FEBRUARY 2020

BRIEFING

REPORT

U.S. COMMISSION ON CIVIL RIGHTS

U.S. COMMISSION ON CIVIL RIGHTS

Washington, DC 20425

Official Business

Penalty for Private Use $300

Visit us on the Web: www.usccr.gov

FREE TO LEARN

SPEECH AND SEXUAL HARASSMENT ON CAMPUS
U.S. COMMISSION ON CIVIL RIGHTS

The U.S. Commission on Civil Rights is an 

independent, bipartisan agency established 

by Congress in 1957. It is directed to:

• Investigate complaints alleging that citizens are 

being deprived of their right to vote by reason of their 

race, color, religion, sex, age, disability, or national 

origin, or by reason of fraudulent practices.

• Study and collect information relating to discrimination or a 

denial of equal protection of the laws under the Constitution 

because of race, color, religion, sex, age, disability, or 

national origin, or in the administration of justice.

• Appraise federal laws and policies with respect to 

discrimination or denial of equal protection of the laws 

because of race, color, religion, sex, age, disability, or 

national origin, or in the administration of justice.

• Serve as a national clearinghouse for information 

in respect to discrimination or denial of equal 

protection of the laws because of race, color, 

religion, sex, age, disability, or national origin.

• Submit reports, findings, and recommendations 

to the President and Congress.

• Issue public service announcements to discourage 

discrimination or denial of equal protection of the laws.1

1 42 U.S.C. §1975a.

MEMBERS OF THE COMMISSION

Catherine E. Lhamon, Chairperson

Patricia Timmons-Goodson, Vice Chairperson*

Debo P. Adegbile

Gail L. Heriot

Peter N. Kirsanow

David Kladney

Karen Narasaki**

Michael Yaki

Mauro Morales, Staff Director

U.S. Commission on Civil Rights

1331 Pennsylvania Avenue, NW

Washington, DC 20425

(202) 376-8128 voice

TTY Relay: 711

www.usccr.gov

* Term ended 12/05/2019.

** Term ended 11/29/2019.
Free to Learn: Speech 

and Sexual 

Harassment on 

Campus 

Briefing before

The United States Commission on Civil Rights

Held in Washington, DC

Briefing Report

February 2020
[This page left intentionally blank]

 
Letter of Transmittal

February 12, 2020 

President Donald J. Trump 

Vice President Mike Pence 

Speaker of the House Nancy Pelosi

On behalf of the United States Commission on Civil Rights (“the Commission”), I am pleased to 

transmit our briefing report, Free to Learn: Speech and Sexual Harassment on Campus. The 

report is also available in full on the Commission’s website at www.usccr.gov.

This report addresses the potential tension between free speech and impermissible sexual 

harassment in higher education. Federal antidiscrimination law protects individuals from sexual 

harassment that interferes with education. The First Amendment protects speech – which may be 

offensive – in public schools, among other places, and regulating the content of speech can lead 

to the suppression of ideas and chill academic discourse. This report also evaluates guidance to 

higher education institutions from the United States Department of Education as to the line 

between protected speech and impermissible sexual harassment in education, as well as two 

instances of the Department’s Title IX enforcement regarding sexual harassment. 

The Commission majority approved key findings including the following: Education institutions 

that receive federal funds must maintain campuses free from sex-based discrimination, including 

sexual harassment. Sexual harassment occurs with frequency in higher education institutions and 

can have life-changing impacts including a significant negative effect on the academic 

experiences, health, and well-being of those being harassed. It has been shown to relate to 

disengagement, poor grades, symptoms of depression and anxiety, and to raise concerns about 

campus safety. When perpetrated by faculty or staff, it can lead to feelings of institutional 

betrayal. Consistent with maintaining the right to free speech, courts have held that schools may 

act to discipline students who harass or threaten other students. Investigative reporting has shown 

that lax enforcement from the Department of Education’s Office for Civil Rights can result in 

schools not taking claims of sexual harassment seriously.

The Commission majority voted for key recommendations, including the following: The United 

States Department of Education’s Office for Civil Rights should vigorously enforce Title IX, 

consistent with the recognition that failure to enforce nondiscrimination principles may have 

UNITED STATES COMMISSION ON CIVIL RIGHTS

1331 Penns1331 Pennsylvania Ave., NW  Suite 1150  Washington, DC 20425 www.usccr.gov
deleterious effects on students, such as disengagement and psychological distress, and on campus 

communities more broadly. The Office for Civil Rights should continue to make clear to the 

regulated community that its enforcement standards comport with and continue to adhere to First 

Amendment principles. 

The Commission also recommends that the Office for Civil Rights collect data from colleges and 

universities on the number of sexual harassment complaints filed with or incidents reported to 

the college or university, and how the college university investigated and resolved each 

complaint or report. The data should include whether the complaint or report resulted in a 

misconduct finding and whether the subject of the complaint or report was disciplined and how. 

We at the Commission are pleased to share our views, informed by careful research and 

investigation as well as civil rights expertise, to help ensure that all Americans enjoy civil rights 

protections to which we are entitled. 

For the Commission,

Catherine E. Lhamon

Chair
TABLE OF CONTENTS i

TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................. i

EXECUTIVE SUMMARY .............................................................................................................1

Sexual Harassment in Higher Education .........................................................................................8

Changes in Enrollment and Attainment of Bachelor’s Degrees (1972 to 2017)....................8

Prevalence of Sexual Harassment........................................................................10

Recent Surveys ......................................................................................................................11

All Disciplines.......................................................................................................................12

Types of Harassers.................................................................................................................13

Gender Harassment................................................................................................................13

Negative Effects.....................................................................................................................14

First Amendment and Free Expression..........................................................................................15

Protection of Civil Rights Advocates....................................................................................16

Speech Codes.........................................................................................................................17

Time, Manner, and Place Restrictions...................................................................................18

Speech and Academic Freedom..........................................................................19

Students and Free Expression................................................................................................19

Teachers and Free Speech .....................................................................................................20

Title IX...........................................................................................................................................21

Federal Funds Should Not Further Discrimination................................................... 22

Individuals Should Have Redress – Private Right of Action.........................................24

Administrative Enforcement and the Department of Education’s Office for Civil 

Rights....................................................................................................... 24

Sexual Harassment and Hostile Environment..........................................................29

Department of Education’s Title IX Rulemaking and Guidance (1975-2018).....................31

Ford Administration - Title IX Regulations (1975)...............................................................31

Reagan and Bush I Administrations (1980s to early 1990s) .................................................32

Clinton Administration (1997 and 2001 Guidance) ..............................................................33

Bush II Administration Guidance (Reissuance of 2001 Guidance, First Amendment 

Guidance, and 2008 Booklet)...........................................................................................36
Obama Administration Guidance (2010 Dear Colleague Letter, 2011 Dear Colleague Letter, 

2014 Q&As, 2015 Title IX Resource Guide)...................................................................38

Trump Administration Guidance and Proposed Rulemaking (2017-2018)...........................40

Complaints, Investigations, and Compliance Reviews................................................42

Complaints.............................................................................................................................42

Compliance Reviews and Directed Investigations................................................................45

Resolution Agreements..........................................................................................................45

Yale University (2012)..............................................................................47

University of Montana-Missoula (2013)..........................................................49

Criticism and Support of Title IX Enforcement....................................................... 52

Definition of Sexual Harassment: Consistency with Supreme Court Precedent and U.S. 

Constitution ......................................................................................................................52

Implementation of Title IX Grievance Procedures................................................................56

Higher Education Institutions’ Responsibilities..................................................57

Holding Higher Education Institutions Accountable............................................ 58

Transparency.......................................................................................... 60

Due Process........................................................................................... 63

Chilling Speech....................................................................................... 65

Students ........................................................................................................................... 66

Faculty ............................................................................................................................. 67

Suspending or Terminating Federal Funding ........................................................................68

Limitations of Title IX...........................................................................................................70

Congressional Efforts to Amend Title IX.............................................................. 71

FINDINGS AND RECOMMENDATIONS..................................................................................72

COMMISSIONERS’ STATEMENTS AND REBUTTALS.........................................................74

Statement of Chair Catherine E. Lhamon.............................................................. 74

Statement of Commissioner Karen Narasaki.......................................................... 75

Dissenting Statement of Commissioner Gail Heriot.................................................. 78

Appendix A: Sexual Harassmant Complaints, Compliance Reviews, and Technical Assistance by 

Fiscal Year .....................................................................................................................................87
TABLE OF CONTENTS iii

Appendix B: Chart of Department of Education Sexual Harassment Guidance (1981-2018) ......91

Appendix C: Dept of Education Resolution Agreements with Higher Education Instiutions (2011-

2016) ............................................................................................................................................100
[This page left intentionally blank]

 
EXECUTIVE SUMMARY 1

EXECUTIVE SUMMARY

Federal antidiscrimination law (Title IX) protects individuals from sexual harassment that 

interferes with education. At the same time, offensive speech may be protected under the First 

Amendment on public education campuses. These ideals of equality in education, diversity of 

opinion, and freedom of expression can coexist. Yet, some have used speech to degrade, 

marginalize, threaten, and harass individuals on campus based on sex. Such speech tells the 

harassed individual that their academic contributions are not welcome. On the other side, 

regulating the content of speech can lead to the suppression of ideas and chill academic discourse. 

This report addresses this potential tension between free speech and impermissible sexual 

harassment in higher education.1 This report also evaluates guidance to higher education 

institutions by the Department of Education as to the line between protected speech and 

impermissible sexual harassment in education, as well as two instances of the Department’s Title 

IX enforcement regarding sexual harassment. 

Title IX prohibits sexual harassment at educational institutions by stating:

No person in the United States shall, on the basis of sex, be excluded from 

participation in, be denied the benefits of, or be subjected to discrimination under 

any education program or activity receiving Federal financial assistance.2

Title IX applies to all schools (public and private institutions) that receive federal funds. The 

Department of Education is the primary regulator of Title IX. The balance among free expression, 

speech, and Title IX can arise under multiple fact patterns including a professor speaking or writing 

inside or outside the classroom, students speaking inside or outside the classroom, and 

presentations by speakers on campus. 

The First Amendment to the U.S. Constitution contains a right of free expression and speech, 

which applies to public higher education institutions.

3 The Supreme Court has long viewed higher 

institutes of learning as the “marketplace of ideas” and has protected uncommon and unpopular 

 

1 The U.S. Commission on Civil Rights held a public briefing focusing on sexual harassment, federal enforcement of 

Title IX and freedom of speech on July 25, 2014. “Enforcement of Sexual Harassment Policy at Educational 

Institutions by the U.S. Department of Education’s Office for Civil Rights and the Civil Rights Division of the 

Department of Justice,” Briefing before the U.S. Commission on Civil Rights (July 25, 2014) (hereinafter “Briefing 

Transcript”), https://www.usccr.gov/calendar/trnscrpt/CommissionBriefingTranscript_July-25-2014_%20final.pdf.

The briefing included information about these issues on K-12 campuses, which is not discussed herein. To review 

that portion of the briefing, please review the transcript. Ibid.

2 Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681; see Franklin v. Gwinnett County Public Schools, 

503 U.S. 60 (1992). 

3 U.S. CONST. amend. I.; see e.g., Healy v. James, 408 U.S. 169 (1972); Papish v. Bd of Curators, 410 U.S. 667 

(1973). 
Free to Learn: Speech and Sexual Harassment on Campus 2

speech.

4

 Approximately 24 million people work or study on higher education campuses in the 

United States. Since the passage of Title IX forty-seven years ago, the number of women on college 

campuses has increased.5 Yet, during the same period, campus surveys have fairly consistently

reported that more than half of all students experience sexual harassment while studying.

6 The 

reported numbers for graduate students in certain fields, like the sciences, are higher.7

There are two basic types of sexual harassment: quid pro quo (Latin for “this for that”) harassment, 

for example, when a teacher says “sleep with me or you get a bad grade,” and a hostile

environment.8 Defining what constitutes a hostile environment comprises both subjective and 

objective elements, meaning the speech or conduct is unwelcome from the perspective of the

person being harassed, and that a reasonable person would find the speech or conduct 

objectionable.9 Higher education institutions that receive federal funds must take steps to address

hostile environments and sex-based discrimination.10

Preventing a hostile environment, in public universities, may overlap with an individual’s right of 

free speech or expression. The most common type of sexual harassment is often termed gender 

harassment.11 Gender harassment includes verbal and nonverbal behaviors that convey insulting 

and degrading attitudes about members of one gender. Examples may include lewd jokes, 

disrespectful comments about body parts, and inappropriate gestures. Speech that offends another 

 

4 Healy v. James, 408 U.S. 169, 181 (1972) (“The college classroom with its surrounding environs is peculiarly the 

‘marketplace of ideas’ . . .”) (citing Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 

L.Ed.2d 629 (1967); Sweezy v. New Hampshire by Wyman, 354 U.S. 234, 249-250 (1957) (plurality opinion of Mr. 

Chief Justice Warren), 262 (Frankfurter, J., concurring in result).

5 See infra, text and notes 36-42 (discussing the changing demographics on college campuses over the past thirty 

years).

6 See infra, text and notes 43-55 (discussing studies of the prevalence of sexual harassment on college campuses 

over the past thirty years).

7

Ibid.

8 See infra, text and notes 166-175 (listing the case law generally defining sexual harassment).

9 See infra, text and notes 171-175 (discussing the history and current case law for what constitutes a hostile 

environment under Title IX).

10 Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681; see also Department of Education, Office for 

Civil Rights, Frequently Asked Questions About Sex-Discrimination Harassment, What are the Responsibilities of 

school districts, colleges, and universities under Title IX to address sex-based harassment? (“If an investigation 

reveals that the harassment created a hostile environment, the educational institution must take prompt and effective 

steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent its recurrence, and, as 

appropriate, remedy its effects.”), https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/sex.html#sexhar1; see 

also infra, text and notes 138-140 (discussing the Supreme Court’s decisions regarding the liability of schools for 

money damages to students under Title IX).

11 See infra, text and notes 61-65 (discussing what is gender harassment and prevalence studies of this type of 

harassment).
EXECUTIVE SUMMARY 3

student is not necessarily harassment and may be protected under the First Amendment.12 Some 

have argued that students are using Title IX as a shield from offensive speech.13 At the same time, 

students have been praised for wanting more inclusive learning environments as opposed to 

marginalizing or denigrating certain student voices.

14

Title IX’s implementing regulations require that schools have “prompt and equitable” grievance 

procedures to address sexual harassment complaints, that schools designate at least one employee 

to carry out responsibilities under Title IX (commonly referred to as a “Title IX coordinator”), and 

that schools provide notice that they do not discriminate on the basis of sex in their educational 

programs or activities.

15 Since the enactment of Title IX, the Department of Education has issued 

guidance documents, which provide higher education institutions and students with information 

about what the federal government believes Title IX requires on campuses.16 These guidance 

documents – sometimes in the form of a “Dear Colleague” letter -- have provided definitions of 

sexual harassment including what comprises a hostile environment and what is required for 

grievance procedures to be “prompt and equitable.”17

The Department of Education’s Office for Civil Rights may also investigate whether a school is 

complying with Title IX via a complaint investigation or a compliance review, which may result 

in a resolution agreement with one or more higher education institutions.

18 Resolution agreements 

only bind the parties to that agreement and do not constitute guidance for all higher education 

institutions. Resolution agreements routinely call for updated grievance procedures, updated Title 

IX coordinator information, and trainings for employees, staff and students, as warranted by the 

particular facts of the investigation.

19

The Department of Education’s enforcement and guidance about Title IX have been criticized for 

going too far and for not going far enough to remedy sexual harassment on campus. The 

 

12 See, e.g., Saxe v. State College Area School Dist., 240 F.3d 200 (3rd Cir. 2001) (no categorical rule divests 

harassing speech as defined by federal antidiscrimination statutes of First Amendment protection).

13 See infra, text and note 313.

14 See infra, text and notes 316-317 (discussing the expectations of students and classroom/on campus discourse); 

see also infra, text and note 318 (discussing optimizing learning in higher education classrooms).

15 34 C.F.R. § 106.8 (designation of responsible employee and adoption of grievance procedures); 34 C.F.R. § 106.9 

(dissemination of policy).

16 See infra, text and notes 176-243 (discussing regulations and guidance on implementation of Title IX issued by 

the Department of Education from 1975 to 2018).

17 Ibid.

18 See U.S. Dep’t of Education, Office for Civil Rights, Case Processing Manual (Nov. 18, 2018) at 15, 19, 

https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf. 

19 See infra, text and notes 264-265 (discussing the types of remedies required in the 40 resolution agreements by the 

Department of Education from 2011-2016).
Free to Learn: Speech and Sexual Harassment on Campus 4

Department of Education has been criticized for issuing guidance that is unclear as to what 

constitutes sexual harassment and a hostile environment, and for not anticipating the impact of the 

guidance on schools (especially as to how schools would implement the grievance procedures in 

light of the potential for the loss of federal funding).20 Others, however, have applauded these 

efforts and concluded for example that the Department’s enforcement and guidance have 

“provided much needed clarification of what Title IX requires schools to do to prevent and address 

sex discrimination in educational programs.”21 The Department of Education has also been 

criticized for restricting speech on campuses in certain resolution agreements; the main criticism 

being that the agreements read out the objective requirement of the sexual harassment definition 

and allow for conduct or speech that is offensive to an individual to violate Title IX.

22

The Department of Education has responded that its resolution agreements incorporating the longstanding definition of sexual harassment as unwelcome conduct comport with the Supreme Court’s 

definition of sexual harassment and contains both the subjective and objective standards.23 

Additionally, the Department officials in the Obama Administrative defended ED OCR guidance 

as clear in providing notice to higher education institutions of what is equitable under Title IX.24

In 2017, Department officials in the Trump Administration rescinded the Obama era guidance. 

Recently in 2018, the Department of Education published a notice of proposed rulemaking in the 

Federal Register.25 In the notice, the Department previewed amending its regulations to include a 

revised definition of actionable sexual harassment under Title IX and also revisions to the 

grievance procedures requirements.26

The Department of Education has also been criticized for not enforcing Title IX more vigorously 

given the extent of sexual harassment on campuses. Some student advocates have argued that the 

burden of enforcement has been placed on students to bring claims forward under school grievance 

procedures – claims that the Department of Education should have been investigating – and that 

 

20 See infra, text and notes 306-378 (discussing implementation of grievance procedures by higher education 

institutions).

21 Letter to Secretary John B, King, Jr., from the National Women’s Law Center and 85 other organizations (July 13,

2016), https://nwlc.org/resources/sign-on-letter-supporting-title-ix-guidance-enforcement/.

22 See infra, text and notes 291-300 (discussing the criticism of the resolution agreement with the University of 

Montana and the Department of Education’s response).

23 Ibid.

24 Ibid.

25 Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial 

Assistance, 83 Fed. Reg. 61,462 (Nov. 29, 2018) (notice of proposed rulemaking to amend the Department of 

Education’s Title IX regulations).

26 Id.
EXECUTIVE SUMMARY 5

the Department of Education has not used its authority under Title IX to terminate federal funds.27 

Others argue that Title IX’s enforcement policies result in institutions doing the bare minimum to 

comply with the law as opposed to reducing sexual harassment.28

The Department of Education has responded that it meaningfully uses applicable procedures to 

terminate federal funds, which can assist in reaching resolution with recalcitrant schools.29 At the 

same time, the statute (Title IX) and implementing regulations require multiple steps, including 

notification to Congress, before federal funds can be terminated or suspended.

30

 The Department 

of Education has also not just focused on enforcement to encourage the writing of policy 

documents but has also offered technical assistance on prevention and reduction of sexual 

harassment on higher education campuses.31

This report discusses the Constitution’s free speech guarantees, and the rights of students and 

faculty under Title IX to study and work free from sexual harassment. The report analyzes the 

rights of faculty and academic freedoms associated with teaching. The report also examines the 

role of the Department of Education in providing guidance for schools and considers how higher 

education institutions have implemented this guidance in their Title IX grievance processes.32 The 

scope of this report is limited to free expression, speech, and Title IX as applied to institutions of 

higher education.

33 This report includes findings and recommendations, a portion of which are 

summarized below:

 

27 See infra, text and notes 319-331 (discussing the criticism that enforcement by the Departments of Education and 

Justice has not been robust enough).

28 National Academies of Sciences, Engineering, and Medicine, Sexual Harassment of Women: Climate, Culture, 

and Consequences in Academic Science, Engineering, and Medicine (2018) at 2, 

https://www.linguisticsociety.org/sites/default/files/24994.pdf. (“Too often, judicial interpretation of Title IX . . . has 

incentivized institutions to create policies and training on sexual harassment that focus on symbolic compliance with 

current law and avoiding liability, and not on preventing sexual harassment.”).

29 See infra, text and notes 379-389 (discussing the termination of federal funds).

30 Ibid.

31 See infra, text and notes 393-394 (discussing technical assistance provided by the Department of Education).

32 Though not the focus of this report, the Department of Justice also has a role in enforcing Title IX, including

regarding sexual harassment in schools. See, e.g., Settlement Agreement between the U.S. Department of Justice

and the Board of Regents of the University of New Mexico, Oct. 17, 2016, 

https://www.justice.gov/crt/casedocument/university-new-mexico-settlement-agreement, discussed further at note 

262.

33 While sexual violence is a subset of Title IX’s prohibition against sexual harassment, there is no First Amendment 

right for this conduct. Thus, a discussion of sexual violence is not included within this report (except for where a 

guidance document concerns both speech and sexual violence). 
Free to Learn: Speech and Sexual Harassment on Campus 6

Findings 

 Education institutions that receive federal funds must maintain campuses free from sexbased discrimination. Federal courts and the federal government have recognized sexual 

harassment as one form of sex-based discrimination for decades. 

 Unwanted sexual harassment occurs with frequency in higher education institutions and 

can have life-changing impacts. Sexual harassment can have a significant negative affect 

on the academic experiences, health, and well-being of those being harassed. It has been 

shown to relate to disengagement, poor grades, symptoms of depression and anxiety, and 

raise concerns about campus safety. When perpetrated by faculty or staff, it can lead to 

feelings of institutional betrayal. 

 The Department of Education enforces Title IX and its regulations through administrative 

investigation of complaints, compliance reviews, directed investigations, and monitoring 

of resolution agreements. The Department of Education also issues policy guidance, and 

provides technical assistance to educational institutions. 

 ED OCR continues to publicly address the question of how Title IX enforcement 

comports with the First Amendment. Across Republican and Democratic presidential 

administrations ED OCR has explained: “OCR has consistently reaffirmed that the 

Federal civil rights laws it enforces protect students from prohibited discrimination, and 

are not intended to restrict expressive activities or speech protected under the U.S. 

Constitution’s First Amendment.” It continues to note that “Schools can also encourage 

students on all sides of an issue to express disagreement over ideas or beliefs in a 

respectful manner. Schools should be alert to take more targeted responsive action when 

speech crosses over into direct threats or actionable speech or conduct.” 

 Consistent with maintaining the right to free speech, courts have held that schools may 

still act to discipline students who harass or threaten other students. 

 Investigative reporting has shown that lax enforcement from ED OCR can result in 

schools not taking claims of sexual harassment seriously. 

Recommendations 

 ED OCR should vigorously enforce Title IX, consistent with the recognition that failure 

to enforce nondiscrimination principles may have deleterious effects on students, such as 

disengagement and psychological distress, and on campus communities more broadly. 
EXECUTIVE SUMMARY 7

 Given the significant level of concern expressed to this Commission on these topics, ED 

OCR should continue to make clear to the regulated community that ED OCR’s 

enforcement standards comport with and continue to adhere to First Amendment 

principles.

 ED OCR should collect data from colleges and universities on the number of sexual 

harassment complaints filed with or incidents reported to the college or university, and 

how the college university investigated and resolved each complaint or report. The data 

should include whether the complaint or report resulted in a misconduct finding and 

whether the subject of the complaint or report was disciplined and how. 
Free to Learn: Speech and Sexual Harassment on Campus 8

SEXUAL HARASSMENT IN HIGHER EDUCATION

In the United States, approximately 7,200 postsecondary educational institutions are governed by 

Title IX.

