The FIRE: ‘The government has mandated speech codes on all campuses’

William A. Jacobson
Legal Insurrection

…WASHINGTON, May 10, 2013—In a shocking affront to the United States Constitution, the U.S. Departments of Justice and Education have joined together to mandate that virtually every college and university in the United States establish unconstitutional speech codes that violate the First Amendment and decades of legal precedent.

“I am appalled by this attack on free speech on campus from our own government,” said Greg Lukianoff, president of the Foundation for Individual Rights in Education (FIRE), which has been leading the fight against unconstitutional speech codes on America’s college campuses since its founding in 1999. “In 2011, the Department of Education took a hatchet to due process protections for students accused of sexual misconduct. Now the Department of Education has enlisted the help of the Department of Justice to mandate campus speech codes so broad that virtually every student will regularly violate them. The DOE and DOJ are ignoring decades of legal decisions, the Constitution, and common sense, and it is time for colleges and the public to push back.”

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…

…Professor Glenn Reynolds also has made the broader point, Ham Sandwich Nation: Due Process When Everything is a Crime:

Though extensive due process protections apply to the investigation of crimes, and to criminal trials, perhaps the most important part of the criminal process — the decision whether to charge a defendant, and with what — is almost entirely discretionary.  Given the plethora of criminal laws and regulations in today’s society, this due process gap allows prosecutors to charge almost anyone they take a deep interest in.  This Essay discusses the problem in the context of recent prosecutorial controversies involving the cases of Aaron Swartz and David Gregory, and offers some suggested remedies, along with a call for further discussion.

Now everything is a speech crime on campus, and the administrators get to pick and choose who is guilty.


Read the whole thing at Legal Insurrection.


Related: New England School Declares War on the First Amendment

This week, two top college leaders at Connecticut’s Trinity College have resigned in the wake of implementing a new policy that bans fraternities and sororities from campus because those organizations are not gender-neutral.

The conservative legal advocacy group, Foundation for Individual Rights in Education (FIRE) has been retained by Greek Life leaders at Trinity to move forward with legal challenges against Trinity.

FIRE believes that this week’s resignation of the college president, James Jones and board of trustees’ president, Paul E. Raether, is a signal that the school is going to become more aggressive in implementing the new “Social initiatives” under the leadership of a new trustee chair, Cornie Thornburgh…


Update: Clarice Feldman writes, “Take a moment to register your objection to the unconstitutional speech code the DoE and DoJ are imposing on all colleges and universities” at the Foundation for Individual Rights in Education.



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