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Thursday, November 19, 2015

Obama Supports (And Suppresses) Free Speech on Campus

Two cheers for the president

The Foundation for Individual Rights in Education reports: “For the second time this year, President Barack Obama publicly defended the importance of free speech on campus.”

The president’s defense is pretty good, though I’d prefer if he had pointed out more directly that left-wing campus activists should embrace free speech not just because it will make them more effective, but also because they should be open to the possibility that they are wrong on issues.

But that’s not why I’m giving the president only two cheers. Rather, it’s because the Obama administration was responsible for undermining freedom of speech on campus, and the president allowed that to happen. Here is the relevant excerpt from my new book Lawless:

In May 2013, OCR [the Department of Education Office for Civil Rights] and the Justice Department jointly sent a letter to the University of Montana memorializing a settlement to a sexual harassment case brought against the university. The letter stated that it was intended to “serve as a blueprint for colleges and universities throughout the country.”

Ignoring Supreme Court precedent, the First Amendment, and OCR’s own previous guidance, the letter declares that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature,” including “verbal conduct,” regardless of whether it is objectively offensive or sufficiently severe or pervasive to create a hostile environment.

As FIRE pointed out in a blistering critique, this meant that the federal government was trying to impose a breathtakingly broad nationwide university speech code “that makes virtually every student in the United States a harasser.” OCR was trying to force universities to ban “any expression related to sexual topics that offends any person.”

So, for example, universities would be required to punish a student for telling a “sexually themed joke overheard by any person who finds that joke offensive for any reason,” or for “any request for dates or any flirtation that is not welcomed by the recipient of such a request or flirtation.”

Fortunately, a few months later, OCR got a new leader, Catherine Lhamon. Lhamon wrote in a letter to FIRE that “the agreement in the Montana case represents the resolution of that particular case and not OCR or DOJ policy.” She also reiterated that OCR’s understanding of hostile environment harassment in educational settings is “consistent” with the Supreme Court’s [much narrower] definition. OCR even allowed the University of Montana to disregard some of the requirements of the agreement.

But despite FIRE’s urging, OCR failed to issue any clarification of the Dear Colleague letter it had sent to the thousands of colleges and universities.

It would be tempting to attribute the original OCR letter to rogue bureaucrats at OCR, but we can’t since the Justice Department signed on as well. So while I appreciate the president’s stated commitment to freedom of speech on campus and am relieved that OCR isn’t trying to enforce the Montana guidance, one is left to wonder how that guidance got through two separate Obama administration bureaucracies to begin with.

This post first appeared at the Volokh Conspiracy ©.

  • David E. Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law.