Excerpts from a letter from the Department of Education Office of Civil Rights on the clarification of the word “harassment” is posted below.
It is no secret that universities have been attempting to use “harassment” as a blunt instrument to silence political, religious, cultural and other speech the administration doesn’t like. This has led to a series of confrontations and lawsuits (most of which the universities lose) that have cost the taxpayers great expense.
The policy clarification below was issued in 2003. It is obvious that university administrations, including administrators in the ‘diversity industry’, did not get the message. This obviously includes administrators in the IU system.
Once again I would like to thank our friends at the Foundation for Individual Rights in Education for posting this valuable information on it’s web site in two places:
Any future attempts to do harm, discriminate against, or retaliate against those who engage in free speech or even offensive constitutionally protected speech or association should result in a complaint with not only the US Commission on Civil Rights, but also with the US Department of Education Office of Civil Rights. Of course great organizations such as FIRE, the Indiana ACLU, the Student Press Law Center, the Alliance Defense Fund and Students for Academic Freedom stand by to assist students to defend their freedom.
After the formerly proposed “Bulletin Board Policy”, the Robert Francis case and the Keith Sampson case at IUPUI, no one in the IU system can claim ignorance of what the constitution protects.
I am writing to confirm the position of the Office for Civil Rights (OCR) of the U.S. Department of Education regarding a subject which is of central importance to our government, our heritage of freedom, and our way of life: the First Amendment of the U.S. Constitution.
OCR has received inquiries regarding whether OCR’s regulations are intended to restrict speech activities that are protected under the First Amendment. I want to assure you in the clearest possible terms that OCR’s regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution. OCR has consistently maintained that the statutes that it enforces are intended to protect students from invidious discrimination, not to regulate the content of speech. Harassment of students, which can include verbal or physical conduct, can be a form of discrimination prohibited by the statutes enforced by OCR. Thus, for example, in addressing harassment allegations, OCR has recognized that the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment under the statutes enforced by OCR. In order to establish a hostile environment, harassment must be sufficiently serious (i.e., severe, persistent or pervasive) as to limit or deny a student’s ability to participate in or benefit from an educational program. OCR has consistently maintained that schools in regulating the conduct of students and faculty to prevent or redress discrimination must formulate, interpret, and apply their rules in a manner that respects the legal rights of students and faculty, including those court precedents interpreting the concept of free speech. OCR’s regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment. …
Some colleges and universities have interpreted OCR’s prohibition of “harassment” as encompassing all offensive speech regarding sex, disability, race or other classifications. Harassment, however, to be prohibited by the statutes within OCR’s jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. Under OCR’s standard, the conduct must also be considered sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program. …
In summary, OCR interprets its regulations consistent with the requirements of the First Amendment, and all actions taken by OCR must comport with First Amendment principles. No OCR regulation should be interpreted to impinge upon rights protected under the First Amendment to the U.S. Constitution or to require recipients to enact or enforce codes that punish the exercise of such rights. There is no conflict between the civil rights laws that this Office enforces and the civil liberties guaranteed by the First Amendment. With these principles in mind, we can, consistent with the requirements of the First Amendment, ensure a safe and nondiscriminatory environment for students that is conducive to learning and protects both the constitutional and civil rights of all students.
Gerald A. Reynolds
Office for Civil Rights
Department of Education