Sweeping New Anti-Sexual Harassment Code Might Hamper Free Speech on Campuses

A letter from the Department of Justice and Department of Education to the University of Montana regarding an investigation of assault could have sweeping implications for college campuses across the country, potentially turning students and professors into "harassers," according an individual rights advocate.

The letter, which states it will "serve as a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault," says sexual harassment includes any "unwelcome conduct of a sexual nature." This can include physical advances, requests for sexual favors and "other verbal" conduct.

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It is this verbal portion that has some concerned.

In a piece for the Wall Street Journal, the president of the Foundation for Individual Rights in Education, Greg Lukianoff, said the "implications for professors and students are enormous."

He wrote:

An unsuccessful request for a date, or even assigning a potentially offensive book like "Lolita," could now be construed as harassment. As attorney and civil libertarian Wendy Kaminer commented on The Atlantic's website this week: "The stated goal of this policy is stemming discrimination, but the inevitable result will be advancing it, in the form of content-based prohibitions on speech."

Lukianoff is also concerned that the "verbal" restrictions won't be contained sexual harassment issues either, noting two cases in recent years where criticism of Islam was categorized as harassment.

"An obsession with political correctness and the expansion of bureaucracy on campus are key factors in the proliferation of such free-speech abuses," Lukianoff wrote. "But the hidden force that pushes schools to overreact to offensive, or merely dissenting, speech is fear of liability and the federal government. A growing 'risk-management' industry—complete with regular conferences, conventions and consultants—has arisen from efforts by university administrators trying to avoid being sued for discrimination or harassment, and to avoid the costly investigations in which the Education Department's Office for Civil Rights specializes."

Lukianoff also pointed out how the letter states that colleges are required to take action to reports of sexual harassment occurring both on- and off-campus, punishing the accused sometimes even "prior to the completion of the Title IX and Title IV investigation/resolution."

Watch Reason TV's report about the new "blueprint" letter, featuring Lukianoff:

In the video, Reason's host asks whether a comment like "you're looking hot today" could be considered harassment. Lukianoff said, according to the new letter, it could.

"...That's the problem. It's so board that it turns every single student and every single faculty member on campus, at least arguably, into harrassers," Lukianoff said.

Since any university accepting any form of federal funding would need to adopt this definition of sexual harassment, Lukianoff said he hopes that this will be the last straw to cause them to push back against the "ridiculous legislation."

According to a 2013 report by FIRE, 95.4 percent of public schools and 90.4 percent of private schools have policies that infringe upon free speech in some manner.

Read more of Lukianoff's position in the Wall Street Journal here.