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Feds rooting out 'unwelcome speech' on campus: But what is that?

The failure of the University of Montana to respond adequately to sexual assault allegations has led to a broadening of how the federal government defines verbal harassment. Free speech advocates worry that the new policy will chill the right to speak freely on campus.

By Staff Writer / May 18, 2013

Deputy Assistant Attorney General Roy Austin, left, and U.S. Attorney for Montana Michael Cotter listen to University of Montana President Royce Engstrom discuss an agreement on the handling of campus sexual assault cases.

Matt Gouras/AP

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The failure of the University of Montana to respond adequately to rape and sexual assault allegations against popular football players has led to a broadening of how the federal government defines sexual harassment, causing free speech advocates to worry that the new policy will be used to punish “unwelcome” flirting and chill the right to speak freely on campus.

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A detailed “resolution agreement” with the University of Montana, dated May 9, outlines what the US Department of Education and Justice Department describe as a new “blueprint” for how colleges should view sex discrimination, assault, and harassment on campuses. The new policy is seen as binding, because colleges can lose federal funding, including Stafford and Pell grants, if they don’t abide.

Key among the federal findings at the University of Montana, where the university acknowledged it failed to properly address allegations of sexual assault against several football players, is the necessity to broaden the definition of sexual harassment to “unwelcome conduct of a sexual nature,” including “verbal conduct,” or speech.

The new policy also suggests that harassment does not have to be “objectively offensive” to warrant complaints, and demands colleges take action against alleged aggressors even before judicial hearings are held.

A “culture of rape and sexual violence … is not exclusive to our campus,” Brittany Salley-Rains, co-director of the Women’s Resource Center at the University of Montana, told reporters at a press conference. “There needs to be more prevention going forward and the university administration needs to do more to bring attention to the detrimental culture that threatens women."

The new policy outlined in the University of Montana agreement comes in response to campus exposés about lax enforcement of sexual harassment rules, the signing by President Obama in March of the Campus Sexual Violence Elimination Act to make it easier to report sex crimes on campus, and a series of probes by the Department of Education into major universities that have allegedly failed to properly address sexual harassment and assault allegations.

To be sure, the new rules still require that sex crime allegations suggest either pervasive or severe acts or language, and still require an objective standard before allegations are upheld, according to the Department of Education’s letter to the University of Montana.

But campus free speech advocates have balked at those explanations, saying the policy could have a chilling impact on social, professional, even political dynamics on US college campuses. Critics say any sexual topic, including flirtation, sex ed classes, or a discussion of Vladimir Nabokov’s “Lolita,” could be deemed “unwelcome” and the basis for censure.

Such fears aren’t theoretical, campus free speech advocates say, citing a professor at the University of Denver who was found to have sexually harassed students by talking about sexual taboos in American culture.

“Unwelcome” speech has also been used in allegations of teachers creating a “hostile environment,” which apparently happened to a professor at Purdue University at Calumet who last year faced investigation for criticizing on Facebook the failure by moderate Muslims to condemn violence by Islamic extremists.

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