Biden Education Department spearheads assault on free speech

Under the guise of combatting harassment, especially sexual harassment, in schools, the Biden administration Education Department is poised to assist left-wing college and university administrators in their assault on campus free speech. That assault has long been under way. Hans Bader reminds us:

Under schools’ “hostile environment” harassment codes, students and campus newspapers have been charged with racial or sexual harassment for expressing commonplace views about racial or sexual subjects, such as criticizing feminism, affirmative action, sexual harassment regulations, homosexuality, gay marriage, or transgender rights, or discussing the alleged racism of the criminal justice system.

But now the Biden administration is throwing the government’s weight behind the assault on free speech with a proposed regulation that defines the harassment schools and colleges must punish. Under this definition, harassment is:

unwelcome sex-based conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate in or benefit from the recipient’s education program or activity (i.e., creates a hostile environment).

(Emphasis added)

This definition of harassment is modeled on, but more expansive than, the one developed in the employment context. But the workplace differs from the campus in ways material to the issue of sexual harassment, at least as liberal judges and government officials have come to define that concept.

The workplace exists to produce things — widgets, white papers, whatever. This purpose is not advanced by discussing hot button topics or matters relating to sex at the work. If anything, such discussions detract from the mission. They should be left for outside the workplace.

A college campus is very different. The purpose of attending college is to learn. Thus, students obviously benefit from freely discussing controversial matters.

Furthermore, to the extent that students reside on campus, there is no other place to discuss such matters, or to flirt, or to joke about sex. And college students are still, essentially, kids. It’s normal that they talk about sex in ways that would be out-of-place at work.

In a case involving fifth graders, the Supreme Court recognized the difference, for purposes of determining what counts as harassment, between the workplace (Title VII) and schools (Title IX). As Bader points out:

In its 1999 decision in Davis v. Monroe County Board of Education, the Supreme Court ruled that conduct must be “severe, pervasive, and objectively offensive” and interfere with educational access to violate Title IX.  It said this no less than five times in its ruling.

In workplaces, conduct need only be “severe or pervasive” enough to create a hostile environment, to qualify as sexual harassment. But the Supreme Court refused to import that broad definition into the schoolhouse, saying that it would be inappropriately broad for schools, because “schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults.”

Yet, the Biden administration has just proposed a Title IX regulation that flouts the Supreme Court’s ruling. Whereas the Court said the conduct must be severe and pervasive, Team Biden says it need only be severe or pervasive. Whereas the Court said the conduct must be objectively offensive, the Biden bureaucracy says the conduct should be evaluated subjectively, as well. Thus, a snowflake’s subjective feelings about the speech in question counts.

Bader spells out the mischief the new Title IX regulation would generate:

Even viewpoints that are mildly offensive to progressive civil rights bureaucrats could contribute to a Title IX violation if they are persistent on campus, and thus are viewed by a civil-rights bureaucrat as “pervasive.”

To understand what this would mean in practice, it’s instructive to consider the oral argument in Speech First v. Cartwright, where the Fifth Circuit, on First Amendment grounds, ruled against the somewhat less broad harassment policy of the University of Central Florida. Says Bader:

The court noted that it had “asked the University’s lawyer a series of questions about whether particular statements would violate the discriminatory-harassment policy: (1) “abortion is immoral”; (2) “unbridled open immigration is a danger to America on a variety of levels”; and (3) “the Palestinian movement is antisemitic.” The University’s lawyer could not rule out the possibility that such speech would be deemed sexual or racial harassment under the policy’s broad language, without first considering “all the facts and circumstances” surrounding the speech.

It’s easy to imagine how left-wing campus administrators and the bureaucrats at Biden’s Department of Education would view “all the facts and circumstances” in cases of politically incorrect campus speech. The proposed regulation gives them the language they need to punish such speech. And the administration’s willingness to ignore existing law demonstrates its determination to do so.

Given what courts have said about this issue, the regulation in question is almost certain to be struck down eventually. In the meantime, though, speech will be deterred and students who are not deterred will be punished.

All because of the Biden’s administration lack of tolerance for free speech and lack of regard for existing law.