“Pending Title IX changes threaten free speech and due process, according to several legal experts,” reports The College Fix, describing regulations the Biden administration will soon issue, that will pressure schools to restrict free-speech and due-process rights:
The administration’s submitted updates to Title IX of the Education Amendments of 1972 are under regulatory review as of April 5. Title IX prohibits discrimination on the basis of sex in education institutions….The Foundation for Individual Rights and Expression has concerns.
“The proposed rules abandon the speech-protective Trump-era regulations by using an unconstitutional definition of student-on-student harassment,” Tyler Coward, lead counsel for the civil liberties group, told The College Fix via email.
According to him, the Supreme Court has already defined the standard of harassment in Davis v. Monroe County Board of Education, and the new regulations would violate it. With the definition of harassment distorted, there would be more censorship on college campuses.
Coward said the “due process rollbacks of the proposed rules” are “numerous and alarming.”
“They would: eliminate students’ right to a live hearing; eliminate the right to cross-examination; weaken students’ right to active legal representation,” he wrote.
The new regulations would “allow a single campus bureaucrat to serve as judge and jury; require colleges and universities to use the weak ‘preponderance of the evidence’ standard to determine guilt, unless they use a higher standard for other alleged misconduct.”
George Washington University law Professor John Banzhaf agreed with Coward’s concerns.
Banzhaf told The Fix “under the new regulations” for Title IX complaints, those charged with violating the rules “would be entitled to various procedural due process protections which have yet to be determined.” However, there is a history of schools failing to fulfill due process requirements even before the new regulations, he said.
He said many schools failed “to provide an opportunity to cross examine witnesses, to have detailed access to detailed information about the charges against them, etc.”
He did say that there are some free speech concerns with the proposals as well….Banzhaf said potential rules requiring teachers to use someone’s preferred pronouns would violate the First Amendment’s prohibition against compelled speech.
The president of Stop Abusive and Violent Environments, a due process and civil rights group, criticized the proposal as well.
“If approved, the Department of Education’s regulation will impose sweeping changes on our nation’s schools, creating destructive ripple effects throughout American society,” Ed Bartlett wrote in a news release sent to The Fix.
The Biden administration’s expansive definition of “sexual harassment” matters, because similar campus rules against racial or sexual harassment have been used to charge “students and campus newspapers … with racial or sexual harassment for expressing commonplace views about racial or sexual subjects, such as criticizing feminism, affirmative action, sexual harassment regulations, homosexuality, gay marriage, or transgender rights, or discussing the alleged racism of the criminal justice system.” The argument by censors and complainants is that such speech contributes to a “hostile” or “offensive environment” for listeners or viewers.
Courts have struck down some such policies at state universities as violations of the First Amendment, at least as applied to students (as opposed to college staff like coaches). Other such policies have been temporarily blocked by the courts after college officials indicated they might use them to punish political speech like criticism of affirmative action.
But the problem continues, and thousands of schools have policies that could easily punish commonplace political views as “discriminatory harassment.”
“Broad ‘harassment’ policies drive some campus free speech problems, according to a new report” from the Foundation for Individual Rights and Expression:
The 2024 Spotlight on Free Speech Codes report looked at 489 schools and rated them “red light,” “yellow light,” and “green light.”
“While the percentage of green light schools increased this year, this also marks the second year in a row that the percentage of red light schools increased, reversing a 15-year trend of decreasing percentages of red light schools,” the Foundation for Individual Rights and Expression stated.
“The main contributor to the red light ratings? Schools maintaining overbroad policies on harassment that put protected speech at risk,” FIRE wrote in its summary.
The ratings are also “based solely on the school’s written regulations and do not take into account a particular institution’s broader climate for free speech,” according to FIRE. The University of Chicago, for example, is a “green light” school but suppressed the Turning Point USA chapter….Some universities have “broad definitions” of harassment “that essentially ban any disfavored speech.”… A new Massachusetts State Universities system policy prohibits “broad, subjective examples” like “‘derogatory comments,’ ‘unwelcome jokes,’ and… ‘derogatory’ symbols or objects,” according to Beltz. … “Banning all derogatory comments, jokes, or symbols includes a great deal of protected speech…Students wishing to express themselves on controversial topics may be concerned they could land in trouble if someone finds their speech derogatory.”
While First Amendment lawsuits by students over campus harassment policies have periodically succeeded, public employees have had less luck. Only rarely have judges been willing to admit that bans on hostile or offensive workplace speech even raise First Amendment issues, although there are exceptions: one federal appeals court ruled that a professor’s racially-inflammatory anti-immigration emails were protected against a racial harassment lawsuit because they weren’t aimed at the Hispanic plaintiffs, and concurring judges suggested in other cases that speech was protected against harassment charges if was part of the artistic creative process or did not cause more than garden-variety offense. (See, e.g., Rodriguez v. Maricopa Community College District, 605 F.3d 703 (9th Cir. 2010); Lyle v. Warner Bros., 132 P.3d 211 (Cal. 2006)).
But usually, trial courts confronted with a First Amendment defense argue that otherwise-protected speech can be “incidentally swept up” within a ban on hostile work environments (an argument law professor Eugene Volokh says is at odds with the logic of Supreme Court rulings limiting tort liability for speech that inflicts emotional distress).
A 2017 poll showed the danger of allowing hostile, hateful, or offensive speech to be restricted by the government (either through criminal penalties, or by allowing jurors to award damages for it in a racial harassment lawsuit). It finds that an incredibly broad array of speech is deemed hostile or offensive — or racist — by much of the population. The speech viewed as offensive or hateful includes speech that simply defends free speech or advocates enforcement of certain laws.
The public’s broad definition of hostile or offensive speech matters, because not banning speech deemed to be racist or racially offensive can lead to liability for workplace racial harassment. As the Sixth Circuit Court of Appeals put it in 1988, “the law does require that an employer take prompt action to prevent such bigots from expressing their opinions in a way that abuses or offends their co-workers. By informing people that the expression of racist or sexist attitudes in public is unacceptable, people may eventually learn that such views are undesirable in private, as well. Thus, Title VII may advance the goal of eliminating prejudices and biases in our society.”
The poll shows that 80% of liberals think it is racially “hateful or offensive” just to advocate the deportation of illegal immigrants, even though that simply involves the enforcement of America’s immigration laws. It also shows that most blacks and Hispanics think defending the right to engage in racist speech is just as bad as engaging in racist speech itself (65% of black and 61% of Hispanics). Never mind that defending such speech is hardly extreme: the Supreme Court itself ruled in favor of racist speakers on First Amendment grounds in its R.A.V., Brandenburg, and Forsyth County decisions.
Campus harassment policies have often been used to target speech about political issues. (See, e.g., Neil Hamilton, Zealotry and Academic Freedom: A Legal and Historical Perspective (1995); Brief of Amici Curiae Students for Individual Liberty and Student Association for Freedom of Expression, in Davis v. Monroe County Board of Education, No. 97-843 (filed Dec. 8, 1998); Ed Godfrey, Professor’s Letter Draws Ire, Daily Oklahoman, Feb. 26, 2000; David G. Savage, Forbidden Words on Campus, L.A. Times, Feb. 12, 1991, at A1; Eugene Volokh, Re: Proposed changes to the University’s sexual harassment policy and procedures, UCLA, March 31, 2003; David E. Bernstein, You Can’t Say That (2003); Robert L. Shibley, Twisting Title IX (2016))
