DOJ And Dept. Of Education To Colleges: Start Restricting Free Speech On Campus Or Kiss Your Federal Funding Goodbye
from the apparently,-speech-is-best-served-chilled dept
Our nation's universities are (or were) usually considered to be places that fostered open discourse and encouraged the discussion of controversial topics in order to promote the growth of both the students and their critical thinking skills. This is no longer the case. Many universities have crafted guidelines and policies that inhibit free speech, usually as an overreaction to offended sensibilities or criminal activity.
Much of what we've covered recently has dealt with private colleges, which have a little more leeway in crafting their speech policies. The chilling of free speech on campus is now spreading to public universities (not that some didn't have this problem already). Worse still, it's a government mandated inhibition of free speech, tied directly to federal funding.
In a letter sent yesterday to the University of Montana that explicitly states that it is intended as "a blueprint for colleges and universities throughout the country," the Departments of Justice and Education have mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment. The mandate applies to every college receiving federal funding—virtually every American institution of higher education nationwide, public or private.What the OCR (the Dept. of Education's Office for Civil Rights) has done is remove the "objective" standard and opened anything said or done to be judged as harassment from a strictly subjective viewpoint. This is coupled with some very broad definitions of the sort of behavior prohibited under these new national codes. Eugene Volokh's in-depth writeup lists some of the prohibited actions.
The letter states that "sexual harassment should be more broadly defined as 'any unwelcome conduct of a sexual nature'" including "verbal conduct" (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an "objectively reasonable person of the same gender in the same situation"—if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.
saying “unwelcome” “sexual or dirty jokes”There is no longer any stipulation that the offending actions create a "hostile, offensive or abusive environment." And, again, the "objective and reasonable" yardstick has been removed and replaced with subjectivity.
spreading “unwelcome” “sexual rumors” (without any limitation to false rumors)”
engaging in “unwelcome” “circulating or showing e-mails of Web sites of a sexual nature”
engaging in “unwelcome” “display[] or distributi[on of] sexually explicit drawings, pictures or written materials”
making “unwelcome” sexual invitations.
As FIRE (Foundation for Individual Rights in Education) points out, this new OCR letter contradicts a "Dear Colleague" letter issued by the OCR in 2003, in which the office offered the clarification that any guidelines issued were not intended to inhibit free speech on campus.
I want to assure you in the clearest possible terms that OCR's regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution ...OCR's regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment.It appears the OCR is no longer interested in protecting First Amendment rights. As FIRE notes, the new OCR letter does not contain the phrases "free speech" or "First Amendment" anywhere within its 31 pages. It also contradicts the OCR's earlier guidance on harassment, where it stated that actionable (or prohibited) behavior "must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive."
FIRE also points out that the new codes cover much more than "sexual" speech, being expanded to cover "gender-based harassment," including "harassment based on a person's nonconformity with gender stereotypes." All well and good to bring more people under this "protection," but it does mean that certain protected speech will now lose its protection, at least on campus. FIRE quotes a Third Circuit Court decision [DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008)]:
[T]he policy's use of "hostile," "offensive," and "gender-motivated" is, on its face, sufficiently broad and subjective that they "could conceivably be applied to cover any speech" of a "gender-motivated" nature "the content of which offends someone." This could include "core" political and religious speech, such as gender politics and sexual morality.The OCR's letter does some dangerous conflation, in addition to its general disregard for students' First Amendment rights. By using the criminal sexual assault that occurred at the University of Montana as a springboard for its harassment policies, the OCR aims to kill two birds with stone, but only manages to injure one with its feckless toss -- free speech. The actions condemned (and meant to be prevented) by this letter remain punishable by existing laws and policies. Adding further limits to speech is simply a welcome byproduct for establishments (universities and the government) that seem to feel more and more that only subjectively acceptable speech should be protected. This new, mandated First-Amendment-as-university-doormat will only serve to make students more closed-minded as they toe these aribitrary lines and make our institutions of higher learning pale parodies of their formerly progressive selves.
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Filed Under: college campuses, federal funding, free speech
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Re:
They will be indebted to a system that made them worse off and I'm sure that a lot of people will be angry that they were used to subsidize the irresponsible behavior of a government that didn't help them out with high student loans and few houses.