34

 Around 24 million people (19.6 million undergraduate students, 3 million postbaccalaureate students, and 1.5 million faculty) work and study at these higher educational 

institutions.35 This section looks at the past forty-seven years (since the passage of Title IX) and 

discusses comparisons by gender of students enrolling in college, graduating with bachelor’s

degrees, and reporting of sexual harassment at higher educational institutions. As discussed 

herein, while women now enroll in colleges and attain degrees in higher numbers than men --

sexual harassment continues to occur consistently and frequently and disproportionately to women

-- and more than half of women report being sexually harassed while studying on undergraduate 

college campuses.

Changes in Enrollment and Attainment of Bachelor’s Degrees (1972 to 2017)

When Congress enacted Title IX in 1972, 57% of students enrolled in college were male and 43%

were women.36 By the fall of 2018, these percentages had switched; now, 57% of students enrolled 

are women and 43% are men.37 In terms of attaining a bachelor’s degree, in 1980, 17% of men and 

13.6% of women had attained a bachelor’s degree by age 29 (figure 1.1).

38

 By 2017, these 

percentages had increased to 33.7% for men and 34.6% for women, meaning that women now 

attain slightly more bachelor’s degrees than men (figure 1.2).

39 Women now also earn more 

 

34 Department of Education, Office for Civil Rights, Securing Equal Educational Opportunity: Report to the 

President and Secretary of Education, p. 6 (2016), https://www2.ed.gov/about/reports/annual/ocr/report-topresident-and-secretary-of-education-2016.pdf.

35 National Center for Education Statistics, The Condition of Education, Characteristics of Degree-Granting 

Postsecondary Institutions, https://nces.ed.gov/programs/coe/indicator_csa.asp, (last updated May 2018), 

Undergraduate Enrollment, Postbaccalaureate Enrollment, and Characteristics of Postsecondary Faculty.

36 National Center for Education Statistics, Digest of Education Statistics, Table 303.10: Total fall enrollment in 

degree-granting postsecondary institutions, by attendance status, sex of student, and control of institution: Selected 

years, 1947 predicted through 2027, https://nces.ed.gov/programs/digest/d17/tables/dt17_303.10.asp.

37 Ibid.

38 National Center for Education Statistics, Digest of Education Statistics, Table 104.20: Percentage of 25 to 29 

years old with selected levels of educational attainment, by race/ethnicity and sex: Selected years, 1920 through 

2017, https://nces.ed.gov/programs/digest/d17/tables/dt17_104.20.asp.

39 Ibid; see also National Center for Education Statistics, The Condition of Education, Educational Attainment of 

Young Adults (April 2018), https://nces.ed.gov/programs/coe/indicator_caa.asp.
Sexual Harassment in Higher Education 9

graduate degrees than men.40 This trend cuts across every race and ethnicity.41 Some researchers 

have credited Title IX with some of these gains in enrollment and attainment of degrees.42 

Source: National Center for Education Statistics, Digest of Education Statistics, 

https://nces.ed.gov/programs/digest/d17/tables/dt17_104.20.asp 

**Data was not collected on Asian/Pacific Islander, American Indian/Native Alaskan, or two or more races in 1980

 

40 See supra note 36 (Table 104.20: Percentage of 25 to 29 years old with selected levels of educational attainment, 

by race/ethnicity and sex: Selected years, 1920 through 2017).

41 Ibid.

42 See, e.g., Betsey Stevenson, Beyond the Classroom: Using Title IX to Measure the Return to High School Sports, 

University of Pennsylvania, Wharton School of Business (Jan. 31, 2010), (finding that “a 10-percentage point rise in 

female sports participation [in part from Title IX] generates a 1 percentage point increase in female college 

attendance and a 1 to 2 percentage point rise in female labor force participation”), 

https://repository.upenn.edu/cgi/viewcontent.cgi?article=1017&context=psc_working_papers.

0

5

10

15

20

25

Percentage of

Persons with

Bachelor's

Degrees in

1980

White Black Hispanic Asian/Pacific

Islander

American

Indian/Native

Alaskan

Two or More

Races

Figure 1.1: Percentage of Persons Ages 25 to 29 with 

Bachelor's Degrees in 1980 By Race/Ethnicity and Gender

Men Women
Free to Learn: Speech and Sexual Harassment on Campus 10

Source: National Center for Education Statistics, Digest of Education Statistics, 

https://nces.ed.gov/programs/digest/d17/tables/dt17_104.20.asp 

Prevalence of Sexual Harassment

While enrollment and attainment rates have been increasing for women, the reported prevalence 

of sexual harassment in undergraduate and graduate programs has remained relatively consistent 

for the past forty-seven years. In 1987, researchers noted that “[i]f the occurrence of sexual 

harassment, as suggested in research, reflects reality, then it appears that about half of all women 

will face sexual harassment on the job or during their education.”43 These same researchers noted 

that due to the sensitivity of reporting sexual harassment the actual occurrence may be higher.44 

Twenty years later, in the early 2000s, researchers found that 58% of female academic faculty and 

 

43 Sexual Harassment: An Overview, Vol. 2., No. 1 (Feb. 1987) (considering research by Benson and Thomas 

(1982) finding that 30% of undergraduate women at the University of California, Berkeley, had been sexually 

harassed during their studies, and research by Schneider (1982) finding that 17% of women reported being sexually 

harassed by their teachers), https://archive.org/stream/ERIC_ED301755/ERIC_ED301755_djvu.txt. 

44 Ibid.

0

10

20

30

40

50

60

Percentage of

Persons with

Bachelor's

Degrees in

2017

White Black Hispanic Asian/Pacific

Islander

American

Indian/Native

Alaskan

Two or More

Races

Figure 1.2: Percentage of Persons Ages 25 to 29 with 

Bachelor's Degrees in 2017 By Race/Ethnicity and Gender

Men Women
Sexual Harassment in Higher Education 11

staff reported experiencing sexual harassment,45 and another survey found that 62% of 

undergraduates reported experiences of sexual harassment.46

Recent Surveys

A few years ago, in 2015, the Association of American Universities surveyed 27 institutions of 

higher education and nearly half (47.7%) of all college students (undergraduate and graduate) in 

the study indicated that they had been subject to sexual harassment.47 The rates of sexual 

harassment were highest among students who identified as transgender, genderqueer, nonconforming, or questioning (i.e., 75.2% of undergraduate students and 69.4% of graduate 

students).48 This group was followed by female undergraduate students, 61.9% of whom

 

45 Remus Ilies, Nancy Hauserman, Susan Schwochau, and John Stibal, Reported Incidence Rates of Work-Related 

Sexual Harassment in the United States: Using Meta-Analysis to Explain Reported Rate Disparities, 56(3) 

Personnel Psychology, 624-25 (2003), 

https://www.researchgate.net/publication/227604263_Reported_incidence_rates_of_workrelated_sexual_harassment_in_the_United_States_Using_meta-analysis_to_explain_reported_rate_disparities. This 

study’s main objectives were to 1) “provide cumulative estimates of the incidence of sexual harassment in the 

workplace [including higher education campuses] as assessed with different types of surveys” and 2) “account[] for . 

. . methodological factors on the reported incidence rate” and “investigate whether any inherent biases impacted 

those studies results. Ibid., 609. This study notes that surveys may rely on different definition of sexual harassment 

– and that surveys definitions may come from a legal or psychological perspective. Ibid. The study notes the value 

and limitations of both approaches in that “subjective measures make it difficult to assess the extent to which the 

difference in reported incidence rates between men and women is real or perceptual” though “this is not to say that 

perceptions of sexual harassment are less important than more objective measures” because “although objective 

measures may have stronger relationships with legal outcomes, perceptual measures may be more important in 

predicting victim responses and organizational outcomes.” Ibid. (citing Lengnick-Hall, 1995). This study further 

states that the “behavioral experiences approach . . . minimizes respondent perceptual bias and if used consistently, 

allows for comparing incidence rates across studies and time.” Ibid.

46 Catherine Hill and Elena Silva, Drawing the Line: Sexual Harassment on Campus, American Association of 

University Women Educational Foundation (2005) at Figure 2, p. 15, https://www.aauw.org/files/2013/02/drawingthe-line-sexual-harassment-on-campus.pdf.. The definition of sexual harassment for this survey was “Sexual 

harassment is unwanted and unwelcome sexual behavior which interferes with your life.” Ibid., 6.

47 WESTAT, REPORT ON THE ASSOCIATION OF AMERICAN UNIVERSITY CAMPUS CLIMATE SURVEY ON SEXUAL 

ASSAULT AND SEXUAL MISCONDUCT 29 (2017), https://www.aau.edu/sites/default/files/AAU-Files/KeyIssues/Campus-Safety/AAU-Campus-Climate-Survey-FINAL-10-20-17.pdf (AAU contacted Westat, a research 

firm, to help develop and conduct a survey of 27 institutions of higher education during the 2015 spring semester. 

The purpose of the survey was to assess the incidence, prevalence, and characteristics of incidents of sexual assault 

and misconduct, sexual harassment, stalking, and intimate partner violence) (hereafter Campus Climate Survey). 

This survey used the following definition of sexual harassment “as a series of behaviors that interfered with the 

victim’s academic or professional performances, limited the victim’s ability to participate in an academic program, 

or created an intimidating, hostile, or offensive social, academic, or work environment.” Ibid., xv. The specific 

survey questions are included at ibid., xvi.

48 Ibid at xvi. (Questionnaire item A11 asked participants to “best describe their gender identity.” The options were 

“woman”, “man”, “transgender woman”, “transgender man”, “genderqueer or gender non-conforming”, 
Free to Learn: Speech and Sexual Harassment on Campus 12

responded that they had experienced sexual harassment. For racial and ethnic groups, the survey 

found that 53.4% of Native American or Alaska Native, 37.9% of Asian, 50.2% of Black or

African American, and 47.8% of Hispanic students indicated that they had been subjected to sexual 

harassment.49 Students who identified as having a disability reported being sexually harassed at a 

rate of 59.3%.50 In addition, 60.4% percent of students who identified as gay or lesbian indicated 

that they had been subjected to sexual harassment.51

All Disciplines

Frequent reports of sexual harassment in higher education have occurred within multiple 

disciplines. In the science, engineering, and medical fields, for example, sexual harassment has 

been observed in off-campus, field science sites that are supported by funds administered by 

American institutions of higher education. A 2014 study revealed that 64% of students conducting 

research in field sites had experienced sexual harassment (e.g., inappropriate sexual remarks and 

comments about physical beauty).52 The high rate of sexual harassment in the sciences has been 

attributed to 1) the apprenticeship model, 2) university investigations remaining confidential in 

“locked boxes,” and 3) universities’ dependence upon “superstar” professors for grant money.53 

While many are focusing on sexual harassment in the sciences (including Congress),

54 sexual 

harassment is not limited to any one discipline. For example, music and philosophy departments 

have been criticized for engendering cultures that enable sexual harassment to occur.55

 

“questioning”, “not listed”, and “decline to state.” Participants that selected “not listed” were included in the group 

of students who identified themselves as transgender, genderqueer, gender non-conforming, and questioning.).

49 Ibid., 104; see also, Kathryn B. H. Clancy, Katharine M. N. Lee, Erica M. Rodgers, and Christina Richey, Double 

Jeopardy in Astronomy and Planetary Science: Women of Color Face Greater Risks of Gendered and Racial 

Harassment, 122 J. Geophys. Res. Planets, 1610-1623 (July 12, 2017).

50 Campus Climate Survey, supra note 47 at 104.

51 Ibid.

52 Kathryn B.H. Clancy et al., Survey of Academic Field Experiences (SAFE): Trainees Report Harassment and 

Assault, PLOS ONE, July 2014, at 1, 

https://journals.plos.org/plosone/article/file?id=10.1371/journal.pone.0102172&type=printable; see also National 

Academies of Sciences, Engineering, and Medicine, Sexual Harassment of Women: Climate, Culture, and 

Consequences in Academic Science, Engineering, and Medicine (2018), [hereafter National Academies Sexual 

Harassment Report], https://www.linguisticsociety.org/sites/default/files/24994.pdf.

53 Sarah Scoles, Month by Month, 2016 Cemented Science’s Sexual Harassment Problem, Science (Dec. 29, 2016).

54 See, e.g., Combating Sexual Harassment in Science Act of 2018, H.R. 7031, 115th Cong. (introduced on Oct. 5, 

2018); A Review of Sexual Harassment and Misconduct in Science Hearing Before Subcommittee on Research and 

Technology to the H. Comm. On Science, Space, and Technology, 115thCong. (Feb. 27, 2018), 

https://science.house.gov/hearings/a-review-of-sexual-harassment-and-misconduct-in-science.

55 See, e.g., Colleen Flaherty, Vulnerable Students, Inside Higher Ed (July 30, 2013) (suggesting that “music 

professors, due to a mix of cultural factors and opportunity, may be more frequently involved in [sexual harassment] 
Sexual Harassment in Higher Education 13

Types of Harassers

Sexual harassment can occur by students against other students, by faculty/staff against students, 

by faculty/staff against other faculty/staff, or by students against faculty/staff. Of those who had 

experienced sexual harassment in the 2015 American Association of University Women’s report, 

80% of these students reported it was from peers (or former peers), with 18% reporting the harasser 

was a member of faculty or staff.56 The participants in the Association of American Universities 

campus climate survey overwhelmingly identified the harasser as another student (91.6%).57

Graduate students, on the other hand, were more likely to identify their harasser as a faculty 

member (e.g., 24% of female graduate/professional students compared to 5.9% of female 

undergraduate students).58 Another survey of 525 graduate students regarding exposure to sexual 

harassment found that more than one-third (38%) of female graduate students experienced sexual 

harassment from faculty or staff (compared to 23.4% of male graduate students).59 Lastly, “in the 

vast majority of incidents of sexual harassment of women, men are the [harassers].”60

Gender Harassment

The most common type of sexual harassment is often termed gender harassment, which includes 

verbal and nonverbal behaviors that convey insulting, hostile, and degrading attitudes about 

members of one gender.61 Similarly, other researchers have found that “the majority of harassment 

experiences involved sexist or sexually offensive language, gestures, or pictures (59.1%), with 

6.4% involving unwanted sexual attention, 4.7% involving unwanted touching, and 3.5% 

involving subtle or explicit bribes or threats.”62 Gender-based sexual harassment is not necessarily 

 

incidents than other professors.”); Colin McGinn, Philosophy Has a Sexual Harassment Problem, Salon (Aug. 15, 

2013) (discussing the extent of sexual harassment in philosophy programs). 

56 Drawing the Line, supra note 46 at 20-21.

57 Campus Climate Survey, 31.

58 Ibid.

59 Marina N. Rosenthal et al., Still Second Class: Sexual Harassment of Graduate Students, 40 PSYCHOL. OF WOMEN 

Q. 364, 373 (2016) [hereafter Sexual Harassment of Graduate Students], 

https://dynamic.uoregon.edu/jjf/articles/rosenthalsmidtfreyd2016.pdf. 

60 National Academies Sexual Harassment Report, 43.

61 Ibid., 25-26, 41-46 (collecting studies documenting that gender harassment is more prevalent than other types of 

sexual harassment); Jennifer L. Berdahl, Harassment Based on Sex: Protecting Social Status in the Context of 

Gender Hierarchy, 32 Acad. Mgmt. Rev. 641 (2007) (stating that “the most common form of sexual harassment is 

gender harassment, which involves . . . sexist comments, jokes, and materials that alienate and demean victims based 

on sex rather than solicit sexual relations with them”).

62 Sexual Harassment of Graduate Students, 370.
Free to Learn: Speech and Sexual Harassment on Campus 14

based or motivated by sexual activity.63 “Both legal doctrine and social science research recognize 

gender as encompassing both one’s biological sex and gender-based stereotypes and expectations, 

such as heterosexuality and proper performance of gender roles.” 64 The National Academies of 

Sciences, Engineering, and Medicine note that their finding “that gender harassment is the most 

common type of sexual harassment is an unexpected finding in terms of what constitutes sexual 

harassment because unwanted sexual advances and sexual coercion are the most commonly 

reported both in official Title IX/Human Resources documents and in the media.”65

Negative Effects

Sexual harassment can have a significant negative effect on the academic experiences, health, and 

well-being of those harassed.

66 Sexual harassment has been shown to relate to lower feelings of 

academic satisfaction, disengagement, and poor grades.67 In one study involving graduate students, 

sexual harassment was associated with decreased feelings in campus safety.68 Participants in that 

study also indicated a feeling of institutional betrayal when the sexual harassment was perpetrated 

by faculty or staff.69 Sexual harassment has been shown to correlate with psychological distress, 

including symptoms of depression and anxiety.70 In one study, individuals who had been sexually 

 

63 Department of Education, Office for Civil Rights, Questions About Sex Discrimination Harassment: What is 

Gender-Based Harassment? (Answer: “Gender-based harassment is unwelcome conduct based on a student’s actual 

or perceived sex. It includes slurs, taunts, stereotypes, or name-calling, as well as gender-motivated physical threats, 

attacks, or other hateful conduct.”), https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/sex.html#sexhar1.

64 National Academies Sexual Harassment Report, 25.

65 Ibid., 43; see also Vikki Schultz, Reconceptualizing Sexual Harassment, Again, 128 Yale Law Rev. (Jun 18, 

2018) (“In fact, contrary to popular perceptions, nonsexual forms of sex-based harassment and hostility are far more 

prevalent than unwanted sexual overtures. Harassment takes a wide variety of nonsexual forms, including hostile 

behavior, physical assault, patronizing treatment, personal ridicule, social ostracism, exclusion or marginalization, 

denial of information, and work sabotage directed at people because of their sex or gender.”), 

https://www.yalelawjournal.org/forum/reconceptualizing-sexual-harassment-again#_ftnref32.

66 See Marisela Huerta et al., Sex and Power in the Academy: Modeling Sexual Harassment in the Lives of College 

Women, 32 PERSONALITY AND SOC. PSYCHOL. BULL. 616, 625 (2006) (hereafter Sex and Power in the Academy); 

Sexual Harassment of Graduate Students, 373.

67 See Sex and Power in the Academy at 625 (Academic satisfaction of undergraduate, female students was measured 

by answering two questions: (1) “I would recommend attending [this university] to others” and (2) “If I had to do it 

over again, I would still attend [this university]” on a 7-point Likert-type scale. Grades were measured by the 

students’ grade point average (GPA)).

68 See Sexual Harassment of Graduate Students, 373. 

69 Ibid., 374 (The top three types of institutional betrayal cited by the participants were: “creating an environment 

where this type of experience seemed more likely to occur,” “not doing enough to prevent this type of experience,” 

and “making it difficult to report the experience.”).

70 See Sex and Power in the Academy at 625. 
First Amendment and Free Expression 15

harassed reported engaging in self-destructive, disordered eating behaviors.

71

 Sexual harassment 

can also undermine career advancement for women. According to a 2017 study, 18% of women 

who are members of racial or ethnic minority groups, and 12% of white women, did not attend 

professional events due to harassment.72 

In sum, unwanted gender based sexual harassment occurs with frequency in higher education 

institutions and can have life-changing impacts.

FIRST AMENDMENT AND FREE EXPRESSION

The First Amendment of the U.S. Constitution states “Congress shall make no law . . . abridging 

the freedom of speech, or of the press.”73 The First Amendment protects not only pure speech 

(speaking and writings) but also protects symbolic speech, which is nonverbal expression intended

to communicate ideas.74 The Supreme Court has described freedom of speech as “the matrix, the 

indispensable condition, of nearly every other form of freedom.”75 Some argue that freedom of 

expression should be expansively protected because: 

[(1)] freedom of speech is essential to freedom of thought; [(2)] it is 

essential to democratic self-government, and [(3)] the alternative –

government censorship and control of ideas – has always led to disaster.76

The debate over how much the federal government should be able to regulate or restrict free speech 

has a long history. In 1918, Eugene Debs delivered a speech primarily about Socialism and was 

subsequently indicted for two counts under the Espionage Act, inciting insubordination and 

obstruction of recruitment and enlistment in the U.S. armed services and was jailed.77 The majority 

 

71 Ibid.

72 Clancy, supra note 52 at 1610 (under plain language summary); ibid., 1619 (“Significant proportions of women 

compared to men, as well as men and women of color compared to white men and women, reported that they had 

ever skipped a class, meeting, fieldwork, or other professional event because they did not feel safe.”).

73 U.S. CONST. amend. I.

74 See, e.g., Spence v. Washington, 418 U.S. 405, 415 (1974); Cohen v. California, 403 U.S. 15, 91 (1971); Tinker v. 

Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504 (1969); Brown v. Louisiana, 383 U.S. 131, 146 (1965); Cox 

v. Louisiana 379 U.S. 559, 574 (1965); Garner v. Louisiana, 368 U.S. 157, 200 (1961); West Virginia State Bd. Of 

Educ. v. Barnette, 319 U.S. 624, 642 (1943); Carlson v. California, 310 U.S. 106, 112-13 (1940); Stromberg v. 

California, 283 U.S. 359, 369 (1931).

75 Palko v. Connecticut, 302 U.S. 319, 327 (1937); see also Erwin Chemerinsky and Howard Gillman, FREE SPEECH 

ON CAMPUS 23 (2017).

76 Chemerinsky, supra note 75 at 23 (citing Laura Kipnis, Sexual Paranoia Strikes Academe, Chron. Higher Educ. 

(Feb. 27, 2015), http://laurakipnis.com/wp-content/uploads/2010/08/Sexual-Paranoia-Strikes-Academe.pdf. 

77 Debs v. United States, 249 U.S. 211 (1919).
Free to Learn: Speech and Sexual Harassment on Campus 16

of the United States Supreme Court held that Schenck v. United States,

78 decided one week earlier

to the Court’s decision in Debs, disposed of Mr. Debs’ First Amendment defense. In Schenck, the 

Court held that freedom of speech is always subject to a “clear and present danger” inquiry, and 

upheld a similar indictment under the Espionage Act, explaining that during wartime it is 

especially important to hold a speaker liable for words obstructing the war effort. 

Later the same year, in Abrams v. United States, the Court upheld the convictions under the 

Espionage Act of five men who distributed leaflets criticizing the United States’ intervention in 

Russia, finding that they intended to frustrate the United States’ military plans.79 In dissent, Justice 

Holmes opined that the defendants did not intend to endanger the war effort and cautioned against 

attempts to suppress opposing opinions unless they pose such an immediate threat to a law’s 

purpose that suppression is “required to save the country.”80 Justice Holmes also pointed out the 

value in facilitating diverse opinions, explaining that the “free trade in ideas” is the best way to 

reach truth and a desired result.81

Protection of Civil Rights Advocates

Between the 1930s and 1970s, the Supreme Court adopted the reasoning of Justice Holmes in the 

Abrams case. This resulted in what has been described as a “revolution” in free expression case 

law.82 The beneficiaries were often those advocating for social change. For example, the Supreme 

Court found the First Amendment to protect symbolic speech in Stromberg v. People of 

California,

83 in which the Court held that displaying a red flag to oppose organized government 

was protected under the First Amendment. The Court also found the First Amendment to protect 

many forms of expression used by protesters in the 1960s, including peaceful marches, sit-ins, 

flag-burnings and litigation, and confirmed that the Constitution protects expression of dissenting 

views.84 The Court continued to expand free speech protection, finding in the 1980s that it covered 

 

78 249 U.S. 47, 52 (1919).

79 Abrams v. United States, 250 U.S. 615 (1919).

80

 Id. at 630 (1919) (Holmes, J., dissenting).

81 Id. 

82 Chemerinsky, supra note 75 at 40.

83 283 U.S. 359 (1931).

