The mandate applies to every college receiving federal funding—virtually every American institution of higher education nationwide, public or private.
There's a certain irony in the veterans of the counterculture overseeing the transformation of the college campus into a strange split personality in which sensitivity rules all, but obscenity is art. Until someone from a protected victim group is offended.
In a letter sent yesterday to the University of Montana that explicitly states that it is intended as "a blueprint for colleges and universities throughout the country," the Departments of Justice and Education have mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment. The mandate applies to every college receiving federal funding—virtually every American institution of higher education nationwide, public or private.
The letter states that "sexual harassment should be more broadly defined as 'any unwelcome conduct of a sexual nature'" including "verbal conduct" (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an "objectively reasonable person of the same gender in the same situation"—if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.
If you want a sample of what this type of standard looks like in real life.
It all started Sunday at the PyCon event in Santa Clara, Calif., when Adria Richards, a developer evangelist for e-mail vendor SendGrid, overheard some jokes being told by two men seated immediately behind her at the conference.
After tweeting the photo, she sent a followup tweet that said "Can someone talk to these guys about their conduct? I'm in lightning talks, top right near stage, 10 rows back #pycon."
She notes on her blog that the conference's code of conduct states that "offensive jokes are not appropriate for PyCon." Richards concluded her blog by saying she was taking a stand for the next generation of coders. "Yesterday the future of programming was on the line and I made myself heard," she wrote
The man on the left side of the image was subsequently fired by PlayHaven, one of the sponsors of the conference. His dismissal was confirmed by PlayHaven CEO Andy Yang in a blog post today.
Now apply these same standards to the college campus and things get interesting.
The OCR has long taken the view that, just as Title VII’s ban on employment discrimination has been read as prohibiting speech or conduct that is “severe or pervasive” enough to create a “hostile, abusive, or offensive environment” based on sex for plaintiff and for a reasonable person, so Title IX (the educational analog) does the same for speech and conduct in educational institutions. Colleges and universities, according to the government, must therefore institute speech and conduct codes that ban such speech and conduct.
The government’s pressuring the creation of such codes in either public institutions or private institutions would likewise violate the First Amendment. But the government takes a different view. Though it agrees that “harassment” codes shouldn’t be read in ways that violate the First Amendment (which is tautologically true), they apparently think that a great deal of speech “of a sexual nature” on campuses is unprotected by the First Amendment
Obama Inc. doesn't think the First Amendment protects Catholics and Jews from being forced to violate their religion for abortion's sake, so why should it imagine that it protects campus speech?