Editor’s Note: This article was originally published by Liberty Unyielding on August 5, 2024 and is crossposted here with permission. It has been edited to fit Minding the Campus’s style guidelines.
If a university is ordered by the government to investigate each instance of speech that is bigoted to determine if it cumulatively contributed to a “hostile environment” for some minority group, it will have a powerful incentive to adopt a “zero tolerance” policy for offensive speech, to avoid the time and expense of constant investigations, and avoid potential liability for a “hostile environment.” That’s true even if the speech is political or religious, such as advocating the elimination of Israel or Palestinian self-rule or questioning Jewish, Arab, or Middle Eastern practices.
Yet, that burdensome duty to censor is more or less what the Biden administration told universities to do in recent Title VI and Title IX investigations, such as in a press release about an investigation of Drexel University for anti-Semitism, and an accompanying letter resolving the Title VI investigation. (See Resolution Letter, Aug. 2, 2024, in response to OCR Complaint Number 03-24-2062).
That broad duty to censor is at odds with federal court rulings saying that the First Amendment requires “shelter for core protected speech,” even when it “offends someone” and could contribute to a hostile environment. In DeJohn v. Temple University, 537 F.3d 301, 317-18 (3d Cir. 2008), a federal appeals court struck down a campus harassment policy that allowed students to be punished for speech that created a hostile environment because it did not require that a student’s speech be severe or pervasive for the student to be punished. As the court explained, “Absent any requirement akin to a showing of severity or pervasiveness — that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work—the policy provides no shelter for core protected speech,” such as speech about “gender politics and sexual morality,” or “gender-motivated” speech that “offends someone.”
Requiring a university to investigate individual instances of offensive speech—merely because they could contribute to a hostile environment—does not provide any “shelter for core protected speech,” but rather, chills such speech, by making it subject to potential punishment. When a speaker expresses a viewpoint a listener finds offensive, the speaker has no way of knowing what other speakers have already offended the listener, such as past speech by other speakers that also offended the listener and thus cumulatively contributed to a hostile environment. Nor can the speaker predict what other speech the listener may be exposed to and find offensive in the future, which also could contribute to a hostile environment.
In its press release announcing the resolution of the investigation of Drexel, the Education Department’s Office for Civil Rights wrote:
The university did not consistently conduct an assessment as to whether the conduct reported to it created a hostile environment. For example, when a student reported that an individual made racist and discriminatory jokes about people who wear hijabs, how “Indian people smell,” and that “Ashkenazi Jews are inferior,” the university simply offered supportive resources and outreach to the reporting student, without any assessment or determination regarding whether the underlying conduct created or contributed to a hostile environment.
In addition, when the university did consider the existence of a hostile environment, it misapplied the legal standard in making its determination. For example, in one incident, the university did not consider that harassing conduct need not always be targeted at a particular person in order to create a hostile environment for a student or group of students. In another incident, the university failed to consider whether a student’s remarks posted to social media created or contributed to a hostile environment because the conduct occurred off campus and on social media. (Boldface added)
None of these offensive statements are violations of Title VI of the Civil Rights Act. Saying “Ashkenazi Jews are inferior” is offensive, but it is legally insufficient to create a hostile environment all by itself. As the Supreme Court has explained, the “mere utterance of an … epithet which engenders offensive feelings in a employee” is not, by itself, sufficient to create an illegally hostile environment. (See Harris v. Forklift Systems (1993)). Moreover, offensive statements that are not anti-Semitic—such as about how “Indian people smell” or “jokes about people who wear hijabs”—do not constitute anti-Semitic harassment, even if they offend an Education Department official. Offensiveness is not the same thing as a civil rights violation. As one court explained, “If the nature of an employee’s environment, however unpleasant, is not due to her gender, she has not been the victim of sex discrimination as a result of that environment.” When an institution created a hostile environment for both a woman and man, a federal appeals court found that did not violate the civil rights laws, because the work environment was not hostile to either based on their sex. (Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000)).
