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Concerned citizens have no reason to feel reassured by the Department of Education’s Office for Civil Rights’ (OCR’s) new attempt to argue that its May 9 federal “blueprint” is consistent with past OCR guidance and the First Amendment. Earlier today, ��֭����’s Will Creeley explained how OCR’s conflicting statements put university administrators between a rock and a hard place—schools must enact policies that violate students’ First Amendment rights, or put themselves at risk of losing federal funding.

But Peggy Kuhr, Vice President for Integrated Communications at the University of Montana, has that UMT can revise its policies in line with the First Amendment.

It is important to note that there is nothing in the agreement with DOJ/OCR that requires us to adopt any specific policies and procedures,” says Kuhr. “We are required to have policies that include accurate definitions of various types of sex discrimination, including sexual harassment and sexual assault … In revising our policies and procedures we certainly will be mindful of the 1st and 14th Amendments.

We appreciate Kuhr’s optimism, and we’re very interested to see the policies that the University of Montana ultimately adopts. But unfortunately, while Kuhr says that UMT will be cognizant of First Amendment concerns in revising its policies, the resolution agreement the university reached with the Department of Education (ED) and the Department of Justice (DOJ) doesn’t leave it with any meaningful ability to do so. 

Remember, OCR specifically prescribed an acceptable definition of sexual harassment and rejected UMT’s previous policy. The findings letter (PDF) states that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature,’” claiming that the university’s existing sexual harassment policy fails, in part, because it “improperly suggests that the conduct does not constitute sexual harassment unless it is objectively offensive.” 

And the resolution agreement (PDF) requires that UMT’s revised policies include an “accurate definition” of sexual harassment:

The University will ensure that [revised] policies ... use consistently defined terms and reporting options, and include, at a minimum, the following:

1. accurate definitions of various types of sex discrimination, including sexual harassment and sexual assault that may provide the basis for a complaint pursuant to the University’s grievance and other procedures...

Who decides whether the definition of sexual harassment is “accurate”? OCR, of course. 

Per the agreement, the revised policies must be submitted by UMT for review by OCR and DOJ. It’s virtually certain that OCR and DOJ will require UMT to adopt the broad definition of sexual harassment, given the strong statements in the findings letter.  T

he agreement states that DOJ, OCR, and UMT “will work together in good faith to resolve [any] disagreement” about the policies. But if UMT stands its ground and refuses to implement the policies DOJ and OCR have mandated, “OCR may initiate administrative compliance proceedings and DOJ may initiate civil enforcement proceedings in federal court”—in other words, the agencies take steps to terminate federal funding to UMT. 

So while FIREwould love to see UMT stand up for its students and faculty by insisting upon definitions and policies that protect First Amendment rights, the terms of the agreement don’t exactly seem to leave a lot of room for constructive negotiation. 

Of course, the Departments could send a swift and clear retraction of the May 9 letter to all schools that receive federal funding, and publicly reaffirm that the First Amendment protects speech that does not rise to the level of actionable harassment as defined by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).  

Until and unless the ED and DOJ take that step, though, we at FIREhope that Kuhr’s stated commitment to the First Amendment is reflected in UMT’s revised policies. The resolution agreement required the university to “submit proposed revisions to the United States of all of its policies … related to sex discrimination” yesterday and aims for revised policies to be adopted “no later than July 15, 2013.” FIREwill be watching with anticipation for news on what UMT has proposed and whether those proposals are accepted. Stay tuned.