Guest column: Federal ruling may mark end of speech codes at public universities

Published 12:00 am Monday, August 18, 2003

On Aug. 8, Gerald A. Reynolds, assistant secretary of the Office for Civil Rights (OCR) of the federal Department of Education, issued the most important statement on freedom of speech at American universities since the 1950s McCarthy era. Reynolds sent a letter to universities nationwide, clarifying that &uot;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.&uot;

In other words, the federal government doesn’t support speech codes that violate free speech. Public colleges with Orwellian speech codes can no longer justify them by hiding behind federal rules. The game is up.

Court after court has held that public university speech codes that infringe on the First Amendment are unconstitutional. Nevertheless, public university officials have argued for years that their obligation to protect freedom of speech under the First Amendment must be subordinated to a broad interpretation of Department of Education rules that ban sexual or racial harassment on campus. Oddly enough, to support their view that speech rules intended to stifle offensive speech take precedence over the First Amendment they relied on a Clinton administration ruling by the OCR itself.

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That ruling was made after male students at Santa Rosa Community College had posted explicit and sexually derogatory remarks about two female students on a discussion group hosted by the college’s computer network. Several aggrieved students filed a complaint against the college with the OCR. It found that the messages probably created a hostile educational environment on the basis of sex for one of the students. The college’s toleration of such offensive speech, the government said, would violate Title IX, the law banning discrimination against women by educational institutions that receive federal funding. To avoid losing federal funds, universities across-the-board were required to proactively ban offensive speech by students and diligently punish any violations of that ban.

The OCR failed to explain how its rule complied with the First Amendment. Speech codes enacted by public universities clearly violate the First Amendment, even if the codes are enacted in response to the demands of the OCR. So, requiring public universities to enact speech codes or forfeit public funds is obviously unconstitutional. Nevertheless, public university officials ignored the First Amendment and enacted (or retained) speech codes in compliance with the OCR guidelines. While a few schools may have been truly concerned about the potential loss of federal funding, the prevailing attitude among university officials seemed to be that the OCR’s Santa Rosa decision provided a ready excuse to indulge their preference for speech codes.

Indeed, some universities enacted speech codes so broad that, when taken literally, they are absurd. The University of Maryland’s sexual harassment policy, for example, bans &uot;idle chatter of a sexual nature, sexual innuendoes, comments about a person’s clothing, body, and/or sexual activities, comments of a sexual nature about weight, body shape, size, or figure, and comments or questions about the sensuality of a person.&uot; So, at the University of Maryland, saying &uot;I like your shirt, Brenda&uot; has been a punishable instance of sexual harassment. Further, under Maryland’s code the prohibited speech need not address an individual to constitute harassment &045; saying

&uot;I really like men who wear bow ties&uot; is out of bounds, at least if a man who wears bow ties hears about it.

Moreover, public university censorship has extended well beyond sex discrimination issues.

Federal law also bans discrimination in education based on race, religion, veteran status, and other criteria, and universities argued that they needed to censor speech to prevent a hostile environment for groups protected by those laws.

The Santa Rosa case affected private universities, too. Unlike public universities, private universities have the right to enact and enforce voluntary speech codes.

However, the First Amendment prohibits the government from requiring private universities to administer speech codes.

Nevertheless, based on the Santa Rosa ruling, the government threatened to strip private universities of federal funding if they didn’t enforce speech restrictions to ensure that their students are not exposed to a &uot;hostile environment.&uot;

Assistant Secretary Reynolds’s letter, however, clarifies that OCR regulations must not &uot;be interpreted in ways that would lead to the suppression of protected speech on public or private campuses.&uot; He writes: &uot;Any private post-secondary institution that chooses to limit free speech in ways that are more restrictive than at public educational institutions does so on its own accord and not based on requirements imposed by OCR.&uot;

In short, a private university such as Harvard that seeks to suppress offensive speech will now have to justify its policies on their merits, and not hide behind purported OCR rules.

And any public university that seeks to do the same will find itself on the losing end of a First Amendment lawsuit.

David E. Bernstein is a professor at George Mason University School of Law and the author of &uot;You Can’t Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws,&uot; forthcoming from the Cato Institute,