Editorial: Harassment policy infringes on speech

Published Jun. 3, 2013

Free speech lies at the core of American democracy — but maybe not the American university. Recent guidance from the Obama administration on what constitutes sexual harassment at colleges is so broad it could trigger new campus speech codes that could punish even innocuous references to sexual topics. The administration should reconsider its directive, and universities should petition for clearer, more reasonable standards.

The Education and Justice departments, responding to allegations of mishandled sexual assault cases, wrote an open letter to the University of Montana in May that set new standards for defining sexual harassment. Its provisions are intended to act as guidance for colleges nationwide. But one part of the policy broadly defines sexual harassment as "any unwelcome conduct of a sexual nature," including speech. That is far too broad.

Legal precedent now says that to show sexual harassment, a "reasonable person" must find an environment sufficiently hostile. The new Obama policy scraps that standard and means any individual — no matter how thin-skinned or reactionary — could condemn conduct as harassment. It would potentially shift campus administrators from presuming offensive speech is constitutionally protected to aggressively punishing it.

Universities cognizant of the stakes — federal funding in the form of Pell grants and Stafford loans, a costly investigation or image-damaging lawsuit — will likely feel bound by the letter. That will encourage self-censorship, or punishing people who flout the policy's standards, rather than risking the image of being a campus tolerant of sexual harassment. And the overreaction of some college administrators to sexual themes is not theoretical. Just this spring, college administrators at a New Mexico community college shut down the journalism program after students released a sex-themed issue of the campus newspaper.

Suppressing speech deemed uncomfortable also will divert resources from rooting out real harassment and sexual assaults on college campuses. The U.S. Centers for Disease Control and Prevention estimate that 20 percent to 25 percent of college women experience attempted or completed sexual assaults. Yet 54 percent of sexual assaults are never reported to police. Preventing assaults — not censoring speech — is where college campuses should focus their energy.

The Obama administration should revisit this policy's general wording and make it consistent with the right to be free from government punishment pertaining to speech, even when it is offensive.