In its press release and accompanying resolution letter, the Education Department seems to require Drexel to investigate individual instances of speech that offend someone, even if the speech occurs off campus and even if those instances of speech do not, by themselves, create a hostile environment— merely because an investigation might unearth more such speech that is offensive, thus cumulatively adding up to a hostile environment. For example, the resolution letter said, on pp. 20-22:
In several cases, the University simply offered supportive resources and outreach to the reporting student, without any assessment or determination regarding whether the underlying conduct created or contributed to a hostile environment (e.g., Incidents #1 and #2) …
The relevant Title VI nondiscrimination standard requires the University to take steps reasonably calculated to end and redress any hostile environment related to shared ancestry
affecting the education program if one exists, even if the conduct occurs off campus or on social media …
OCR is concerned that the University appears not to have taken prompt and effective steps reasonably calculated to end the hostile environment and prevent it from recurring…in response to almost all of the incidents reported to it, the University’s actions were limited to addressing each incident on an individual basis, instead of responding to the accumulation of evidence of a hostile environment that necessitated more effective responsive action. (Boldface added)
But “the incidents reported to it” involved different speakers and actors, with no sign that they were acting in collusion with each other, or even were aware of each other’s speech. The incidents included speech not aimed at the complainant, but the Resolution Letter said on pg. 2, “Harassing acts need not be targeted at the complainant to create a hostile environment. The acts may be directed at anyone.”
The Education Department is overreaching in demanding investigations of instances of offensive speech to unearth or prevent hostile environments, because Title VI and Title IX only require action against people whose conduct has already crossed the line into harassment, and do not require colleges to broadly regulate speech as a prophylactic measure against harassment. The law allows colleges to wait until the line has already been crossed by a student before punishing him. As a federal appeals court explained, “only once the misconduct line has actually been crossed does Title IX impose an affirmative obligation on school districts to act—both to remedy the existing misconduct and to prevent the further foreseeable risks from materializing. [It] does not permit the imposition of liability based on risk alone … What all of this means as a legal matter is that a school district’s duty to act is not triggered until it has actual knowledge of facts which, in the totality of the circumstances, indicate that sex-based discrimination has occurred or is occurring under its watch.” (See C.S. v. Madison Metropolitan School District, 34 F.4th 536, 542 (7th Cir. 2022)).
Yet the Education Department faulted Drexel for not taking more action in response to complaints of harassment based on instances of offensive speech than just offering the complainants “supportive services”, because it thought Drexel should have further investigated whether such instances of speech “contributed” to a hostile environment—created in conjunction with other speech or conduct on campus—and then taken additional steps to eradicate any such hostile environment and prevent its recurrence. It said that such speech need not be “directed at” the complainant to violate Title IX; and that Drexel even had a duty to investigate speech “off campus” to see whether it contributed to a hostile environment.
Effectively, the Education Department demands a zero-tolerance policy for offensive speech, requiring investigation of even single instances of offensive speech. That does not provide any “breathing space” for free speech, as the First Amendment requires. See NAACP v. Button, 371 U.S. 415, 433 (1963) (“Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.”).
The Education Department’s demand to regulate off-campus speech goes beyond Title IX’s language—which only covers an “education program or activity receiving Federal financial assistance”—and contradicts the Supreme Court’s statement in Davis v. Monroe County Board of Education, 536 U.S. 629 (1999), that schools are only liable for conduct occurring in a “context” they control. Courts have often ruled that schools have no duty to regulate off-campus conduct. For example, the Eighth Circuit ruled that an instructor’s off-campus assault of a student—whom he forcibly kissed and embraced—did not violate Title IX or contribute to an illegal hostile educational environment, because it did not affect access to education programs and activities as Title IX’s plain language requires. See Lam v. University of Missouri Curators, 122 F.3d 654, 657 (8th Cir. 1998). That was true even though the assault undoubtedly affected the student’s interactions with the instructor thereafter on campus. See also Roe v. St. Louis Univ., 746 F.3d 874 (8th Cir. 2014) (declining to find that university had violated Title IX in situation involving student raped at off-campus party by another student because plaintiff failed to show that the university “had control over the situation in which the harassment or rape occurs,” as required by the Supreme Court’s Davis decision).
The demand to regulate off-campus speech also will create First Amendment problems. Off-campus speech has greater protection than it does inside a K-12 school, as the Supreme Court ruled in Mahanoy Area School District v. B.L. (2021). That’s true even if off-campus speech impacts people within the school. (See, e.g., Klein v. Smith, 635 F.Supp. 1440 (D. Me. 1986)—student’s vulgar gesture to his teacher outside of school was protected.
