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Critics say new policies can stifle free speech

Copyright © 2016 Albuquerque Journal

University of New Mexico officials say the recent increase in federal Title IX reports shows more people are aware of the issue of sexual discrimination and violence, but free speech advocates say that complying with Title IX can stifle free speech protected by the First Amendment.

In late 2015, the free speech advocacy group Foundation for Individual Rights in Higher Education blasted UNM for its “respectful campus” policy. FIRE says part of that policy “substantially restricts freedom of speech.”

The policy follows Title IX regulations put in place by the Office of Civil Rights, with potential violations ranging from rape to off-color comments that offend.

COWAN: Heads Title IX compliance office

COWAN: Heads Title IX compliance office

Samantha Harris, the director of policy research for FIRE, said UNM is not alone – nationally Title IX has the potential to limit freedom of speech on college campuses.

The fear of lawsuits, Harris said, can also lead universities to adopt stringent sexual misconduct policies that limit free speech. And Harris said that even university investigations that don’t result in punitive measures can be problematic.

“The threat of legal sanctions can itself violate the First Amendment,” she said.

Harris also contended that universities’ refusal to release much information about Title IX reports makes it that much harder to tell whether free speech is being limited. UNM officials say they’re obligated to keep the details of Title IX reports under wraps to protect the privacy of students and employees.

While UNM releases few details of any of its Title IX reports, high-profile Title IX cases nationwide illuminate the issue.

Louisiana State University professor Teresa Buchanan was fired in 2015 after college officials said she created a “hostile learning environment.” Buchanan says she was wrongly fired for cussing and telling off-color jokes in the classroom, according to the Baton Rouge, La., newspaper The Advocate.

Laura Kipnis, a professor at Northwestern University, wrote a critique about Title IX titled “Sexual Paranoia Strikes Academe” in the Chronicle of Higher Education, which argued that in Title IX “slippery slopes abound. Gropers become rapists and accusers become survivors.”

Kipnis was then subjected to a Title IX investigation as a result of that piece.

She later wrote that students said her essay made them uncomfortable to report sexual misconduct. She was ultimately cleared.

“Anyone with a grudge, a political agenda, or a desire for attention can quite easily leverage the system,” she wrote in a follow-up piece for the Guardian regarding the Title IX investigation.

The Associated Press reported earlier this year that End Rape on Campus, an advocacy group for people who say they survived sexual assaults, has used Title IX to file complaints against colleges including Indiana University and American University in Washington, D.C.

The group alleges the colleges mishandle assault cases.

“Ultimately, all of the survivors’ perpetrators were either found not responsible or were given minimal sanctions, creating a hostile environment for the survivors and severely compromising their education experiences,” the group said in a news release.

Heather Cowan, who heads UNM’s Title IX compliance office, is aware of the questions of free speech but said it’s a nonissue.

“I really don’t care what anyone does or says as long as it’s not creating a hostile environment,” she said. “That’s my job, to make sure there’s not a hostile environment.”

But Nadine Strossen, professor of law at New York Law School and former national president of the ACLU, says the Office of Civil Rights has forced universities to adopt policies that violate many civil liberties.

In a 2015 lecture she pointed out that what constitutes a hostile environment is subjective, and what is offensive to one person may not be to others.

She criticized the OCR for rejecting a reasonable person standard, and instead “stating that expression will be harassing, even if it is not offensive ‘to an objectively reasonable person of the same gender in the same situation.'”

She expressed concern that on too many campuses today, it is the “students themselves asking the university, demanding the university, to keep them safe from disturbing ideas.”

She also pointed to Brown University setting up a safe space last fall for students who felt endangered by the mere fact that a debate was occurring on campus about how colleges should handle sexual assault.

She quoted The New York Times’ description of the space as being equipped with cookies, coloring books, Play-Doh and a video of frolicking puppies, as well as staff trained to deal with trauma. One student told the Times she had to return to the space after attending the debate and “feeling bombarded by a lot of viewpoints that really go against my dearly and closely held beliefs.”

While UNM has established a center where students can go to report Title IX violations, officials say it does not have such a “safe space.”