants, all colleges save a very few are covered under Title IX. This section is enforced by the Department of Education’s Office for Civil Rights (OCR). Additionally, under Title IV of the Civil Rights Act of 1964, the Justice Department is responsible for investigating allegations of sex discrimination in education. In essence, you have an overlap in enforcement. However, the OCR investigates violations of a civil nature while the DOJ investigates allegations of a criminal nature. The main conduit for federal enforcement is the OCR which investigates and roots out conduct that still qualifies as sex discrimination even though it may not be criminal.
After the University of Montana was investigated, they signed a letter entering into an agreement with the OCR to do certain things: (1) revise their sexual harassment/conduct policies, (2) train their staff, (3) conduct campus surveys on the issue, (4) track and report instances, and (5) have all policy revisions reviewed and approved by the OCR. In the case of the University of Montana, perhaps there was a valid reason for this draconian solution, but the OCR did not stop there. They then issued a letter to all colleges and universities big and small in the United States to do the same.
There is a long line of court cases that define harassment and they all come to one understanding- harassment is conduct, not speech. Further, those cases note that even if it qualifies as “conduct,” it must be “targeted, discriminatory conduct so severe and objectively offensive that it threatens one’s opportunity to gain an educational benefit.” So far, so good. But, the OCR’s new guidelines changed a few words ever so slightly and created a legal nightmare. Basically, they dropped the “objectively offensive” standard which opens the floodgates to allegations of any comment of an “offensive” nature as defined by the listener of that comment. Hence, yes(!) the overheard dirty joke at a party can be deemed “harassment” under this guideline.
When one removes the requirement of “objectively offensive” from the issue, it creates a very broad definition that becomes so unenforceable that everything becomes enforceable. The unfortunate outgrowth of this is self-censorship to avoid possible civil or criminal liability. To see how this chills free speech and how colleges have reacted to this Orwellian directive from the federal government, three cases are illustrative. (1) A devout Muslim at William Paterson University was charged with sexual harassment for expressing their views against homosexuality in a private e-mail. (2) A University of Denver professor was charged with sexual harassment over a class he taught regarding “purity crusades” titled “Drugs and Sin in America: From Masturbation and Prostitution to Alcohol and Drugs.” (3) A professor at Appalachian State University was placed on leave after allegations of sexual harassment after they made negative comments about college athletes and showing a documentary on pornography.
As one should be aware, free speech is not necessarily absolute and there are some restrictions which the courts have carved out over the years. In turn, each of these exceptions have very narrow definitions. To see how the OCR has chilled free speech and made criminals out of teachers and students alike, let’s look at these exceptions and see if any apply to the examples above. The exceptions are: (1) true threats (no, no and no), (2) child pornography (no, no and no), (3) “fighting words” (no, no and no), (4) obscenity (no, maybe and maybe), (5) defamation (no, no and possibly), and (6) incitement to violence (no, no, and no). Even in the “maybe” and “possibly” categories above, we are on thin ice since the showing of a film on pornography in the context of a classroom exercise would likely not violate any obscenity law. Yet these students and professors were, nevertheless, sanctioned for their comments or course content. The reason is simple- something offended a single student or person and that qualifies as sexual harassment under the OCR newest guidelines.
I believe that in the course of American history most of those on the Left are great advocates of free speech as long as it is speech of which they approve. If a contrary view is expressed, they are less tolerant of free speech. This attitude is expressed in speech codes on college campuses or cloaked in soft, wonderful sounding phrases like “fairness doctrine” and “net neutrality.” They know that because of the First Amendment the speech they prefer cannot be preferentially codified, so they use the backdoor methods of reclassifying speech as “harassment.”
No one doubts that there are legitimate cases of campus sexual harassment that meet the true meaning of that term. Likewise, no one doubts that there are legitimate cases of campus sexual assault. I do doubt that the “1 in 5” victim rate is true. If that was true, then no sane female would attend college given these terrible odds that they would be sexually assaulted. And considering the fact that there are now more female college students than male students either the statistic is false or females don’t care. Either way, their argument is null.
But, given the fact that there may be legitimate cases, these guidelines do a very serious disservice to the actual victims of true harassment and discrimination. In effect, every female is a victim and every male is a misogynistic potential rapist. The government seems to believe they have some task to root out and eliminate this through draconian measures that trample on Free Speech, association and due process rights. It is a classic case of throwing out the baby with the bathwater. Unfortunately, the baby in this case is free speech and the United States Constitution. But then again, the Left never really cared about those things any way.