On April 22, the Justice Department ordered the University of New Mexico adopt an unconstitutional speech code. It is demanding that the University label as “sexual harassment” all “unwelcome” sexual conduct, including “verbal” conduct (that is, speech). The university must encourage students to report it as such; and investigate it when it is reported.
Thus, if a student is offended by a professor’s comment in a lecture about how AIDS is transmitted through anal sex, or by another student’s sexual joke, it would be deemed “sexual harassment.” So would politely asking a student out on a date, if that offends her. This definition of “sexual harassment” as including any “unwelcome” sexual speech is vastly broader than the definitions struck down as unconstitutionally overbroad by the federal appeals court rulings in DeJohn v. Temple University (2008) and Saxe v. State College Area School District (2001). Those decisions ruled that even unwelcome, “hostile or offensive” speech about sexual issues is generally protected speech unless it “objectively denies a student equal access to a school’s education resources.”
The University won’t necessarily have to expel people for a single unwanted remark, based on this definition, since the Justice Department is only demanding formal discipline for speech that is not only unwelcome, but also creates a “hostile environment” for the complainant. But it does have to encourage students to report such unwanted remarks for investigation by defining even a single instance as “harassment.” And it has to investigate them to see if a “hostile environment” exists. (If it does, the University may feel obligated to take action against a speaker whose speech merely contributed to the “hostile environment,” as one of many factors creating it — even if the speaker was not aware of any “hostile environment,” and logically could not be punished for it due to academic freedom and First Amendment fair-notice principles, see Cohen v. San Bernardino Valley College (1996)).
Mandating investigation of an “unwelcome” comment is alarming, because that will frequently trigger restrictions on the free speech rights and freedom of movement of the accused person, whose constitutionally protected speech is labeled as “harassment” under this definition, even if he is never subject to formal discipline. For example, under the University’s Title IX policy, it has a practice, consistent with Education Department “guidance,” of imposing “interim measures” against accused people prior to any finding of guilt or innocence. That includes “issuing interim suspensions and no-contact orders for complaints of student-on-student harassment.” While temporary suspensions from school are usually only mandated for accused people who are viewed as a potential threat to physical safety (like accused rapists), it is common to impose milder but still quite burdensome “interim measures” against less dangerous people accused of sexual harassment, such as “no-contact orders” and orders to stay out of libraries, study lounges, and other common areas used by a complainant (including kicking the accused out of a dorm he shares with his accuser).
If exclusion from key areas on campus can be triggered by a sexual harassment complaint over nothing more than a dirty joke or a criticism of feminism, the chilling effect will be huge. Even temporary exclusion or restrictions on social interaction can result in First Amendment or due process violations, as courts have made clear. [See, e.g., Tyree v. Evans, 728 A.2d 101 (D.C. 1999) (due process required opportunity to cross-examine accuser before imposition of one-year no-contact order); Alberti v. Cruise, 383 F.2d 268 (4th Cir. 1967) (overly restrictive no-contact order violated First Amendment)]. Yet, the Justice Department’s letter emphasizes the need for “taking interim steps before the final outcome of any investigation. The school should take these steps promptly once it has notice of a sexual harassment allegation.”
Moreover, the Education Department’s Office for Civil Rights has found colleges in violation of Title IX for not routinely providing interim measures. For example, its settlement with Tufts University requires “that the University provide interim measures during the course of a complaint, or a university-initiated investigation; an explicit statement that interim measures are available even if the complainant does not file or continue to pursue a complaint.” It found Michigan State University liable for violating Title IX based on failure to give an accuser whom it conceded made a false allegation of sexual assault “interim measures” more quickly against the men she falsely accused. (By contrast, federal judges have ruled that people who lie about sexual harassment can be disciplined, in cases such as Vasconcelos v. Meese (1990)).
Defining any “unwelcome” sexual speech as “harassment” also means that accused people may face “anti-retaliation” gag orders when they are accused based on nothing more than a controversial statement about a sexual issue. Under federal civil rights laws like Title IX and Title VI, people who complain about sexual or racial “harassment” are protected against “retaliation.” Some colleges interpret as “retaliation” perfectly legitimate criticism of a sexual harassment complaint, such as pointing out how it is a threat to academic freedom. A law professor at Widener University was suspended for a year after criticizing a preposterous racial harassment complaint against him by students. At Northwestern University, Professor Laura Kipnis was subjected to a Title IX sexual investigation over an essay in the Chronicle of Higher Education titled “Sexual Paranoia Strikes Academe” (which hypersensitive students claimed offended them and constituted sexual harassment). When she criticized this as a threat to academic freedom, on Twitter, she was accused of “retaliation” by the students, even though she did not identify them by name. Only after an outcry was Kipnis found not guilty.
