FIRE: DOJ: Title IX Requires Violating First Amendment
After proclaiming itself to be a “blueprint” for all schools, the Departments’ May 9, 2013, letter to the University of Montana states that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature’” including “verbal conduct” (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the same gender in the same situation.” If the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.
In an April 22, 2016 findings letter concluding its investigation into the University of New Mexico’s policies and practices regarding sex discrimination, the Department of Justice doubled down on the unconstitutional blueprint language. DOJ flatly declared in that letter that “[u]nwelcome conduct of a sexual nature”—including “verbal conduct”—is sexual harassment “regardless of whether it causes a hostile environment or is quid pro quo."
The blueprint requires university staff to relay all sexual harassment complaints to a Title IX Coordinator, who must keep records of the complaints indefinitely, even if the alleged speech is obviously protected by the First Amendment. Further, every case must be investigated by the school. In some circumstances, universities may even punish a student before he or she is found guilty of any offense.