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The FIRE: “The government has mandated speech codes on all campuses”

The FIRE: “The government has mandated speech codes on all campuses”

“I hoped I would never see this day, but I feared I would.”

The Foundation for Individual Rights In Higher Education (FIRE) is the premier non-partisan organization fighting to protect free speech and other constitutional rights on campus.  The FIRE defends everyone’s rights, regardless of political affiliation.

We have cited The FIRE numerous times here and at College Insurrection, and they have submitted a few guest posts on campus issues.

The FIRE is not an organization prone to hyperbole.

So when I received this email late this afternoon from FIRE Senior Vice President Robert Shibley, it got my attention:

THIS. IS. OUTRAGEOUS. The government has mandated speech codes on all campuses. I hoped I would never see this day, but I feared I would.

This press release was linked in the email:

FEDERAL GOVERNMENT MANDATES UNCONSTITUTIONAL SPEECH CODES AT COLLEGES AND UNIVERSITIES NATIONWIDE

WASHINGTON, May 10, 2013—In a shocking affront to the United States Constitution, the U.S. Departments of Justice and Education have joined together to mandate that virtually every college and university in the United States establish unconstitutional speech codes that violate the First Amendment and decades of legal precedent.

“I am appalled by this attack on free speech on campus from our own government,” said Greg Lukianoff, president of the Foundation for Individual Rights in Education (FIRE), which has been leading the fight against unconstitutional speech codes on America’s college campuses since its founding in 1999. “In 2011, the Department of Education took a hatchet to due process protections for students accused of sexual misconduct. Now the Department of Education has enlisted the help of the Department of Justice to mandate campus speech codes so broad that virtually every student will regularly violate them. The DOE and DOJ are ignoring decades of legal decisions, the Constitution, and common sense, and it is time for colleges and the public to push back.”

In a letter sent yesterday to the University of Montana that explicitly states that it is intended as “a blueprint for colleges and universities throughout the country,” the Departments of Justice and Education have mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment. The mandate applies to every college receiving federal funding—virtually every American institution of higher education nationwide, public or private.

The letter states that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature'” including “verbal conduct” (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the same gender in the same situation”—if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.

This result directly contradicts previous Department of Education guidance on sexual harassment. In 2003, the Department of Education’s Office for Civil Rights (OCR) stated that harassment “must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.” Further, the letter made clear that “OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances, including the alleged victim’s age.”

Among the forms of expression now punishable on America’s campuses by order of the federal government are:

  • Any expression related to sexual topics that offends any person. This leaves a wide range of expressive activity—a campus performance of “The Vagina Monologues,” a presentation on safe sex practices, a debate about sexual morality, a discussion of gay marriage, or a classroom lecture on Vladimir Nabokov’s Lolita—subject to discipline.
  • Any sexually themed joke overheard by any person who finds that joke offensive for any reason.
  • Any request for dates or any flirtation that is not welcomed by the recipient of such a request or flirtation.

There is likely no student on any campus anywhere who is not guilty of at least one of these “offenses.” Any attempt to enforce this rule evenhandedly and comprehensively will be impossible….

Read the rest at the link.

The FIRE has set up an Action Page where you can send emails to the Departments of Education and Justice.  Here are the contact persons if you want to email them directly (as always, be polite):

Seth Galanter

Office for Civil Rights, Dept. of Education

Chief Anurima Bhargava

Civil Rights Division, Dept. of Justice

This is a continuation of the reign of politically correct terror on campuses, in which conservatives and men inevitably will be the ones singled out, a point we made in Kangaroo courts for men on campus.

Professor Glenn Reynolds also has made the broader point, Ham Sandwich Nation: Due Process When Everything is a Crime:

Though extensive due process protections apply to the investigation of crimes, and to criminal trials, perhaps the most important part of the criminal process — the decision whether to charge a defendant, and with what — is almost entirely discretionary.  Given the plethora of criminal laws and regulations in today’s society, this due process gap allows prosecutors to charge almost anyone they take a deep interest in.  This Essay discusses the problem in the context of recent prosecutorial controversies involving the cases of Aaron Swartz and David Gregory, and offers some suggested remedies, along with a call for further discussion.

