Education Department proposes Title IX regulation to restrict free speech

Recently I posted a piece on the effects on women’s athletics of the Biden Administration’s proposed changes to Title IX regulations.  Later, I posted on the fact that those changes would all but require colleges and universities to violate existing law on how they adjudicate claims of sexual wrongdoing on campus including sexual harassment.  Now, with his permission, I post this piece by attorney Hans Bader on the free speech implications of those proposed regulations.  Enjoy.

The Biden administration has just proposed a Title IX regulation that would redefine sexual harassment more broadly in schools and universities, to restrict speech that some courts have ruled is protected by the First Amendment. The new definition would discard the current definition used by the Education Department, which is based on a 1999 Supreme Court decision.

Right now, campus speech -- such as discussion of sexual issues -- is not harassment just because it is "pervasive" -- as all widely-held viewpoints about sex and gender are. The speech must also be "severe," such as calling a woman a gender-based epithet.

That would change under the Biden administration's proposed Title IX regulation, however. Under it, speech would only need to be "pervasive" or "severe" to violate Title IX. So even viewpoints that are mildly offensive to progressive civil rights bureaucrats could contribute to a Title IX violation if they are persistent on campus, and thus are viewed by a civil-rights bureaucrat as "pervasive." And comments by different students could apparently be lumped together in finding that the comments collectively amount to harassment, even if each individual comment is mild and not intended to harass. For example, the Biden administration says that "even if" a behavior by one student is "infrequent" and does not constitute harassment by itself, "that same" behavior "by different students in each class throughout the day may" qualify as harassment.

The Biden administration's proposed regulation uses a definition of sexual harassment that is similar to one that was struck down by the federal appeals court in Atlanta. That court struck down as a violation of the First Amendment a harassment policy at the University of Central Florida that defined harassment to include "verbal" conduct that was "so severe or pervasive that it unreasonably interferes with, limits, deprives, or alters the terms or conditions of education ... or participation in a university program or activity," in Speech First v. Cartwright (2022) (emphasis added).

The Biden administration's proposed definition of verbal "harassment" -- which schools and colleges must punish -- similarly includes any "unwelcome sex-based conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate in or benefit from the recipient’s education program or activity (i.e., creates a hostile environment)." (emphasis added).

Indeed, the Biden administration's definition is even broader in one respect than the definition that judges already ruled was too broad -- "staggeringly broad" -- when it was used by the University of Central Florida. The Biden administration would ban speech that affects a person's ability to "benefit from" an "activity," not just their ability to participate in it, as was the case for the harassment definition struck down at the University of Central Florida.

A lot of viewpoints that someone disagrees with could "limit" their enjoyment of or "benefit" from an "activity" or "program" in which those viewpoints are expressed. For example, as a student, my enjoyment and benefit from Harvard Law School's Harkness Commons was impaired by the offensive, extreme left-wing viewpoints that were expressed there by campus radicals, which made my school experience less pleasant. But the government would have been wrong to prohibit such speech, because -- as the Supreme Court noted in striking down a ban on flag-burning -- "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Progressive students are equally offended by conservative viewpoints, which they view as offensive and creating a hostile atmosphere and which detracts from their college experience. In the federal appeals court's ruling in Speech First, the court noted that it had "asked the University’s lawyer a series of questions about whether particular statements would violate the discriminatory-harassment policy: (1) “abortion is immoral”; (2) “unbridled open immigration is a danger to America on a variety of levels”; and (3) “the Palestinian movement is antisemitic.” The University's lawyer could not rule out the possibility that such speech would be deemed sexual or racial harassment under the policy's broad language, without first considering "all the facts and circumstances" surrounding the speech. (The University's policy, like the Biden administration's proposed definition, does not look at speech in isolation, but rather uses a vague, "gestaltish" "totality of circumstances" approach).

Banning speech that limits "benefit" from or "participation" in an activity is an obvious abridgment of free speech. The student group that challenged the University of Central Florida's policy -- Speech First -- recognized this, and how it imperiled their ability to share their views with progressive classmates who might be offended by their speech. As the federal appeals court noted, "Among the views that Speech First’s members have said they want to advocate" but fear punishment for expressing were "that the government 'should not be able to force religious organizations to recognize marriages with which they disagree,'" and "that 'a man cannot become a woman because he ‘feels’ like one.'” The fact that these statements, which are "protected by the First Amendment," could "qualify for prohibition" under a harassment definition, shows that such a definition "is staggeringly broad," said the court in its ruling against the University of Central Florida.

Yet, the Biden administration's definition is even broader than that "staggeringly broad" definition in some ways.

The Biden administration use of the term "hostile environment" in its policy does nothing to limit its reach or protect free speech. Under schools’ “hostile environment” harassment codes, students and campus newspapers have been charged with racial or sexual harassment for expressing commonplace views about racial or sexual subjects, such as criticizing feminism, affirmative action, sexual harassment regulations, homosexuality, gay marriage, or transgender rights, or discussing the alleged racism of the criminal justice system.

Recognizing the expansiveness of the hostile-environment concept, the Supreme Court has interpreted Title IX to require more than just a garden-variety "hostile environment" before speech or conduct qualifies as illegal harassment. The Biden administration's proposed regulation essentially ignores that Supreme Court decision.

In its 1999 decision in Davis v. Monroe County Board of Education, the Supreme Court ruled that conduct must be “severe, pervasive, and objectively offensive" and interfere with educational access to violate Title IX.  It said this no fewer than five times in its ruling. In workplaces, conduct need only be "severe or pervasive" enough to create a hostile environment, to qualify as sexual harassment. But the Supreme Court refused to import that broad definition into the schoolhouse, saying that it would be inappropriately broad for schools, because "schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults."

The Biden administration's proposed definition of sexual harassment disregards the Supreme Court's Davis decision. It adopts a definition of harassment that is even broader in some respects than the broad harassment definition used in workplaces, which the Supreme Court rejected as impractical for schools, because of the fact that "schools are unlike" the workplace, and because students "regularly interact in a manner that would be unacceptable" among adult workers.

It makes no sense to apply speech-restrictive rules to students' private lives, as the Biden administration seeks to do. Students routinely have R-rated discussions and or engage in R-rated activities in college dorm rooms that might give rise to a sexual harassment claim under the PG-rated standards of the workplace. As a federal appeals court noted in a workplace harassment case, “most complaints of sexual harassment are based on actions which, although they may be permissible in some settings, are inappropriate in the workplace.” (See Sparks v. Pilot Freight Carriers (1987)).

(The proposed regulation is not needed to protect against rape, sexual assault or physical harassment. The existing Trump-era regulation already prohibits such physical harassment that is unprotected by the First Amendment -- "sexual assault, stalking, dating violence, or domestic violence" -- as "sex-based harassment with no further showing necessary to demonstrate that a hostile environment exists," and the proposed regulation leaves this unchanged).

 

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