The First Amendment protects the free exchange of ideas in public schools at every level of education, and Title IX protects a student's right to learn in a hostile-free environment at all federally-funded schools. When Title IX collides with the First Amendment, it requires schools "to mediate the tension created by the collision of rights."
One former college administrator framed the issue this way: "Academic freedom is about education. When hostile behavior gets in the way of the educational process, academic freedom must give way to equal opportunity."
In this post, we'll explore the difficult balancing act required to protect these two fundamental values in an educational environment. School policies play an important role in these cases. As we'll see, legally sound sexual harassment policies are critical to mediating this tension and avoiding lawsuits.
OCR and SCOTUS on Title IX and Free Speech
When Title IX complaints involve First Amendment issues they enter the realm of academic freedom, which the U.S. Supreme Court (SCOTUS) has deemed a matter of national interest. In two landmark decisions, the SCOTUS ruled that state laws violated the First Amendment because they prohibited teaching any subject except in English [Meyer v. State of Nebraska (1923) 262 U.S. 390], and required professors of public universities to sign a certificate that they were not Communists [Keyishian v. Board of Regents (1967) 385 U.S. 589].
In Tinker v. Des Moines Independent Community School Dist. (1969) 393 U.S. 503, 511), the SCOTUS famously said that students in the public schools do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" (Tinker at 506). Since no substantial disruption of school activities was reasonably expected or actually occurred, adopting a school policy to prohibit students from wearing symbolic black armbands to protest the Vietnam War violated the students' First Amendment rights.
However, the SCOTUS also concluded that high school educators did not violate students' First Amendment rights when they refused to publish the students' articles in the school newspaper - one describing students' experiences with pregnancy and another discussing the impact that parents getting divorced has on students - based on "legitimate pedagogical concerns" [Hazelwood School District v. Kuhlmeier (1988) 484 U.S. 260].
In 1992, U.S. Supreme Court Justice Scalia explained that government restrictions on speech are not absolutely prohibited. And he noted that sexually derogatory "fighting words" in the workplace are not protected by the First Amendment:
Thus, for example, sexually derogatory "fighting words," among other words, may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices. [citations omitted] Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy. [RAV v. City of St. Paul (1992) 505 U.S. 377, 389-390]
In 2003, the Department of Education's Office for Civil Rights (OCR) issued a Dear Colleague Letter to confirm that "There is no conflict between the civil rights laws that this Office enforces and the civil liberties guaranteed by the First Amendment." In other words, Title IX prohibits harassment that is serious enough to limit or deny a student's educational opportunities, not speech that is protected under the First Amendment.
In its 1997 Sexual Harassment Guidance, the OCR describes the balance between a school's Title IX obligations and the protection of academic freedom, which does not involve bright lines:
Overall, the Guidance illustrates that in addressing allegations of sexual harassment, the judgment and common sense of teachers and school administrators are important elements of a response that meets the requirements of Title IX . . . the resolution of cases involving potential First Amendment issues is highly fact-and context-dependent. Thus, hard and fast rules are not appropriate.
Since schools must address these issues on a case-by-case basis, next we'll look at faculty and student conduct to illustrate some of the factors that help schools determine when civil liberties must give way to civil rights.
Unpopular and Offensive Content
A recent case made headlines when Northwestern Professor Laura Kipnis complained about her institution's sexual harassment policies and found herself in the middle of what she called "My Title IX Inquisition." Two students had filed a Title IX complaint for retaliation based on Professor Kipnis's essay, "Sexual Paranoia Strikes Academe," in which she wrote that the new sexual harassment policies "aren't just a striking abridgment of everyone's freedom, they're also intellectually embarrassing. Sexual paranoia reigns; students are trauma cases waiting to happen."
After an investigation, Northwestern found Professor Kipnis had not violated Title IX. As pointed out by Erin Buzuvis of the Title IX Blog, a Title IX violation requires severe or pervasive conduct that "would have to rise to the level of retaliatory harassment." Additionally, Kipnis wrote about a matter of public concern. Without more, unpopular and offensive content about a matter of public concern does not violate Title IX.
In another case involving allegations of faculty-on-student harassment, Professor Silva used this example to gain his students' attention: "Belly dancing is like jello on a plate with a vibrator under the plate." Professor Silva said he was illustrating how to define concepts in a technical report by using a general classification and a simple metaphor. He was suspended from teaching a technical writing class.
However, the court found that Professor Silva was disciplined "simply because six adult students found his choice of words to be outrageous," even though his example was used for a valid educational objective and was part of a college class lecture, and these were adult college students. Thus, the court concluded that using the school's sexual harassment policy to discipline Silva's classroom speech violated the First Amendment [Silva v. University of New Hampshire (USDC NH 1994) 888 F.Supp. 293].
A federal court found the definition of Temple University's sexual harassment policy too broad because harassment wasnot qualified with a severe or pervasive requirement. Therefore, it could prohibit speech protected by the First Amendment [DeJohn v. Temple University (3d Cir. 2008) 537 F.3d 301]. The policy definition also prohibited "gender-motivated" conduct, which focused on the actor's intent rather than the actual effect of creating a hostile environment that interferes with a person's educational opportunities.
Another federal court rejected a student's claim that Oakland University's conduct code was too broad because the court concluded that the student did not engage in constitutionally-protected speech. The adult male student wrote "lascivious entries" in a Daybook assignment, expressing lust for his female English professor, which the court found this was not "pure speech," as in Tinker. Nor was the student expressing his views on matters of public concern. The court concluded that "speech protected in other settings is not necessarily protected when made in response to a classroom assignment and when directed at one's professor" [Corlett v. Oakland University (USDC ED MI 2013) no. 13-11145].
In summary, legally sound sexual harassment policies define the prohibited conduct consistent with the First Amendment and OCR's sexual harassment guidance. The cases also provide these factors to help determine if a professor's statements were protected speech, including: (1) the age and sophistication of the students, (2) the relationship between the teaching method and a valid educational objective, and (3) the context and manner of presentation.
And, finally, OCR also advises schools to seize a teachable moment:
[W]hile the First Amendment may prohibit a school from restricting the right of students to express opinions about one sex that may be considered derogatory, the school can take steps to denounce those opinions and ensure that competing views are heard.