Biden and Universities Launch Sneak Attack on Free Speech

Editor’s Note: This article was originally published by The American Conservative on July 5, 2022, and is crossposted here with permission.

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.

Therefore, students have no other option but to assume these additional harassment policies are considered equivalent to Title IX federal regulations. These parallel policies have no accountability to federal regulations and often contain definitions of “harassment” that are so overbroad that they could easily be applied to a wide variety of protected speech. Even more blatant, many universities, like American University, actually list examples of “harassment” under these policies that include various forms of constitutionally protected speech such as “jokes,” “offensive comments,” and “showing aversion towards an individual or group.”

Biden’s Department of Education and their proposed rules do nothing to rectify the issues and blatant free speech violations listed above; in fact, they exacerbate them. The newly proposed rules write off the Davis standard entirely, stating that it is irrelevant to the Administration’s definition of harassment. But Davis is anything but irrelevant. This standard—which the Biden Administration is so quick to toss out—protects student speech and open inquiry by drawing a line between conduct (which universities can prohibit) and mere speech (which they cannot). It is meant to protect students from Title IX policies that would punish students for merely expressing their opinions and ideas, even if those opinions or ideas are distasteful to others. By defining “harassment” more broadly than Davis allows, the proposed rule likely violates the First Amendment.

The Davis Standard currently prevents schools from completely shutting down speech they believe to be offensive or controversial. And even though some schools choose not to abide by this federal standard, the law is still on the side of the students if the schools decide to go after them. The notion that the First Amendment does not constrain the federal government’s ability to regulate speech is absurd. In fact, that is specifically its purpose.

As noted, many schools already have difficulty respecting their students’ First Amendment rights. They don’t need further encouragement from the federal government.

One cannot help but speculate on the intent of such a policy change. By including gender identity as a protected class in the Title IX policy and then opening the door for universities to conduct federally sanctioned regulations on student speech, it is clear that this is the beginning of compelled speech via the use of “preferred pronouns.” We have already seen evidence of this in Wisconsin, where the Kiel Area School District launched a Title IX investigation into three middle school boys for not using “they, them” pronouns with one of their peers.

Looking ahead, we can see what will come soon after the compelling of pronouns. Countries with very little concern for the freedoms that Americans hold dear, such as Canada, have enforced compelled speech laws for years now, prosecuting, fining, and even jailing individuals who insist on using correct English grammar. It’s not hard to connect the dots here. Universities are already on board with speech codes and restrictions. It won’t be a far leap for them to create Title IX policies that punish students for not using certain pronouns. This is an aggressive form of compelled speech that directly violates the First Amendment and universities will have the support of the federal government to do it.

The First Amendment supersedes the authority and whims of the Department of Education. Remember how the constitution was designed to protect our rights from government encroachment? This is the exact scenario the founders had in mind. We need to flood the administration with comments and force them to explain themselves. State legislators should be on the lookout for universities that are violating the First Amendment and restrict university funding where possible. Furthermore, the states should consider passing laws that protect students from Title IX abuses and anticipate these laws going head-to-head with the federal regulations.

It is vital that universities recognize the primacy of the U.S. Constitution over the authority of the federal government and over their own policies. Sadly, what must happen is for those of us who care about our liberties to fight these actions in the courts. It is a travesty when the government knowingly challenges and attacks specific Constitutional rights. This is a sinister and blatant attempt by the Biden administration, hoping no one reads the fine print, to undermine the basic guidelines provided to protect Americans’ rights. At Speech First, a nationwide community of free speech supporters, we know how to read. And we have lawyers.

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