To the Editor:
Much has been made of the recent internal complaints filed at Northwestern University involving Professor Laura Kipnis, including considerable vitriol directed at the Office for Civil Rights of the U.S. Department of Education. Writers have attributed Northwestern’s handling of the matter to the requirements of Title IX, to mandates issued by OCR, and to federal overreach generally. However, in 2003, OCR issued a Dear Colleague Letter (still in effect and still on OCR’s website) that provides:
Some colleges and universities have interpreted OCR’s prohibition of ‘harassment’ as encompassing all offensive speech regarding sex, disability, race or other classifications. Harassment, however, to be prohibited by the statutes within OCR’s jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. … OCR’s regulations should not be interpreted in ways that would lead to the suppression of protected speech on public or private campuses. … In summary, OCR interprets its regulations consistent with the requirements of the First Amendment, and all actions taken by OCR must comport with First Amendment principles. No OCR regulation should be interpreted to impinge upon rights protected under the First Amendment to the U.S. Constitution or to require recipients to enact or enforce codes that punish the exercise of such rights.
Several writers have issued calls for specific instructions to school, college, and university administrators to maintain harassment policies that comport with the First Amendment and principles of academic freedom. Beyond issuing guidance such as this, OCR has limited control over how educational institutions choose to interpret their own policies and procedures, even where those policies and procedures were adopted because of Title IX. However, as a former chief attorney with one of OCR’s regional offices, I can recall a number of complaints that were dismissed without investigation in recognition of the chilling effect that an investigation could have on free speech.
Director, Title IX Compliance