In a 2013, the Office for Civil Rights in Education—a federal agency formally charged with protecting students from unlawful harassment, but which appears to have effectively gone rogue under new, far-left leadership over the last five years—declared that universities needed to investigate and possibly punish students for making comments that other students find “unwelcome,” even if those comments were protected by the First Amendment.
The OCR’s “blueprint” sparked outrage among civil liberties groups, and among some lawmakers, including Senator John McCain, who charged that the organization was exceeding its statutory authority by compelling universities to regulate speech on their campuses. The backlash was sufficiently intense that, after several months, the OCR backed off. But now, inexplicably, the organization has apparently reimposed the speech restrictions it abandoned under pressure three years ago. The Foundation for Individual Rights in Education reports:
The Department of Justice now interprets Title IX to require colleges and universities to violate the First Amendment.
In an April 22 findings letter concluding its investigation into the University of New Mexico’s policies and practices regarding sex discrimination, the Department of Justice (DOJ) found the university improperly defined sexual harassment. DOJ flatly declared that “[u]nwelcome conduct of a sexual nature”—including “verbal conduct”—is sexual harassment “regardless of whether it causes a hostile environment or is quid pro quo.”
To comply with Title IX, DOJ states that a college or university “carries the responsibility to investigate” all speech of a sexual nature that someone subjectively finds unwelcome, even if that speech is protected by the First Amendment or an institution’s promises of free speech.
This brazen and unexpected move by the OCR comes only a few months after skeptical Senators held hearings scrutinizing the organization’s unilateral changes to campus disciplinary policies, and less than a month after the American Association of University Professors released an extensive report arguing that the growing campus sex bureaucracy is infringing on academic freedom.
The OCR bureaucrats seem to be girding for a fight, and it seems unlikely that they will retreat this time without being forced to do so. The prospects for a shift in OCR policy are grim under a Hillary Clinton administration, which will be eager to win over a lukewarm campus Left. And litigation against the OCR—currently in its early stages—will likely take years before reaching a final conclusion. It’s time for lawmakers to take this problem seriously, and consider passing legislation clarifying the limits of the OCR’s power, and affirming that Title IX does not supersede the First Amendment.