The demand to regulate speech not “directed at” the complainant will cause additional First Amendment problems. The Ninth Circuit Court of Appeals cited the fact that a professor’s anti-immigration emails to college staff were not directed at the complainants to find that the emails were protected by the First Amendment against a racial harassment lawsuit by Hispanic employees, even though the Hispanic employees were very offended. (Rodriguez v. Maricopa Community College District, 605 F.3d 703 (9th Cir. 2010)).
Even putting aside the First Amendment, courts typically say that speech not directed at the complainant is less likely to create a hostile environment than similar speech aimed at the complainant, simply because it has much less impact on the complainant. See Gleason v. Mesirow Financial, 118 F.3d 1134, 1144 (7th Cir. Cir. 1997)—“as this court has recognized, the impact of ‘second-hand harassment’ is obviously not as great as the impact of harassment directed at the plaintiff.” (See, e.g. Dalton, 3 F.3d at 1107—rejecting sexual harassment claim, in part, because neither of the two verbal communications cited by the plaintiff as evidence of a “hostile work environment” were ‘directed at her personally.”)
Drexel University is a private institution, but that does not mean that the Education Department has the right to pressure it to restrict speech. Private universities are not themselves bound by the First Amendment, but that does not mean they can be pressured to restrict the speech of their students or staff. Federal appeals courts have ruled that federal pressure on private employers to fire employees for their speech can violate the First Amendment, even though the First Amendment doesn’t bind a private employer. See Korb v. Lehman, 919 F.2d 243 (4th Cir. 1990); Reuber v. U.S., 750 F.2d 1039 (D.C. Cir. 1985); Dossett v. First State Bank, 399 F.3d 940 (8th Cir. 2005).
In earlier investigations, the Education Department likewise said that colleges need to take action to prevent speech and conduct that “cumulatively created a hostile environment,” even if no individual speaker says anything severe enough to create a hostile environment all by itself. If speech is even a tiny bit offensive to an Arab or Jewish complainant, it can contribute to a hostile environment “cumulatively” and thus trigger a college’s duty “to end the hostile environment, remedy its effects, and prevent its recurrence.”
This puts colleges in a bind because, when a Title VI complaint is filed with college officials about anti-Israeli or anti-Palestine speech that offended the complainant, the college doesn’t know if more such speech will occur in the future, thus “cumulatively” will add up to a hostile environment—such as if the complainant hears similar speech from other students as well. To avoid being held liable for a hostile environment by the Education Department, the college thus has an incentive to punish speech critical of Israelis or Palestinians that only mildly offends a complainant—speech that is protected by the First Amendment.
The Supreme Court, after all, has ruled that its “precedents … leave no room for the view that … First Amendment protections should apply with less force on college campuses than in the community at large,” since universities are “peculiarly the marketplace of ideas.” (See Healy v. James (1972)).
The Supreme Court has also ruled that the fact that speech is offensive does not strip it of First Amendment protection. The First Amendment protects even campus speech that is crude and violates “conventions of decency,” as the Supreme Court explained in Papish v. Curators of the University of Missouri (1973).
Requiring speech to be restricted because it could potentially contribute to a hostile environment is the sort of broad prophylactic rule that the First Amendment forbids. “Broad prophylactic rules in the area of free expression are suspect,” according to the Supreme Court, because First Amendment freedoms ‘‘need breathing space to survive.” (See NAACP v. Button, 371 U.S. 415, 438 (1963)).
Even hateful, bigoted speech that inflicts emotional distress is often protected by the First Amendment, as the Supreme Court made clear in Snyder v. Phelps (2011).
As the Foundation for Individual Rights and Expression notes, “The Department of Education’s unconstitutional new ‘cumulative’ theory of harassment means colleges and universities now have little choice but to investigate [First Amendment] protected speech at protests, in classrooms, and online — or risk losing federal funding.” It adds, “The move sets a deeply chilling precedent for students or faculty with dissenting, minority, or unpopular views, on or off campus, who may now be subjected to not only harassment allegations, but mandatory government investigations — regardless of the allegations’ merits.”
Image designed by Jared Gould — Drexel by Sphilbrick on Wikimedia Commons — Biden by Gage Skidmore on Wikimedia Commons