84 See Street v. New York, 394 U.S. 576 (1969) (reversing the conviction of an activist burning the American flag in 

reaction to the shooting of civil rights leader James Meredith and explaining that constitutional guarantees include 

the freedom to express “defiant” opinions); Edwards v. South Carolina, 372 U.S. 229 (1963) (overturning the 

convictions of 187 black American students who protested segregation with a peaceful march and explaining that 

the government cannot criminalize “the peaceful expression of unpopular views”); NAACP v. 

Button, 371 US 415 (1963) (holding Virginia’s statutory limitations on the methods lawyers use to find clients 

unconstitutional as applied to the NAACP because the organization’s litigation was "a form of political expression" 

protected by the First Amendment); Garner v. Louisiana, 368 U.S. 157 (1961) (overturning the conviction of five 
First Amendment and Free Expression 17

non-violent boycotts.85 In addition to reversing the convictions of those who were punished for 

expressing opinions that opposed the status quo, the Supreme Court’s use of the First Amendment 

supported social activists’ ability to express ideas safely. The First Amendment was held to protect 

the privacy of organizations’ membership lists when hostility against members could result from 

their disclosure.86

Speech Codes

In the late eighties and into the 1990s, multiple universities adopted campus speech codes or “codes 

of conduct.” Free speech advocates criticized these codes arguing they regulated how students 

could speak, and in turn, suppressed free speech. Courts have struck down challenged codes of 

conduct as infringing on free speech. For example, several courts have found campus speech codes 

overbroad or too vague to only reach conduct outside the scope of First Amendment protection.87

For example, in Doe v. University of Michigan,88 the court found the code overbroad when it 

prohibited behavior that “stigmatizes or victimizes an individual on the basis of race, ethnicity, 

religion, sex, sexual orientation, creed . . . and that . . . creates an intimidating, hostile, or 

demeaning environment” for purposes related to education and employment. Courts have found 

campus speech codes could violate the First Amendment when they prohibit speech based on the 

reaction of the audience89 or prohibit harassment without requiring that the harassment reach a 

certain level of severity.90 In addition to overbreadth, codes regulating conduct can be struck down 

for addressing content instead of neutral limitations such as manner of speech. The Supreme Court 

 

black Americans for their peaceful sit-in, which Justice Harlan in his concurrence noted was as important to “the 

free trade of ideas” as verbal speech was). 

85 NAACP v. Claiborne Hardware Co, 458 U.S. 886 (1982).

86 See Louisiana v. NAACP, 366 U.S. 293 (1961) (holding that the First Amendment protected the privacy of an 

organization’s membership list because disclosure would stifle their freedom of association); Bates v. City of Little 

Rock, 361 U.S. 516 (1960) (same); NAACP v. Alabama, 357 U.S. 449 (1958) (same). 

87 McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010) (striking down provision as overbroad 

when it restricted conduct that caused emotional distress); Corry v. Stanford, No. 740309 (Cal. Super. Ct. Feb. 27, 

1995) (holding that the restriction on insulting speech violated the First Amendment); Dambrot v. Central Michigan 

University, 839 F. Supp. 477 (E.D. Mich. 1993) (striking down the speech code overbroad and vague because it 

failed to define an offensive environment); UWM Post v. Board of Regents of University of Wisconsin, 774 F. Supp. 

1163 (E.D. Wis. 1991) (striking down the code because the speech regulated fell short of being deemed fighting 

words). 

88 721 F. Supp. 852 (E.D. Mich. 1989).

89 Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003).

90 DeJohn v. Temple University, 537 F.3d 301 (3d. Cir. 2008) (finding code that prohibited gender-motivated 

harassment creating an “intimidating, hostile, or offensive environment” overbroad); College Republicans at San 

Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) (declining to enforce campus speech 

code prohibiting harassment unless the harassment was limited to that which threatened health and safety).
Free to Learn: Speech and Sexual Harassment on Campus 18

held that a city ordinance prohibiting the placing or symbols or graffiti on property that one knows 

or should know “arouses anger, alarm or resentment in others on the basis of race, color, creed, 

religion or gender” violated the First Amendment because it prohibited the expression of certain

unpopular views.

91

Time, Manner, and Place Restrictions

Today, the government can limit some protected speech by imposing “time, place, and manner” 

restrictions.92 This is most commonly done by requiring permits for meetings, rallies and 

demonstrations.93 A permit cannot be withheld or denied based on the type or content of the 

anticipated speech, what has become known as viewpoint discrimination.94 Additionally, freedom 

of speech does not protect speech or conduct that intimidates or threatens another person with 

bodily harm.

95 Speech can be regulated if it is intended, and likely to produce, “imminent lawless 

action.”96 This has become known as the true threats test.97 Limited categories of speech such as 

obscenity, defamatory falsehoods, and “fighting words” also receive no First Amendment 

protections.98

 

91 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

92 See, e.g., Frisby v. Schultz, 487 U.S. 474, 481 (1988) (“regulations of the time, place, and manner of expression 

which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample 

alternative channels of communication.”). 

93 See, e.g., Ward v. Rock Against Racism, 491 U.S. 781 (1989); Heffron v. Int’l Soc’y for Krishna Consciousness, 

Inc., 452 U.S. 640 (1981). 

94 Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (“When the government targets not 

subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the 

more blatant.”). 

95 See Virginia v. Black, 538 U.S. 343, 363 (2003) (“The First Amendment permits Virginia to outlaw cross burnings 

done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of 

prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light 

of cross burning’s long and pernicious history as a signal of impending violence. Thus, just as a State may regulate 

only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only 

those forms of intimidation that are most likely to inspire fear of bodily harm.”). 

96 See Brandenberg v. Ohio, 395 U.S. 444, 447 (1969). 

97 See Watts v. United States, 394 U.S. 705, 708 (1969). 

98 See, e.g., Roth v. United States, 354 U.S. 476, 485 (1957) (finding obscene speech to be outside the bounds of 

protection by the First Amendment); Osborne v. Ohio, 495 U.S. 103 (1990) (finding child pornography may never 

be subject to First Amendment scrutiny); New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (defamatory 

falsehoods are not protected by the First Amendment if published with actual malice and knowledge of the 

falsehood). See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (“[F]ighting words . . . which by their very 

utterance inflict injury or tend to incite an immediate breach of the peace” are not protected under the First 

Amendment).
First Amendment and Free Expression 19

Speech and Academic Freedom

With regard to speech and higher education, the Supreme Court first acknowledged the

relationship between the First Amendment and academic freedom in 1957.

99 The Court reasoned 

that in order for the nation to thrive as a democracy, the classroom required the freedom “to inquire, 

to study, to evaluate, to gain maturity and understanding” in an atmosphere that was free of 

“suspicion and distrust.”100 The Court noted that academic freedom was an area in which the 

“government should be reticent to tread.”101 In 1967, the Supreme Court stated that academic 

freedom was “a special concern of the First Amendment, which does not tolerate laws that cast a 

pall of orthodoxy over the classroom.”102 Protection of academic freedom in classrooms is vital

because that is where students should be exposed to a “marketplace of ideas” that will help them 

become the nation’s next leaders.103 At the same time, “[a]cademic freedom does not mean that 

professors are immune from all consequences of whatever they say or do.”104

Students and Free Expression

In 1969, the Supreme Court considered the First Amendment rights of students in public schools. 

In Tinker v. Des Moines Independent Community School District,

105 the Court held that the school 

district could not punish students for wearing black armbands in protest of the Vietnam War, unless 

there were “facts which might reasonably have led school authorities to forecast substantial 

disruption of or material interference with school activities,” as a result of the act of expression.

106

 

99 See Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957). 

100 Id.

101 Id.

102 Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589, 603 (1967).

103 Id.

104 Lisa M. Woodward, Collision in the Classroom: Is Academic Freedom a License for Sexual Harassment?, 27 

Cap. U. Law Rev. 667, 668 (1999) (citing Mallioux v. Kelly, 448 F.2d 1242, 1243 (1st Cir. 1971) (“[F]ree speech 

does not grant teachers a license to say or write in class whatever they may feel like . . . .”)); see also Kenneth 

Marcus, Higher Education, Harassment, and First Amendment Opportunism, 16 William and Mary Bill of Rights 

Journal 1025, 1052 (April 2008) (“Students are no less vulnerable to harassment in the classroom than elsewhere, 

and the importance of academic freedom to the university does not provide faculty with carte blanche to engage in 

any form of harassment as long as they do so within their classrooms. Nevertheless, it must be acknowledged that 

any conduct regulation broad enough to encompass some amount of speech runs the risk of abuse. This is also true, 

however, with respect to other areas, such as antitrust and securities regulation, which lie outside the coverage of the 

First Amendment.”).

105 Tinker, 393 U.S. at 513.

106 Id. at 513-4 (“Freedom of expression would not truly exist if the right could be exercised only in an area that a 

benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the 

States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit 

reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the 
Free to Learn: Speech and Sexual Harassment on Campus 20

The Court further opined that any justification for the prohibition of speech must be more than just 

the school’s “desire to avoid the discomfort and unpleasantness that . . . accompany an unpopular 

viewpoint.”107 

Student speech in classrooms is not afforded absolute First Amendment protection. The Supreme 

Court has held that elementary and high schools may limit the free speech rights of students for 

legitimate pedagogical concerns.108 At least one Circuit Court has recognized the same limitations 

for students in higher education institutions.109 In Corlett v. Oakland University Board of Trustees, 

a student was suspended for a school year for writing lewd and sexual comments about his English 

professor as part of a semester long journal-writing assignment.110 The assignment required 

students to write down ideas, impressions, and observations related to classroom materials and the 

student’s own creative entries.111 Corlett included his English professor in an entry describing 

teachers to whom he has been sexually attracted in the past.112 Corlett described his professor as 

“stacked” and compared her to the character of Ginger from the sitcom Gilligan’s Island.

113 The

district court ruled that Corlett’s expression of lust for his professor and his descriptions of her 

physical appearance were “self-expressions” and not ideas or opinions that would be awarded First 

Amendment protection.114 In sum, there appears to be less gray area when student speech is made 

with no connection to the classroom or curricular objectives. Limitation of student speech that is 

made outside the classroom setting or that does not have a connection to a legitimate pedagogical 

concern are generally upheld by the courts.115

Teachers and Free Speech

Regarding the free speech rights of teachers, the Supreme Court stated in 1968 that the free speech 

interest of the teacher, in speaking about matters of public concern, should be balanced by the 

needs of the school district to effectively fulfill their responsibilities to the public (the “Pickering”

 

permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to 

supervised and ordained discussion in a school classroom.”).

107 Id. at 509.

108 Hazelwood Sch. Dist. v. Kulheimer, 484 U.S. 260, 273 (1988).

109 See Ward v. Polite, 667 F.3d 727, 733 (6th Cir. 2012) (applying Hazelwood to higher education students).

110 958 F. Supp. 2d 795, 799-801 (E.D. Mich. 2013). 

111 Id. at 799.

112 Id.

113 Id. at 799-800.

114 Id. at 809.

115 See, e.g., Doe v. Valencia Coll., 903 F.3d 1220 (11th Cir. 2018); Marshall v. Ohio Univ., No. 2.15-cv-775, 2015 

WL 1179955, at *1 (S.D. Ohio Mar. 13, 2015). 
Title IX 21

balancing test).

116 “[T]he qualified speech protection embodied in Pickering balancing resolves 

the tension between individual and public interests in speech, on the one hand, and the 

government’s interest in operating efficiently without distraction or embarrassment by talkative or 

headline-grabbing employees.”117 Later in the 1980s, the Supreme Court would specify that to 

determine whether a public employee’s speech touched upon matters of public concern, the 

content, form, and context of the speech should be considered.118 In 2006, the Supreme Court 

added to the confusion in Garcetti v. Ceballos when the Court restricted the free speech of public 

employees by holding that the First Amendment does not protect employees’ speech that is made 

“pursuant to official responsibilities [or job duties].”119 The dissenting Justices in Garcetti were 

concerned that this distinction could be applied to restrict academic speech, because when 

professors are teaching in a classroom this is arguably their official job responsibility and that 

speech would not necessarily be protected.

120

TITLE IX

In 1972, Congress enacted Title IX and prohibited discrimination on the basis of sex in federally 

funded education programs and activities by stating:

No person in the United States shall, on the basis of sex, be excluded from 

participation in, be denied the benefits of, or be subjected to discrimination under 

any education program or activity receiving Federal financial assistance.121

After a lengthy process, Congress enacted Title IX “without much debate as to several of its key 

provisions.”

122 For example, Title IX does not contain a definition of “sex-based” harassment, and 

 

116 See Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 25, 391 U.S. 563, 568 (1968).

117 See Garcetti v. Ceballos, 547 U.S. 410, 430 (2006).

118 See Connick v. Myers, 461 U.S. 138, 147-48 (1983).

119 Garcetti, 547 U.S. at 425.

120 Id. at 431, n.2 (“I am pessimistic enough to expect that one response to the Court’s holding will be moves by 

government employers to expand stated job description to include more official duties and so exclude even some 

currently protectable speech from First Amendment purview. . . . [T]he government may well try to limit the English 

teacher’s options by simple expedient of defining teachers’ job responsibilities expansively . . . Hence today’s rule

presents the regrettable prospect that protection under Pickering may be diminished . . . .).

121 20 U.S.C. § 1681.

122 Department of Justice, Title IX Legal Manual, Legislative History, https://www.justice.gov/crt/titleix#II.%C2%A0%C2%A0%20Synopsis%20of%20Purpose%20of%20Title%20IX,%20Legislative%20History,%20a

nd%20Regulations. Congresswoman Bella Abzug recalls that “1972 was a watershed year. We put sex 

discrimination provisions into everything. There was no opposition. Who’d be against equal rights for women? So 

we just kept passing women’s rights legislation.” John David Skretny, The Minority Rights Revolution, p. 241 

(Belknap Press of Harvard University Press, 2002).
Free to Learn: Speech and Sexual Harassment on Campus 22

subsequent congressional action clarified that Title IX applies to intercollegiate athletics.123 Title 

IX applies to all educational institutions receiving public funds, which constitute most schools,

colleges, and universities in the U.S. (other than private K-12 schools).

124 “Title IX is both a 

powerful symbol of our broad national commitment to gender equality in education and a complex

. . . regulatory regime.”125

Title IX was passed “with two principal objectives in mind: [1] ‘to avoid the use of federal 

resources to support discriminatory practices’ and [2] ‘to provide individual citizens effective 

protection against those practices.’”

126

 These goals have resulted in two enforcement mechanisms: 

one by federal agencies with the possibility of loss of federal funds, and the other by private 

lawsuits for money damages. 

Federal Funds Should Not Further Discrimination

With regard to the first objective – that federal monies should not be used to further discrimination 

– Title IX allows for the termination of federal funds to schools in the event of discrimination that 

a school is unwilling to remedy.

127

 In this way, Title IX was patterned after Title VI of the Civil 

Rights Act of 1964,

128 which forbids the use of federal funds to discriminate on the basis of race, 

color, and national origin.

129 To implement this goal of not using federal monies to further 

discrimination, Congress provided rulemaking authority to all federal agencies who provide

 

123 Department of Justice, Title IX Legal Manual, Legislative History, https://www.justice.gov/crt/titleix#II.%C2%A0%C2%A0%20Synopsis%20of%20Purpose%20of%20Title%20IX,%20Legislative%20History,%20a

nd%20Regulations.

124 Only three post-secondary schools do not receive federal funds. Hillsdale College in Michigan, Grove City 

College in Pennsylvania, and Patrick Henry Collect in Virginia. See Katie Jo Baumgardner, Resisting Rulemaking: 

Challenging the Montana Settlement’s Title IX Sexual Harassment Blueprint, 89 Notre Dame L. Rev. 1813, 1814, n. 

3.

125 R. Shep Melnick, The Transformation of Title IX: Regulating Gender Equality in Education, p. 5 (Brookings 

Institute Press, 2018).

126 See Gebser, 524 U.S. at 286 (quoting Cannon v. University of Chicago, 411 U.S. 677, 704 (1979)); see also

Statement by Senator Birch Bayh, 118 Cong. Rec. 5803 (1972) (while introducing Title IX in the Senate, describing 

its intent to redress “the continuation of corrosive and unjustified discrimination against women in the American 

educational system”).

127 20 U.S.C. § 1682.

128 Grove City Coll. v. Bell, 465 U.S. 555, 566 (1984) (Title IX was patterned after Title VI).

129 Title VI of the Civil Rights Act of 1964, Pub. L. No. 88-352 (codified at 42 U.S.C. § 2000d (Title VI)) (Title VI 

states that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from 

participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving 

Federal financial assistance”).
Title IX 23

federal funds to educational institutions.130 As discussed in more detail below, the Department of 

Health, Education and Welfare (the Department of Education’s predecessor) enacted regulations 

implementing Title IX in 1975.131

Because many federal agencies provide funding or grants to educational institutions, multiple 

agencies are responsible for assuring that federal money is not being used to discriminate. For 

example, the National Science Foundation, NASA, and the National Institutes of Health provide 

grants to educational institutions. In 2000, twenty federal agencies (including the Department of 

Justice) jointly issued the common rule for enforcement of Title IX.132 Of note, the public 

submitted 22 comments (5 of which came from other federal agencies) on the proposed Title IX 

common rule before its adoption.133 “[T]he substantive nondiscrimination obligations of recipients 

[educational institutions receiving federal funds], for the most part, are identical to those 

established by the Department of Education under Title IX.”134 While the Title IX common rule 

does not contain a definition of sexual harassment, the Department of Justice’s Title IX Legal 

Manual has a sexual harassment section that refers (and defers) to the Office for Civil Rights’ 1997 

and 2001 guidance (discussed in this report below).135 

 

130 20 U.S.C. § 1682 (“Each Federal department or agency which is empowered to extend Federal financial 

assistance to any education program or activity . . . is authorized and directed to effectuate [Title IX].”).

131 34 C.F.R. Part 106. Of note, Title VI of the 1964 Civil Rights Act prohibits recipients of federal funds (such as 

universities) from discriminating on the basis of race. Most federal agency regulations that govern the provision of 

federal funds to recipients provide the same procedural relief for allegations under either Title IX or Title VI.

132 Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Financial Assistance, 65 

Fed. Reg. 52,858 (Aug. 30, 2000) (The Title IX common rule governs Title IX proceedings before the Nuclear 

Regulatory Commission, Small Business Administration, National Aeronautics and Space Administration, 

Department of Commerce, Tennessee Valley Authority, Department of State, Agency for International 

Development, Department of Justice, Department of Labor, Department of Treasury, Department of Defense, 

National Archives and Records Administration, Department of Veterans Affairs, Environmental Protection Agency, 

General Services Administration, Department of the Interior, Federal Emergency Management Agency, National 

Science Foundation, Corporation for National and Community Service and the Department of Transportation.).

133 Id.

134 Id. at 52,859. The Title IX common rule used ED OCR’s Title IX regulations as the model because “the history 

of public participation in the development and congressional approval of [ED OCR’s] regulations, [ED OCR’s] 

leadership role in Title IX enforcement, judicial interpretations of [ED OCR’s] regulations, and an interest in 

maintaining consistency of interpretation of regulations enforcing Title IX.” Id.

135 U.S. Department of Justice, Title IX Legal Manual (Jan. 11, 2001), https://www.justice.gov/crt/titleix#D.%C2%A0%20Sexual%20Harassment.
Free to Learn: Speech and Sexual Harassment on Campus 24

Individuals Should Have Redress – Private Right of Action

With regard to the second objective that individuals should have protection and redress against 

discrimination, the Supreme Court has held that schools can be found liable for not redressing 

sexual harassment and may have to pay money damages to students due to sexual harassment from 

teachers (the Gwinnett case), or from other students (the Davis case).

136 Schools must knowingly 

disregard or inadequately address the sexual harassment to be liable for money damages (the 

Gebser case).

137 Additionally, the Title IX regulations require that schools establish “prompt and 

equitable” grievance procedures.

138 Aggrieved parties can file complaints of sexual harassment

with the school, which the school then investigates per its grievance procedures. 

Administrative Enforcement and the Department of Education’s Office for 

Civil Rights

As discussed above, many agencies have administrative enforcement responsibilities under Title

IX because they provide federal funds to educational institutions. This report focuses on the 

enforcement efforts of the Office for Civil Rights of the U.S. Department of Education (ED OCR). 

ED OCR has enforced Title IX and its regulations regarding sex-based discrimination through 

administrative investigation of complaints, compliance reviews, directed investigations, and 

monitoring resolution agreements. The Department of Education may undertake an investigation 

in conjunction with the Department of Justice. ED OCR may also refer cases to the Department 

of Justice for federal court litigation in certain circumstances.

139

 The Department of Education 

 

136 Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992) (school may be liable in money damages to 

students for sexual harassment from teachers); Davis Next Friend LaShonda D. v. Monroe County Bd. of Educ,. 526 

U.S. 629 (1999) (schools may have to pay money damages as a remedy for sexual harassment by students against 

other students).

137 Gebser v. Lago Vista Independent School District, 524 U.S. 274, 278 (1998) (schools must have knowledge of 

the sexual harassment and “damages may not be recovered . . . unless an official of the school district who at a 

minimum has authority to institute corrective measures on the district’s behalf has actual notice of, and is 

deliberately indifferent to, the teacher’s misconduct.”). Of note, this standard for liability on the part of the school 

(deliberate indifference) is higher than the standard for liability on the part of an employer for sexual harassment 

under Title VII. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 

524 U.S. 775 (1998) (employers are liable for sexual harassment if they knew or should have known about the 

harassment and did not stop it).

138 34 C.F.R. § 106.8.

139 See ED OCR/DOJ-CRT Memorandum of Understanding at 

https://www.justice.gov/sites/default/files/crt/legacy/2014/04/28/ED_DOJ_MOU_TitleIX-04-29-2014.pdf. The 

Department of Justice has three roles regarding Title IX. First, DOJ is responsible for coordination of federal 

agency implementation and enforcement per Executive Order 12,530. Second, DOJ is the federal government’s 

litigator and may seek injunctive relief, specific performance, or other remedies against recipients based on referrals 

from other agencies. Finally, DOJ may itself have provided grants to educational institutions and may investigate 
Title IX 25

also issues policy guidance, and provides technical assistance to educational institutions.140 Even 

though Title IX allows for the termination of federal funds, ED OCR has not withheld federal 

funds from any educational institution for violating Title IX, regarding sexual harassment.

141

 

ED OCR has around 550 employees nationwide and is tasked with enforcement of multiple 

antidiscrimination statutes.142 Along with Title IX, ED OCR is charged with enforcement of Title 

VI of the Civil Rights Act of 1964 (prohibits discrimination on the basis of race, color, and national 

origin), section 504 of the Rehabilitation Act (disability), the Age Discrimination Act, and Title II 

of the Americans with Disabilities Act, among other laws. ED OCR is responsible for ensuring 

that more than 18,200 local educational agencies and almost 7,200 postsecondary educational 

institutions that enroll more than 79 million students comply with these statutes.143 To put its work

in perspective, during the Obama Administration, ED OCR received 76,000 complaints, resolved 

66,000 complaints, negotiated 5,400 resolution agreements, and issued 38 guidance documents.144 

These numbers are for all the statutes ED- OCR enforces. Specific numbers of complaints for 

sexual harassment over the years can be found below in the Complaints, Investigations, and 

Resolution Agreements section. 

 

complaints or conduct a compliance review. See Department of Justice, Title IX Legal Manual, at Department of 

Justice Role Under Title IX, https://www.justice.gov/crt/title-ix#D.%C2%A0%20Sexual%20Harassment.

140 Department of Education, Office for Civil Rights, Sex Discrimination Frequently Asked Questions, “How does 

OCR address sex-based harassment against students?,” 

https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/sex.html#sexhar4. 