It makes no sense... These types of conditions are sure to bring about the worst in people by prodding them with sticks until they hit back in considerable numbers.
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Schools and universities are now factories churning out mindless robots who are devoid of their own personality or the ability to think and speak their minds.
Dark days ahead.
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Re:
All went to the university,
Where they were put in boxes
And they came out all the same,
And there's doctors and lawyers,
And business executives,
And they're all made out of ticky tacky
And they all look just the same.
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Re: Re:
ticky tacky
hummmmmmm
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Re: worker factories
But I think we need pushback from more than First Amendment grounds, because that only protects the *right* to express potentially objectionable or offensive ideas. Universities have a *duty* to expose minds to such things, IMO. To my mind, that's a core mission of universities: to intellectually challenge its students. And a necessary part of that is to make them uncomfortable with their present beliefs & attitudes, so they are motivated to examine them carefully. Of course, there are promising ways to do this, and there are crude ways... and there is actual harassment. But I wouldn't rely on a hastily drawn-up law to distinguish between those.
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Re:
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Duh...
Day after day... year after year... piece by piece...
Where are we going to be 30 years from now?
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Re: Duh...
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China's back pocket?
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Re: Re: Duh...
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Re: Re: Re: Duh...
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Re: Re: Duh...
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Re: Duh...
Either in the gulags, completely eradicated, or too busy rebuilding and punishing those responsible to get anything done.
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Re:
So, in the attempt to get ahead of the game and not offend anyone, I offer this following phrase:
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Re:
Fuck is the worst word that you can say
We shouldn't say fuck, no we shouldn't say fuck, fuck nooooo!!!
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I'm long past worrying about someones feelings getting hurt simply because they feel like they need to be coddled like a whiny five year old. Life's tough sport, better grab a helmet.
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Re:
That's not the problem, vary few people are going to be that whiny five year old. The big problem comes from the college administration. They're going to be so worried about someone being offended and losing their government money (or even worse, them getting sued) that they'll go above and beyond to avoid it. If anything overheard by staff can be taken as offensive (even if you have to bang your head against the wall to do it), they'll react as if their lives were destroyed by it.
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Re: Re:
This is why these things are so scary - you won't even have to offend an over-sensitive wanker.
You just have to be caught doing something that someone else thinks would offend an over-sensitive wanker.
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Re: Re:
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As a supporter of on line education...
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Re: As a supporter of on line education...
Sounds good to me!
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Land of the free? Not any more
And as for that poor follicaly challenged bird of prey you like to have as an emblem well...
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Bring it on
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And "The One" wants everyone to go to college
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This reminds me of something....
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USA world math rank 31st
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Re:
So much for free speech and freedom of religion.... Maybe they can go for the trifecta by searching your room at any moment without cause...
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Universities are for instilling the goals of the ruling class.
All that's required to get a degree in "economics" is to parrot the opinions of the professors. It's disguised with a little math and frills. But it's all "book-learning", nothing like the education of having sweated in the sun and created material goods with your own labor.
And fraternities are to form mutual-aid societies that will later greatly ease, if not outright give, entry into the ruling class. Those silly -- and always homoerotic -- initiations are an insidious way to force submission to the group. If you've bent over to be paddled then you gave up individual will in order to be accepted as loyal member of a gang. It's the same indoctrination as militaries do in boot camp, only worse. -- And of course those arrogant kids believe themselves to be above such manipulation, that's why they fall for it, every damn one of 'em.
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Re: Universities are for instilling the goals of the ruling class.
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Re: Universities are for instilling the goals of the ruling class.
-Little boy blue
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My brain hurts so much at this.
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Re:
Also, no more hi, I'm (insert name here) and I'm gay....Wooohoooo!
Nope can't see this going wrong in ANY way at all.....
/sarc
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YO! CUSHING!
Tim—
Did you lose interest?
Or just taking a breather while you evaluate the cellphone videos released yesterday?
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Animal Farm
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Hell I bet you couldn't be on any decent sized public university these days without hearding a "that's what she said" line at least once.
