New Federal Regulations Threaten Students' Freedom of Speech

We consistently bemoan the length of time Washington can take to enact even basic legislation. However, the opposite is sometimes no better. For example, the Department of Education’s Office for Civil Rights (OCR), responsible for enforcing civil rights regulations in our universities, drastically altered the regulations that determine how federally funded institutions prosecute cases involving sexual harassment or assault by students. Indeed, OCR’s “Dear Colleague” letter from April 4th is already prompting universities to make alterations that threaten free speech and leave too few protections for those accused of serious offenses. In a society that values the presumption of innocence (just look at Jim Crow), this should give us all pause.

I am an assistant program director for the Foundation for Individual Rights in Education (FIRE), an organization dedicated to protecting student rights. FIRE wrote an open letter to OCR, protesting its new, unfair requirements. The most drastic of these requirements is that schools use a “preponderance of the evidence” standard when adjudicating matters of sexual harassment or assault; a roughly 51 percent “more likely than not” yardstick of determination. This standard would make more sense in the context of civil investigations (like workplace harassment), which can involve failures at several administrative levels and usually involve financial stakes. For a student accused of what amounts to a violent crime, however, this makes far less sense. We should want to be more than 51 percent sure in such situations, our legal system demands that we are. Yet OCR explicitly says that schools requiring higher standards of evidence — such as the “clear and convincing” standard — are violating the law.

This leads some to make a more insidious defense: Since universities aren’t the courts and don’t have the power to impose criminal penalties, they should employ a lower standard as a way of ensuring “justice.” This defense assumes that if universities have more lenient standards to mete out “justice,” away from the court’s jurisdiction, the outcome for students will be less damaging. But many of the cases lead to the same results a formal court case would have: permanent damage to one’s reputation (through expulsion); diminished career prospects; and forced departure by the university.

What about incidents of “harassment” based on speech and expression, which also fall under OCR’s regulatory authority? Here the picture is grim, as well. OCR’s letter completely fails to recognize that its civil rights enforcement in higher education must be consistent with university student's First Amendment rights, which the Supreme Court recognizes time and again as important to society's well-being.

As I have discussed on PolicyMic before, a significant majority of universities maintain speech codes that flatly violate its students' free speech rights, often in the form of overbroad and sloppily written “harassment” policies. While it's true that harassment should not be tolerated by students or universities, such poorly conceived policies result in investigations and punishments because students express opinions that only some find offensive. The problem here isn’t that universities may use too low a standard of proof to investigate such expression; it's that they investigate it at all. This is part of the reason why OCR’s 2003 “Dear Colleague” letter stressed that its regulations did not permit universities to trample on students' free speech rights.

Unfortunately, OCR’s mandate ensures that more protected expression will be investigated. This bodes ill for students in a university system that has already demonstrated its willingness to punish free speech. It bodes worse for students accused of sex crimes, in which erroneous guilty findings have dire implications for their livelihoods and, in the name of “justice,” lose some of their most basic protections.

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