141 ED OCR terminated federal funds (for financial aid) to Grove City College students when the college refused to 

sign Title IX compliance assurances. Grove City v. Bell, 465 U.S. 555, 561 (1984). In that case, the Supreme Court 

held that Title IX compliance was limited to the entity receiving federal funds, which at that college was just the 

financial aid program, rather than reaching all the activities of the institution. Id. at 573. In response to Grove City, 

Congress later passed, over President Reagan’s veto, the Civil Rights Restoration Act of 1987. Pub L. 100-259. The 

law amended Title IX and other antidiscrimination laws to clarify that discrimination is prohibited throughout entire 

agencies or institutions (including colleges and universities) if any part receives federal financial assistance. Id.

142 Department of Education, Office for Civil Rights, About OCR, 

https://www2.ed.gov/about/offices/list/ocr/aboutocr.html (last modified 9/25/2018); Department of Education, 

Office for Civil Rights, FY 2019 Budget Request at Z-9 (noting the request is to support 529 full time employees), 

https://www2.ed.gov/about/overview/budget/budget19/justifications/z-ocr.pdf; ibid., Z-10 (noting a reduction in the 

number of full time employees in FY 2018 from 569 to 529). 

143 Department of Education, Office for Civil Rights, Securing Equal Educational Opportunity: Report to the 

President and Secretary of Education, p. 6 (2016), https://www2.ed.gov/about/reports/annual/ocr/report-topresident-and-secretary-of-education-2016.pdf. 

144 Ibid., 4.
Free to Learn: Speech and Sexual Harassment on Campus 26

ED OCR’s role has been contentious since its formation. ED OCR’s initial task was to oversee 

the desegregation and racial integration of schools.145 In the 1960s, ED OCR drew the ire of folks 

seeking to slow the pace of school desegregation146 and then, from others upset about the use of

bussing for integration.147 In the 1970s, ED OCR received opposition to its support of bilingual 

education.148 Additionally, in the 1970s and 1980s, the federal district court in the District of 

Columbia placed OCR under a consent decree as a result of the Adams v. Richardson case, in 

which civil rights groups had argued ED OCR was not sufficiently enforcing antidiscrimination 

statutes.

149

 “For decades, OCR has been attacked from the left for insufficient vigor and from the 

right for exceeding its statutory mandate.”150

ED OCR has enforced Title IX and its regulations regarding sex based discrimination through 

investigation of complaints, compliance reviews, directed investigations, and providing guidance 

and technical assistance to educational institutions.151 ED OCR’s Case Processing Manual sets 

out the procedures ED OCR will use to investigate and resolve complaints, and conduct

 

145 Beryl Radin, Implementation, Change and the Federal Bureaucracy: School Desegregation Policy in H.E.W., 

1964-1968 (New York: Teachers College Press, 1978). The Department of Education’s predecessor was the 

Department of Health, Education and Welfare. ED OCR first existed in this department.

146 See also generally Leon E. Panetta and Peter Gall, Bring Us Together: The Nixon Team and the Civil Rights 

Retreat, (J.B. Lippincott Company, 1971).

147 Ibid.; Gary Orfield, Must We Bus? Segregated Schools and National Policy, (Brookings Institution, 1980).

148 John D. Skrentny, The Minority Rights Revolution (Harvard University Press, 2002) p. 211-219 (discussing the 

writing and implementation of the May 25, 1970, OCR Memorandum, which stated that failure to provide for 

Limited English Proficient children was national origin discrimination and a violation of Title VI); see also Lau v. 

Nichols, 414 U.S. 563 (1974) (holding the failure of the school district to provide for Chinese-speaking students 

denied them a meaningful opportunity to participate in the educational program); Gary R. Hartman, Roy M. Mersky, 

Cindy L. Tate, Landmark Supreme Court Cases: The Most Influential Decisions of the Supreme Court, 87-88 (Facts 

on File, Inc., 2004) (discussing the aftermath of Lau and the development of the “Lau remedies” by ED OCR, and 

that “between 1975 and 1980 nearly 500 compliance agreements were negotiated [between ED OCR and] deficient 

school districts. The Regan administration withdrew a proposal to formalize the Lau remedies.”).

149 Adams v. Richardson, 351 F. Supp. 636 (D.D.C. 1973); Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973).

See also Rosemary Salomone, “Judicial Oversight of Agency Enforcement: The Adams and WEAL Litigation” in 

Barbara Flicker, ed., Justice and School Systems: The Role of Courts in Education Litigation (Temple University 

Press, 1990); Civil Rights Enforcement by the Department of Education: Hearing Before the Subcomm. on Human 

Resources and Intergovernmental Relations of the H. Comm. on Government Operations, 100th Cong. (1987);

MAJORITY STAFF OF H. COMM. ON EDUCATION AND LABOR, 100TH CONG. REP. ON THE INVESTIGATION OF THE CIVIL 

RIGHTS ENFORCEMENT ACTIVITIES OF THE OFFICE FOR CIVIL RIGHTS, US DEP’T OF ED. (1988).; and US. 

Commission on Civil Rights, Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted 

Programs, June 1996.

150 Melnick, Transformation of Title IX, 55.

151 See generally, Department of Education, Office for Civil Rights, Case Processing Manual (Nov. 19, 2018), 

https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf (hereafter ED OCR Case Processing Manual).
Title IX 27

compliance reviews and directed investigations, including: 1) investigations of complaints, 

including on-site visits, interviews with students and school officials, and collection of documents,

2) “letters of findings,” 3) negotiating resolution agreements, 4) monitoring compliance with 

resolutions, and 5) referrals to the Department of Justice.

152 Given ED OCR’s small staff size in 

comparison to its responsibilities, resolution of complaints can take months and sometimes years. 

In addition to complaint investigations, ED OCR also may investigate whether a school is 

complying with Title IX as part of a compliance review.153 Compliance reviews are an assessment 

of “the practices of recipients to determine whether they are [in] compl[iance] with [Title IX].”154

ED OCR has broad discretion in determining which recipients to target for compliance reviews, 

though this discretion is not unfettered.155 The Fifth Circuit has suggested that the selection of a 

target for a compliance review is reasonable if the review is based on 1) specific evidence of an 

existing violation, 2) a showing that “reasonable legislative or administrative standard for 

conducting an . . . inspection are satisfied with respect to a particular [establishment],’ or 3) a

showing that the search is “pursuant to an administrative plan containing specific neutral 

criteria.”156

While Title IX allows for federal agencies to terminate funding assistance to schools for failure to 

comply,157 ED OCR does not immediately terminate or suspend federal funding after finding a 

violation. “[E]ven if OCR identifies a violation, Title IX requires OCR to attempt to secure 

 

152 Ibid.

153 34 C.F.R. section 106.71 (incorporating by reference 34 C.F.R. section 100.7(a)); 

http://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf (ED OCR’s case processing manual at 25 (describing 

compliance reviews)). See also DOJ Title IX Legal Manual at pages 28-29, https://www.justice.gov/crt/title-ix

(describing legal standards applicable to compliance reviews); “Compliance reviews are not random audits of 

schools — they are selected based on various sources of information, including statistical data, news reports and 

information from parents, advocacy groups and community organizations . . .Compliance reviews are initiated in 

order to remedy possible violations of students’ rights.” (ED OCR spokesperson Dorie Nolt, quoted in the 

Huffington Post, see http://www.huffingtonpost.com/2014/05/02/education-department-compliance-reviews-titleix_n_5254075.html).

154 ED OCR Case Processing Manual at 22 (Nov. 19, 2018); see also 34 C.F.R. § 106.71 (Title IX regulations on 

compliance reviews).

155 ED OCR Case Processing Manual at 22 (“The compliance review regulations afford OCR broad discretion to 

determine the substantive issues for investigation and the number and frequency of the investigations.”); see also 

United States v. Harris Methodist Fort Worth, 970 F.2d 94 (5th Cir. 1992)(addressing a compliance review under 

Title VI of the Civil Rights Act of 1964 by the Department of Health and Human Services).

156 Harris Methodist Fort Worth, 970 F.2d at 101; see also United States v. New Orleans Pub. Serv., 723 F.2d 422 

(5th Cir. 1984).

157 20 U.S.C. § 1682.
Free to Learn: Speech and Sexual Harassment on Campus 28

voluntary compliance” before seeking to withdraw federal funding.158 In addition, the Department 

of Education (or any federal agency with jurisdiction) must also have notified Congress and waited 

30 days.159 Schools under investigation that believe ED OCR is mistaken in its view of what Title 

IX requires of them may challenge a finding of violation and decision to terminate funding in an 

administrative proceeding or pursue federal court review.160 In addition, the Department of 

Education (or any federal agency with jurisdiction) must also have notified Congress and waited 

30 days before fund termination could commence.161 After the final decision of suspension or 

termination of funds, a school may restore its eligibility by demonstrating compliance with the 

law.162

Title IX investigations that proceed to where ED OCR has identified a violation or compliance 

concern usually result in a resolution agreement with the educational institution. ED OCR’s Case 

Processing Manual calls for resolution agreements to include “specific acts or steps” to address 

“compliance concerns and/or violations [found].”

163 Under Title IX, ED OCR does not have 

authority to collect fines, and resolution agreements generally result in a school agreeing to take 

corrective action going forward, i.e., prospective equitable relief. 164 For example, resolution 

agreements generally include elements such as revising anti-harassment policies and procedures, 

 

158 U.S. Dep’t of Ed. Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other 

Students, or Third Parties (Jan. 2001) at 15.

159 20 U.S.C. § 1682 (“In the case of any action terminating, or refusing to grant or continue, assistance because of 

failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency 

shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity 

involved a full written report of the circumstances and the grounds for such action. No such action shall become 

effective until thirty days have elapsed after the filing of such report.”).

160 See 34 C.F.R. § 108-11; 20 U.S.C. § 1683 (providing for judicial review).

161 20 U.S.C. § 1682 (“In the case of any action terminating, or refusing to grant or continue, assistance because of 

failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency 

shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity 

involved a full written report of the circumstances and the grounds for such action. No such action shall become 

effective until thirty days have elapsed after the filing of such report.”).

162 34 C.F.R. § 100.10(g).

163 ED OCR Case Processing Manual at 19-20 (providing guidelines for Resolution Agreements).

164 Department of Education, Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of 

Students by School Employees, Other Students, or Third Parties (Jan. 2001) at iii-iv (“The Gebser Court recognized 

and contrasted lawsuits for money damages with the incremental nature of administrative enforcement of Title IX. 

In Gebser, the Court was concerned with the possibility of a money damages award against a school for harassment 

about which it had not known. In contrast, the process of administrative enforcement requires enforcement agencies 

such as OCR to make schools aware of potential Title IX violations and to seek voluntary corrective action before 

pursuing fund termination or other enforcement mechanisms.”).
Title IX 29

training staff and students, addressing the incidents in question, and taking other steps to restore a 

nondiscriminatory environment.165

Sexual Harassment and Hostile Environment

Congress did not define what type of conduct or speech would be considered discrimination when 

it passed Title IX. Specifically, Congress did not define what would constitute discrimination “on 

the basis of sex.” Defining this term has fallen to the courts and federal agencies. Again, most 

federal agencies that distribute federal funding to higher education institutions look to the 

Department of Education’s Title IX regulations and guidance. Accordingly, we focus on the 

Department of Education’s efforts.

There are two basic types of sexual harassment under Title IX: quid pro quo (Latin for “this for 

that”) harassment, when for example a teacher says “sleep with me or you get a bad grade,” and a 

hostile environment.166 ED OCR has described these two types of sexual harassment as follows:

The type of harassment traditionally referred to as quid pro quo harassment occurs 

if a teacher or other employee conditions an educational decision or benefit on the 

student’s submission to unwelcome sexual conduct . . . By contrast, sexual 

harassment can occur that does not explicitly or implicitly condition a decision or 

benefit on submission to sexual conduct. Harassment of this type is generally 

referred to as hostile environment harassment. This type of harassing conduct 

requires a further assessment of whether or not the conduct is sufficiently serious 

to deny or limit a student's ability to participate in or benefit from the school’s 

program based on sex.

167

Invoking free speech or expression would not be a defense to behavior in the first category (quid 

pro quo harassment). The second category (hostile environment) may overlap with an individual’s 

right of free speech or expression at a public university or academic freedom at a private 

university.

168

 As discussed in more detail below, “[f]or hostile sex-related or gender-related 

 

165 Ibid., 17; see also infra text and notes 264-265 (discussing remedies found in resolution agreements).

166 Alexander v. Yale University, 459 F. Supp. 1, 4 (D. Conn. 1977), aff’d 631 F.2d 178 (2d Cir. 1980) (finding that 

Title IX prohibits quid pro quo sexual harassment); David v. Monroe Board of Education, 526 U.S. 629 (1999) 

(Title IX prohibits hostile environment sexual harassment). 

167 U.S. Department of Education, Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of 

Students by School Employees, Other Students, or Third Parties at 5 (2001),

http://www2.ed.gov/about/offices/list/ocr/docs/shguide.html.

168 See supra text and notes 61-65 (discussing the prevalence of gender harassment).
Free to Learn: Speech and Sexual Harassment on Campus 30

behavior to be considered illegal sexual harassment, it must be pervasive or severe enough to be 

judged as having had a negative impact upon the work or educational environment.”169

Shortly following the promulgation of the first Title IX regulations in 1975, Catharine MacKinnon 

brought a lawsuit on behalf of some Yale University students, advocating that Title IX prohibited 

sexual harassment.170 A handful of years later, the Supreme Court first spoke to when sexual 

harassment constitutes a hostile environment under Title VII of the Civil Rights Act of 1964, which 

prohibits discrimination on the basis of sex in the workplace.171 Proving a sexual harassment claim 

based on hostile environment in court under Title IX:

requires evidence not only that the victim subjectively perceived the 

environment to be hostile or abusive, but also that the environment was 

objectively hostile and abusive, that is, that it was “permeated with 

‘discriminatory intimidation, ridicule, and insult,’ . . . that is ‘sufficiently 

severe or pervasive to alter the conditions’” of, in this case, the victim’s 

educational environment. 172

Whether conduct rises to a hostile environment is highly fact-specific. For example, a court will 

consider the context of the conduct (severity, persistence, pervasiveness), including: “the 

frequency of the discriminatory conduct; its severity; whether it is physically threatening or 

humiliating, or a mere offensive utterance; and whether it unreasonably interferes with” the 

individual’s academic performance.173 “While the effect on a victim’s psychological well-being 

 

169 National Academies Sexual Harassment Report, 24.

170 Alexander v. Yale University, 459 F. Supp. 1, 4 (D. Conn. 1977), aff’d 631 F.2d 178 (2d Cir. 1980) (finding that 

Title IX prohibits quid pro quo sexual harassment).

171 See Meritor Savings Bank v. Vinson, 477 U.S. 57, 66 (1986)(holding that sexual harassment can create a hostile 

environment, which is prohibited under Title VII).

172 See Hayut v. State University of New York, 352 F.3d 733, 744-45 (2d Cir. 2003) (citing Harris v. Forklift Sys., 

Inc., 510 U.S. 17, 21 (1993)). The Supreme Court has described a hostile environment in the Title VII context as a 

mix between whether the conduct is subjectively or objectively offensive as follows:

This standard, which we reaffirm today, takes a middle path between making actionable any conduct 

that is merely offensive and requiring the conduct to cause a tangible psychological injury. As we 

pointed out in Meritor, “mere utterance of an . . . epithet which engenders offensive feelings in a[n] 

employee,” does not sufficiently affect the conditions of employment to implicate Title VII. Conduct 

that is not severe or pervasive enough to create an objectively hostile or abusive work 

environment—an environment that a reasonable person would find hostile or abusive—is beyond 

Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be 

abusive, the conduct has not actually altered the conditions of the victim’s employment, and there 

is no Title VII violation.

Harris, 510 U.S. at 21-22.

173 Hayut, 352 F.3d at 744-45 (citing Harris 510 U.S. at 23).
Title IX 31

is relevant to the subjective component in the analysis, its presence, or absence, is not dispositive 

on the issue of severity, as ‘no single factor is required.’”174 “Pervasive” sexual harassment 

means that the challenged behavior is “more than episodic; the[] [incidents] must be sufficiently 

continuous and concerted.”175 

Department of Education’s Title IX Rulemaking and Guidance (1975-2018)

In 1975, Title IX’s implementing regulations were issued. Of note, Congress added two unusual 

procedural elements to rulemaking under Title IX. First, Congress required that the president sign 

off on all rules issued under Title IX: “No such rule, regulation, or order shall become effective 

unless and until approved by the President.”176 Congress also added a congressional vote provision 

in 1974; this meant that Congress could invalidate an administrative regulation. The Supreme 

Court declared all legislative vetoes unconstitutional in 1983, eight years after the Department of 

Education enacted Title IX’s implementing regulations.177

In addition to issuing regulations, ED OCR has periodically issued guidance documents explaining 

Title IX’s requirements and providing information about how ED OCR will assess a school’s 

compliance with Title IX. Since the enactment of Title IX in 1972, across Republican and 

Democratic administrations, ED OCR has issued guidance including Dear Colleague letters, and/or

pamphlets discussing sexual harassment. Herein, we trace the guidance provided by ED OCR

focusing on the definitions of sexual harassment and hostile environment along with the direction 

given to educational institutions regarding First Amendment rights.

Ford Administration - Title IX Regulations (1975)

The Title IX rulemaking process began in 1974 when the Department of Health, Education and 

Welfare issued an explanation of the proposed rules.178 The Department of Health, Education and 

Welfare held hearings across the country, received 9,700 comments, and made changes in 

response.179 In 1975, the Department of Health, Education and Welfare enacted regulations 

implementing Title IX.180 The regulations require that schools designate at least one employee to 

 

174 Id. 

175 See Hayut (quoting Carrero v. New York City Hous. Auth., 890 F.2d 569, 577 (2d Cir. 1989)).

176 20 U.S.C. § 1682.

177 INS v. Challa, 462 U.S. 919 (1983).

178 Education Programs and Activities Receiving or Benefiting from Federal Financial Assistance, 39 Fed. Reg. 

22,228 (Jun. 20, 1974).

179 Department of Health, Education, and Welfare, Final Rule, 40 Fed. Reg. 24,128 (Jun. 4, 1975) (codified at 34 

C.F.R. Part 106).

180 Id.
Free to Learn: Speech and Sexual Harassment on Campus 32

carry out their responsibilities under Title IX(commonly referred to as a “Title IX coordinator”), 

establish “prompt and equitable” grievance procedures, and provide notice that they do not 

discriminate on the basis of sex in their educational programs or activities.

181 The regulations do 

not define sexual harassment or hostile environment. House members introduced resolutions to 

disapprove the regulations182 and held hearings, mainly focused on intercollegiate athletics.183

Disapproval resolutions were also introduced in the Senate.184 None of the resolutions were 

passed, and the regulations went into effect as written.

Reagan and Bush I Administrations (1980s to early 1990s)

ED OCR issued internal guidance related to sexual harassment as early as 1981.185 ED OCR’s 

then-Director for Litigation, Enforcement and Policy Service, Antonio J. Califa issued a policy 

memorandum to ED OCR regional directors advising them that “[s]exual harassment consists of 

verbal or physical conduct of a sexual nature, imposed on the basis of sex, by an employee or agent 

of a recipient that denies, limits, provides different, or conditions the provision of aid, benefits, 

services or treatment protected under Title IX.”186 In 1988, ED OCR issued a pamphlet titled 

Sexual Harassment: It’s Not Academic referencing the 1981 policy memorandum, which 

reaffirmed ED OCR’s jurisdiction over sexual harassment complaints under Title IX and provided 

the working definition of sexual harassment adopted by ED OCR, which included verbal 

conduct.187

 

181 34 C.F.R. §106.8 (designation of responsible employee and adoption of grievance procedures); 34 C.F.R. § 106.9 

(dissemination of policy).

182 H. Con. Res. 310, 94th Cong., 121 Cong. Rec. 19,209 (1975) (introduced by Rep. Martin to disapprove the 

regulations in their entirety); H. Con. Res. 311, 121 Cong. Rec. 19,209 (1975) (introduced by Rep. Martin to 

disapprove the athletic regulations); H .Con. Res. 330, 121 Cong. Rec. 21,687 (1975) (introduced by Rep. O’Hara to 

disapprove the Title IX regulations).

183 Sex Discrimination Regulations: Hearings before the Subcomm. on Postsecondary Education of the House 

Comm. on Education and Labor, 94th Cong., 1st Sess. (Jun. 17-26, 1975); see also Hearings on H. Con. Res. 330 

(Title IX Regulation), Hearings Before the House Subcommittee on Equal Opportunities of the Committee on 

Education and Labor, 94th Cong., 1st Sess., July 14, 1975.

184 S. Con. Res. 46, 94th Cong., 121 Cong. Rec. 17,300 (1975) (introduced by Sen. Helms); S. Con. Res. 52, 121 

Cong. Rec. 22,940 (1975) (introduced by Senators Laxalt, Curtis, and Fannin).

185 Nancy A. Withers, Center for Sex Equity, The Ohio State University, College of Education, Instructional 

Materials Laboratory, Sexual Harassment: An Overview Monograph, Vol. 2, No. 1 (Feb. 1987), (quoting Aug. 1981 

Memo from Director for Litigation, Enforcement and Policy Service Antonio J. Claifa to Office for Civil Rights

Regional Directors), https://archive.org/stream/ERIC_ED301755/ERIC_ED301755_djvu.txt. 

186 Ibid.

187 Department of Education, Sexual Harassment: It’s Not Academic Pamphlet, (1988) (quoting Aug. 1981 Memo 

from Director for Litigation, Enforcement and Policy Service to Office for Civil Rights Regional Directors), 

https://files.eric.ed.gov/fulltext/ED330265.pdf.
Title IX 33

Clinton Administration (1997 and 2001 Guidance)

In 1997, ED OCR issued additional sexual harassment guidance.188 ED OCR put this guidance 

through notice and comment, publishing drafts in the Federal Register.189 The Department of 

Education received 80 comments in response.190 The 1997 guidance defines “Hostile Environment 

Sexual Harassment” as:

Sexually harassing conduct (which can include unwelcome sexual advances, 

requests for sexual favors, and other verbal, nonverbal, or physical conduct of a 

sexual nature) by an employee, by another student, or by a third party that is 

sufficiently severe, persistent, or pervasive to limit a student’s ability to 

participate in or benefit from an education program or activity, or to create a hostile 

or abusive educational environment.191

The guidance further states that “[i]n deciding whether conduct is sufficiently severe, persistent, 

or pervasive, the conduct should be considered from both a subjective and objective perspective. 

In making this determination, all relevant circumstances should be considered . . . .”192 The 1997 

guidance addresses gender-based harassment in terms of whether the behavior is severe, persistent, 

or pervasive.193

The Department of Education also received comments regarding the intersection of the First 

Amendment and sexual harassment in 1997. “For instance, one commenter requested that ED 

OCR tell schools that the First Amendment does not prevent schools from punishing speech that 

has no legitimate pedagogical purpose. Another commenter, by contrast, wanted ED OCR to state 

that classroom speech simply can never be the basis for a sexual harassment complaint. Other 

 

188 Office for Civil Rights; Sexual Harassment Guidance: Harassment of Students by School Employees, Other 

Students, or Third Parties, 62 Fed. Reg. 12034 (March 13, 1997) (notice of issuing final policy guidance).

189 Office for Civil Rights; Sexual Harassment Guidance: Peer Sexual Harassment; Draft Document Availability and 

Request for Comments, 61 Fed. Reg. 42728 (August 16, 1996) (seeking comments on the standards used by ED 

OCR to investigate and resolve cases involving claims that peer sexual harassment has created a hostile environment 

in violation of Title IX); Office for Civil Rights; Sexual Harassment Guidance: Harassment of Students by School

Employees 61 Fed. Reg. 52172 (October 4, 1996) (same as for school employees).

190 Office for Civil Rights; Sexual Harassment Guidance: Harassment of Students by School Employees, Other 

Students, or Third Parties, 62 Fed. Reg. 12034 (March 13, 1997) (“In response to the Assistant Secretary's 

invitations to comment, ED OCR received approximately 70 comments on the Peer Guidance and approximately 10 

comments on the Employee Guidance.”).

