| University's seem to have some ulterior motive in the way they approach Title IX complaints. There are several cases - this one included - where the OCR's Title IX guidance says to do one thing, but the university seems to do something completely differently. The original 1972 document is useless to read. The OCR wrote revised guidance in 2001, and further clarified in an April 2011 "Dear Colleague" letter. These documents are both very clearly written. 2001: http://www2.ed.gov/about/offices/list/ocr/docs/shguide.html
2011: http://www2.ed.gov/about/offices/list/ocr/letters/colleague-... The coordinator's job here, IMO, should have been clearcut. The 2001 Guidance explains that his or her first task would be to determine whether the OPs conduct denied a student's ability to participate in or benefit from the program: In assessing sexually harassing conduct, it is important for schools to recognize that two distinct issues are considered. The first issue is whether, considering the types of harassment discussed in the following section, the conduct denies or limits a student's ability to participate in or benefit from the program based on sex.' If it does, the second issue is the nature of the school's responsibility to address that conduct. As discussed in a following section, this issue depends in part on the identity of the harasser and the context in which the harassment occurred. The complainant's made a crafty argument for how the OpEd limited their educational experience, but their argument is also specifically excluded in the "First Amendment" section of the 2001 Guidance: In cases of alleged harassment, the protections of the First Amendment must be considered if issues of speech or expression are involved. [112] Free speech rights apply in the classroom (e.g., classroom lectures and discussions) [113] and in all other education programs and activities of public schools (e.g., public meetings and speakers on campus; campus debates, school plays and other cultural events [114]; and student newspapers, journals, and other publications [115]). In addition, First Amendment rights apply to the speech of students and teachers. [116] Title IX is intended to protect students from sex discrimination, not to regulate the content of speech. OCR recognizes that the offensiveness of a particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a sexually hostile environment under Title IX. [117] In order to establish a violation of Title IX, the harassment must be sufficiently serious to deny or limit a student's ability to participate in or benefit from the education program. [118] Moreover, in regulating the conduct of its students and its faculty to prevent or redress discrimination prohibited by Title IX (e.g., in responding to harassment that is sufficiently serious as to create a hostile environment), a school must formulate, interpret, and apply its rules so as to protect academic freedom and free speech rights. For instance, while the First Amendment may prohibit a school from restricting the right of students to express opinions about one sex that may be considered derogatory, the school can take steps to denounce those opinions and ensure that competing views are heard. The age of the students involved and the location or forum may affect how the school can respond consistently with the First Amendment. Unless there's more to the complaint than the OP reveals, this should never have been investigated. I would love to know if there's been new precedent set since 2011 that would make the university's response here seem more appropriate. Does anyone know? |