### ****UNITED STATES DEPARTMENT OF EDUCATIONOFFICE FOR CIVIL RIGHTS400 MARYLAND AVE., S.W.WASHINGTON, D.C. 20202-1100

**THE ASSISTANT SECRETARY**

July 28,           2003

Dear Colleague:

I am writing to confirm           the position of the Office for Civil Rights (OCR) of the U.S. Department           of Education regarding a subject which is of central importance to our           government, our heritage of freedom, and our way of life: the First           Amendment of the U.S. Constitution.

OCR has received inquiries           regarding whether OCR's regulations are intended to restrict speech           activities that are protected under the First Amendment. I want to assure           you in the clearest possible terms that OCR's regulations are not intended           to restrict the exercise of any expressive activities protected under           the U.S. Constitution. OCR has consistently maintained that the statutes           that it enforces are intended to protect students from invidious discrimination,           not to regulate the content of speech. Harassment of students, which           can include verbal or physical conduct, can be a form of discrimination           prohibited by the statutes enforced by OCR. Thus, for example, in addressing           harassment allegations, OCR has recognized that the offensiveness of           a particular expression, standing alone, is not a legally sufficient           basis to establish a hostile environment under the statutes enforced           by OCR. In order to establish a hostile environment, harassment must           be sufficiently serious (i.e., severe, persistent or pervasive) as to           limit or deny a student's ability to participate in or benefit from           an educational program. OCR has consistently maintained that schools           in regulating the conduct of students and faculty to prevent or redress           discrimination must formulate, interpret, and apply their rules in a           manner that respects the legal rights of students and faculty, including           those court precedents interpreting the concept of free speech. OCR's           regulations and policies do not require or prescribe speech, conduct           or harassment codes that impair the exercise of rights protected under           the First Amendment. 

As you know, OCR enforces           several statutes that prohibit discrimination on the basis of sex, race           or other prohibited classifications in federally funded educational           programs and activities. These prohibitions include racial, disability           and sexual harassment of students. Let me emphasize that OCR is committed           to the full, fair and effective enforcement of these statutes consistent           with the requirements of the First Amendment. Only by eliminating these           forms of discrimination can we fully ensure that every student receives           an equal opportunity to achieve academic excellence.

Some colleges and universities           have interpreted OCR's prohibition of “harassment” as encompassing all           offensive speech regarding sex, disability, race or other classifications.           Harassment, however, to be prohibited by the statutes within OCR's jurisdiction,           must include something beyond the mere expression of views, words, symbols           or thoughts that some person finds offensive. Under OCR's standard,           the conduct must also be considered sufficiently serious to deny or           limit a student's ability to participate in or benefit from the educational           program. Thus, OCR's           standards require that the conduct be evaluated from the perspective           of a reasonable person in the alleged victim’s position, considering           all the circumstances, including the alleged victim’s age.

 There has been some confusion           arising from the fact that OCR's regulations are enforced against private           institutions that receive federal-funds. Because the First Amendment           normally does not bind private institutions, some have erroneously assumed           that OCR's regulations apply to private federal-funds recipients without           the constitutional limitations imposed on public institutions. OCR's           regulations should not be interpreted in ways that would lead to the           suppression of protected speech on public or private campuses. Any private           post-secondary institution that chooses to limit free speech in ways           that are more restrictive than at public educational institutions does           so on its own accord and not based on requirements imposed by OCR.

In summary, OCR interprets           its regulations consistent with the requirements of the First Amendment,           and all actions taken by OCR must comport with First Amendment principles.           No OCR regulation should be interpreted to impinge upon rights protected           under the First Amendment to the U.S. Constitution or to require recipients           to enact or enforce codes that punish the exercise of such rights. There           is no conflict between the civil rights laws that this Office enforces           and the civil liberties guaranteed by the First Amendment. With these           principles in mind, we can, consistent with the requirements of the           First Amendment, ensure a safe and nondiscriminatory environment for           students that is conducive to learning and protects both the constitutional           and civil rights of all students.

Sincerely,

 

Gerald A. Reynolds           Assistant Secretary           Office for Civil Rights          Department of Education

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