191 Id. at 12038 (emphasis added).

192 Id. at 12041.

193 Id. at 12039 (“It is also important to recognize that gender-based harassment, which may include acts of verbal, 

nonverbal, or physical aggression, intimidation, or hostility based on sex, but not involving conduct of a sexual 

nature, may be a form of sex discrimination that violates Title IX if it is sufficiently severe, persistent, or pervasive 

and directed at individuals because of their sex.”).
Free to Learn: Speech and Sexual Harassment on Campus 34

commenters requested that ED OCR include specific examples regarding the application of free 

speech rights.”

194

 The 1997 guidance contained a lengthy discussion of the First Amendment:

Title IX is intended to protect students from sex discrimination, not to regulate the 

content of speech. OCR recognizes that the offensiveness of particular expression 

as perceived by some students, standing alone, is not a legally sufficient basis to 

establish a sexually hostile environment under Title IX. In order to establish a 

violation of Title IX, the harassment must be sufficiently severe, persistent, or 

pervasive to limit a student's ability to participate in or benefit from the education 

program or to create a hostile or abusive educational environment.

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 severe, persistent, or pervasive 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.195

Following the Supreme Court’s decisions in Gebser and Davis, ED OCR issued revised guidance

on sexual harassment the day before the end of the Clinton Administration on January 19, 2001 

(2001 Guidance).

196 In both Gebser and Davis, the Supreme Court was considering the 

circumstances under which a school would be liable for money damages under Title IX. In Davis, 

the Supreme Court used the following definition of sexual harassment: “harassment that is so 

severe, pervasive, and objectively offensive” that it effectively bars access to an educational 

opportunity or benefit.197

ED OCR considered the definition of sexual harassment used in Davis (“severe, pervasive, and 

objectively offensive”) and found it to be consistent with the definition used in the 1997 Guidance 

(“sufficiently severe, persistent, or pervasive”). In the preamble section on the definition of 

harassment, the 2001 Guidance sets out ED OCR’s analysis of the definitions as follows: 

Although the terms used by the Court in Davis are in some ways different from 

the words used to define hostile environment harassment in the 1997 guidance . . 

. the definitions are consistent. Both the Court’s and the Department’s definitions 

 

194 Id. at 12035.

195 Id. at 12045-46.

196 U.S. Department of Education, Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of 

Students by School Employees, Other Students, or Third Parties (2001) 

http://www2.ed.gov/about/offices/list/ocr/docs/shguide.html.

197 Davis, 526 U.S. at 633.
Title IX 35

are contextual descriptions intended to capture the same concept – that under Title 

IX, the conduct must be sufficiently serious that it adversely affects a student’s 

ability to participate in or benefit from the school’s program. In determining 

whether harassment is actionable, both Davis and the Department tell schools to 

look at the ‘constellation of surrounding circumstances, expectations, and 

relationships’ (526 U.S. at 651 (citing Oncale)), and the Davis Court cited 

approvingly to the underlying core factors described in the 1997 guidance for 

evaluating the context of the harassment. Second, schools benefit from 

consistency and simplicity in understanding what is sexual harassment for which 

the school must take responsive action. A multiplicity of definitions would not 

serve this purpose.198

The preamble to the 2001 Guidance noted that the Supreme Court’s Davis definition of sexual 

harassment applies to the facts of that case for private damages actions and does not constrain 

federal enforcement policy from asserting a broader definition with respect to administrative 

investigations of schools accepting federal education funds.199 The Department of Justice Title IX 

legal manual (issued around the same time as the ED OCR 2001 Guidance) states that “[i]t is 

important to remember that the standard for an agency to determine whether a recipient has 

violated Title IX differs from the higher liability standard of proof that must be met in a court 

action before monetary damages are awarded.”200

Accordingly, the 2001 Guidance defines sexual harassment as “unwelcome conduct of a sexual 

nature,” including “unwelcome sexual advances, requests for sexual favors, and other verbal, 

nonverbal, or physical conduct of a sexual nature.”201 When determining if the conduct is serious 

enough that it “denies or limits a student’s ability to participate in or benefit from the school’s 

program based on sex,” creating a hostile environment and therefore meeting the sexual 

harassment definition, ED OCR considered several factors.202 It noted that the behavior should be 

considered from both subjective and objective viewpoints, that factors can include all relevant 

surrounding circumstances, and listed some factors that should be considered: the effect on 

students’ education; the frequency, duration and type of conduct; the relationship between the 

alleged harasser and the person allegedly harassed; the identity, including age and sex, of the 

 

198 Ibid., v-vi.

199 Ibid; see also Gebser, 524 U.S. at 292 (noting that federal agencies can “promulgate and enforce requirements 

that effectuate [Title IX’s] nondiscrimination mandate,” even in circumstances that would not give rise to a claim for 

money damages.).

200 U.S. Department of Justice, Title IX Legal Manual, at 114 (Jan. 11, 2001), 

http://www.feminist.org/education/pdfs/ixlegalmanualDOJ.pdf. 

201 2001 Guidance at 2. 

202 Ibid., 5.
Free to Learn: Speech and Sexual Harassment on Campus 36

persons involved; the number of people involved; location and context of the incident; whether 

other incidents occurred at the school, including gender-based nonsexual harassment.203

The 2001 Guidance also clarified a school’s responsibilities as a two-step analysis:

To determine a school’s responsibilities, the “first issue is whether . . . 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 . . . [T]his issue depends in part on the identity of the 

harasser and the context in which the harassment occurred.”204

Finally, the 2001 Guidance repeats the same paragraphs as the 1997 Guidance regarding the First 

Amendment and provides additional examples of the First Amendment protecting speech in 

classrooms.205 The 2001 Guidance states “[a]cademic discourse . . . is protected by the First 

Amendment even if it is offensive to individuals.”206 The 2001 Guidance clarifies that 

“[t]hreatening and intimidating actions targeted at a particular student or group of students, even 

though they contain elements of speech, are not protected by the First Amendment.”207

Bush II Administration Guidance (Reissuance of 2001 Guidance, First Amendment Guidance,

and 2008 Booklet)

The incoming Bush II administration postponed the effective date of the 2001 guidance on January 

20, 2001.208 In 2006, ED OCR issued a “Dear Colleague” letter and enclosed the 2001 Guidance 

as originally issued.

209

 The letter distinguishes between federal and private enforcement by stating 

that “[t]he guidance outlines standards applicable to OCR’s enforcement of compliance in cases 

raising sexual harassment issues” and that “[i]t does not purport to discuss standards applicable to 

private Title IX lawsuits for money damages.”210 The letter also states that resolution agreements 

are “fact-specific statements . . . in individual cases and are not formal statements of OCR 

policy.”211

 

203 Ibid., 5-7. 

204 Ibid., 5.

205 Ibid., 22-23.

206 Ibid., 23. 

207 Ibid.

208 Memorandum for the Heads and Acting Heads of Executive Departments and Agencies, 66 Fed. Reg. 7702 (Jan. 

20, 2001).

209 Assistant Secretary for Civil Rights, Stephanie Moore to Dear Colleague (Jan. 25, 2006), 

https://www2.ed.gov/about/offices/list/ocr/letters/sexhar-2006.pdf.

210 Ibid., 1.

211 Ibid.
Title IX 37

Before reissuing the 2001 Guidance, in 2003, ED OCR issued a Dear Colleague Letter (2003 First 

Amendment Guidance) that addresses the First Amendment and anti-discrimination obligations of 

schools.

212

 Since being issued, the 2003 First Amendment Guidance has remained in effect.213

The 2003 First Amendment Guidance reiterates the 1997 Guidance’s position on the First 

Amendment and states:

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 . . .

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 

 

212 Department of Education, Office for Civil Rights, First Amendment: Dear Colleague (July 28, 2003), 

http://www2.ed.gov/about/offices/list/ocr/firstamend.html.

213 As discussed below, ED OCR’s subsequent guidance issued in 2010 and 2014 both referred readers to ED 

OCR’s 2003 First Amendment Guidance. Assistant Secretary for Civil Rights Russlyn Ali to Dear Colleague (Oct. 

26, 2010), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf at 2; Department of Education, 

Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence, (Apr. 29, 2014), 

https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf at 43. The 2014 Q&A explicitly stated that 

the 2003 First Amendment Guidance remained “fully in effect.” Department of Education, Office for Civil Rights, 

Questions and Answers on Title IX and Sexual Violence, (Apr. 29, 2014), 

https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf at 43.
Free to Learn: Speech and Sexual Harassment on Campus 38

jurisdiction, must include something beyond the mere expression of views, words, 

symbols or thoughts that some person finds offensive.214

In 2008, ED OCR released a publication, which defined sexual harassment as “conduct that: 1) is 

sexual in nature; 2) is unwelcome; and 3) denies or limits a student’s ability to participate in or 

benefit from a school’s education program.”215 The publication listed considerations in 

determining whether the incident created a hostile environment.216 The listed factors mirror the 

2001 Guidance, and provide examples of hostile environments.217 The publication states that “[i]f 

sufficiently severe, single or isolated incidents can create a hostile environment.”218

Obama Administration Guidance (2010 Dear Colleague Letter, 2011 Dear Colleague Letter, 

2014 Q&As, 2015 Title IX Resource Guide)

During the Obama Administration, ED OCR issued four guidance documents about sexual 

harassment under Title IX. In October 2010 (2010 Dear Colleague Letter), ED OCR released an 

explanation of schools’ obligations to protect students from student-on-student harassment on the 

basis of sex, race, color, national origin and disability that reiterated its definition of discriminatory 

sexual harassment.219 In a footnote, the 2010 Dear Colleague Letter states, “Some conduct alleged 

to be harassment may implicate the First Amendment rights to free speech or expression.” It refers 

the reader to ED OCR’s 2003 First Amendment Guidance discussed herein above.

220

In April 2011, ED OCR released a Dear Colleague Letter (2011 Dear Colleague Letter) on Title 

IX sexual harassment, specific to sexual violence.221 The 2011 Dear Colleague Letter defined 

“sexual violence” for purposes of the letter as “physical sexual acts perpetrated against a person’s 

will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol.”222

 

214 Ibid. The 2003 First Amendment Guidance has not been rescinded or modified by any subsequent administration 

and remains in effect.

215 Department of Education, Office for Civil Rights, Sexual Harassment: It’s Not Academic (Sept. 2008) p. 3, 

https://www2.ed.gov/about/offices/list/ocr/docs/ocrshpam.pdf.

216 Ibid., 5-7. 

217 Ibid., 7 (providing an example of a hostile environment when a student repeatedly passes sexually explicit 

photographs to another student, which offend the student and make the student unable to concentrate on their 

schoolwork). 

218 Ibid.

219 Assistant Secretary for Civil Rights Russlyn Ali to Dear Colleague (Oct. 26, 2010), 

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf at 2.

220 Ibid.

221 Assistant Secretary for Civil Rights Russlyn Ali to Dear Colleague (Apr. 4, 2011), 

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.

222 Ibid., 1.
Title IX 39

The 2011 Dear Colleague Letter “supplement[ed] the 2001 Guidance by providing additional 

guidance and practical examples regarding the Title IX requirements as they relate to sexual 

violence.”223 The 2011 Dear Colleague Letter defines sexual harassment as: 

unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, 

requests for sexual favors, and other verbal, nonverbal, or physical conduct of a 

sexual nature.224

Looking to the 2001 Guidance, the 2011 Dear Colleague Letter describes a hostile environment as 

follows:

When a student sexually harasses another student, the harassing conduct creates a 

hostile environment if the conduct is sufficiently serious that it interferes with or 

limits a student’s ability to participate in or benefit from the school’s program. The 

more severe the conduct, the less need there is to show a repetitive series of 

incidents to prove a hostile environment, particularly if the harassment is physical. 

Indeed, a single or isolated incident of sexual harassment may create a hostile 

environment if the incident is sufficiently severe.225

ED OCR followed the 2011 Dear Colleague Letter in 2014 with a Questions and Answers (Q&As)

document that supplemented the 2011 Dear Colleague Letter related to sexual violence.226 The 

2014 Q&As addressed the First Amendment and speech by stating “the [2011 Dear Colleague 

Letter] on sexual violence did not expressly address First Amendment issues because it focuses on 

unlawful physical sexual violence, which is not speech or expression protected by the First 

Amendment.”227 The 2014 Q&As then referred the reader to the 2003 First Amendment Dear 

Colleague letter, the 2001 Guidance, and the 2010 Dear Colleague letter on harassment and 

bullying, stating that all of these documents “remain fully in effect.”228 “OCR has made it clear 

that the laws and regulations it enforces protect students from prohibited discrimination and do not 

restrict the exercise of any expressive activities or speech protected under the US. Constitution.”229

 

223 Ibid., 2.

224 Ibid., 3. The letter also defined “gender-based harassment” as “include[ing] acts of verbal, nonverbal, or physical 

aggression, intimidation, or hostility based on sex or sex-stereotyping, even if those acts do not involve conduct of a 

sexual nature.” Ibid., 3, n. 9.

225 Ibid., 3.

226 Department of Education, Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence, (Apr. 

29, 2014), https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.

227 Ibid., 43.

228 Ibid. 

229 Ibid.
Free to Learn: Speech and Sexual Harassment on Campus 40

The 2014 Q&As further clarified that sexual harassment under Title IX requires the behavior to be

objectionable from a subjective and objective viewpoint:

Title IX protects students from sex discrimination; it does not 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 hostile environment under Title IX. Title IX also does not require, 

prohibit, or abridge the use of particular textbooks or curricular materials.230

The 2015 Title IX Resource Guide defined sexual harassment as “unwelcome conduct of a sexual 

nature,” and prohibited sex-based harassment that is “sufficiently serious to deny or limit a 

student’s ability to participate in or benefit from the recipient’s education programs and activities 

(i.e., creates a hostile environment).”231 The 2015 Title IX Resource Guide noted that when 

conduct is sufficiently severe, it may be infrequent and still fall under the definition of sexual 

harassment.232

Trump Administration Guidance and Proposed Rulemaking (2017-2018)

In 2017, the Department of Education issued a Dear Colleague letter withdrawing the statements 

of policy and guidance reflected in the 2011 Dear Colleague Letter on Sexual Violence and the 

2014 Questions and Answers on Title IX and Sexual Violence.233 Simultaneously, ED OCR issued 

the 2017 Q&As on Campus Sexual Misconduct.234 The 2017 Dear Colleague letter also announced 

the Department’s intention to engage in notice and comment rulemaking to “develop an approach 

to sexual misconduct that responds to the concerns of stakeholders and that aligns with the purpose 

of Title IX to achieve fair access to educational benefits.”235 The 2017 Dear Colleague letter noted 

that “the Department’s enforcement efforts proceed from Title IX itself and its implementing 

regulations.” The Q&A on campus sexual misconduct stated that during the interim period during 

the rulemaking process, “these questions and answers—along with the [2001 Guidance] previously 

issued by [ED OCR]—provide information about how OCR will assess a school’s compliance 

with Title IX.”236 Similar to the 2001 Guidance, the 2017 Q&As define hostile environment as 

 

230 Ibid., 44 (citing 34 C.F.R. § 106.42 [the Title IX regulations]).

231 U.S. Department of Education, Office for Civil Rights, Title IX Resource Guide, 2015, p. 15. 

232 Ibid.

233 Acting Assistant Secretary for Civil Rights, Candice Jackson to Dear Colleague (Sept. 22, 2017), 

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf.

234 Department of Education, Office for Civil Rights, Q&A on Campus Sexual Misconduct (Sept. 2017), 

https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf.

235 Ibid., 2.

236 Ibid., 1.
Title IX 41

“when sexual misconduct is so severe, persistent, or pervasive as to deny or limit a student’s ability 

to participate in or benefit from the school’s programs or activities.”

237

In 2018, the Department of Education proposed revisions to the regulations that implement Title 

IX.238 The proposed revisions have received over 124,000 comments from the public. The 

proposed rules include a section intended to “correct” for “capturing too wide a range of 

misconduct resulting in infringement on academic freedom and free speech.”239 In addition, the 

proposed rules would define sexual harassment as:

(1) An employee of the recipient conditioning the provision of an aid, benefit, or 

service of the recipient on an individual’s participation in unwelcome sexual 

conduct; (2) Unwelcome conduct on the basis of sex that is so severe, pervasive, 

and objectively offensive that it effectively denies a person equal access to the 

recipient’s education program or activity; or (3) Sexual assault as defined in 34 

CFR 668.46(a) [which defines it as rape, fondling, incest, or statutory rape].

240

Subpart 1 of the proposed definition goes to quid pro quo sexual harassment and requests for a 

sexual favor in exchange for a benefit. Subpart 2 of the proposed definition would define sexual 

harassment and hostile environment. The proposed rules would adopt the Davis definition and 

require that the conduct must be severe, pervasive, and objectively offensive. In addition, the 

conduct must effectively deny, not just limit, educational access.241

The proposed regulations also add explicit language about enforcement of Title IX and free speech 

rights.

242 The revisions propose to add a subsection about the effect on Constitutional protections, 

which states that nothing in the rules require a recipient institution to “[r]estrict any rights that 

would otherwise be protected from government action by the First Amendment of the U.S. 

Constitution.”243 Similarly, the Office for Civil Rights’ most recent Case Processing Manual, 

which became effective in November of 2018, states that ED OCR will not interpret any statute or 

 

237 Ibid.

238 Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial 

Assistance, 83 Fed. Reg. 61,462 (Nov. 29, 2018) (seeking comments on proposed revisions to the Title IX 

regulations).

239 Id. at 61,484.

240 Id. at 61,496. 

241 Id.

242 Id. at 61,464, 61,480 (noting that some believe Title IX chills free speech and encroaches on academic freedom).

243 Id. at 61,495.
Free to Learn: Speech and Sexual Harassment on Campus 42

regulation to impinge on First Amendment rights or to require recipients to encroach on the 

exercise of those rights.

244 This section did not appear in the previous Case Processing Manual.245

Complaints, Investigations, and Compliance Reviews

The Department of Education has enforced Title IX and its regulations through administrative 

investigation of complaints, compliance reviews, directed investigations, and monitoring of 

resolution agreements. ED OCR may also refer cases to the DOJ for court review under certain 

circumstances.

246

 The Obama Administration first published online a list of higher educational 

institutions that are under investigation for potential Title IX violations. ED OCR told the 

Commission that it took this action “to increase[] transparency [and] spur[] community dialogue 

about this important issue.”247 The Trump Administration has continued to maintain and update 

this list. 248

Complaints

Anyone can file a complaint of discrimination with OCR for investigation.249 As mentioned above, 

ED OCR has jurisdiction under a multitude of statutes, including Title IX.250 By regulation, ED 

 

244 U.S. Department of Education, Office for Civil Rights, Case Processing Manual, 2018, p. 12. 

245 U.S. Department of Education, Office for Civil Rights, Case Processing Manual, 2015. 

246 See ED OCR/DOJ-CRT Memorandum of Understanding at 

https://www.justice.gov/sites/default/files/crt/legacy/2014/04/28/ED_DOJ_MOU_TitleIX-04-29-2014.pdf. The 

Department of Justice has three roles regarding Title IX. First, DOJ is responsible for coordination of federal 

agency implementation and enforcement per Executive Order 12,530. Second, DOJ is the federal government’s 

litigator and may seek injunctive relief, specific performance, or other remedies against recipients based on referrals 

from other agencies. Finally, DOJ may itself have provided grants to educational institutions and may investigate 

complaints or conduct a compliance review. See Department of Justice, Title IX Legal Manual, at Department of 

Justice Role Under Title IX, https://www.justice.gov/crt/title-ix#D.%C2%A0%20Sexual%20Harassment.

247 Joint Written Statement of ED OCR and DOJ, p. 14.

248 Department of Education, Office for Civil Rights, Pending Cases Currently Under Investigation at ElementarySecondary and Post-Secondary Schools as of March 1, 2019, 

https://www2.ed.gov/about/offices/list/ocr/docs/investigations/open-investigations/tix.html (last modified 3/6/2019)

(when filtered by “sexual harassment” as the type of discrimination, this list shows 278 open investigations with 122 

of these at post-secondary schools. Of note, the website states that filtering by “sexual harassment” does not include 

“sexual violence” investigations.).

249 34 C.F.R. § 100.7(b) (“Complaints. Any person who believes himself or any specific class of individuals to be 

subjected to discrimination prohibited by this part may by himself or by a representative file with the responsible 

Department official or his designee a written complaint. A complaint must be filed not later than 180 days from the 

date of the alleged discrimination, unless the time for filing is extended by the responsible Department official or his 

designee.”).

250 ED OCR Case Processing Manual, 5-6 (listing the statutes under which ED OCR has jurisdiction).
Title IX 43

OCR investigates all complaints “that indicate a possible failure to comply with [Title IX].”251 ED 

OCR’s Case Processing Manual sets out how ED OCR investigates complaints.252 As seen in 

figure 1.3 below, historically, disability discrimination makes up the largest percentage of ED 

OCR’s complaint caseload. In contrast, from January 2009 to 2014, ED OCR told the Commission 

that “sexual harassment and sexual violence complaints are less than one percent of the total 

number of complaints OCR receives.”

253 As shown in figure 1.3, the percentage of sexual 

harassment and sexual violence complaints filed has appeared to increase to 4-5% of the total 

number of complaints ED OCR receives.

At least one recent ED OCR complaint concerns sexual harassment and speech. In 2015, ED OCR

began investigating a complaint filed by students at the University of Mary Washington.254 The 

complaint filed with ED OCR alleged retaliation on social media (Yik-Yak) for reporting bawdy 

songs by members of the men’s rugby club at an off-campus party.255 The students also filed a 

lawsuit against the University with allegations similar to those filed with ED OCR for failing to 

protect them from a sexually hostile environment, and from online sexual harassment.256 The 

Fourth Circuit recently ruled students who have set out a case under Title IX may proceed against 

the University and that the First Amendment does not prohibit the University from disciplining 

 

251 34 C.F.R. § 106.71 (incorporating Title VI’s procedural provisions in 34 C.F.R. § 100.6 to § 100.11 and 34 

C.F.R. Part 101) and § 100.7(c) (“Investigations. The responsible Department official or his designee will make a 

prompt investigation whenever a compliance review, report, complaint, or any other information indicates a possible 

failure to comply with this part. The investigation should include, where appropriate, a review of the pertinent 

practices and policies of the recipient, the circumstances under which the possible noncompliance with this part 

occurred, and other factors relevant to a determination as to whether the recipient has failed to comply with this 

part.”).

252 ED OCR Case Processing Manual, 5-6.

253 Joint Written Statement of ED OCR and DOJ, p. 12.

254 University of Mary Washington, Campus-Wide Message About OCR Investigation, Eagle Eye (Campus 

Newspaper), (Oct. 23, 2015) (notifying faculty and staff of a pending ED OCR investigation based on a complaint, 

alleging discrimination on the basis of sex and retaliation).

255 T. Rees Shapiro, Feminist Group Alleges Sexually Hostile Environment at University of Mary Washington, (May 

11, 2017), https://www.washingtonpost.com/local/education/feminist-group-alleges-hostile-environment-atuniversity-of-mary-washington/2017/05/11/58cbd916-35b4-11e7-b4ee434b6d506b37_story.html?utm_term=.2d9088d0a07b.

