Letter to the Editor: When the First Amendment Is Repealed by Bureaucrats

Letter to the Editor: When the First Amendment Is Repealed by Bureaucrats

May 24, 2013
Originally published in The Wall Street Journal

Greg Lukianoff is right to criticize the Education Department for illegally trying to abolish the requirement that comments must be offensive to a "reasonable person" to constitute sexual harassment ("Feds to Students: You Can't Say That," op-ed, May 17). As a former Education Department lawyer, I find that simply appalling.

The "reasonable person" standard is a cornerstone of sexual-harassment law, set forth in the Supreme Court's 1993 decision in Harris v. Forklift Systems, and amplified in its 1999 Davis v. Monroe County Board of Education decision, which states that conduct must be "severe, pervasive, and objectively offensive" to constitute illegal sexual harassment in the educational setting.

The Education Department's demand that the University of Montana define harassment as "any unwelcome conduct of a sexual nature," including speech about sexual issues that offends a single hypersensitive member of an audience, defines sexual harassment even more broadly than the harassment codes struck down by the courts on First Amendment grounds in DeJohn v. Temple University (2008) and Saxe v. State College Area School District (2001).