Now everything is a speech crime on campus, and the administrators get to pick and choose who is guilty.

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Comments

Leave it to a professor to take all of the joy I was feeling over Jay Carney’s Really Bad Day and cast it away like a fart in the wind.

Oy vey…

I just ate ten Oreos (undunked!), so utterly depressed about Benghazi, the IRS, ABC calling the Obama’s Washington royalty (ewwww), and now this. Of all the stories swirling in my head, this one scares me the most. Keep us informed Professor.

    BannedbytheGuardian in reply to eosredux. | May 10, 2013 at 10:17 pm

    I am eating almond cakes made in The Netherlands. At least the almonds Are good for you – omega 3.

    I do not know how these college kids are going to get through life. I recall one day opening the door to find my Political Science professor standing there. I figured he had a crush & that I was pretty good looking & that was ok.

    Nothing came of it because he was like 30 & I thought peoe of 30 were almost dead anyhow.

blissdesignz | May 10, 2013 at 6:29 pm

Boy, I sure am glad we don’t have to worry about tyranny from our government like Obama said earlier this week. It sure would stink to have a totalitarian regime that did things like punish dissidents with tax audits or come up with Orwellian speech codes nobody could possibly comply with.
Thankfully, we have our constitution that our gov’t keeps itself strictly in adherence to so there’s complete freedom of expression in this country without fear of reprisal..
(/S)

Henry Hawkins | May 10, 2013 at 6:30 pm

The entire Bill of Rights is under attack.

    Ernie G in reply to Henry Hawkins. | May 11, 2013 at 11:01 am

    About the only Amendment they haven’t gone after is the Third. Maybe I should tidy up the guest bedroom, just in case.

      ss396 in reply to Ernie G. | May 11, 2013 at 4:04 pm

      DoD spends a lot of money on military bases, and a big chunk of that is in the care and housing of the troops. A lot of money could be saved if we only maintain the training facilities at Federal expense, but house the troops locally. I’m sure that it would not take long for the government to compel people to take in soldiers as borders.

      We’ll get to the 3rd Amendment. Just give us time.

This one really blows my mind —> Any request for dates or any flirtation that is not welcomed by the recipient of such a request or flirtation.

This means that if I’m the hottest person on campus who everyone wants to date I now have the power to eliminate at least half of the student body and probably more than a few of the staff.

Damn, the Great and Powerful Wizards in Washington are awesome!

Doug Wright | May 10, 2013 at 6:46 pm

Yes sir! One issue that our ruling Socialists hate more than 2nd Amendment rights, it’s free speech practitioners who use 1st Amendment rights to express their contrary views. Socialists view any speech not of their own choosing to be “hate speech” and it must be stamped out at all costs.

Henry’s statement is very correct, the complete Bill of Rights, and all of our Constitution, is under attack from these Socialist elitists.

So this leads me to question whether dressing in a sexually provocative way could be considered as harassment? It seems only fair that it should.

    Micha Elyi in reply to bawatkins. | May 11, 2013 at 2:31 pm

    Clever of you to notice that, bawatkins. You’ve probably also noticed that only the most horrible sexist could believe only one sex is sexist.

    The letter [sent by DOJ and DOE to the University of Montana] states that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature’” including “verbal conduct” (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the same gender in the same situation”
    –William A. Jacobson

    “Any” includes the non-verbal conduct too. Including the “sexual nature” of how Ms. Bare-Midriff and her sisters Ms. Exposed-Decolletage and Ms. Short-Shorts “conduct” the manner in which they Dress for Sexcess.

    The girls may believe themselves safe because a lot of boys on campus may be enjoying the eye-candy. But look again at that “need not… be offensive to… the same gender” clause. Let one boy on campus who is as Puritan as a campus Women’s Center director step up to complain and all the fun for the girls comes to a halt.

    Make the feminazis (of whatever sex, including ‘none’) live up to their own repressive rules, I say!  This war on men must stop.

