5/14/2013: Sexual assaults by University of Montana football players lead the DOJ and DOE to require all universities to ban free speech about sex, as harassment. The DOJ report states:
A former University student informed the University that she had not reported being assaulted when she was a student because the person who assaulted her was a football player, football players could get away with whatever they wanted, and everyone would think she was bringing a false report. This begs the question, should women have access to self defence products, such as some of the strongest pepper spray to prevent these assaults from happening in the first place? Several community members, current students, and faculty members similarly indicated that football players are seen as being given undue favoritism and allowed to get away with anything, including sexual assault. For example, some people stated that the University and the community treat football players as if they are “Gods.” From spring 2009 to spring 2012, six football players were accused of aiding, attempting, or committing sexual assault through the University’s complaint procedures. Three of these players were involved in an assault where the University did not initiate SCC proceedings until almost a year after the coach had notice that the victim had filed a report with the Missoula Police Department.
Our government’s reaction is astonishing. No, it’s not to limit football excesses. That would be un-American. Instead they want to ban free speech. Eugene Volokh has the story on his well regarded law blog:
- saying “unwelcome” “sexual or dirty jokes”
- 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, picture,s or written materials”
- making “unwelcome” sexual invitations.
The Foundation for Individual Rights in Education has more, here.
As a law prof that works on Title IX, I cannot agree with Eugene Volokh’s strange interpretation of the recent Montana agreement (or, with U of O Matters’ endorsement of it). Here is the link to the agreement between Montana and the DOJ (http://www.justice.gov/opa/documents/um-ltr-findings.pdf ). There is nothing in this document that recommends limiting free speech in the ways that Volokh /U of O Matters suggest. In fact, if you read Volokh’s blog you see that gives no specific reference for his hysterical claims. The university’s obligation in these matters has not substantially changed since Title IX was first implemented. It must address sexual harassment of a kind that impairs a student’s ability to get an education. (There is an excellent summary of current law in the Montana decision.)
Yes, it does violate the First Amendment. As a former Education Department lawyer, I wish to applaud Professor Volokh for his criticism of the Justice Department and Education Department for attacking the First Amendment and radically rewriting the duties of educational institutions under Title IX — thereby flouting federal appeals court rulings striking down campus speech codes, and the Supreme Court’s Davis decision defining sexual harassment in the educational context.
I explain how the demands of the Education Department and the Justice Department violate the First Amendment and distort Title IX at this link:
http://libertyunyielding.com/2013/05/11/obama-administration-demands-unconstitutional-campus-speech-codes-defines-college-dating-and-flirting-as-sexual-harassment/
I was once an attorney at the Education Department’s Office for Civil Rights. I also spent years handling education law cases, in private practice.
As I said, read the Montana agreement for yourself and see if you can find the nightmare scenerio that opponents of Title IX see here. In particular, look at the commitments the university makes at the end to educate students and faculty around the requirements of Title IX, and conduct regular surveys of how much students and others know about the policies. If the U of O starts instituting the kind of free speech controls that Hans Bader worries about, I will be the first to join him and his organization–“The Competitive Enterprise Institute, Free Markets and Limited Government”–in opposing them.
I agree with Prof. Ryan. There is nothing new here. The proscription against “unwelcome” sexual conduct has been in place for many years. Here, for example, is the 2001 DOE Title IX Sexual Harassment guidance. It is identical in substance to the Montana decision.
Whether this Title IX guidance is an unconstitutional regulation of an individual’s speech depends upon the guidance’s application in a particular case. For example, the university could likely justify more strict regulation of an employee’s speech than of a student’s speech.
Can the university properly justify different sexual harassment standards for athletes versus non-athlete students? I would think not.