The mere existence of such speech-chilling investigations can violate the First Amendment under federal appeals court rulings like White v. Lee (2000), which ruled that an eight-month civil-rights investigation of what turned out to be protected speech violated the First Amendment by chilling speech. The Supreme Court’s decision in Bantam Books v. Sullivan (1963) also makes clear that even a practice of referring speech for investigations can violate the First Amendment.
Even supposedly non-punitive sanctions such as gag orders and “interim measures” during an investigation can violate the First Amendment, since accused people do not forfeit all of their First Amendment rights. In Bain v. City of Springfield (1997), the Massachusetts Supreme Court ruled that a mayor was entitled to publicly denounce a sexual harassment complaint against him, even if that could dissuade the filing of harassment charges, since retaliation prohibitions are limited by “constitutional guarantees of freedom of speech. The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech.” Similarly, in Brooks v. City of San Mateo (2000), the federal Ninth Circuit Court of Appeals held that “retaliation” could not be found based on “mere ostracism” or employees’ refusal to associate with an employee after she brought an unsuccessful harassment complaint, citing a potential clash with the “First Amendment freedom of association.”
The Justice Department’s demand for this sweepingly broad “harassment” definition is found in a letter to the president of the University of New Mexico chiding it for its sometimes inept handling of sexual harassment and assault claims by students. Although the University made many changes to its policies to try to address federal concerns, the Justice Department nevertheless declared the University to be still in violation of Title IX in an April 22 letter from Shaheena Simons, Chief of the Educational Opportunities Section at the Justice Department’s Civil Rights Division, and Damon Martinez, the U.S. Attorney for New Mexico, to University president Robert Frank. “The Justice Department concluded that even with some changes to policies, the University has significant problems . . . Its policies, for example, suggested “that unwelcome conduct of a sexual nature does not constitute sexual harassment unless it causes a hostile environment or unless it is quid pro quo,’ Simons and Martinez wrote.” (See Matt Zapotosky, University of New Mexico Blasted by Officials Over Sexual Assault Policies, Washington Post, April 23, 2016, at A3).
The Justice Department’s demand that the University adopt this sweepingly broad definition of sexual harassment is reminiscent of its 2013 demand that the University of Montana adopt such a definition. Then, it insisted to the University of Montana that “sexual harassment should be more broadly defined as “any unwelcome conduct of a sexual nature,” even if it was not “objectively offensive,” meaning that only a hypersensitive person or prude would find it offensive.
That demand, which I criticized in the Chronicle of Higher Education, was initially described by federal officials as a “blueprint” for America’s universities to adopt similar speech restrictions nationally. The 2013 letter containing that demand was also signed by the Education Department (It, rather than the Justice Department, is primarily responsible for enforcing Title IX). But the Education Department backed away from this demand after criticism from civil libertarians like the Student Press Law Center and the Foundation for Individual Rights in Education, syndicated columnists and op-ed writers, Senator John McCain, and the American Association of University Professors.
But now, the Justice Department repeats this sweeping and unconstitutional definition in pages 9-10 of its letter to the University of New Mexico:
“Unwelcome conduct of a sexual nature, however, constitutes sexual harassment regardless of whether it causes a hostile environment or is quid pro quo. Indeed, federal guidance defines sexual harassment as ‘unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence.’ Hostile environment is not part of the definition of sexual harassment, nor is it required for “unwanted conduct of a sexual nature” to be deemed sexual harassment. Instead, hostile environment is the threshold for determining the school’s obligation under Title IX: when a school knew or should have known about sexual harassment that is sufficiently severe, persistent or pervasive as to create a hostile environment, the school has an obligation to end the harassment, prevent its reoccurrence, and remedy its harm.”
Similarly, on pg. 21 of the letter, the Justice Department writes,
“Once a school knows about an alleged incident of unwanted sexual conduct, Title IX requires it to initiate an investigation to determine whether the harassment was sufficiently serious as to cause limitations or denial of educational benefits.”
This notion that people must be investigated for any sexual speech that is “unwelcome” would raise First Amendment issues even if the investigator were not required to discipline them due to their speech not creating a hostile environment (or not affecting someone’s educational benefits). A lengthy investigation in response to speech can violate the First Amendment even if it never ultimately leads to sanctions. See White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (8-month investigation of speech by federal civil-rights officials violated clearly-established First Amendment rights by chilling speech even though it never led to a fine or civil penalty). And here, any investigation will be very chilling, because of the “interim measures” that the Justice Department’ s letter encourages the University to use against students accused of sexual harassment or assault even before their guilt or innocence is determined.