    Yes. It’s called Sharia.

    MrSubtle in reply to bawatkins. | May 13, 2013 at 3:54 am

    What it really means is that anybody will be subject at any time to being fined, expelled, or whatever the university wishes for any reason it chooses since everyone will always be guilty of some kind of thought crime. Specifically, any deviation from the administration’s ideology can be eliminated without any trouble. Just accuse them of making someone unhappy and they are automatically guilty and easy to destroy. There is no defense against this kind of accusation. It’s an academic death sentence too. Your whole career as a student can be destroyed if you say or do anything that is against the government. Nice move eh totalitarians?

Juba Doobai! | May 10, 2013 at 7:36 pm

He came to radically transform the United States of America, and if the Constitution gets in the way, shred it!

John Skookum | May 10, 2013 at 7:36 pm

Nothing will change until pain is felt by the single, liberal, white feminist women who control academia. Every performance of the Vagina Monologues should prompt a lawsuit from every man on campus. Go after even lowly TA’s and assistant professors who crack jokes about “typical men” etc., get them suspended and expelled and fired, personally bankrupt them with incessant Alinskyite lawfare. Every young man who so much as gets winked at by a girl should haul her in front of the commissars. The time for white knighting is past. In fact, the time for all previous ideals of restraint, propriety, ethics or chivalry is as dead as the dodo. Let us make war on this dreadful alien culture, and destroy it.

This is absolutely FANTASTIC. John Skookum has got it right.

Alinsky rule number 4 just came fully into play, and can be used as a HAMMER against campuses who comply, and here is how:

EVERY single protest of the Feminazis, Statists, Marxists or any other group that has anything to do with sex, any “kiss-in” protest, any conduct showing “gay pride” at events where the speaker is called “anti-gay” (like the regular “kiss-in” protests that used to occur at Ralph Reed speeches now can be filed against, charged and if there is ANY failure to prosecute by the University or College, there immediately becomes grounds for a lawsuit on Equal Protection grounds (failure to enforce laws and/or policies equally, even if is a private institution), because they are “inexorably, inextricably entangled” with federal policy.

Believe me, the Universities will get really tired, REALLY fast of having to defend, having to provide process, and having to deal with constant complaints from CONSERVATIVES.

Gumming up the works, by overwhelming the system. Make them live with their own standards, and the system WILL break under the load.

    stevewhitemd in reply to Chuck Skinner. | May 10, 2013 at 8:04 pm

    It’s a point to consider Chuck, but remember (as Prof. Reynolds points out in “Ham Sandwich Nation”), it’s the colleges that get to decide which claims go forward and which ones get round-filed. Likewise, when you complain to DoJ that your claim (against the performance of the Vagina Monologues at Enormous State University) was ignored, the DoJ will in turn ignore you.

    Whereas, when one of the soul-sisters of Sandra Fluke complains, THAT complaint will be front and center.

    It’s a hoary old aphorism of politics that it isn’t the votes that matter, it’s who counts the votes. Likewise, complaints don’t matter, it’s who arbitrates and decides the complaints.

      True. But there is probably a “response” mechanism, where, if a complaint is filed, that there MUST be some level of “response” to that complaint (even if it is “we have investigated and found no violation”). So they can’t just “ignore” the complaints, they have to do “something.” Here’s how you deal with that:

      Get enough of those complaints, then take the policy and the complaints to the press. Eventually somebody, somewhere (probably the local Fox Affiliate) will do a story about how “so many complaints are being ignored or refused by the local University.” Get a couple of 15 second sound bites of students who have been “offended” by the conduct, and it will neuter any future action by the University, because then those ignored complaints can be brought forward front-and-center against the University by the DEFENDANT party again as an equal protection violation, and as a arbitrary and capricious enforcement of policy.

      It’ll be a long, long process, and require individuals who are willing to go the distance and fight the system.

        Micha Elyi in reply to Chuck Skinner. | May 11, 2013 at 2:48 pm

        Yes, the US Department of Education Office for Civil Rights has a response mechanism. And a convenient web page for starting a complaint. There’s a downloadable PDF titled “How to File a Discrimination Complaint with the Office for Civil Rights” that explains all.

