Here you go Bill........
The "offensive speech" concept that the Universities have
been using as a defense for their violation of student's
First Amendment rights has just been officially outlawed,
John. Here is a press release from F.I.R.E. and the letter.
In Landmark Letter, Office for Civil Rights Clarifies the
Law and Vindicates Free Speech on Campus
WASHINGTON, D.C.?The Office for Civil Rights of the
Department of Education has issued a landmark letter of
clarification that deals a powerful blow to administrative
censors on America?s college and university campuses. The
July 28, 2003 letter from Gerald A. Reynolds, assistant
secretary of the Office for Civil Rights (OCR) of the
Department of Education, was sent to colleges and
universities across the country on Friday, August 8, 2003.
Assistant Secretary Reynolds writes, ?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.? The full text of Reynolds?s
letter can be read at
thefire.org.
FIRE and others long have sought clarification of OCR
regulations that many academic leaders have cited in
support of campus policies that weaken First Amendment
protections of freedom of expression. College and
university administrators have defended restrictions on
free speech on the grounds that OCR and other federal
regulations require them to ban ?offensive? speech as a
form of discrimination. The OCR statement is a vindication
of the truth that no governmental regulation, law, or
policy may override the First Amendment.
?For too long, colleges and universities have used OCR?s
anti-harassment regulations as an excuse for passing
restrictive speech codes and punishing students and faculty
for ?offensive? speech,? said FIRE co-director and Boston
attorney Harvey A. Silverglate. ?By issuing this letter,
OCR has clarified once and for all that OCR regulations
cannot and do not trump the First Amendment.?
Among its other duties, OCR provides colleges and
universities that receive federal funds with regulations
and guidance on issues of discrimination on the basis of
race, gender, and other classifications. OCR?s regulations
affect virtually every college and university in the United
States. Non-compliance with OCR regulations endangers an
institution?s receipt of vital federal funds.
Reynolds?s letter undoes years of misinterpretation. It
states, ?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.? The letter further clarifies 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.?
?This letter will certainly put to rest any claim by future
academic administrators that OCR or federal law required
them to pass speech codes or punish offensive, hurtful, or
rude speech, as is now routine,? Silverglate said. ?OCR
should be applauded. This letter marks the end of a sad era
and the demise of one of the most stubborn pretexts for
censorship on America?s campuses.?
The letter also clarifies the proper interpretation of
federal laws and regulations by private universities.
Though the First Amendment does not directly apply to
private institutions, OCR regulations do apply. Those
regulations, according to OCR?s letter, must not ?be
interpreted in ways that would lead to the suppression of
protected speech on public or private campuses.? Assistant
Secretary Reynolds writes, ?Any private post-secondary
institution that chooses to limit free speech in ways that
are more restrictive than at public educational
institutions does so on its own accord and not based on
requirements imposed by OCR.?
OCR also restates the law regarding ?hostile environment?
harassment, saying, ?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 further reminds colleges and
universities that conduct is not punishable harassment
merely because a person subjectively feels harassed.
Harassment must be ?evaluated from the perspective of a
reasonable person in the alleged victim's position.? ?This
makes it clear,? Silverglate noted, ?that the viewpoint
expressed in a remark, no matter how offensive or
challenging, can never, by itself, constitute harassment.?
Reynolds emphasizes the seamless fabric of American
liberty: ?There is no conflict between the civil rights
laws that this Office enforces and the civil liberties
guaranteed by the First Amendment.?
?OCR has done a great service for liberty today,? said
Silverglate. ?All too often, the proponents of campus
restrictions on speech bizarrely have presented civil
rights for women and minorities, on the one hand, and civil
liberties, on the other, as somehow at odds with one
another. OCR recognizes that there is no inconsistency
between civil liberties and civil rights and that civil
liberties are a necessary precondition for the continued
survival of civil rights.?
The Foundation for Individual Rights in Education is a
nonprofit educational foundation. FIRE unites civil rights
and civil liberties leaders, scholars, journalists, and
public intellectuals across the political and ideological
spectrum on behalf of individual rights, freedom of
expression, freedom of conscience, and due process on our
nation?s campuses. FIRE?s ongoing efforts on behalf of
freedom of expression and debate can be seen by visiting
www.thefire.org.
UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS
THE ASSISTANT SECRETARY
July 28, 2003
Dear Colleague:
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.
As you know, OCR enforces several statutes that prohibit
discrimination on the basis of sex, race or other
prohibited classifications in federally funded educational
programs and activities. These prohibitions include racial,
disability and sexual harassment of students. Let me
emphasize that OCR is committed to the full, fair and
effective enforcement of these statutes consistent with the
requirements of the First Amendment. Only by eliminating
these forms of discrimination can we fully ensure that
every student receives an equal opportunity to achieve
academic excellence.
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.
Thus, 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.
There has been some confusion arising from the fact that
OCR's regulations are enforced against private institutions
that receive federal-funds. Because the First Amendment
normally does not bind private institutions, some have
erroneously assumed that OCR's regulations apply to private
federal-funds recipients without the constitutional
limitations imposed on public institutions. OCR's
regulations should not be interpreted in ways that would
lead to the suppression of protected speech on public or
private campuses. Any private post-secondary institution
that chooses to limit free speech in ways that are more
restrictive than at public educational institutions does so
on its own accord and not based on requirements imposed by
OCR.
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.
Sincerely,
Gerald A. Reynolds
Assistant Secretary
Office for Civil Rights
Department of Education
thefire.org |
