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.

Matt Gouras/AP
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.

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.

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.

The new federal rule “is part of a decades-long effort by anti-‘hate speech’ professors, students, activists and administrators to classify any offensive speech as harassment unprotected by the First Amendment,” writes Greg Lukianoff, author of “Unlearning Liberty: Campus Censorship and the End of American Debate,” in the Wall Street Journal. “Such speech codes reached their height in the 1980s and 1990s, but they were defeated in federal and state court and came in for public ridicule. Despite these setbacks, harassment-based speech codes have become the de facto rule.”

The new sexual harassment blueprint, however, is necessary to force colleges to deal with a serious and pervasive problem that continues to seriously violate women’s civil rights, federal officials and civil rights groups maintain.

A recent investigative report by the Center for Public Integrity found that “students deemed ‘responsible’ for alleged sexual assaults on college campuses can face little or no consequence for their acts.”

“Yet their victims’ lives are frequently turned upside down,” the report asserts. “For them, the trauma of assault can be compounded by a lack of institutional support, and even disciplinary action. Many times, victims drop out of school, while their alleged attackers graduate.”

The Department of Education probe of the University of Montana’s handling of rape allegations against football players found problems with both the university’s sex harassment policy and its implementation. Federal officials focused on police reports, for example, that suggested that one alleged victim simply “regretted sex” and that another one didn’t seem sufficiently upset, and smelled of alcohol.

Seth Galanter, acting assistant secretary for civil rights with the Education Department, said the evidence showed sex harassment at the college violated civil rights law because the acts interfered with the ability of women to benefit from school programs.

"What is noteworthy about this announcement today is not the problems our investigation found at the university, but a shared commitment to the equality of women students and their safety," Roy Austin, deputy assistant attorney general for the Justice Department's civil rights division, said in a statement.

The broadened definition of sexual harassment enters the public debate two years after the Department of Education’s civil rights office and the Department of Justice tweaked sexual assault policy by lowering the evidentiary requirements for determinations of guilt. Instead of victims having to lay out “clear and convincing evidence” of assault or harassment, a “preponderance of evidence” is all that’s now necessary to determine that sexual assault or harassment took place.

Moreover, what’s troubling to some critics is that the idea of subjectively silencing “unwelcome speech” about sex may seep into other corners of campus life, even going so far as to poison debates about personal ideology and politics.

“I doubt [the new sexual harassment policy] is intended to be fairly enforced,” writes civil libertarian Wendy Kaminer on Atlantic.com. “I doubt federal officials want or expect it to be used against sex educators, advocates of reproductive choice, anti-porn feminists, or gay rights advocates, if their speech of a sexual nature is ‘unwelcome’ by religious conservatives.”

“When people demand censorship of ‘unwelcome’ speech, they’re usually demanding censorship of speech that they find unwelcome,” Ms. Kaminer writes. “They usually seek to silence their political or ideological opponents, not their friends – all in the name of some greater good.”

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