256 Feminist Majority Foundation v. University of Mary Washington, Complaint Civ. No. 3:17-cv-344-JAG (E.D. 

Va. May 4, 2017).
Free to Learn: Speech and Sexual Harassment on Campus 44

students for online “true threats.”257 It is unclear whether ED OCR continues to investigate the 

initial complaint.258

Figure 1.3: ED OCR Complaint Caseload by Jurisdictional Basis

(Selected Fiscal Years 2006-2017)

Jurisdictional 

Basis

FY 2006 FY 2010 FY 2014 FY 2015 FY 2016 FY 20172

Disability 3,025 3,405 3,909 4,052 5,063 5,567

Race 998 1,056 1,203 1,143 1,294 1,280

Sex (all) 334 391 2,354 2,390 7,0681 2,249

Sexual 

Harassment and 

Sexual Violence3

95 35 128 536 637 N/A

Age 86 131 122 147 108 156

Multiple 750 1,037 1,588 1,399 1,655 1,702

Other 612 913 813 1,261 1,532 1,883

TOTAL 5,805 6,933 9,989 10,392 16,720 12,837

Source: Data for overall numbers from Department of Education, Office for Civil Rights, FY 2019 Budget Request 

p. Z-21, https://www2.ed.gov/about/overview/budget/budget19/justifications/z-ocr.pdf; 

1

In FY 2016, of the 7,068 Sex Discrimination complaints, 6,201 were filed by one individual who filed multiple Title 

IX complaints against school districts and elementary and secondary schools about athletics

2 FY 2017 data is as of Sept. 30, 2017

3Data for break out of Sexual Harassment and Sexual Violence Complaints from FY 2006, FY 2009-2012, and FY 

2015, and FY 2016 annual reports to congress. See also Appendix B for source documents.

 

257 Feminist Majority Foundation v. University of Mary Washington, 911 F.3d 674, 691 (4th Cir. Dec. 19, 2018) 

(“We first address the University’s expressed apprehension about punishing students for their speech. Put simply, 

we are satisfied its First Amendment concerns about penalizing speech lack a proper basis. The University could 

have vigorously responded to the threatening Yaks without implicating the First Amendment because “true threats” 

are not protected speech.”).

258 There does not appear to be a resolution with Mary Washington, and the pending investigation link lists a “sexual 

violence” complaint from Nov. 30, 2016. Department of Education, Office for Civil Rights, Pending Cases 

Currently Under Investigation at Elementary-Secondary and Post-Secondary Schools as of March 29, 2019, 

https://www2.ed.gov/about/offices/list/ocr/docs/investigations/openinvestigations/tix.html?queries%5Bstate%5D=VA&page=2&offset=20 (last modified Apr. 3, 2019).
Title IX 45

Compliance Reviews and Directed Investigations

ED OCR also conducts compliance reviews to determine if recipients of federal funds are 

complying with Title IX.

259

 From January 2009 to 2014, ED OCR “initiated 25 proactive 

investigations (i.e., compliance reviews and directed investigations) focused on sexual harassment 

and sexual violence.”260 ED OCR stated that these compliance reviews comprised “almost sixteen 

percent” of the total number of reviews for this time frame.261 For fiscal year 2015, ED OCR

reported to Congress that it initiated seven proactive investigations under Title IX, including some 

investigations focused on sexual harassment.

262

Resolution Agreements

“Under the statutory enforcement scheme, when OCR finds a recipient of Department of Education 

funding to have violated Title IX . . ., it attempts to obtain voluntary compliance” through a 

resolution agreement.263 Between 2011 and 2017, ED OCR issued letters of findings and entered 

into 40 resolution agreements from investigations or compliance reviews based on sexual 

harassment (including sexual assault).

264

 These resolution agreements contained various remedies, 

including updating grievance procedures, conducting campus climate surveys, and trainings. As 

shown in figure 1.4, updating grievance procedures and trainings were included in the most 

resolution agreements. Conducting campus climate surveys is also frequently included.

 

259 34 C.F.R. § 106.71 (incorporating Title VI’s procedural provisions into the Title IX regulations); 34 C.F.R. § 

100.7(a) (“Periodic compliance reviews. The responsible Department official or his designee shall from time to time 

review the practices of recipients to determine whether they are complying with this part.”).

260 Joint Written Statement of ED OCR and DOJ, p. 12.

261 Ibid.

262 Department of Education, Office for Civil Rights, Securing Equal Educational Opportunity: Report to the 

President and Secretary of Education, p. 24 (2016), https://www2.ed.gov/about/reports/annual/ocr/report-topresident-and-secretary-of-education-2016.pdf (launched 4 proactive investigations under Title IX in FY 2016); 

Department of Education, Office for Civil Rights, Delivering Justice: Report to the President and Secretary of 

Education, p. 26 (2015), https://www2.ed.gov/about/reports/annual/ocr/report-to-president-and-secretary-ofeducation-2015.pdf (launched 7 proactive investigations under Title IX in FY 2015). 

263 20 U.S.C. § 1682; see also 34 C.F.R. § 100.8 (d)(1) (requiring an attempt to obtain compliance by voluntary 

means); see also Joint Written Statement of ED OCR and DOJ, p. 12.

264 Excel Spreadsheet created by USCCR Staff based on review of ED OCR website and Chronicle of Higher 

Education’s Title IX tracker, Appendix C. 
Free to Learn: Speech and Sexual Harassment on Campus 46

Figure 1.4: Types of Resolution Agreement Remedies and How Often Required265

Type of Remedy Required in Number of 

Agreements

Percentage

Update grievance procedures 35 92%

Training Employees (e.g., 

staff, employees, etc.)

33 86%

Training Students 32 84%

Training Individuals Involved 

in Title IX procedures

26 68%

Update Title IX coordinator 

information

26 68%

Campus climate surveys 25 65%

Update non-discrimination 

policies

24 63%

Data collection (for new 

complaints)

22 57%

Review reports (for old 

complaints)

16 42%

Creation of Campus 

Committee/Task Force

15 39%

Coordination with local law 

enforcement (e.g., Memo of 

Understanding)

11 28%

Have an individual “on call” 

24/7

4 10%

Source: Excel Spreadsheet created by USCCR Staff based on review of ED OCR website and Chronicle of Higher 

Education’s Title IX tracker, spreadsheet included as Appendix C.

 

265 Ibid. Two of the resolution agreements were either heavily redacted or not public. Thus, data for these 2 has 

been excluded for the percentages in this table.
Title IX 47

Of the 41 resolution agreements negotiated between the ED OCR and higher education institutions

from 2011 to 2017, at least two have resulted in publicly expressed criticism about the agreement’s 

coverage of speech and sexual harassment. Herein, we discuss these two resolution agreements 

with Yale University (2012) and the University of Montana-Missoula (2013).

266

Yale University (2012)

In 2012, ED OCR secured a resolution agreement from Yale University.267 The underlying 

allegations filed in the complaint involved an October 2010 incident in which “approximately 20 

pledges from a fraternity [Delta Kappa Epsilon] stood blindfolded outside of the University’s 

Women’s Center . . . chanting sexually aggressive comments.”268 One of the chants was “No 

means yes, and yes means anal.”269 The event was video-taped and widely circulated both on and 

 

266 We note that in 2016, the Department of Justice concluded a Title IV and Title IX investigation of the University 

of New Mexico, issued a letter of findings and entered into a resolution agreement. DOJ opened the investigation 

based on reports of sexual harassment (including sexual assault) because DOJ provides federal funding to the 

University of New Mexico. ED OCR was not a part of this investigation or resolution agreement. Concerns about 

the overlap with the First Amendment were raised by advocates about the findings and resolution agreement, though 

the facts leading to the investigation did not come from allegations involving sexual harassment based on speech. As 

part of its DOJ review, DOJ found fault with the policies in that the policies “conflated” the definition of sexual 

harassment with hostile environment. Letter from Damon Martinez, U.S. Attorney, District of New Mexico and 

Shaheena Simons, Chief, Educational Opportunities Section, Civil Rights Division, Department of Justice to 

President Robert G. Frank, University of New Mexico, p.9 (Apr. 22, 2016) (New Mexico Letter of Findings) (stating 

that the University’s sexual harassment policies “mistakenly indicates that unwelcome conduct of a sexual nature 

does not constitute sexual harassment until it causes a hostile environment or unless it is quid pro quo.”), 

https://www.justice.gov/opa/file/843901/download. As part of its review, DOJ found fault with the policies in that 

the policies “conflated” the definition of sexual harassment with hostile environment. Ibid. DOJ stated that 

“[u]nwelcome conduct of a sexual nature, however, constitutes sexual harassment regardless of whether it causes a 

hostile environment or is quid pro quo.” Ibid. DOJ further stated that “hostile environment is not part of the 

definition, nor is it required for ‘unwanted conduct of a sexual nature’ to be deemed sexual harassment.” Ibid. 

Instead, DOJ stated that “hostile environment” is the responsibility of the University to determine and “the threshold 

for determining the school’s obligation under Title IX.” Ibid.

267 Resolution Agreement Yale University Complaint No. 01-11-2027, (Jun. 11, 2012), 

https://www.documentcloud.org/documents/2644754-Yale-Voluntary-Resolution-Agreement.html (hereafter Yale 

Resolution Agreement); see also Thomas J. Hibino, Regional Director, Department of Education to Dorothy K. 

Robinson, Yale President and General Counsel, Resolution Letter, Re: Complaint No. 01-11-2027 (Jun. 15, 2012),

https://www.documentcloud.org/documents/2644753-OCR-Letter-to-Yale-Closing-Investigation.html (hereafter 

Yale Resolution Letter).

268 Yale Resolution Letter, 9.

269 Grigoriadis, Blurred Lines, 81; Zach Howard, Yale Punishes Fraternity for Sexist Chanting, Reuters (May 17, 

2011), https://www.reuters.com/article/us-sexual-harassment-yale/yale-punishes-fraternity-for-sexist-chantingidUSTRE74H06W20110518. The group Foundation for Individual Rights in Education (FIRE) asked Yale 

University’s President to reverse the decision to suspend the fraternity’s charter for five years. See

https://www.thefire.org/cases/yale-university-fraternity-suspended-five-years-for-intimidating-satirical-chant/.
Free to Learn: Speech and Sexual Harassment on Campus 48

off campus.270“[F]raternities had staged similar events around the same time of year and in the 

same location with some regularity in the past.”271 For example, the complaint’s multiple 

allegations included the Delta Kappa Epsilon chanting, pledges holding a sign saying “[w]e love 

Yale sluts,” and a “preseason scouting report” that listed women based on how much alcohol it 

would take to “screw them.”

272 Based on these events and others, “[t]he complaint alleged that a 

sexually hostile environment existed on campus . . ., to which the University had not responded in 

a prompt and equitable manner.”273 ED OCR’s Resolution Letter sets out the University’s 

obligations to respond to sexual harassment allegations, citing ED OCR’s 2010 and 2011 Dear 

Colleague letters.274 

ED OCR reviewed Yale’s designation of a Title IX coordinator, its grievance procedures, and 

considered whether the October incident created a hostile environment.275 ED OCR found that the 

Title IX coordinators’ information was not widely known by students, there was no mechanism 

for disciplining students, no tracking of complaints, and no mechanism for consistency in 

decisions.276 ED OCR found that the grievance procedures were divided into two processes – one 

that focused on complainants and one that focused on alleged perpetrators – and that neither had 

clear authorities for investigations or discipline.277

Before the conclusion of ED OCR’s investigation, Yale had initiated multiple changes to its 

implementation of Title IX, including revising its definition of sexual misconduct, forming an 

Advisory Committee on Campus Climate, re-structuring the Title IX coordinators, designing a 

website with contact information, instituting revised training for students, holding discussions 

about responsible behavior regarding sexual misconduct and alcohol, studying hazing and 

initiations, and conducting periodic campus climate surveys.278 In the resolution agreement, Yale 

committed to continuing these steps, and to submitting records of processed complaints and the 

campus surveys to ED OCR for review.

279

 

270 Yale Resolution Letter, 9.

271 Ibid., 10.

272 Grigoriadis, Blurred Lines, 81. As one of the complainants stated “I can’t imagine being a freshman. You got in 

because of your 4.0 GPA and 1600 SATs, and suddenly you’re being told you’re worth three beers.” Ibid.

273 Yale Findings of Investigation Letter, 1.

274 Ibid., 3 n.1 (citing ED OCR 2010 Dear Colleague Letter on Harassment and Bullying and 2011 Dear Colleague 

Letter on Sexual Violence).

275 Ibid., 5-11.

276 Ibid., 5-6.

277 Ibid., 6-9.

278 Ibid., 8-11.

279 See generally Yale Resolution Agreement.
Title IX 49

University of Montana-Missoula (2013)

The Commission took up this study in part because of the resolution agreement with the University 

of Montana-Missoula in 2013, and the criticism that the agreement conflicts with First Amendment 

rights. The criticism and responses are discussed in the next section. In this section, we discuss 

the origin of the resolution agreement and the findings. The resolution agreement stemmed from a 

federal investigation by the Departments of Justice and Education into possible violations of Title 

IX concerning unlawful sexual harassment (including assault) among students and professor-onstudent sexual harassment.

280

 

In the fall of 2011, the University received multiple reports of sexual assault.281 The University 

hired a retired Montana Supreme Court Judge to “conduct an independent investigation of these 

reports.”282 The Judge’s final report to the University “concluded that the University ‘has a 

problem with sexual assault on and off campus and needs to take steps to address it to insure the 

safety of all students as well as faculty, staff and guests.”283

The federal investigation reviewed “the University’s policies, grievance procedures, responses to 

reports of sex discrimination and retaliation, coordination of Title IX enforcement, training of 

those responsible for coordinating Title IX enforcement, and notice of nondiscrimination.”284 The 

investigation found: 1) “the University’s sexual harassment and assault policies require revision 

to provide clearer notice of the conduct prohibited . . . and that the University’s grievance 

procedures . . . have not ensured prompt and equitable resolutions of sexual harassment and assault 

complaints,” 2) “the University did not take sufficient effective action to fully eliminate a sexually 

hostile environment, prevent its recurrence, and address its effects,” and 3) “the University needs 

to coordinate its Title IX enforcement better, provide more training to those tasked with enforcing 

 

280 Resolution Agreement University of Montana-Missoula, DOJ DJ Number 169-44-9, OCR No. 10126001, (May 

9, 2013), https://www.documentcloud.org/documents/2644744-University-of-Montana-Missoula-Resolution.html

(hereafter University of Montana-Missoula Resolution Agreement); see also Anurima Bhargava, Chief, Educational 

Opportunities Section, Civil Rights Division, Department of Justice and Gary Jackson, Regional Director, 

Department of Education to Royce Engstrom, President, University of Montana, Findings of Investigation Letter, 

Re: DOJ Case No. DJ 169-44-9, OCR No. 10126001 (May 9, 2013,

https://www.documentcloud.org/documents/2644791-OCR-Letter-to-the-University-of-Montana.html (hereafter 

Montana Findings of Investigation Letter). “The United States combined the Title IV [by DOJ] and Title IX 

compliance reviews [by Dept of Ed of the University.” Montana Findings of Investigation Letter, 3.

281 Montana Findings of Investigation Letter, 2.

282 Ibid. 

283 Ibid.

284 Ibid., 3.
Free to Learn: Speech and Sexual Harassment on Campus 50

and coordinating Title IX, devise a system to track Title IX complaints, and revise its notice of 

nondiscrimination.”285 

The investigation found that the University of Montana-Missoula’s existing sexual harassment 

policies were inadequate because there were “eight policies and procedures that explicitly or 

implicitly cover[ed] sexual harassment and sexual assault, their sheer number and the lack of clear 

cross references among them leav[ing] unclear which should be used to report sexual harassment 

or sexual assault and when circumstances support[ed] using one policy or procedure over 

another.”

286

In the Letter of Findings, DOJ and ED OCR also criticized the University’s definition of sexual 

harassment because it limited itself to sexual harassment that creates a hostile environment. The 

letter of findings set out the University’s obligations to respond to sexual harassment allegations, 

citing ED OCR’s 2010 and 2011 Dear Colleague letters and the definition of hostile environment 

under the 2001 Guidance.287 The Letter of Findings explains its objections (internal markings 

omitted):

The confusion about when and to whom to report sexual harassment is attributable 

in part to inconsistent and inadequate definitions of “sexual harassment” in the 

University’s policies. First, the University’s policies conflate the definitions of 

“sexual harassment” and “hostile environment.” Sexual harassment is unwelcome 

conduct of a sexual nature. 

When sexual harassment is sufficiently severe or pervasive to deny or limit a 

student’s ability to participate in or benefit from the school’s program based on sex, 

it creates a hostile environment. The University’s Sexual Harassment Policy, 

however, defines “sexual harassment” as conduct that “is sufficiently severe or 

pervasive as to disrupt or undermine a person’s ability to participate in or receive 

the benefits, services, or opportunities of the University, including unreasonably 

interfering with a person’s work or educational performance.” 

While this limited definition is consistent with a hostile educational environment 

created by sexual harassment, sexual harassment should be more broadly defined 

as “any unwelcome conduct of a sexual nature.” Defining “sexual harassment” as 

“a hostile environment” leaves unclear when students should report unwelcome 

conduct of a sexual nature and risks having students wait to report to the University 

until such conduct becomes severe or pervasive or both. 

 

285 Ibid., 7.

286 Ibid., 7.

287 Ibid., 4-5.
Title IX 51

It is in the University’s interest to encourage students to report sexual harassment 

early, before such conduct becomes severe or pervasive, so that it can take steps to 

prevent the harassment from creating a hostile environment. 

Second, the University’s policies do not define “sexual harassment” consistently. 

The Sexual Misconduct Policy incorrectly implies that sexual harassment must be 

both “severe and pervasive” to establish a hostile environment, as opposed to 

“severe or pervasive”—the longstanding Title IX administrative enforcement 

standard and Title IV injunctive standard. In contrast, the [school’s] Sexual 

Harassment Policy states that “sexual harassment” must be “severe or pervasive.” 

The SCC [Student Conduct Code] prohibits only “malicious intimidation or 

harassment of another” and does not explicitly reference or define “sexual 

harassment.” 

Third, [the University’s] sexual harassment policy improperly suggests that the 

conduct does not constitute sexual harassment unless it is objectively offensive. 

This policy provides examples of unwelcome conduct of a sexual nature but then 

states that “whether conduct is sufficiently offensive to constitute sexual 

harassment is determined from the perspective of an objectively reasonable person 

of the same gender in the same situation.” 

Whether conduct is objectively offensive is a factor used to determine if a hostile 

environment has been created, but it is not the standard to determine whether 

conduct was “unwelcome conduct of a sexual nature” and therefore constitutes 

“sexual harassment.” As explained in the Legal Standards section above, the United 

States considers a variety of factors, from both a subjective and objective 

perspective, to determine if a hostile environment has been created. 

Finally, none of the policies explicitly defines “hostile environment,” accurately 

defines “sexual harassment,” or indicates that a single instance of sexual assault can 

constitute a hostile environment. To address these issues, the Agreement requires 

the University to revise its policies so that they provide accurate definitions of 

sexual assault, sexual harassment, and conduct that may constitute sex 

discrimination and may provide the basis for a Title IX complaint, and to dispel any 

confusion about when, where, and how students should report various types of sex 

discrimination.

288

 

288 Ibid., 8-9.
Free to Learn: Speech and Sexual Harassment on Campus 52

The Resolution Agreement requires the University to 1) revise its grievance procedures, 2) 

investigate allegations of retaliation, 3) eliminate hostile environments, 4) provide Title IX 

training to Title IX coordinators, and 5) revise its notice of nondiscrimination.289

Criticism and Support of Title IX Enforcement

ED OCR’s enforcement and guidance about Title IX has been criticized for going too far and for 

not going far enough to remedy sexual harassment on campus. The main speech-based criticisms 

of ED OCR and over-enforcement are that ED OCR’s definition of sexual harassment conflicts 

with Supreme Court precedent and the First Amendment, and that ED OCR’s policies have 

resulted in higher education institutions over-enforcing Title IX leading to a “chill” in speech on 

campuses by students and professors.290 The main criticisms of ED OCR and under-enforcement 

include not holding higher education institutions accountable for compliance with Title IX, not 

terminating federal funds, and prioritizing a process for remedying sexual harassment instead of 

focusing on reducing sexual harassment through cultural change. 

Definition of Sexual Harassment: Consistency with Supreme Court Precedent and U.S. 

Constitution

The concerns raised by critics of ED OCR’s 2011 Dear Colleague letter and the Montana Letter of 

Findings and Resolution Agreement center on the government’s interpretation of Title IX; whether 

the government’s definition of unlawful sexual harassment accords with judicial precedent and the 

Constitution; whether enforcement impinges on protected speech; whether the subjective and 

objective components are both included; and the absence of a notice and comment rulemaking that 

would have allowed such concerns about substantial changes in Title IX law enforcement to be 

openly discussed by the regulated community (schools, parents, students, advocates, etc.).

291

 

289 Ibid., 30-31; see generally University of Montana-Missoula Resolution Agreement.

290 Of note, the Department of Education has recently been criticized for censoring free speech and academic 

freedom in the context of providing federal funding under Title VI of the Higher Education Act of 1965 (20 U.S.C. § 

1122(A)(1)(A)-(B)). See David M. Perry, This is What a Real Threat to Campus Free Speech Looks Like, CNN 

(Sept. 21, 2019) (Criticizing a letter from the Assistant Secretary for Postsecondary Education at the Department of 

Education to Duke and the University of North Carolina and stating that “[t]his is what a real threat to free speech on 

a college campus looks like. It looks like the federal government telling a university how and what to teach its 

students.”), https://www.cnn.com/2019/09/21/opinions/duke-unc-middle-eastern-studies-controversyperry/index.html. See also Letter from Robert King, Assistant Secretary for Postsecondary Education to Duke and 

the University of North Carolina (Aug. 29, 2019), published at Notice of a Letter Regarding the Duke-UNC 

Consortium for Middle East Studies, 84 Fed. Reg. 48919 (Sept. 17, 2019), 

https://www.govinfo.gov/content/pkg/FR-2019-09-17/pdf/2019-20067.pdf.

291 See e.g., Greg Lukianoff, President of the Foundation for Individual Rights (FIRE), Briefing Transcript, pp. 91-

93 (summarizing concerns with the Montana Resolution Agreement: “The court [in Davis] ruled that for an 

institution to be liable in their Title IX for inadequately responding to harassment, the plaintiffs must prove that the 
Title IX 53

ED OCR responded directly to the question of how the Montana Resolution Agreement comports 

with the Supreme Court’s definition in Davis in a letter to Congress, stating that the Clinton, Bush 

II, and Obama administrations found that the Davis description of sexual harassment (“severe, 

pervasive, and objectively offensive”) is consistent with ED OCR’s (“sufficiently severe, 

persistent, or pervasive).292 Also, Davis cited the 1997 Guidance (“severe, persistent, or 

pervasive”) in describing “actionable harassment”: “Whether gender-oriented conduct rises to the 

level of actionable ‘harassment’ thus ‘depends on a constellation of surrounding circumstances, 

expectations, and relationships,’ including but not limited to, the ages of the harasser and the 

victim, and the number of individuals involved, see ED OCR Title IX Guidelines 12041-12042 

[1997 Guidance].”293

Similarly, ED OCR’s website states that “OCR has consistently reaffirmed that the Federal civil 

rights laws it enforces protect students from prohibited discrimination, and are not intended to 

restrict expressive activities or speech protected under the U.S. Constitution’s First 

Amendment.”294 ED OCR notes that “Schools can also encourage students on all sides of an issue 

to express disagreement over ideas or beliefs in a respectful manner. Schools should be alert to 

take more targeted responsive action when speech crosses over into direct threats or actionable 

speech or conduct.”295

 

institution was deliberately indifferent, the claims of sexual harassment and that the targeting conduct was so severe, 

pervasive, and objectively offensive that the victim was effectively denied equal access to an institution's resources 

and opportunities. The Davis standard is rigorous precisely because the Supreme Court knows they have to protect 

First Amendment rights. In the [Montana Resolution Agreement], however, OCR ignored these crucial limitations, 

explicitly overruling Montana’s reasonable person standard. Under the [Montana Resolution Agreement], 

universities must investigate harassment claims even when a reasonable person would not have found this speech 

objectionable thereby weaponizing the sensitivities of the least speech tolerant members of the community. In sharp 

contrast to Davis, the [Montana Resolution Agreement’s] definition of harassment was simply unwelcome verbal 

conduct AKA speech of a sexual nature. Such a vague and broad standard would never hold up in court, yet OCR 

sought to impose it nationwide.”).

