Jacques: New campus sex rules boost free speech
Education Secretary Betsy DeVos’ new rules governing Title IX campus sexual misconduct investigations, released formally in May, have received a lot of attention for their efforts to ensure due process is afforded all students.
But due process isn’t the only constitutional right that is impacted by the important reforms.
So is free speech.
The revamped rules also include a more specific definition of what constitutes sexual harassment under Title IX, which should go a long way to bolstering expression on campus.
Any school receiving federal dollars is subject to upholding the regulations, and colleges are expected to have them in place by mid-August. Title IX is the federal law banning sex discrimination at educational institutions.
This, of course, has spurred lawsuits attempting to prevent the rules from taking effect. So several organizations concerned with protecting constitutional rights on campus are seeking to intervene.
Examples are everywhere on the quad regarding why these changes were crucial, and both students and faculty have gotten tangled in constitutionally questionable policies.
Campus definitions of harassment have become so broad that a lot of protected speech has gotten slapped down, and given rise to "bias response teams" that encourage students to report any speech or incident that makes them feel uncomfortable — with real consequences for the “perpetrator.”
For instance, in 2015, Northwestern professor Laura Kipnis became subject to a Title IX investigation after she penned an article about why she thought universities should have less strict rules governing professor-student relationships. Several graduate students were simply offended by her opinion.
And at the University of Oregon in 2014, a female student found herself facing charges regarding her conduct. Her sin was calling out the window of a residence hall to a male and female student walking by, saying “I hit it first.” She says she was only joking, but immediately apologized after the couple complained to a resident assistant.
Yet the university followed up with five disciplinary charges, including harassment and disorderly conduct.
You can see the problem.
“Any time someone tells a dirty joke, it’s not sexual harassment,” says Jennifer Braceras, director of the Independent Women’s Law Center. “Those limits are important to protect free expression.”
The University of Oregon dropped the charges after the Foundation for Individual Rights in Education brought attention to the school’s overreach.
FIRE is one of the organizations looking to get involved in the new Title IX lawsuits, because it has tracked the free speech limits placed on students as a result of overly intrusive harassment policies.
This is why DeVos and her team wanted to rely on a much more specific definition of harassment: Conduct “so severe, pervasive and objectively offensive” that it could deprive a student of educational opportunities.
It’s also a definition that comes directly from the U.S. Supreme Court, in its 1999 Davis v. Monroe County Board of Education decision.
These groups want to argue that the Education Department’s harassment definition is not only permissible but required by the First Amendment.
“We would like the court to say this is the standard that should be used,” says Robert Shibley, executive director of FIRE.
Michigan’s top Democratic leaders are also pushing back against the Title IX reforms. In June, Attorney General Dana Nessel, with the blessing of Gov. Gretchen Whitmer, signed on to a separate lawsuit brought by 17 other liberal attorneys general challenging DeVos' new rules — both the harassment policy and due process protections for investigations and tribunals.
As Shibley says, “The attorneys general are fighting to preserve colleges’ ability not only to put students on trial for their speech, but to make sure it doesn’t even have to be a fair trial.”