As a former Education Department lawyer, I share George Will’s dismay that the Education Department is now pressuring colleges to ban speech such as sexual humor or “written materials” that are “sexually explicit” that a single hypersensitive person finds “unwelcome.” (Op/Ed, “ ‘Alice in Wonderland’ coercion”).
Even sexually explicit speech on college campuses is protected by the First Amendment, under the Supreme Court’s 1973 Papish decision. The Education Department is ignoring both that decision, and the Supreme Court’s 1999 ruling that student speech must be not just “unwelcome,” but also “severe” and “objectively offensive” to constitute sexual harassment.
The Education Department’s new sexual harassment definition would brand a professor as a “sexual harasser” if he informed an audience of 500 about how HIV is transmitted sexually, and one listener found it “unwelcome.”
Courts have struck down campus sexual harassment codes on free-speech grounds; even when they did, they banned less speech than the Education Department now wants to prohibit. In DeJohn v. Temple University (2008), judges voided a harassment code because it banned not just “objectively” harmful speech, but also speech that merely offended some listeners.