I'm guessing that would be harassment now...
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Re:
I'd lay odds that's the case over at WASU (Washington State University, home of the Cougars and the state's "party school"), except you'd probably hear that sort of thing at least three or four times a day.
...Christ on a pogo-stick, the Man really is trying to keep us down.[/half-sarcastic]
Although correct me if I'm wrong, but isn't FIRE a little sensitive when it comes to things that might resemble a violation of the First Amendment (and God bless 'em for it.)?
As the Zen Master says, "We'll see."
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I bet this article was written by a MALE
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Re: I bet this article was written by a MALE
If you really want to get his attention, we could try calling him “Mike”.
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/sarcasm
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A great day citizens
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The wheel keeps turning....
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"Just because you are offended, does not make you right"
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This is progress
Besides, I'm sure only bad speech will be forbidden.
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Re: This is progress
That's what they said.when the first amendment was.forgone to go after wikileaks
Ask AP or Fox News how well thats worked out now.
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Re: This is progress
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Then we attack science and try to prevent our kids from even being thought about it in the first place (like evolution, global warming, and throw sex education into there to as an area regularly censored for political reasons).
Then we start to rewrite history books in ways that largely ignore reality (like claiming Joseph McCarthy was actually a hero, because most of the people who's lives he ruined were real communists! Never mind that it was never illegal to be a communist in the first place, or that McCarthy started his communist witch hunts as part of a desperate reelection ploy, rather then an actual communist infiltration into American society like he claimed).
Then we move onto dumbing down colleges in the same way.
Is it any wonder why people keep on saying that our school/education system is going downhill?
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Civil Liberties = Civil Rights
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Don't do this for us, please
as a former activist and current contributor to equality and anti-bullying campaigns...
and as a guy who used to vote Democrat but switched to Green for the last election because I find Obama too conservative in too many ways...
This is reprehensible.
The only comfort I can take from it is that it's so prima facie unconstitutional that all the administration will end up with is a bunch of case law against them. But in the meantime, for the kids who'll inevitably lose their tuitions and a shot at a degree because they use the wrong colloquialism in the wrong time and place, this is a life-altering tragedy.
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Re: Don't do this for us, please
Only 80%?
Really? Where?
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Re: Re: Don't do this for us, please
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Justice
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Re: Justice
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Re: Re: Justice
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How can you tell it's unwelcome before you extend it? Your intended can't let you know it is unwelcome until after you ask.
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I wonder
As long as a student is paid up and didn't do anything criminal, they have the right of any academic punishment to be acquitted by a jury of their peers.
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I therefore want to complain about the following groups:
Men, Women, boys, girls, transgender pre-op boys, transgenger pre-op girls, transgender post-op boys, transgender post-op girls, "other", and asexuals (for flaunting their non-sexualness)
I also find trousers and skirts offensive because they draw a line between the acceptable (above the waist) and the naughty parts (below the waist).
I also find full body-bag style clothes offensive because by completely hiding every part of the body they FORCE me to use my imagination to think about whats going on underneath....
There that should do it....
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First, Washington never considered this to be an issue until 2013? Now that the Obama Administration has been getting one beating after another and they are embroiled in one disaster after another, the administration is trying to score some points but they are doing so for the wrong reasons.
Sure, draft policy for campuses that forces every campus to take every complaint of sexual harassment as serious as they would any other crime but it seems there are harsher penalties for cheating on an exam then there are for sexual harassment and that is simply unacceptable.
Finally, I think that the policy needs to be scaled back so that it doesn't chill free speech. If some people are talking innocently, or cracking a joke, and a female student happens to be walking by, I think that punishment deeming it as sexual harassment should be taken in context of the conversation. if the students were talking in a manner because they first saw a female student walking by then they should be penalized for sexual harassment. But, there are just so many innocent discussions that now stand the chance of being seen as sexual harassment.
Are dumb blonde jokes now considered sexual harassment? What about sorority and fraternity parties or initiations that often involve sex?
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Re:
With a broad rule like this, might as well never hand out a compliment, 'I like your
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Now you know one of the reasons for the obama takeover of student loans.
