The First Amendment overrides the power and the whims of Department of Education.
The new Title IX regulations proposed by President Biden’s Department of Education allow universities to control and compel student speech more than ever before. These guidelines will lead to the loss of students’ First Amendment rights, a frank debate, and the diversion of tuition funds for students who will have to fight free speech disputes.
Title IX is a 1972 federal law which bars discrimination based on sex in education. This law states that no person from the United States should be denied access to, discriminated against, or excluded by any educational program or activity that receives Federal financial aid. The regulations provide guidance on how to conduct an investigation and how to treat everyone involved. Like many other laws, the presidential administrations have struggled historically to reconcile their Title IX federal regulations with the U.S. Constitution.
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. Universities can regulate harassment in Title IX, while still adhering to the First Amendment and respecting the rights of students. However, many universities have ignored the federal guidelines and developed harassment policies to restrict and silence 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. Before we get into the details of how terrible Title IX regulations can make it, it is important to understand what it actually looks like.
Two things are happening currently on campus. 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? Which are the pertinent circumstances? What are the relevant circumstances? An administrator of Diversity Equity and Inclusion who is paid to spot violations
If they’re not jettisoning Davis entirely, schools are slyly broadening it. This established standard clearly and precisely outlines the main aspects universities should consider when considering bringing charges against a student accused of harassment. These include the severity of the incident and whether the incident occurs often enough that it is affecting 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. The definition of sentences can be changed by simply changing the “and” to an “or”. Specifically, the reported incident can either be pervasive, offensive, or severe instead of a combination of all three. Microaggressions are any kind of incident that someone claims they are. They can also be one-off or serious.
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. Universities can only have as many harassment policies as they want. There’s no federal limit on how many. Many universities have adopted Title IX policies and added other harassment policies to suit their needs. 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. Parallel policies are not accountable to federal regulations. They often include definitions for harassment that could be easily applied to many types 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. According to new rules, the Davis standard is completely removed from the proposed regulations. This makes harassment irrelevant for the Administration. But Davis is anything but irrelevant. The standard, which the Biden Administration quickly throws out, protects student speech. It draws a distinction between conduct that universities can ban and speech they can not. This standard is intended to protect students against Title IX policies which would penalize students simply for their opinions and opinions, regardless of whether they are offensive to others. By defining “harassment” more broadly than Davis allows, the proposed rule likely violates the First Amendment.
The Davis Standard prevents schools completely from shutting down any speech that they consider offensive or controversial. Even though schools may not adhere to this federal standard completely, students are still protected by the law if they decide to pursue them. It is ridiculous to think that the First Amendment doesn’t limit the ability of the federal government to regulate speech. This is actually its sole purpose.
Many schools have difficulties respecting First Amendment rights of their students, as we’ve already mentioned. The federal government doesn’t have to encourage them.
One cannot help but wonder about the purpose of this 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.
We can look ahead to see the consequences of the compelling pronouns. Canada and other countries that do not care about the rights of Americans, like Canada, have been enforcing compelled speech laws since years. They prosecute, fine, or even imprison those who refuse to use correct English grammar. These laws are easy to understand. Already universities are embracing speech restrictions and codes of conduct. They will not be far from creating Title IX policies to punish students who don’t use certain pronouns. It is an aggressive form compelled speech, which directly violates The First Amendment. Universities will be able to use the federal support.
The authority and decisions of the Department of Education are overridden by the First Amendment. Do you remember how the Constitution was created to safeguard our rights against government intrusion? It is exactly the scenario that the founders envisioned. It is time to make the government respond to all of our comments, and for them to give reasons. The state legislators need to be alert for violations by universities of the First Amendment. They should also restrict funding to university where feasible. The states could also consider laws to protect Title IX abuses by students and prevent them from being merged with federal regulations.
Universities must recognize that the U.S. Constitution is superior to the federal government’s authority and their policies. It is important that those who are concerned about their liberties fight against these acts in court. This is an abomination when government officials knowingly challenge and attack specific Constitutional rights. The Biden administration is making a sickening and obvious attempt to subvert the guidelines that are meant to protect Americans’ rights. Speech First is a national community of supporters free speech. We know how to read. We also have lawyers.
Cherise Trump is Speech First’s executive director and is the host of Speech First’s new live show and podcast, Well Said, where she interviews experts, activists, professors, and students about free speech, higher education, and American culture. Her master’s in security studies was earned at Georgetown University, where she was also a Rumsfeld Graduate Fellow. She received her bachelor’s from George Mason University.