FIRE President Responds To ACLU Lawsuit Against Title IX Reforms
On May 6, the Department of Education issued new regulations governing the way colleges and universities must address claims of sexual misconduct under Title IX. As part of those regulations, the department mandated that institutions use a speech-protective definition of sexual harassment — one adopted by the Supreme Court in 1999 in a case called Davis v. Monroe County Board of Education (the “Davis standard”). On May 14, the ACLU filed a lawsuit to block the use of that definition of harassment from becoming the department’s official policy.
I don’t often find it necessary to publicly disagree with the ACLU on a free speech issue. However, the Supreme Court’s Davis standard, which skillfully drew a line between harassment and protected free speech, remains the best bulwark against the creeping reach of speech codes on college campuses. If the ACLU’s lawsuit were to succeed, it would erase one of the biggest victories for campus free speech in decades.
As put forth by the new regulations, the Davis standard defines peer-on-peer harassment as “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” Following Davis, the Department of Education’s new regulations also prohibit schools from being “’deliberately indifferent’ to sexual misconduct.”
The ACLU’s position is that the Davis standard is insufficiently protective of accusers. FIRE’s position is that anything less is insufficiently protective of speech. In order to understand why the Davis standard is so important to protecting free speech on campus — and why the ACLU’s lawsuit is misguided — one must understand the history of campus speech codes.
What follows is a history of those codes, how they have been used by the federal government and colleges to censor speech for decades, and why the Davis standard — contrary to the ACLU’s position — is the appropriate antidote. At the end, I will draw some additional conclusions about the ACLU’s position on Title IX and the Davis standard based upon this history, and point out how that position has been inconsistently applied since 2011.
READ: Former ACLU President Strongly Disagrees With ACLU Case Against DeVos
……The ACLU lawsuit against the Department of Education’s Title IX reforms should fail. Indeed, the ACLU should actually be on FIRE’s side in supporting the Davis standard, as it is the most free-speech protective harassment standard currently on offer. However, if the ACLU is not willing to change its position — given the history we discussed, the arguments in the ACLU lawsuit, and David Cole’s response to its critics — I have concluded the following:
1. The ACLU should have joined us in opposing the 2011 “Dear Colleague” letter. 2. The ACLU should have joined us in fighting the 2013 blueprint. 3. The ACLU can still work with us in opposing the blueprint, starting with supporting the expansion of free speech protections in the Higher Education Act (HEA). 5. If a future administration attempts to revert to the standards similar to those in either the 2011 DCL or the 2013 blueprint, we hope to have the ACLU’s support in opposing that erosion of student rights.
www.thefire.org-Greg Lukianoff