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Apparently, the government is requiring, among other things, that the university STOP requiring clear and convincing evidence to punish students. I mean, who needs clear and convincing evidence as long as we think you did it?
And to make things worse, the government calls out the university for not changing its evidence standards IN THE MIDDLE OF A CASE. Can you imagine preparing a defense only to find that the other side's burden of proof has suddenly been lowered?
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Wrong angle
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Re: Wrong angle
Then they should define their terms so it doesn't look like they are. Saying "they'll never actually prosecute anyone" has lost all credibility. Even if it's TRUE, how is a student supposed to know that?
"The attached document makes abundantly clear that the concern is effectively dealing with sexual assault. A cursory web search reveals that sexual assault is a serious problem at this school."
And a dirty joke is not a sexual assault. (It's also not sexual harassment unless it's a pattern of behavior against someone, which is kind of the point.)
I would also say that lowering the standards of evidence and implementing double jeopardy (if a student is acquitted, the accuser can appeal) is not the correct way to go about lowering the number of sexual assaults. We need to have due process to protect the rights of the accused.
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Re: Wrong angle
Now can we discuss the slippery slope of vague, rights limiting regulation?
No one in the thread, or Tim, has claimed sexual assault isn't a problem, or an affront to civil society and individual dignity. What people are claiming is that the rules are too vague, and too restrictive in terms of limiting first amendment rights.
Additionally, I will claim that implementing this draconian rule will have no impact on the frequency of sexual assault, nor the damages wrought on its victims. What is needed is more civilized behavior in the form of immediate negative reinforcement of better behavior on criminals caught in the act.
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Re: Wrong angle
Fine, but just because their goal is reasonable does not mean their methods are.
If that's the case, then write the rules in a way that doesn't allow these rights to be curtailed.
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When you can use the word you want to use for any number of reasons, you can replace the word with another word that makes syntactic sense.
Let's replace some words and try it out
Breasts-> Personality
Result:
Pst,check out that girl's personality.
Hi, I was just impressed your outgoing personality.
etc.
Making an asshole shut up doesn't make the person not an asshole. It's not even a good way to ignore the problem.
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...The second step is to add to the prohibited list words and phrases like "Tea Party", "Constitution" and "Christ".
Look for more fun things to come from the US Federal Government's financial services.
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That hardly sounds like Volokh's interpretation. I'm not a lawyer, but I'd say this document is calling for all factors to be considered, it certainly doesn't say if anyone is even slightly offended, toss'em all in jail, as Volokh seems to imply. His summary is really quit misleading in my opinion.
.
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That being said, the thing that always stands out to me in sexual harassment policies is the wording choice of "unwelcome". Now, it makes perfect sense, if you and your mate have an agreement between each other to send dirty pictures to each other, and nobody else is exposed to them, then there should be no problem there. The problem with the broadening of the definitions is that how do you find out if something is unwelcome to someone? If the definition becomes so broad, how to you even ask someone "hey, I've got this bit of porno I think you might like, do you want to see it?" Even that statement, under sufficiently broad definitions could be determined to be sexual harassment? The other person can't even be pro-active to you, under the same fear "I wouldn't mind if you showed me some porno"... nup, harassment there too.
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Don't Trust "FIRE"
The context of this particular article is interesting, as it's embedded in a larger narrative that seems to give the impression that sexual harassment and abuse is actually a non-issue for women on campus, which -- if you ask any women on campuses today -- is clearly not the case.
I frankly find thefire.org an insidious presence online -- a stealth ultra-conservative group that makes things sound just reasonable enough that their articles get picked up by respectable websites like Techdirt (and Boing Boing, the other website I've seen citing them) because they at first glance appear to support a more progressive "open" political agenda.
I would urge the authors of this website (as well as its readers) to use good judgement and critical analysis of sources before jumping on the bandwagon.
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Re: Don't Trust "FIRE"
"designed to stifle the free exchange of information in higher education"
What are you TALKING about? Where on earth do you see them trying to stifle information?
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Re: Don't Trust "FIRE"
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That couldn't possibly be open to abuse
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Exact opposite...
I thought I remember someone suing libraries for not blocking porn and that got shot the down because of this reasoning.
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Look at the upside
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