- The Washington Times - Sunday, December 14, 2014

The Obama administration’s crackdown on campus sexual misconduct has led to the adoption of “flatly unconstitutional” speech codes and poses what may be the greatest threat to free speech facing higher education today, according to a newly released report.

The Foundation for Individual Rights in Education’s annual report found that 55.2 percent of the 437 U.S. universities analyzed have substantial limits on speech, which is actually an improvement from last year’s 58.6 percent and marks the seventh year in a row that the percentage has declined.

At the same time, the study, “Spotlight on Speech Codes 2015: The State of Free Speech on Our Nation’s Campuses,” warns that the federal Department of Education’s focus on reducing campus sexual assault and harassment has resulted in an uptick in speech restrictions on some campuses.

“Most universities continue to enforce speech codes that don’t satisfy First Amendment standards,” said FIRE President Greg Lukianoff in a statement. “For the seventh consecutive year, however, the percentage of speech codes has dropped, and we’re happy to see that.”

“But the federal government’s efforts to address sexual harassment on campus are leading a number of universities to adopt flatly unconstitutional speech policies,” Mr. Lukianoff said. “The greatest threat to free speech on campus may now be the federal government.”

The report points to the May 2013 joint resolution or “blueprint” between the Education and Justice departments, the product of an investigation of the University of Montana’s sexual assault policies, saying it has “continued to have a negative effect on campus free speech rights.”

The federal blueprint broadly redefined sexual harassment as any “unwelcome conduct of a sexual nature,” including “verbal conduct,” and encouraged universities to update their policies accordingly.

“The blueprint also explicitly stated that allegedly harassing expression need not even be offensive to an ‘objectively reasonable person of the same gender in the same situation,’” the report said.

In 2014 Penn State, Georgia Southern University and the University of Connecticut adopted “unconstitutional speech codes under the guise of harassment policies,” bringing their standards in line with those promoted by the federal blueprint.

“Absent explicit clarification from the Department of Education, FIRE expects this unfortunate trend to continue,” said the statement.

The foundation ranks colleges and universities into three categories based on their free speech policies.

Schools with at least one policy that “clearly and substantially restricts freedom of speech” fall into the “red light” category, while schools without such policies are given the “green light.” The “yellow light” is for schools with policies that “could be interpreted to suppress protected speech.”

In 2014 241 schools received a “red light” rating and 171 earned a “yellow light.” Only 18 schools, or 4.1 percent, won the “green light” rating, but that’s more than double the number — eight — that received a green light seven years ago.

Top universities falling in the “red light” category include Columbia, Georgetown, Harvard, Princeton, Purdue, Rice and Syracuse. George Washington University and George Mason University landed in the “yellow light” category.

The University of Virginia, which has been rocked by a sexual assault scandal involving a disputed report in Rolling Stone magazine, received a green light, as did Dartmouth, the College of William & Mary and the University of Pennsylvania.

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