The proposed new Title IX regulations by President Biden’s Department of Education have opened the door for universities to restrict and compel student speech even more than they already do. If universities follow these guidelines, students’ First Amendment rights will be jettisoned, rigorous debate will perish, and students’ tuition dollars will be diverted to litigate the free speech issues that will surely arise.
Title IX is a 1972 federal law which bars discrimination based on sex in education. It says that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The law empowers the Department of Education to create federal regulations implementing that directive. These regulations define discrimination “on the basis of sex,” outline how institutions should conduct investigations, and detail how they must treat all parties involved. As with many laws, presidential administrations have historically struggled to balance their federal Title IX regulations with the U.S. Constitution and the principles that govern the American way of life.
The most recent changes to Title IX regulations were made in 2020 to rectify some glaring and obvious shortcomings of previous administrations that raised multiple free speech and due process concerns. The 2020 rules were an important milestone in the history of Title IX because they employed the standard adopted by the Supreme Court in Davis v. Monroe County Board of Education. Under the Davis standard, universities can punish conduct, but they cannot punish pure speech. Schools can only punish expressive activity that is “so severe, pervasive, and objectively offensive” that it can be properly viewed as harassing conduct that effectively denies another student access to an education. This standard allows universities to regulate harassment under Title IX while complying with the First Amendment and protecting the rights of their students. Many universities, however, have disregarded the current federal guidelines and created harassment policies that shut down and chill student speech.
Universities have made it increasingly clear that they have an affinity for regulating student speech. Through various policies such as “free speech zones,” bias reporting systems, speech codes, and other restrictions, they have managed to chill student speech to a level we have never seen before. A tactic that often goes overlooked by the public, however, is when colleges and universities use harassment policies to target speech. So, before we discuss how bad it can get with these new Title IX regulations, we should understand how bad it already is.
Two things are currently happening on campuses. First, universities are disregarding the current regulations implemented in 2020. For example, New York University, has thrown out the “so severe, pervasive, and objectively offensive” standard entirely and replaced it with “from the viewpoint of a reasonable person under all the relevant circumstances.” What’s reasonable? What are all the relevant circumstances? Who is to decide? A Diversity Equity and Inclusion administrator who’s paid to find violations?
If they’re not jettisoning Davis entirely, schools are slyly broadening it. The established standard clearly and specifically lays out the key aspects for universities to take into consideration when they are contemplating prosecution of a student for harassment: the objective severity of the incident and whether the incident is taking place often enough to detract from the victim’s education. Universities around the country will often change the “and” to an “or,” like at Yale University.
Language is important when it comes to matters of the law. A simple “and” versus an “or” can change the definition of a sentence entirely. Specifically, the reported incident can either be pervasive, offensive, or severe instead of a combination of all three. Therefore, incidents like microaggressions (which are whatever someone says they are), one-off incidents, offensive jokes, social media banter—all things that do not in actuality, prevent equal access to education—could be punished by the university and leave a black mark on a student’s permanent record.
The second and more explicit action we are seeing from universities, is their creation and enforcement of additional harassment policies which target constitutionally protected speech listing overbroad and subjective examples of what harassment is. There is no federal standard for the number of harassment policies universities can have. Therefore, many of them have implemented their Title IX policies while tacking on other “harassment” policies that target whatever they want. Oftentimes, these are lumped in with their sexual harassment policies and labeled “other forms of harassment,” like at Tulane University, but sometimes they are separate “discriminatory harassment” policies or “anti-harassment” policies that are included on their Title IX website or adjacently to their Title IX policies in their student handbook.