        The Department of Education is so customer-focused that they’ve made it available in a total of 20 languages. That strikes me as strange because anyone attending college in the US ought to be able to understand English rather well. Oh well, I guess Sen. Warren insists that no potential student loan debtor be left behind.

From a strictly practical viewpoint, I doubt these standards will/would be equally applied to both men and women…if I were a guy, I would only take online classes.

“Among the forms of expression now punishable on America’s campuses by order of the federal government are:
Any expression related to sexual topics that offends any person. This leaves a wide range of expressive activity— … a presentation on safe sex practices, a debate about sexual morality, a discussion of gay marriage, … —subject to discipline.”

So if we’re stuck with it, can we exploit it to our advantage? Can we get sex education classes in elementary schools banned because they use graphic adult sex materials that would get adults arrested if they discussed these topics with children anywhere off campus? I do believe that anything that is illegal off-campus should be illegal on-campus. The new government speech code bans “Any expression related to sexual topics that offends any person.” Well, I am a person, and I am beyond offended by the sex education programs forced into our schools by activists, both straight and gay. See the following post for a perfect example of what this new speech code ought to ban:
http://www.jillstanek.com/2013/04/ny-times-washpo-reject-ad-showing-planned-parenthood-sex-ed-images/
“Last week American Life League tried to run a full page ad in the New York Times and Washington Post that showed images from actual Planned Parenthood sex education materials for kids as young as 10 years old.
Both newspapers rejected the ad as “too graphic” and “shocking” for their adult readers to see. But the images are okay for kids in the classroom to see – at taxpayer expense.”

Can we get sex week and all the pornographic college classroom studies banned? Many students (and their parents and the general public) certainly are offended by them.

Let’s use this opportunity to turn the tables on the left and clean out the sexual Augean stables that has transformed our schools into (fill in your own words).

Quit laughing! I know we can make them follow their own rules just this once.

So I’m assuming that this can also be used as a reference if anyone else says anything untoward.

For example, this proclamation by the federal government should bear ample weight with the FCC if I want to report a Saturday Night Live skit or David Letterman joke, right?

[…] The FIRE:  “The government has mandated speech codes on all campuses” […]

Someone please get in touch with John Ashcroft and have him cover a statue with a bed sheet. That should wake the MSM. It did before! Such gnashing of teeth you ever heard!

My son will never attend a brick and mortar college. My daughter may not, either, even though she is of the favored class now.

    Juba Doobai! in reply to Scott Anderson. | May 10, 2013 at 8:15 pm

    Send your kids to Hillsdale College. They will get a first class education, and Hillsdale doesn’t take a dime from the federal government.

DINORightMarie | May 10, 2013 at 8:20 pm

What next?

They must feel confident that all the colleges and universities will comply and create, then enforce, these codes.

Won’t students get together and sue? First Amendment infringement by the colleges, and the government?

Why? What is their motive?

To remove Conservatives from any and all college/univ. campuses, perhaps?

Why?

Bruno Lesky | May 10, 2013 at 8:52 pm

I gotta read the letter. But I suspect this is an extension of the administration assault on man + women + love + marriage + babies + family + responsibility for kin, etc. As in Julia … the State is the parent … etc.

That gives the Powers that Be credit for having a direction. Maybe it’s just just asinine assertion of power. Because they can.

Well, at least they can’t prosecute us for what we think.

And believe me, with what I’m thinking right now….

David Yotham | May 10, 2013 at 11:48 pm

AND exactly what did anyone expect, other than this, from DoJ Eric Holder or Dept of Education Arne Duncan? Duncan is ex-Chicago scum and Holder is a hyper-liberal thug without any honor – can anyone remember ‘Fast & Furious’?

This is just one attack against the constitution – there will be more. They still have several years of elected power to walk through – and after that, years and years more subversion of American freedoms and liberties.

“sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature’” including “verbal conduct” (that is, speech).

