Secretary DeVos Can Bring Needed Clarity to Campus Free Speech

Casey Mattox
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Posted: Jul 08, 2017 12:01 AM
Secretary DeVos Can Bring Needed Clarity to Campus Free Speech

As college students prepare to go back to school this fall, they will need to set aside time for a newly minted annual tradition: mandatory sexual harassment training. But as the recent example of Iowa State demonstrates, these mandatory online training programs aimed at educating students about their rights under Title IX may also be creating new First Amendment problems for universities and their students.

According to news reports, Secretary DeVos is evaluating Obama-era guidance to universities that contributed to this confusion about the First Amendment freedoms of students. She should take this opportunity to ensure that universities understand that their moral and legal obligation to protect students from being subjected to sexual harassment and violence does not excuse them from—and need not conflict with—their constitutional obligation to respect students’ First Amendment rights.

In 2011, the Department of Education’s Office of Civil Rights issued a letter warning universities of a new Title IX emphasis on sexual harassment and violence on campus. That itself is unobjectionable. The problem is that, in 19 pages, the OCR letter failed to even mention that universities must also protect students’ First Amendment rights, a glaring omission because so many university speech codes were already drafted as if the First Amendment had never been ratified.

In 2014, the Department of Education issued another 46-page guidance document, mandating that every university train students on its harassment policies without requiring that this training even mention student free speech rights. Of course, for-profit firms jumped at the opportunity to “help” more than 6,000 universities comply with this new federal training mandate for millions of students. The result has been an instant cottage industry of Title IX training programs that generally omit that public universities must also comply with the Constitution.

Iowa State demonstrates how this federal training mandate—and its avoidance of the First Amendment—has been and will be playing out on campuses across America over the next few months. Iowa State sent Robert Dunn and 36,000 other students an e-mail last summer informing him that he must complete an online training program on the university’s “Title IX” policies. When Robert logged on, he found that there was no mention of any interplay of Title IX or university policies with the First Amendment in any of the 118 slides addressing topics like how students could talk about gender identity.

Most troubling, however, was the final slide, requiring him to certify that he would comply with certain Iowa State speech codes. Upon review, Dunn found that these policies were egregiously unconstitutional—even warning students that “engaging in First Amendment protected speech activities” might constitute harassment “depending on the circumstances.”

Defining true harassment need not be complicated. The Supreme Court has already defined it as conduct “so severe, pervasive, and objectively offensive” that “victim-students are effectively denied equal access to an institution’s resources and opportunities.” But universities routinely expand the scope of these speech code policies to reach not only true harassment, but constitutionally protected speech to which another may claim offense.

When Dunn inquired about the consequences for not completing this requirement, ISU officials told him that his graduation could be placed “on hold” and reviewed by the president if he did not sign away his First Amendment rights. ISU believed it had little leeway to waive this requirement for one of its 36,000 students with the federal mandate in place. The Center for Academic Freedom filed a federal lawsuit on Dunn’s behalf. In April, ISU agreed to revise its harassment policies.

These mandated “training” programs, at tuition-paying student expense (and, at public universities, taxpayer expense) contribute to a confusion about the First Amendment freedoms of students and create a major compliance problem for universities. Universities are incentivized to subordinate students’ free speech rights to federal Title IX demands. And tomorrow’s judges, legislators, and voters learn that their First Amendment rights are, at best, an afterthought.

Secretary DeVos has repeatedly affirmed the importance of free speech on the university campus. She should ensure universities provide students with a working knowledge of the First Amendment and take this opportunity to clarify that public universities can claim no Title IX safe harbor for violating their students’ constitutionally protected freedoms.