When Kerry Barrett, a student at the University of Montana, reported her attempted rape, she was asked if she had a boyfriend, told “not to expect much,” and told that half of all rape allegations were false. Six Montana football players allegedly committed sexual assault over a three year period, including one incident where three of them allegedly attacked a single woman. A Justice Department investigation found that university officials failed to inform police about two students who both reported being raped in the same night by the same man until a week after the incident, giving the alleged rapist time to flee the country. And this is not just a problem in the University of Montana — the epidemic of sexual assault and rape culture on college campuses has received increased attention in recent years, partially due to growing student protest.
Yet these incidents do not seem to bother many conservative writers. They’re more upset about the Obama Administration’s efforts to prevent similar incidents from occurring in the future.
An agreement between federal agencies and the University of Montana over the college’s sexual harassment policies unleashed an onslaught of condemnation from conservatives, who argue that a new precedent has been set for speech restrictions across college campuses. Accusations on op-ed pages have ranged from “No Sex Talk Allowed” and “The De-Eroticized University” to “Federal Title IX Enforcers Effectively Define Dating and Sex Education as ‘Sexual Harassment’”.
Hans Bader of the Competitive Enterprise Institute writes that the resolution “has dire implications for dating” and “undermines freedom of intimate association.” Ken Masugi finds that the university has been “de-eroticized” in a “legalistic, centralized crackdown on talk about sex.” George Will at the Washington Post goes so far as to allege that colleges are now required to “adopt speech codes” and “censorship regimes.”
This purported government overreach comes out of a resolution agreement that the Department of Education’s Office of Civil Rights (OCR) and the Department of Justice (DOJ) signed with the University of Montana. The agreement concludes a year-long investigation initiated after incidents like the ones described above raised concerns that the University and local police had mishandled sexual assault cases, and mistreated and blamed victims.
The OCR has responded by ratcheting up enforcement of Title IX, a federal law that prohibits gender-based discrimination in colleges, to introduce new regulations on sexual assault policies. And out of that effort comes an agreement so mild that it has elicited only hopeful skepticism from campus activists. But the mere assertion that it is possible for speech to be harassing under certain conditions, and that colleges ought to investigate harassing behavior on their campuses, has conservatives in uproar.
The charge against the resolution has been led by the Foundation for Individual Rights in Education (FIRE), which alleges that the OCR and DOJ have created unconstitutional speech restrictions by imposing “a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser,” citing examples of what sort of conduct should be reported rather than punished. Contrary to the assertions of FIRE and subsequent commentators, the OCR agreement only calls for punishment of harassment that meets the legal definition of “severe or pervasive” and demonstrably creates “a hostile environment.” It encourages reporting of other kinds of conduct so that students will be more likely to over- rather than under-report and allow the University to determine what meets the legal definition of punishable harassment. Even after an OCR response Wednesday explaining this distinction Wednesday, FIRE continues to demand that OCR completely retract its letter.
As the OCR and other federal agencies ramp up efforts to compel universities to tackle sexual assault and harassment in a manner pursuant to federal laws, they are calling for policies that will better enable colleges to capture those breaking the law in part by broader reporting. Conservatives are hijacking those efforts with a narrative that conflates cultural findings with policy prescriptions and invokes the First Amendment as a bogeyman, making efforts to openly address and combat sexual violence more difficult.