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WASHINGTON, June 26, 2013—Arizona Senator John McCain  today challenging its recent settlement with the University of Montana. The Foundation for Individual Rights in Education (��֭����) has led national criticism of the May 9 settlement, which mandates a breathtakingly broad definition of sexual harassment and rejects the use of a “reasonable person” standard. The Department of Justice (DOJ) and the Department of Education (ED) proclaimed the joint settlement to be a “blueprint” for how colleges across the country must handle sexual misconduct allegations. 

“We are grateful to Senator McCain for posing these crucially important questions to the Department of Justice,” said FIRESenior Vice President Robert Shibley. “We urge the DOJ to retract this indefensible and unconstitutional threat to free expression and academic freedom on our nation’s college campuses.”

In today’s letter, Senator McCain writes: “Without congressional authorization or even any formal agency rulemaking, Assistant Attorney General Thomas Perez and a group of lawyers in the DOJ’s Civil Rights Division have single-handedly redefined the meaning of sexual harassment at all universities and colleges across the country that receive public funding.”  

The full text of the letter is included below.

Senator McCain’s letter poses a range of questions to Attorney General Eric Holder and the DOJ about the May 9 “blueprint.” Specifically, the letter inquires about the source of the DOJ and ED’s authority to engage in de facto rulemaking; the possibility of wrongful convictions under the new low standard for harassment; and why the DOJ and ED reject the definition of sexual harassment in the educational context provided by the U.S. Supreme Court in Davis v. Monroe County Board of Education (1999). 

Senator McCain also asks whether everyday expression protected by the First Amendment—including students joking or listening to music that contains sexual content, or a teacher assigning a work which includes sexual content—could now be grounds for filing a sexual harassment complaint. Senator McCain writes: “What safe harbors are available to students and teachers so that they can be assured that innocent behavior is not investigated and punished?”  

FIRE has warned that, under the federal blueprint, students engaged in protected speech are indeed potential harassers, should their neighbors find their expression simply “unwelcome” or offensive. FIREoffers a comprehensive FAQ about the mandate on its website.

“FIREis delighted that Senator McCain is demanding answers from the DOJ,” said Joe Cohn, ��֭����’s legislative and policy director. “We hope that this inquiry leads the Department to reevaluate the legality and wisdom of the blueprint’s directives.”  

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, freedom of expression, academic freedom, due process, and rights of conscience at our nation's colleges and universities. ��֭����’s efforts to preserve liberty on campuses across America can be viewed at thefire.org.

CONTACT:

Robert Shibley, Senior Vice President, ��֭����: 215-717-3473; robert@thefire.org
Joe Cohn, Legislative and Policy Director, ��֭����: 215-717-3473; joe@thefire.org
Brian Rogers or Rachael Dean, Office of Senator John McCain: 202-224-7130

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Full text of the letter from Senator McCain:

June 26, 2013

The Honorable Eric Holder
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530 

Dear Attorney General Holder:

I am writing to request more information on the settlement reached between the Department of Justice (DOJ) and the University of Montana-Missoula with regard to the enforcement and application of Title IX of the Education Amendments of 1972 (“Title IX”).  Without congressional authorization or even any formal agency rulemaking, Assistant Attorney General Thomas Perez and a group of lawyers in DOJ’s Civil Rights Division have single-handedly redefined the meaning of sexual harassment at all universities and colleges across the country that receive public funding. 

Given that the interpretation of Title IX has such a widespread impact on the well-being of young students, it is troublesome that significant changes to nationwide sexual harassment policy were unilaterally dictated by DOJ – through a settlement – rather than through congressional or regulatory action.  In short, Assistant Attorney General Perez and DOJ have used a settlement to effectively change the law, avoiding public accountability for their actions.

The Civil Rights Division, led by Assistant Attorney General Perez, ignored years of Supreme Court jurisprudence regarding Title IX when it decided to unilaterally make its new standard.  Whereas the Supreme Court held in Davis v. Monroe County Board of Education that sexual harassment must be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit,” Assistant Attorney General Perez on his own volition, unauthorized and unchecked by Congress, has issued a much broader definition that may compromise the constitutional rights of students and teachers.

According to the Civil Rights Division’s Letter of Findings, DOJ now defines sexual harassment as “any unwelcome conduct of a sexual nature.” DOJ also requires that universities immediately take actions against students accused of harassment before the completion of any investigation.  DOJ’s new interpretation of sexual harassment and its suggested disciplinary procedures are direct hindrances to students’ and teachers’ First Amendment rights as well as their right to due process.  

On June 6^th Professors Ann Green and Donna Potts, members of the Committee on Women in the Academic Profession of the American Association of University Professors (AAUP), wrote a letter to Mr. Perez expressing deep concerns about the broadness of DOJ’s new interpretation of sexual harassment.  The letter asserted that the new definition “eliminates the critical standard of ‘reasonable speech,’ and, in doing so, may pose a threat to academic freedom in the classroom.”  

Given that the new Title IX sexual harassment standards and suggested disciplinary procedures raise great concerns about the security of constitutional rights, please provide the following information by July 17, 2013. 

 1.      From what source does DOJ claim its authority to revise Court-approved Title IX jurisprudence through the settlement with the University of Montana rather than by judicial, regulatory, or legislative means?

2.      How do you specifically define “unwelcome conduct of a sexual nature”?   Having promulgated a new regulatory standard regarding the definition of sexual harassment, how does DOJ plan to ensure consistent application of that standard to avoid undesirable outcomes, including vexatious litigation?

3.      To what extent does the broad nature of the new and judicially untested “unwelcome conduct of a sexual nature” standard, increase the risk of a wrongful conviction?

4.      Could the following scenarios constitute  “unwelcome conduct of a sexual nature” and demonstrate reasonable grounds for filing a sexual harassment complaint under the new definition:

5.      What safe harbors are available to students and teachers so that they can be assured that innocent behavior is not investigated and punished?

Thank you for your attention to this important matter.   

Sincerely,

John McCain
Ranking Minority Member
Permanent Subcommittee on Investigations