- The Washington Times - Sunday, May 1, 2016

Several free speech advocacy groups are concerned about a Justice Department order that they say forces colleges and universities to violate the First Amendment.

Justice sent a letter to the University of New Mexico in late April concluding an investigation into the school’s sex discrimination policies and practices. In the letter, the agency said the university’s policies failed to account for “unwelcome conduct of a sexual nature,” including “verbal conduct,” in violation of Title IX.

According to the letter, federal law defines sexual harassment as “unwelcome conduct of a sexual nature includ[ing] unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence.”

The Justice Department required universities to investigate any “unwanted sexual conduct” to determine “whether the harassment was sufficiently serious as to cause limitations or denial of educational benefits.”

Foundation for Individual Rights in Education President and CEO Greg Lukianoff said the Justice Department letter has put colleges and universities in an “impossible position,” forcing them to choose between violating “the Constitution or risk losing federal funding.”

“The federal government’s push for a national speech code is at odds with decades of legal precedent,” Mr. Lukianoff said in a FIRE report on the letter. “University presidents must find the courage to stand up to this federal overreach.”

Robert Shibley, FIRE executive director, said the rule will usher in “campus totalitarianism.”

He compared it to government prohibitions on political dissent.

“Requiring colleges to investigate and record ‘unwelcome’ speech about sex or gender in an effort to end sexual harassment or assault on campus is no more constitutional than would be a government effort to investigate and record all ‘unpatriotic’ speech in order to root out treason,” Mr. Shibley said in the report.

Writing at Liberty Unyielding, Hans Bader, senior attorney for the Competitive Enterprise Institute and a former Education Department attorney, said that under the Justice Department rule, simply asking a student out on a date could turn into “harassment” because the speech has to be only “unwelcome.”

Even if students are not expelled under the policy, Mr. Bader said, some university Title IX policies significantly curtail the freedom of movement on campus for those who are accused of harassment before they declare responsibility.

Indeed, “the Education Department’s Office of Civil Rights has found colleges in violation of Title IX for not routinely providing interim measures,” Mr. Bader notes.

Attempts to reach the Justice Department for comment this weekend were unsuccessful.

This is not the first time Title IX, which is more commonly associated with equity between the sexes in high school and collegiate athletics, has been used to expand the definition of “sexual harassment” to include various forms of speech on college campuses.

Laura Kipnis, a professor at Northwestern University, was investigated for months after students filed a Title IX complaint in response to an essay she wrote questioning several aspects of the purported campus rape epidemic.

Instances of universities chilling campus speech for fear of violating prohibitions on “sexual harassment” are ubiquitous.

A student at the University of Delaware last month was told to censor a “free speech ball” — a large, plastic ball on which students wrote various thoughts or drew pictures — because it featured a drawing of a penis and the word “penis.” Campus authorities told students that the ball may be in violation of the university’s policy against sexual misconduct.

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