Free Speech Can’t Be Trumped By Title IX — But College Officials Use It That Way
When federal politicians passed the Higher Education Act, they thought they were only going to help good students who couldn’t otherwise afford college to attend. They did not think about possible unintended consequences — like making college far more expensive, undermining academic standards, or giving federal bureaucrats leverage to dictate to colleges and universities.
But all of that has happened.
I’m going to focus on that last consequence—the way federal intervention in higher education has empowered bureaucrats to whittle away at free speech on (and even off) campus.
A strange case involving a student at the University of Kansas illustrates the problem.
Navid Yeasin was enrolled there in June, 2013 when he was charged by his former girlfriend (“Ms. W.”) of having committed criminal restraint and battery against her. Consequently, university officials imposed a no-contact order on Yeasin. He was not to approach her or to have any direct or indirect communication with her. Fair enough.
But when the fall semester began, she complained to school officials that, because of Yeasin’s sexual harassment, she was still experiencing fear, anxiety, depression, and nightmares. Therefore, the university repeated the no-contact order against Yeasin, warning him that he could be disciplined not only for contacting Ms. W, but even speaking about her.
And that perturbed him into sending out a number of angry, insulting tweets while off campus. He evidently called Ms. W. names like “bitch” and “psycho,” but neither specifically named her nor sent the tweets to her. Some of the students who did receive the tweets, however, told Ms. W. about them; she immediately brought them to the attention of university administrators.
In an absurd overreaction, the university then decided to expel Yeasin.
Can a public institution expel a student merely for off campus speech that doesn’t threaten anyone?
That is what the court will have to decide in Yeasin v. University of Kansas, currently before the Kansas Court of Appeals. Amicus briefs have been filed by the Student Press Law Center and the Foundation for Individual Rights in Education and, strangely enough, Kansas State University, arguing that the University of Kansas far overstepped its authority.
The SPLC/Fire brief gets the core of the case exactly right, stating, “Across the country, colleges are seeking to expand their punitive authority over students’ off-campus, online lives. Students routinely face life-altering disciplinary charges for misunderstood jokes or crude comments – even with no connection to the college – incurring penalties once reserved for violent criminal behavior.”
The university counters that it acted “appropriately and in accordance with its obligations under Title IX.”
Call that the “Title IX made us do it” defense.
That defense, however, should not succeed. The Department of Education’s bureaucrats cannot override the First Amendment and college officials cannot be allowed to hide behind Title IX when they impose subjective, overbroad rules against free speech.
Back on June 2, the House Subcommittee on the Constitution and Civil Justice held a hearing devoted to the issue of “First Amendment Protections on Public College and University Campuses.” Among those who testified was Hans Bader, a senior attorney with the Competitive Enterprise Institute and a former attorney in the Education Department’s Office for Civil Rights (OCR).
Bader observed that the problem of broad, vague speech codes and harassment policies is widespread and not limited just to cases like Yeasin where nothing more than personal feelings are involved. “The danger that overly broad definitions of harassment will stifle campus debate about important political and social issues is very real, since students have been charged with racial or sexual harassment for discussing issues such as affirmative action, feminism, homosexuality, and the death penalty under broadly worded campus harassment policies,” he stated.
In short, in trying to avoid liability for “sexual harassment” under Title IX, many schools have gone way too far. They have allowed hyper-sensitive or vindictive students to use Title IX regulations as a weapon against anyone whose speech offends or annoys them.
Even though the Education Department officially has advised colleges (in a 2003 guidance letter) that Title IX may not be used to regulate the content of speech, its current approach works the opposite way.
The reason is that the Department’s Office for Civil Rights control over federal money flowing to schools gives it great power to “influence” school officials. Again, Bader explains: “Using this massive leverage, OCR is now forcing some colleges to pay large amounts of compensation to students who allege harassment or sexual assault, even though it lacks statutory authority to award such compensatory damages.”
The court in Yeasin can do its part by ruling that his speech was protected under the First Amendment and that the university cannot hide behind the “Title IX made us do it” defense.
Congress, however, has the bigger part to play. It should head off future cases like Yeasin by clarifying what should already be (but unfortunately isn’t) clear: the First Amendment rights of students are not overridden by anything in Title IX. A good step in the direction would be for it to codify the Supreme Court’s definition of harassment in Davis v. Monroe County Board of Education.
Under Davis, speech cannot be a Title IX violation unless it is unwelcome, aimed at individuals based on their sex, and sufficiently “severe, pervasive, and objectively offensive” that it interferes with the student’s ability to get an education. Unfortunately, as Bader observes, OCR has “thumbed its nose” at Davis by weakening the definition so that a lot of speech that is protected under the First Amendment seems to constitute “sexual harassment.”
It’s easy to understand why. Bureaucrats love complicated regulations that generate large numbers of cases to keep themselves busy. Many also just like throwing their weight around.
On college campuses, the rule ought to be that speech is protected even if it is no more than angry tweeting, but the Department of Education has turned free speech into a minefield. It’s up to the courts and Congress to sweep that minefield.
Originally posted on Forbes.com.