292 Assistant Secretary for Civil Rights, Catherine E. Lhamon to Representative John Kline, Chair of the House 

Committee on Education and the Workforce, (July 15, 2016) (quoting the discussion of the Davis case in the 

preamble to the 2001 Guidance), https://www2.ed.gov/about/offices/list/ocr/correspondence/congress/20160715-t9-

hostile-env-std-davis.pdf (hereafter 2016 Letter from OCR to House); see also Fatima Goss Graves, then-Vice 

President for Education and Employment, National Women’s Law Center, Briefing Transcript, p. 199 (“The 

[University of Montana Missoula] agreement that emerged applies the same standards to the Montana resolution that 

had been applied to OCR investigations and in injunctive relief cases in Title IX claims through multiple 

administrations, and it also repeated basic principles that really are not new.”).

293 526 U.S. at 581 (quoting Oncale and citing ED OCR’s 1997 guidance).

294 Department of Education, Office for Civil Rights, Frequently Asked Questions About Sex Discrimination –

Harassment, How do educational institutions balance their Title IX obligations with individuals’ First Amendment 

rights?, https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/sex.html#sexhar3 (last modified 9/25/2018).

295 Ibid.
Free to Learn: Speech and Sexual Harassment on Campus 54

ED OCR and DOJ also provided the following written testimony to the Commission stating that:

Title IX does not reach curriculum or in any way prohibit or abridge the use of 

particular textbooks or curricular materials. Additionally, OCR has made it clear 

that Title IX and the other civil rights laws OCR enforces protect students from 

prohibited discrimination and are not intended to restrict the exercise of speech or 

other expressive activities protected under the U.S. Constitution. Therefore, OCR 

has consistently maintained that when schools work to prevent and redress 

discrimination, they must respect the free speech rights of students, faculty, and 

other speakers.296 

ED OCR and DOJ’s written testimony specifically addressed the First Amendment as follows:

The [2014] Q&A reiterates OCR’s previous guidance on the First Amendment, 

which makes clear that when a school works to prevent and redress discrimination, 

it must respect the free-speech rights of students, faculty, and other speakers. [The 

2014 Q&A] also clarifies that the 2011 [Dear Colleague Letter] did not expressly 

address First Amendment issues because it focuses on unlawful physical sexual 

violence, which is not speech or expression protected by the First Amendment.297

With regard to the subjective and objective standard for hostile environment, OCR told Congress 

with regard to the University of Montana-Missoula findings that Montana’s prior definition had 

not included the subjective portion of the inquiry (“unwelcome conduct of a sexual nature”), while 

focusing on the objective offensiveness of the conduct.298 OCR advised Congress that when a 

student reported conduct that was unwelcome (subjective) it then became Montana’s obligation to 

 

296 Joint Written Statement of Office for Civil Rights, Department of Education, Civil Rights Division, Department 

of Justice, and Office of Violence Against Women, Department of Justice to U.S. Commission on Civil Rights, p. 7 

(July 25, 2014) (hereafter Joint Written Statement of ED OCR and DOJ). In 2012, the California State Advisory 

Committee to the U.S. Commission on Civil Rights recommended that student codes of conduct should be 

consistent with the Davis standard, and also that the “standard employed by the OCR should be used, i.e., in order to 

form the basis for any type of student disciplinary action, speech mush ‘be considered sufficiently serious to deny or 

limit a student’s ability to participate in or benefit from the educational program.” California State Advisory 

Committed to the U.S. Commission on Civil Rights, Equal Educational Opportunity and Free Speech on Public 

College and University Campuses in California, p. 11 (2012), https://www.usccr.gov/pubs/docs/CA-Free-SpeechReport.pdf.

297 Joint Written Statement of ED OCR and DOJ, p. 10.

298 2016 Letter from OCR to House, 2 (explaining that “[b]ased on evidence of under-reporting of sexual harassment 

and assault at UM, the resolution agreement . . . aimed to create a process for students to raise concerns and report 

complaints of sexual harassment and assault without feeling they bore the burden themselves of determining 

whether the sexual harassment they experienced created a hostile environment to a reasonable person in their 

circumstances.”).
Title IX 55

determine if that conduct was also offensive from an objective perspective and creating a hostile 

environment.299 Likewise, ED OCR and DOJ told the Commission that:

While it is true that sexually harassing conduct may take many forms, including 

verbal acts and name-calling and written statements, it is not enough that a person 

find the expression personally offensive. Rather, to create a hostile environment 

that requires the school to respond in ways that both eliminate and remedy that 

environment, the harassing conduct must be sufficiently serious to a reasonable 

person in that circumstance that it limits or denies a student’s ability to participate 

in or benefit from a school’s educational program or activity.300

The Department of Education’s 2018 Proposed Regulations include language intended to clarify 

“that nothing in these regulations requires a recipient to infringe upon any individual’s rights 

protected under the First Amendment . . . The language also makes it clear that, under the Title IX 

regulations, recipients—including private recipients—are not obligated by Title IX to restrict 

speech.”301 Additionally, the Department stated that “the proposed regulatory action will correct 

capturing too wide a range of misconduct resulting in infringement on academic freedom and free 

speech.”302 The 2018 Proposed Regulations would define sexual harassment as:

(1) An employee of the recipient conditioning the provision of an aid, benefit, or 

service of the recipient on an individual’s participation in unwelcome sexual 

conduct; (2) Unwelcome conduct on the basis of sex that is so severe, pervasive, 

and objectively offensive that it effectively denies a person equal access to the 

recipient’s education program or activity; or (3) Sexual assault as defined in 34 

CFR 668.46(a) [which defines it as rape, fondling, incest, or statutory rape].

303

Subpart 1 of the proposed definition goes to quid pro quo sexual harassment and requests for a 

sexual favor in exchange for a benefit. Subpart 2 of the proposed definition would define sexual 

harassment and hostile environment. The 2018 proposed rules would adopt the Davis definition 

and require that the conduct must be severe, pervasive, and objectively offensive and that the 

 

299 Ibid. (“[W]hen someone reports an incident of sexual harassment, that report triggers ‘an adequate, reliable, 

prompt, and impartial investigation’ to determine whether the harassment created a hostile environment.”).

300 Ibid., 7.

301 Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial 

Assistance, 83 Fed. Reg. 61,480 (Nov. 29, 2018) (seeking comments on proposed revisions to the Title IX 

regulations).

302 Id. at 61,484.

303 Id. at 61,496. 
Free to Learn: Speech and Sexual Harassment on Campus 56

conduct must effectively deny, not just limit, educational access.304 The proposed, revised 

definition of sexual harassment has received criticism and support.305

Implementation of Title IX Grievance Procedures

In recent years, the Title IX grievance procedures at schools have been characterized by some who 

have filed sexual harassment complaints and also some who have been the subject of an 

investigation as “kangaroo” proceedings.306 Implementation of grievance procedures by schools 

have been criticized for a lack of transparency, lack of due process,307 and the belief that they chill 

speech of both students and professors.308 ED OCR’s enforcement role has also been criticized 

 

304 Id.

305 Compare Letter from National Women’s Law Center to Assistant Secretary for Civil Rights Kenneth Marcus 

(Jan. 30, 2019) (comments opposing proposed regulatory changes), https://nwlcciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2019/02/NWLC-Title-IX-NPRM-Comment.pdf and Letter 

from National Center for Youth Law to Assistant Secretary for Civil Rights Kenneth Marcus (Jan. 30, 2019) 

(comments opposing regulatory changes), https://youthlaw.org/wp-content/uploads/2018/01/NCYL-Comment-onTitle-IX-regs-1.pdf with Foundation for Individual Rights in Education (FIRE) (Nov. 20, 2018) (supporting 

proposed definition of sexual harassment, cross-examination, respondent’s opportunity to present witnesses, and 

barring of the single investigator model), https://www.thefire.org/responding-to-criticisms-of-the-proposeddepartment-of-education-title-ix-regulations/.

306 Kirsten Lombardi, A Lack of Consequences for Sexual Assault, Public Integrity (Feb. 24, 2010) (quoting 

Margaux, who filed a sexual harassment complaint, discussing the proceeding as a “kangaroo trial with a kangaroo 

sanction.”), https://publicintegrity.org/education/a-lack-of-consequences-for-sexual-assault/ (last updated July 14, 

2014)(hereafter A Lack of Consequences); Kipnis, Unwanted Advances, 37 (the subject of a complaint 

characterizing the university grievance process as a “kangaroo court.”).

307 Like the First Amendment, constitutional due process protections do not apply in private schools. First 

Amendment on Private Campuses, Harvard Civil Rights-Civil Liberties Law Review, Dec. 1, 2015, 

https://harvardcrcl.org/first-amendment-on-private-campuses/ (citing Robert M. O’Neill, Free Speech in the College 

Community 225 (1997)). Nonetheless the Commission repeats the criticism here as it has been levied, 

notwithstanding its legal inapplicability.

308 Laura Kipnis, Unwanted Advances: Sexual Paranoia Comes to Campus, p. 37-38 (HarperCollins Publishers, 

2017), (“The specifics vary from school to school (and are often difficult for students and faculty), but typically the 

accused doesn’t know the precise charges, doesn’t know what the evidence is, and can’t confront witnesses. Many 

campuses don’t even allow the accused to present a defense, such as introducing [evidence that contradicts what a 

complainant has stated].”); 28 Harvard Law School Faculty, Rethink Harvard’s Sexual Harassment Policy, Boston 

Globe (Oct. 15, 2014) (Harvard entered into a resolution agreement with ED OCR in December 2014 and revised its 

sexual harassment policy; this statement criticizes Harvard’s prior policy (which ED OCR had not approved) as 

violating the due process rights of accused individuals); Kipnis, Unwanted Advances, 140 (“[N]early every 

academic I know – this includes feminists, progressives, minorities, and those who identify as gay or queer – now 

lives in fear of some classroom incident spiraling into professional disaster.”).
Title IX 57

for not holding universities accountable for following Title IX, issuing revised guidance, and also 

for enabling overzealous investigations.309

Higher Education Institutions’ Responsibilities

Higher education institutions are tasked with implementing grievance procedures and investigating 

complaints. Under ED OCR’s Title IX regulations, grievance procedures must “provid[e] for 

prompt and equitable resolution of student and employee complaints,” which allege a violation of 

Title IX or the implementing regulations.310 At times, ED OCR has opined on what standard 

should be used to consider and resolve complaints (clear and convincing versus preponderance of 

the evidence). This standard is discussed more in the due process section below.

Institutions of Higher Education are aware of the pressures and incentives to comply with Title IX 

from students, parents, and ED OCR. On one hand, schools can be sued for money damages for 

failing to protect students and employees from hostile environments, for not providing due process 

to subjects of complaints, or for “chilling” academic speech with school policies. ED OCR has 

also noted that schools may choose not to be transparent about their Title IX proceedings because 

schools have “incentives to keep the numbers low, because when they’re doing a good job and 

encouraging reporting, the numbers may go up and then the parents may get worried.”311

Advocates have also encouraged schools to take proactive steps to address sexual harassment 

before the legal standards of a hostile environment have been met.312

 

309 Kirsten Lombardi, Lax Enforcement of Title IX in Campus Sexual Assault Cases, Public Integrity (Feb. 25, 2010),

https://publicintegrity.org/education/sexual-assault-on-campus/lax-enforcement-of-title-ix-in-campus-sexual-assaultcases/ (last updated Marc. 26, 2015) (hereafter Lax Enforcement of Title IX); see also Eugene Volokh, Professor, 

University of California Los Angeles School of Law, Briefing Transcript, p. 178 (making the argument that ED 

OCR’s resolution agreements signal to schools that they should be enforcing Title IX beyond constitutional 

limitations: “The definitions that the OCR has used in the past potentially cover speech that would under standard 

First Amendment law, fall within constitutional protection... This danger is exacerbated by the language in the 

University of Montana case, which suggested that OCR treats, and the Justice Department treats, harassment as 

including not just speech that is severe and pervasive to create a hostile environment . . . but even individual 

instances of this kind of speech that when added together may amount to a hostile environment.”).

310 34 C.F.R. § 106.8 (b).

311 Galanter, Briefing Transcript, pp. 66-67.

312 Marcus, Briefing Transcript, pp. 86-87 (“[U]niversities need to start asking questions even before the standards 

of hostile environment are met because if a few things are happening there might be more things that happen later... 

Agencies can’t require them to take actions if the legal standards are not met, and there might be Constitutional 

requirements that provide parameters on the action that they can take. But if students are offended by sexual actions 

that don’t quite meet the levels of a federal violation and universities are aware of it, there are always things that 

they can do to articulate the institutions values, to educate so on and so forth.”).
Free to Learn: Speech and Sexual Harassment on Campus 58

Higher Education Institutions are also responsible for responding to demands from their students 

and professors for cultural changes. Some advocates have criticized students for not wanting to 

be exposed to viewpoints they may find offensive, such as speech that is racist, sexist, or otherwise 

discriminatory.

313

 Polls have found that 72 percent of students support disciplinary action against 

“any student or faculty member on campus who uses language that is considered racist, sexist, 

homophobic or otherwise offensive.”314 In 2016, students “generally preferred that campuses be 

open environments that encourage a wide range of expression,” though some did support 

restrictions on certain types of speech.315 In 2017, following the contentious presidential election 

and multiple incidents of objections to speakers on campuses, the Knight Foundation found that 

students “value both free expression and inclusion,” and also that “the climate on campus prevents 

some students from expressing their views.”316

Others have defended students as “the first generation of students educated, from a young age, not 

to bully,” and have noted that “descriptions of this generation of students too often omit this sense 

of compassion and their admirable desire to protect their fellow students.”317 These students know 

that “[w]ords can cause real harm and interfere with a person’s education,” and thus mocking their 

“laudable desire to create a campus that is inclusive and conducive for learning by all students” 

undermines education.318

Holding Higher Education Institutions Accountable

Higher education institutions are subject to Title IX enforcement actions and the potential loss of 

federal funds. Schools may change their practices and policies in response to ED OCR’s guidance 

and enforcement efforts. For example, investigative reporting has shown that lax enforcement by 

 

313 Greg Lukianoff and Jonathan Haidt, The Coddling of the American Mind, Atlantic, 42-52 (Sept. 2015), 

https://www.theatlantic.com/magazine/archive/2015/09/the-coddling-of-the-american-mind/399356/. 

314 2015 survey by Yale University’s William F. Buckley Program, http://mclaughlinonline.com/2015/10/26/thewilliam-f-buckley-jr-program-at-yale-almost-half-49-of-u-s-college-students-intimidated-by-professors-whensharing-differing-beliefs-survey/; see also Jacob Poushter, 40% of Millennials OK with Limiting Speech Offensive to 

Minorities, Pew Research Ctr., https://www.pewresearch.org/fact-tank/2015/11/20/40-of-millennials-ok-withlimiting-speech-offensive-to-minorities/.

315 2016 survey by Knight Foundation, https://knightfoundation.org/reports/free-speech-campus.

316 2017 survey by Knight Foundation, https://knightfoundation.org/reports/free-expression-on-campus-whatcollege-students-think-about-first-amendment-issues.

317 Chemerinsky, Free Speech on Campus, 10.

318 Ibid., 19; see also Mari M. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. 

Law. Rev. 2320, 2370 (1989) (noting that college students are at a “vulnerable stage of psychological development 

and especially subject to the harm of hateful speech.”).
Title IX 59

ED OCR can result in schools not taking claims of sexual harassment seriously.

319

 This 

investigative reporting reviewed the 24 resolved sexual harassment investigations of colleges 

between 1998 and 2008; over that time, ED OCR found Title IX violations in five cases and 

“[n]one of the schools were punished . . . even when OCR found that colleges had acted 

indifferently.”

320

 Others have noted that schools have gotten the message from lax enforcement 

that “You don’t have to do jack squat; [ED OCR is] not going to go after you.”321 This 

investigative reporting quoted the then-Assistant Secretary for ED OCR, Russlynn Ali as 

“promising the Education Department will issue new guidelines for schools, including ‘remedies 

. . . that comport with the spirit and intent of Title IX.’”322 ED OCR issued the 2011 Guidance in 

the wake of this investigative reporting.

Following the 2011 Dear Colleague Letter, “Colleges [have] redoubl[ed] their efforts,”

323 and

“many institutions were able to conform their policies and practices to align with the spirit, and 

some with the actual letter of [the 2011 Dear Colleague Letter].”

324 ED OCR received support for 

the enforcement taken under the 2011 Dear Colleague Letter from advocates, Senators and 

Members of Congress.325

 

319 Lombardi, Lax Enforcement of Title IX; see also Catherine Hill, Vice-President for Research, American 

Association University Women, Briefing Transcript, pp. 141-142 (noting that students may not understand what is 

available under Title IX: “So, in part, students are calling for some of the protections that Title IX and other federal 

statutes already call for [a person to talk to and resources to address sexual harassment], but this is testimony to the 

fact that perhaps these Title IX rules are not being well enforced and well understood on campus by students.”).

320 Lombardi, Lax Enforcement of Title IX.

321 Ibid. (quoting Sarah Dunne, then-legal director of the American Civil Liberties Union in Washington and former 

attorney with the Civil Rights Division at the Department of Justice); see also Harvard Civil Rights – Civil Liberties 

Law Review, In Their Own Words: Underenforcement Threatens Continued Vitality of Title IX (Aug. 24, 2011) 

(quoting Neena Chaudry, Senior Counsel, National Women’s Law Center “many schools are getting away with 

providing less opportunities to girls because they don’t do what they’re supposed to unless made to.”),

https://harvardcrcl.org/in-their-own-words-underenforcement-threatens-continued-vitality-of-title-ix/.

322 Lombardi, A Lack of Consequences.

323 Ada Meloy, General Counsel, American Counsel on Education, Briefing Transcript, p. 182; see also Naomi 

Shatz, Will a Trump Administration Change Anything About College Sexual Assault?, Boston Lawyer Blog (Dec. 

27, 2016) (stating that “In the last five years colleges and universities have set up sexual harassment adjudication 

procedures, including revamping their school policies, creating Title IX offices, and hiring Title IX coordinators, in 

order to meet the DOE’s guidelines, even when that meant going far beyond what Title IX and other federal statutes 

and regulations actually require. I do not think there is any question that DOE’s action in this area spurred those 

changes.”), https://www.bostonlawyerblog.com/will-trump-administration-change-anything-college-sexual-assault/.

324 Meloy, Briefing Transcript, p. 183.

325 See, e.g., Letter from Sen. Patty Murray et al. to Secretary Betsy DeVos, Sept. 27, 2017, 

https://www.help.senate.gov/imo/media/doc/092717%20Title%20IX%20Guidance%20Rollback.pdf; Letter from 

Leadership Conference on Civil and Human Rights and 38 other civil rights organizations to Secretary Betsy 

DeVos, Jul. 13, 2017, https://civilrights.org/resource/sign-on_supporting_title_ix_guidance/.
Free to Learn: Speech and Sexual Harassment on Campus 60

At the same time, even after the 2011 Dear Colleague letter, ED OCR has been criticized for not 

“levy[ing] sanctions on offending schools.”326 With regard to claims that many schools ignore 

complaints enabling sexual harassment to continue,

327 students have attributed this, in part, to ED 

OCR: “Universities are not holding rapists accountable because the [Department of Education] 

does not hold schools accountable.”328 One advocate cited as support the Yale Resolution 

Agreement discussed above, and noting that “OCR found violation after violation” yet did not 

publicly reveal the extent of the violation; instead, ED OCR and Yale entered into an agreement, 

i.e., “a school’s promise to do better in the future.”329 Of note, from the passage of Title IX, Yale 

has a long history of claims that it is not complying with Title IX.330

With regard to the responsibility on higher education institutions, the Commission heard testimony 

at the 2014 briefing that:

[U]niversities need to start asking questions even before the standards of 

hostile environment are met because if a few things are happening there 

might be more things that happen later. And there might be things that are 

happening that they’re not aware of. So this is very important. . . .331

Transparency

Transparency and confidentiality concerns can arise for those who are reporting sexual harassment 

and may be seeking support, and those who have been accused of harassing behavior. Many 

schools provide confidentiality to those filing complaints, due to the sensitivity of the allegations. 

Studies have shown that not guaranteeing confidentiality to those who report sexual harassment is 

 

326 Alexandra Brodsky, Stopping Campus Sexual Violence Starts with Title IX Enforcement, Al Jazeera America, 

(Nov. 1, 2013), (characterizing Title IX as “a landmark law [being] reduced to a toothless reminder of good 

intentions [because of under-enforcement]”) http://america.aljazeera.com/articles/2013/11/1/stopping-campussexualviolencestartswithtitleixenforcement.html.

327 Grigoriadis, Blurred Lines, 80-82; Harriet Ryan, Matt Hamilton, and Paul Pringle, “A USC doctor was accused of 

bad behavior with young women for years. The University let him continue treating students,” L.A. Times (May 16, 

2018), https://www.latimes.com/local/california/la-me-usc-doctor-misconduct-complaints-20180515-story.html

(after receiving complaints of misconduct since the 1990s, in 2017, the University of Southern California’s Office of 

Equity and Diversity found a doctor employed by the school had engaged in sexual harassment.).

328 Brodsky, Stopping Campus Sexual Violence Starts with Title IX Enforcement.

329 Ibid.

330 See, e.g., Alexander v. Yale University, 459 F. Supp. 1 (D. Conn. 1977) (claiming that Yale violated Title IX by 

not acting on student’s complaints of sexual harassment by faculty and administrators).

331 Marcus, Briefing Transcript, p. 86. Ibid., 110 (“[U]niversities need to be urged to get out of a mindset that says 

that if something offensive is happening, either we punish or we do nothing. I think that they need to start thinking 

about responses to offensive conduct well before the standards of a federal civil rights violation are met.”).
Title IX 61

a barrier to reporting sexual harassment.332 At the same time, those who are the subjects of 

complaints may not be able to present their side if the school does not disclose the allegations or 

the identity of the complainant.333 Others have praised “the assertions in “[2011] Dear Colleague” 

that all parties (including the complainant) be notified of the outcome of the complaint and the 

institutional action be reasonably prompt are crucial to addressing gender inequity.”334“In 2002, 

out of 149 higher education institutions, 52.6 percent of schools’ policy materials mention that the 

complainant will be notified of the outcome of the complaint.”335

Because schools are not required to provide the numbers of complaints filed, or track complaint 

resolutions, it is difficult to determine how many instances of speech and sexual harassment claims 

have been made or have led to disciplinary actions. Various sources have attempted to collect this 

information from newspaper reports and individual reports of their experience with a school’s 

grievance procedures.336 

Schools have applied their Title IX grievance processes to discipline students and professors for 

speech or conduct. For example, Colorado College suspended a student for 6 months after the 

student posted a comment about the attractiveness of black women on a social media website.337 

 

332 Journal of American College Health, Vol. 55, No. 3, “Barriers to Reporting Sexual Assault for Women and Men: 

Perspective of College Students” (2006), http://www.middlebury.edu/media/view/240971/authentic/sable_article.pdf

(finding that barriers to reporting continue to be fear of retaliation, shame and guilt, concerns about confidentiality, 

and fear of not being believed); see also Student Affairs Administrators in Higher Education, Priorities for Title IX: 

Sexual Violence Prevention and Response, 2 (compelling disclosures is not evidence-based and removes choice 

“from an adult whose very recovery depends on being able to regain control over their own lives.”), 

https://www.naspa.org/images/uploads/main/NASPA_Priorities_re_Title_IX_Sexual_Assault_FINAL.pdf. 

333 Karjane, et al., Campus Sexual Assault: How America’s Institutions of Higher Education Response, p. xii (In 

2002, out of 149 higher education institutions, 61.9 percent with a disciplinary process notify the accused of the 

existence and nature of the complaint filed against them. Due process procedures for the accused are utilized at only 

37.3 percent of Institutes of Higher Education); Kipnis, Unwanted Advances, 176 (“One reason to get rid of 

confidentiality in campus adjudications would be to cut down on abuses of the process. Another is to initiate an 

open discussion about what counts as injury and consent. The gender assumptions embedded in these verdicts 

should be open to public scrutiny.”).