Is it unreasonable to suggest that this unwelcome verbal conduct could include the way that primary and secondary schools across the country are aiming to sexualize children at ever younger ages and sex up the curriculum in numerous ways? Might it be noted that official campus Sex Weeks are “unwelcome conduct of a sexual nature” to many students? Etc.?

The schizophrenia of the educrats in this regard is stunning. Handing out free condoms on campus? Just taking care of students’ health. A guy saying “You look nice in that dress”? Forbidden!

    Radegunda in reply to Radegunda. | May 11, 2013 at 12:04 am

    Note to self: read the whole thing before posting a comment … I see that DOE and DOJ might be (officially) disapproving of Campus Sex Week after all. OTOH, campus administrations have been notoriously schizophrenic on this topic, and I suspect that DOE and DOJ enforcement might be likewise.

Thank goodness we have John Boehner to lead the charge to push back.

Being we have collectively tolerated his presence in the Speaker position, we deserve what’s coming.

In my best school marm voice….”Mandate! Mandate? That is so sexist and homophobic…..zzzt, aaaaaggghhhh.”

Gun-free zones.
Speech-free zones.

What’s next?

Search and seizure zones?
Will kids in the dorms be required to quarter soldiers? At least they’d finally be doing something useful.

Did someone from FIRE check to make sure this isn’t an ONION story?

Because it sure has that tangy flavor …

Seriously. This is scary.

A-F’ing-MAZING!! I’m looking across the study to the shelf where Tammy Bruce’s 2001,”The New Thought Police” and Melanie Phillips’2010 book,”The World Turned Upside Down”, rest side-by-side. More true by the ticking minute…

[…] leadership like freedom at all, when they are telling colleges and universities they should adopt “speech codes” that prevent freedom of […]

Hive mentality and mind think, all combined into one Putin styled method to control and eventually eviscerate free speech. Although years late, “1984” has arrived. Just around the corner is the burning of books or the coming of “Fahrenheit 451”.

Remember, if you are a white heterosexual male you are not a person, so you cannot be offended under any circumstance. You are now the invisible man. How foolish you are if you think that universities are colorblind.

Henry Hawkins | May 11, 2013 at 1:10 pm

This is just another thread in the central control net. The plan is to set up as many rules as possible throughout American society. The nature or stated purpose of the rules is irrelevant. What it does is make it virtually impossible for any citizen to avoid breaking the rules, at which point the prosecuting authority, whether a university board or traditional court DA, can then pick and choose whom to go after almost entirely on that authority’s own discretion. It makes it possible to target opposition people and groups while ignoring identical ‘offenses’ by your political friends.

Our federal tax system is already there. I’d guess that the number of federal tax returns filed each year which don’t have actionable errors is less than 1%. Not that everybody cheats – they’ve made it so complicated it’s almost impossible to navigate and comply without actionable error. This comes in handy if you want to nail somebody you can’t nail for the real reason. Ask Al Capone. Ask tea party/patriot groups applying for 501(c) status. Ask pro-Jewish groups applying for tax-free status. FYI: it appears the IRS has been targeting Jewish groups too. See:

http://www.nationalreview.com/corner/348013/irs-inquisition-update

If I recall, we have more than a couple current and former police officers who frequent this blog. They’ll confirm that virtually nobody can or does drive so much as five miles without violating some traffic rule or another, making them vulnerable to a legal traffic stop by the police. Double discretion enters at that point. The patrol officer can decide to ticket or not, arrest or not, and if he/she does, the DA office can decide to prosecute or not.

These levers of prosecutorial discretion become extremely dangerous if the enforcement structure, again, whether some university diversity board or traditional court system, gets co-opted by those with a political agenda. It’s a great way to identify and eliminate your political opposition. By the time the people realize there is no more equal protection under the law, there is no longer enough opposition to do anything about it.

This is what evil looks like.

These people are not misguided, mistaken or confused, they are EVIL. They must be fought, and not merely defeated, but annihilated.

I mean that figuratively, as in socially and politically, rather than literally, but I mean it strongly just the same.

