Federal Speech Codes

The federal government is poised to adopt or at least preside over something politically correct college administrators have yet to achieve—national speech codes.

A recent dear colleague letter from the U. S. Department of Education Office of Civil Rights (OCR) set the tone. The letter orders college presidents to ignore normal due process when sexual harassment is at issue.

Moreover, the letter, from the current Assistant Secretary for Civil Rights at DOE, Russlynn Ali pretty much orders schools to conduct “in conjunction with student leaders, a school or campus ‘climate check’ to assess the effectiveness of efforts to ensure that the school is free from sexual harassment and violence, and using the resulting information to inform future proactive steps that will be taken by the school.”

Ali, the daughter of boxing champ Muhammad, has not always been so “proactive” about enforcing OCR rules. In a July 2009 letter to U. S. Rep. Brad Sherman, D-Calif., she claimed that OCR policy under Title VI did not cover anti-Semitic harassment, intimidation, and discrimination.

Flash forward to May 5, 2011. “When OCR finds that a school has not taken prompt and effective steps to respond to sexual harassment or violence, OCR will seek appropriate remedies for both the complainant and the broader student population,” Ali warned university administrators. “When conducting Title IX enforcement activities, OCR seeks to obtain voluntary compliance from recipients.”

“When a recipient does not come into compliance voluntarily, OCR may initiate proceedings to withdraw Federal funding by the Department or refer the case to the U.S. Department of Justice for litigation.” The regulations have already had a chilling effect on free speech, one organization which advocates for first amendment rights for students claims.

“Indeed, the letter has already prompted several institutions to curtail the procedural due process rights afforded students accused of sexual harassment or sexual violence; given OCR’s regulatory authority and influence, all institutions of higher education accepting federal funding are likely to follow,” Will Creely of the Foundation for Individual Rights in Education (FIRE) noted in FIRE’s response to the OCR rule. “While it is of course necessary for colleges and universities to address allegations of sexual harassment and sexual violence with all requisite purpose, seriousness, and speed, the rights of those accused cannot be sacrificed simply as a function of the accusation itself.”

Federal guidelines are nothing new in higher education. They are usually advisories.

Nonetheless, university administrators tend to ignore the advice of Republican presidents and follow the guidance of Democrats in the White House. Thus, when a Bush Administration appointee in 2003 urged administrators not to hide behind civil rights laws when crafting speech codes, Ivory tower bureaucrats everywhere kept the speech codes in place.

“In summary, OCR interprets its regulations consistent with the requirements of the First Amendment, and all actions taken by OCR must comport with First Amendment principles,” . Gerald A. Reynolds, then the Assistant Secretary of the Office for Civil Rights (OCR) at the Department of Education wrote in a dear colleague letter dated July28, 2003. “No OCR regulation should be interpreted to impinge upon rights protected under the First Amendment to the U.S. Constitution or to require recipients to enact or enforce codes that punish the exercise of such rights.”

“There is no conflict between the civil rights laws that this Office enforces and the civil liberties guaranteed by the First Amendment. With these principles in mind, we can, consistent with the requirements of the First Amendment, ensure a safe and nondiscriminatory environment for students that is conducive to learning and protects both the constitutional and civil rights of all students.” The FIRE, which tallies and mounts legal challenges to university speech codes, reports that several hundred of them remain in place to this day.

By way of contrast, colleges have been quick to follow any quota plans from Democratic presidents to get more women into sports whether they want to be there or not. Incidentally, the latest Department of Education missive is under Title IX.

 

Malcolm A. Kline is the Executive Director of Accuracy in Academia.

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