This puts a federal bureaucrat – or a school staff bureaucrat approved by the feds – as the final arbiter of what constitutes an offense. And as the letter points out explicitly, the standard of proof is not prof at all, but the “preponderance of evidence.” That means that anything that the Dean of Politically Correct Speech Enforcement says was illegal, was illegal.

There is no longer an objective, uniform, predictable standard of what is illegal and what is not. As Prof. J. explains, there are exactly zero First Amendment protections of free speech on American colleges any more. When you start your first class you have already surrendered your rights.

As go our universities, so will go the country because the schools are where the next generation of bureaucrats and their subjects are formed. Just as the NFL has long used colleges as its farm teams, so does the Left use universities. In less than a generation, no graduate will imagine that free expression was once a cherished, protected right. Instead, they will think it normative that speech must be controlled, regulated and subjected to entirely arbitrary review and sanction. That’s who will inherit the offices and powers of government and who will be the objects upon which they act.

America has ended. By design and with the full endorsement of its voters.

The FIRE is an organization well worth supporting; indeed, I have been giving it financial support for years now. Greg Lukianoff, its president, is perhaps the most principled man I know. He supports free speech on campus for all, whether those being denied free speech are advocating conservative views, “progressive” views, or views that are not political at all.

[…] The FIRE: “The government has mandated speech codes on all campuses” (legalinsurrection.com) […]

[…] DOE joined with his DOJ to effectively revoke the First Amendment on all college campuses receiving federal funding (the majority of them, in other […]

Noblesse Oblige | May 13, 2013 at 12:55 pm

Nowhere is there an ordained right not to be offended. There is however a right to free expression.

These people need to be reined in. They are out of control.

[…] the IRS, and the additional questions they raise, the indiscriminate campus speech codes that are arbitrarily being forced on students, the endless campaigns, the clear disdain government operatives seem to have for its own citizenry […]

[…] (not the sexual kind), the Departments of “Justice” and “Education” have teamed up to prevent all women on every campus from ever experiencing any type of discomfort whatsoever (bold […]

While I am totally against restictions on free speech, we could borrow a page from Alinsky and have some fun with this. For starters, we need to encourage religious fundamentalists to file suits any time they are offended on campus for anything related to sexuality. All liberal arts courses dealing with sexuality: I’m offended that they exist and that others get credit hours for them. Sexuality in Psychology courses? No, I’m offended. Gender studies? I’m totally offended. “Vagina Monologues”? Forget about it.

Let’s use this as a hammer to take all the fun out of the “pseudo-intellectual finger-painting” that is much of the modern university.

It’s like the press pushing gun control. We need to have a conversation in this country about what motivates a lot of these public shootings. Since the goal of many of them, including Lanza, appears to be to become famous, then we should deny them. Let’s pass a law that makes it a crime to promote mass killings by publicly mentioning the name of the shooter, their backgrounds, their goals, their planning, or their methods. It is clearly not in the public interest to give these psychos a place in history.

We need common sense restrictions on Freedom of the Press. (Who could be against “common sense restrictions”?)

I’d love to hear the press scream about that.

[…] if you don’t believe that then I have a fresh, new DOJ speech code edict to implement on your […]

[…] in the growing torrent is the news that the Depts. of Justice and Education are imposing stringent Campus Speech Codes on colleges and universities that are vague and highly subjective.  Considering leftist bent of […]

[…] It’s been a big week for news of Obama administration wrongdoing, with four scandals swirling on Capitol Hill, but this oughtn’t get lost in the shuffle: The federal government is ordering that college campuses nationwide institute unconstitutional speech codes: […]

[…] “The government has mandated speech codes on all campuses” “I hoped I would never see this day, but I feared I would.” […]

[…] impulse at work in an amazing number of governmental initiatives, from the truly terrifying new speech code for all American colleges and universities that receive federal funds, to the previously […]

[…] impulse at work in an amazing number of governmental initiatives, from the truly terrifying new speech code [2] for all American colleges and universities that receive federal funds, to the previously […]

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