334 Dr. Anita Levy, Ph. D., Senior Program Officer, American Association of University Professors, Briefing 

Transcript, p. 191; Heather Karjane, et al., Campus Sexual Assault: How America’s Institutions of Higher Education 

Response, p. xii (Nat’l Criminal Justice Reference Serv., Oct. 2002), 

https://www.ncjrs.gov/pdffiles1/nij/grants/196676.pdf.

335 Ibid.

336 See, e.g., Nancy Chi Cantalupo and William C. Kidder, A Systematic Look at a Serial Problem: Sexual 

Harassment of Students by University Faculty, Utah Law Rev. (2018) (attempting to collect and analyze faculty 

sexual harassment cases by reviewing over 300 cases obtained from media reports, federal civil rights investigations 

by ED OCR and DOJ, lawsuits by students alleging sexual harassment and lawsuits by faculty fired for sexual 

harassment), https://dc.law.utah.edu/cgi/viewcontent.cgi?article=1170&context=ulr.

337 Sarah Larimer, This Student’s Sexist Yik Yak Comment About #blackwomenmatter Got Him Suspended, 

Washington Post (Dec. 15, 2015), https://www.washingtonpost.com/news/grade-point/wp/2015/12/15/this-students-
Free to Learn: Speech and Sexual Harassment on Campus 62

Wichita State also moved to discipline fraternity members for hanging a banner saying “free house 

tours” under Title IX. 338 The fraternity had previous allegations of sexual assaults occurring; a 

student characterized the banner as having “sexual baiting undertones” and said it “brought back 

memories of being sexually assaulted.”339 After considering the First Amendment, Wichita State 

dropped the investigation, noting that “[t]he banner triggered uncomfortable feelings, but the 

banner was protected speech under the First Amendment” and that “[a]ny action taken by the 

fraternity chapter and its members is independent of the university decision.”340

One highly publicized example of a complaint being filed against a professor for speech is that of 

Laura Kipnis and Northwestern University. Northwestern investigated Professor Kipnis based on 

a complaint that an opinion piece she wrote on sexual relations on campus, which was published 

online by the Chronicle of Higher Education, created a hostile environment.341 Ms. Kipnis wrote 

a book about her experience with Northwestern’s grievance procedures, and was also investigated 

in a second complaint for writing the book.342 Another example of faculty speech and concern is 

when Professor David Barnett submitted a 38-page report questioning a Title IX investigation of 

 

sexist-yik-yak-comment-about-blackwomenmatter-just-got-him-suspended/?utm_term=.e18999ce096d; see also

Letter from Vice President for Student Life/Dean of Students for Colorado College to Student (Dec. 3, 2015) 

(adjudicating appeal and reducing his suspension from 2 years to 6 months), http://www.thecollegefix.com/wpcontent/uploads/2015/12/colorado-college-response-thaddeus-pryor-yik-yak1.jpg. Of note, based on a search of ED 

OCR’s website and the Chronicles of Higher Education Title IX tracker, Colorado College does not appear to have 

any open or resolved ED OCR complaints or compliance investigations involving sexual harassment. 

338 Wichita State University Student Affairs Twitter “WSU does not condone sexual harassment in any form. The 

inappropriate banner and Phi Delt was addressed & sent on for further investigation,” 

https://twitter.com/WichitaStateSA/status/906552052100333568. 

339 Andrew Linnabary, 2 Phi Delta Theta Members Suspended by Fraternity for “Free House Tours” Banner, The 

Sunflower (Sept. 11, 2017), https://thesunflower.com/19837/news/2-phi-delta-theta-members-suspended-byfraternity-for-free-house-tours-banner/. These types of sexually explicit banners have also been hung up at other 

public higher education institutions. https://www.thefire.org/public-universities-threaten-students-overcontroversial-off-campus-banners/.

340 Andrew Linnabary, Wichita State Drops Banner Investigation, The Sunflower (Sept. 14, 2017), 

https://thesunflower.com/19961/news/wsu-drops-banner-investigation/.

341 Kipnis, Unwanted Advances, 127-157; see also Chemerinsky, Free Speech on Campus, 2 (citing Laura Kipnis, 

Sexual Paranoia Strikes Academe, CHRON. HIGHER EDUC. (May 29, 2015), 

https://www.chronicle.com/article/Sexual-Paranoia-Strikes/190351.

342 Kipnis, Unwanted Advances, 127-157. Ms. Kipnis was also sued for defamation, libel and slander by one of the 

students who filed the complaint with Northwestern. Doe v. Harper Collins and Kipnis, Case No. 17-cv-3688 (N.D. 

Ill. 2017). The judge upheld the case moving forward and denied a motion to dismiss filed by the defendants on 

First Amendment grounds, i.e., that the publication of her book was an exercise of her First Amendment rights. The 

parties engaged in settlement discussions after the ruling. Then, the case was voluntarily dismissed with prejudice 

by the student without entry of a settlement agreement.
Title IX 63

another professor and was investigated under Title IX for retaliation.

343

 The University took action 

to fire Professor Barnett; Barnett ultimately resigned and settled.344 Louisiana State University 

fired Associate Professor Teresa Buchanan over her word choices (use of profanity and discussion 

of her sex life) in the classroom. The Fifth Circuit held there was no pedagogical reason for her 

comments and thus, her speech while teaching was not protected under the First Amendment.345

Due Process

In the 2011 Dear Colleague letter, ED OCR told schools that to satisfy Title IX their grievance 

procedures must use the preponderance of the evidence standard, as opposed to the clear and 

convincing standard for resolving sexual harassment complaints: 

[I]n order for a school’s grievance procedures to be consistent with Title IX 

standards, the school must use a preponderance of the evidence standard (i.e., it is 

more likely than not that sexual harassment or violence occurred). The “clear and 

convincing” standard (i.e., it is highly probable or reasonably certain that the sexual 

harassment or violence occurred), currently used by some schools, is a higher 

standard of proof. Grievance procedures that use this higher standard are 

inconsistent with the standard of proof established for violations of the civil rights 

laws, and are thus not equitable under Title IX. Therefore, preponderance of the 

evidence is the appropriate standard for investigating allegations of sexual 

harassment or violence.346

ED OCR also told students in a Know Your Rights pamphlet that “[y]our school must resolve your 

complaint based on what they think is more likely than not to have happened (this is called a 

preponderance-of-the-evidence standard of proof). Your school cannot use a higher standard of 

proof.”347 This part of the 2011 Guidance has produced a lot of debate as to what the standard 

should be. The 2011 Dear Colleague Letter and Know Your Rights pamphlet have been withdrawn. 

The 2017 Q&A states that “[t]he findings of fact and conclusions should be reached by applying 

 

343 Colleen Flaherty, Heavy-Handed or Spot On? Inside Higher Education, (Aug. 26, 2014), 

https://www.insidehighered.com/news/2014/08/26/colorado-boulder-faces-criticism-over-handling-allegedprofessor-misconduct.

344 Charles Huckabee, U. of Colorado Settles with Philosophy Professor It Was Seeking to Fire, The Chronicle of 

Higher Education (May 13, 2015), https://www.chronicle.com/blogs/ticker/u-of-colorado-settles-with-philosophyprofessor-it-sought-to-fire/98817.

345 Buchanan v. Alexander, 919 F.3d 847, 853-54 (5th Cir. March 22, 2019).

346 2011 Dear Colleague Letter, 11.

347 Department of Education, Office for Civil Rights, Know Your Rights: Title IX Requires Your School to Address 

Sexual Violence, 2.
Free to Learn: Speech and Sexual Harassment on Campus 64

either a preponderance of the evidence standard or a clear and convincing evidence standard.”348

The proposed amendments to the regulations propose the same, i.e., that either standard is 

equitable under Title IX within certain parameters.

349

 

Advocates continue to debate what the standard should be. Support for the preponderance standard 

focused on this being the standard under other civil rights acts,350 and that 80 percent of schools 

that identified a standard were using preponderance before the 2011 Guidance.351 Some also argue 

that “[r]ather than leveling the field for survivors and respondents, setting a standard higher than 

preponderance of the evidence tilts proceedings to unfairly benefit respondents.”352 Support for 

the clear and convincing standard focused on court precedence saying that clear and convincing 

was more appropriate for situations where a person risks “having his reputation tarnished 

erroneously.”353 The Commission heard testimony in favor of both standards.354

 

348

 2017 Guidance, 5.

349 83 Fed. Reg. 61,477 (proposing adoption of same, i.e., that either standard is equitable under Title IX “only if the 

recipient uses that standard for conduct code violations that do not involve sexual harassment but carry the same 

maximum disciplinary sanction.” It also requires recipients to “apply the same standard of evidence for complaints 

against students as it does for complaints against employees, including faculty.)

350 Title IX and the Preponderance of the Evidence: A White Paper (Aug 7, 2016) (supporting the preponderance 

standard), https://www.feministlawprofessors.com/wp-content/uploads/2016/08/Title-IX-Preponderance-WhitePaper-signed-8.7.16.pdf; see also Association for Student Conduct Association, White Paper: Student Conduct 

Administration and Title IX: Gold Standard Practices for Resolution of Allegations of Sexual Misconduct on 

College Campuses, p.2 (2014) (advocating use of the preponderance standard), 

https://www.theasca.org/Files/Publications/ASCA%202014%20White%20Paper.pdf.

351 Letter to Secretary Betsy DeVos, Department of Education, from Fatima Goss Graves, President and CEO, 

National Women’s Law Center, p. 5, n.29 (July 11, 2017) (citing Heather Karjane, et al., Campus Sexual Assault: 

How America’s Institutions of Higher Education Response, p. 122, table 6.12 (Nat’l Criminal Justice Reference 

Serv., Oct. 2002) (showing that of 149 higher education institutions that 81.4 percent of them used the 

preponderance standard in 2002) , https://www.ncjrs.gov/pdffiles1/nij/grants/196676.pdf); but see Meloy, Briefing 

Transcript, p. 202 (stating that she was not aware of a survey of schools as to which standard was being used and 

that her “experience is that the clear and convincing was much more common.”).

352 Student Affairs Administrators in Higher Education, Priorities for Title IX: Sexual Violence Prevention and 

Response, 1, 

https://www.naspa.org/images/uploads/main/NASPA_Priorities_re_Title_IX_Sexual_Assault_FINAL.pdf.

353 See, e.g., American College of Trial Lawyers, White Paper on Campus Sexual Assault Investigations, p.16-17 

(Mar. 2017), https://www.actl.com/docs/default-source/default-document-library/position-statements-and-whitepapers/task_force_allegations_of_sexual_violence_white_paper_final.pdf.

354 Galanter, Briefing Transcript, pp. 50-51 (arguing in favor of the preponderance standard); Levy, Briefing 

Transcript, pp. 192-193 (arguing in favor of clear and convincing: “The A[merican] A[ssociation of] U[niversity] 

P[rofessors] advocates the continued use of clear and convincing evidence in both student and faculty discipline 

cases as a necessary safeguard of academic freedom, due process, and shared governance . . . Given the seriousness 

of accusations of harassment and sexual violence, and the potential for accusations, even false ones to ruin a faculty 

member’s career, we believe that the clear and convincing standard of evidence is more appropriate than the 
Title IX 65

Chilling Speech

Some have speculated that ED OCR’s resolution agreements would impact schools’

implementation of grievance procedures particularly regarding speech because “as a practical 

matter, the [Montana Resolution Agreement] would be understood by risk-adverse general 

counsels that the federal government was now defining harassment as ‘any speech that offends 

even if a reasonable person would not have been offended.’”

355

 These folks argue that such actions 

by schools will chill speech by students and professors.

Others have noted that “In fact, it may be argued that the failure to enforce 

antidiscrimination law may have a more chilling effect on campus free expression than the 

exercise of this power”

356 and that:

Unavoidably, antidiscrimination law will have the effect of silencing some 

discriminators, just as tort law silences some defrauders and conspiracy law 

silences some conspirators. This will be true as long as lawbreakers use words to 

further their malfeasance. The serious First Amendment question here is not 

whether any speech is silenced, but whether legitimate, protected speech is chilled 

in a manner that unacceptably hampers speech.357

Institutions of Higher Education have been sued following the application of grievance 

procedures where a student claims the student’s conduct was protected by the First 

Amendment, and the holdings of these cases reiterate that harassing behavior is not 

protected by the First Amendment.358

 

preponderance of evidence standard. Since charges of sexual harassment against faculty members often lead to 

disciplinary sanctions, including dismissal, a preponderance of the evidence standard could result in a faculty 

member being dismissed for cause based on a lower standard of proof than we consider necessary to protect 

academic freedom and tenure. We believe that the widespread adoption of the preponderance of evidence standard 

for dismissal cases involving charges of sexual harassment would tend to erode the due process protections for 

academic freedom.”).

355 Lukianoff, Briefing Transcript, p. 92; At the time, the federal government was also criticized for referring to the 

University of Montana-Missoula resolution agreement as a “blueprint.” University of Montana Letter of Findings, 1. 

As such, the language of the agreement was interpreted by some colleges and other concerned parties to apply more 

broadly than just to the University of Montana. ED OCR later clarified that “[t]he Agreement in the Montana case 

represents the resolution of that particular case and not OCR or DOJ policy.” See Letter from Assistant Secretary 

Office for Civil Rights Catherine E. Lhamon to the Foundation for Individual Rights in Education (FIRE) (Nov. 14, 

2013), https://www.thefire.org/letter-from-department-of-education-office-for-civil-rights-assistant-secretarycatherine-e-lhamon-to-fire/.

356 Kenneth Marcus, Higher Education, Harassment, and First Amendment Opportunism, 1049. 

357 Ibid. 

358 See, e.g., Doe v. Valencia College, 903 F.3d 1220 (11th Cir. 2018) (holding that suspending a male student for 

engaging in persistent and excessive unwanted contact with a female student, including lewd, threatening text 

messages about the female’s body, did not violate his First Amendment right to free speech); Marshall v. Ohio 
Free to Learn: Speech and Sexual Harassment on Campus 66

Students

A subset of cases involve students who claim that their school’s nondiscrimination policy has had 

a “chilling” effect on their ability to express certain viewpoints during classroom conversations.359

For example, in DeJohn v. Temple University, a graduate student studying Military and American 

History felt he could not express his views in class about women in combat and women in the 

military because his opinions might fall within the scope of University’s sexual harassment 

policy.360 In Doe v. University of Michigan, a graduate student in biopsychology felt he could not 

freely and openly discuss controversial theories advancing sex- and race-based differences because 

they might be punishable by the University’s discrimination policy.361 In both cases, the graduate 

students alleged that the respective policies were unconstitutionally overbroad and vague.362 The 

courts first highlighted the distinction between sexually harassing “pure speech/expression,” 

which is typically afforded more First Amendment protection, and non-expressive, sexually 

harassing “conduct,” that is typically afforded less First Amendment protection.363

In DeJohn, the court held that Temple University’s sexual harassment policy was 

unconstitutionally overbroad because the policy’s use of the words “hostile,” “offensive,” and 

“gender-motivated” could conceivably be applied to cover any speech of a gender motivated nature 

that offends someone.”364 The policy would have the potential effect of “chilling” “’core’ political 

 

University, No. 2:15-cv-775, 2015 WL 1179955, at *6 (S.D. Ohio Mar. 13, 2015) (The court reviewed the 

university’s sexual misconduct policy and held that it was “carefully drafted and narrowly tailored, balancing the 

need to prohibit certain types of harassing behavior with a student’s free speech rights. The court further stated that 

the policy considered sexual harassment from both a subjective and objective viewpoint and that the policy puts 

individuals on notice by specifying the circumstances the university will consider when reviewing their alleged 

conduct. The court specifically noted the fact that the university policy looked at “the frequency, nature, and severity 

of the harassment, whether the harassment was physically threatening or humiliating, and other contextual issues 

such as the relationship between the parties.”).

359 See, e.g., DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008) (Sexual harassment policy); Doe v. Univ. of 

Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (Discrimination and discriminatory harassment policy, which 

includes sexual harassment); see also Abbott v. Pastides, 900 F.3d 160 (4th Cir. 2018). After receiving complaints 

about “racist and sexist statements” at a free speech event, school officials discussed the allegations with plaintiffs, 

who claimed the discussions chilled their speech. The Fourth Circuit noted that “[F]acts matter in [resolving 

harassment allegations] and we do not agree that school officials confronted with harassment allegations are 

required to resolve them in the abstract. . . . As this court has made clear, universities have obligations not only to 

protect their students’ free expression, but also to protect students.” Id. at 173.

360 537 F.3d 301, 305 (3d Cir. 2008).

361 721 F. Supp. 852, 858 (E.D. Mich. 1989).

362 DeJohn, 537 F.3d at 305 (overbroad); University of Michigan, 721 F. Supp. at 861 (overbroad and vague).

363 DeJohn, 537 F.3d at 316; Doe v. Univ. of Mich., 721 F. Supp. at 861-62. 

364 DeJohn, 537 F.3d at 317 (citing Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 217 (3d Cir. 2001). The 

challenged language in Temple’s policy read as follows: “all forms of sexual harassment are prohibited, including . . 

. expressive, visual, or physical conduct of a sexual or gender-motivated nature, when . . . (c) such conduct has the 
Title IX 67

and religious speech, such as gender politics and sexual morality.”365 In Michigan, the court held 

that the University of Michigan’s policy was unconstitutionally overbroad because it had the effect 

of regulating a substantial amount of constitutionally protected speech – in the form of academic 

classroom discussion.366 The court also held the policy unconstitutionally vague because it was 

“impossible to discern any limitations on its scope or any conceptual distinction between protected 

and unprotected conduct.”367 These cases suggest that courts are concerned with how clearly

sexual harassment policies are worded in terms of which type of sexually harassing speech is 

protected and which is not – with respect to free speech. Both cases mention that certain sexually 

harassing speech could be protected by the First Amendment, therefore clarity in the policies 

would be better to avoid the possibility of prohibiting constitutionally protected speech. 

Faculty

Neither the Supreme Court nor the lower courts have clearly defined the extent to which academic 

freedom and the First Amendment protect a professor from sexual harassment claims.368 

Jurisprudence in this area has generally focused on fact patterns involving speech that occurs in 

the classroom. In these cases, courts are mixed in how they balance academic freedom and sexual 

harassment. In the mid to late 1990s, courts viewed academic freedom as a defense to sexual 

harassment claims for speech taking place inside the classroom with an educational purpose. For 

example, in Cohen v. San Bernardino Valley College, an English professor played the “devil’s 

advocate” by stating controversial viewpoints to topics such as obscenity, cannibalism, and 

consensual sex with children.

369 At one point in the semester the professor read out loud in class 

articles he had previously written for Hustler and Playboy. He also assigned his students to write 

a paper requiring them to define pornography.370 The court ruled that the professor’s speech did 

not fall within the university’s ”vague” definition of sexual harassment in its policy, and was 

protected under the First Amendment.371 Similarly, in Silva v. University of New Hampshire, a 

writing professor was accused of sexual harassment by comparing the “focus stage” of the 

 

purpose or effect of unreasonably interfering with an individual's work, educational performance, or status; or (d) 

such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment.” Id. at 305.

365 Id. at 317 (quoting Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 217 (3d Cir. 2001) as to “‘core’ political and 

religious speech”).

366 Doe v. University of Michigan, 721 F. Supp. at 864-65.

367 Id. at 867.

368 See infra, 99 to 120 (introduction to Supreme Court cases about the First Amendment and academic freedom).

369 92 F.3d 968, 970 (9th Cir. 1996). 

370 Id. 

371 Id. at 972.
Free to Learn: Speech and Sexual Harassment on Campus 68

technical writing process to belly dancing372 and using a vivid description of sexual intercourse.373

The court held that the professor’s speech was constitutionally permissible in part because the 

university’s definition of sexual harassment was too subjective and failed to take into account the 

professor’s academic freedom.374

In more recent cases involving speech in the classroom, courts have generally sided against claims 

of academic freedom and in favor of institutions’ sexual harassment policies. In Smith v. South 

Maine Community College, an adjunct psychology professor was accused of sexual harassment 

for playing two video clips—World War II footage and video depicting consensual sexual activity 

between two men.375 The court held that pursuant to the school’s sexual harassment policy, the 

university’s regulation of the professor’s “speech was reasonably related to a legitimate 

pedagogical concern.”376 In Piggee v. Carl Sandburg, a cosmetology instructor was accused of 

sexual harassment for passing anti-gay pamphlets to a gay student in class.377 The court held that 

the university’s interest in effectively fulfilling the school’s education mission by regulating the 

non-germane speech in the classroom outweighed the instructor’s interest in engaging in anti-gay 

speech.378

Suspending or Terminating Federal Funding

ED OCR’s enforcement of Title IX has also been criticized for not going far enough, and 

specifically for not terminating federal funding from higher education institutions.

379 As noted 

above, nearly every American university, public and private, relies on federal grants, and many 

students take out federally funded Pell grants and Stafford loans. Only a few universities could 

continue to operate without federal funding.380 

How real the threat of the loss of federal funds is has been debated. Even though there is a process 

in the regulations (and statutory authority) for suspending or terminating federal funds from an 

educational institution, ED OCR has never suspended or terminated federal funds, as a result of 

sexual harassment. Some critics have speculated that ED OCR has not terminated federal funding 

 

372 888 F. Supp. 293, 299-300 (D.N.H. 1994).

373 Id. at 301.

374 Id. at 314.

375 Smith v. Southern Maine Community College, 2005 WL 2716529, at *1 (Me. Super. Ct. May 31, 2005).

376 Id. at *3.

377 464 F.3d 667, 668 (7th Cir. 2006).

378 Id. at 672.

379 Vanessa Grigoriadis, BLURRED LINES: RETHINKING SEX, POWER, AND CONSENT ON CAMPUS 82 (2017).

380 Ibid., 79; see also Unwanted Advances, 37 (noting that “[i]n 2013, [Northwestern] received roughly $350 million 

in federal funding, [which equates to] 70% of its research funds for the year.”).
Title IX 69

under Title IX due to sexual harassment because ED OCR didn’t want to upset schools.381 Others 

have concluded that “Title IX’s central enforcement mechanism, the termination of federal funds, 

has proved unworkable in practice.”382

ED OCR has responded that the regulations and ED OCR’s Case Processing Manual have a 

process for terminating federal funds that they follow.383 The statute (Title IX) requires multiple 

steps, including an opportunity for a hearing and appeal, along with notification to Congress, 

before federal funds can be terminated.

384

 The regulations also require attempts at voluntary 

agreements before funds can be suspended or terminated.

385

 DOJ explained the benefits of 

voluntary compliance and told the Commission that: 

It is true that we [the federal government] can’t necessarily go after every institution 

that doesn’t live up to its obligations under the statutes, but in addition to those 

enforcement actions we will certainly work -- and OCR has certainly done an 

enormous amount of work to bring institutions into voluntary compliance and reach 

agreements to take action that haven’t needed to be referred to DOJ for 

investigation or further action.386

ED OCR also states it meaningfully threatens to terminate federal funds, which can assist in 

reaching voluntary resolutions with recalcitrant schools.387 ED OCR told the Commission that ED 

 

381 Blurred Lines, 82 (Comparing the amount of money assessed against Yale for misrepresenting data on forcible 

sex offenses under the Clery Act (a $165,000 fine, or “pittance” when compared to the University’s endowment and 

operating budget) and remarking with regard to Title IX that “[t]he Obama administration had initiated a political 

dance: they promulgated a new set of standards and then didn’t enforce them, perhaps to avoid infuriating 

colleges.”).

382 Melnick, Transformation of Title IX, 35.

383 34 C.F.R. § 106.71 (adopting the Title VI regulations including the fund termination process into the Title IX 

regulations); ED OCR Case Processing Manual, 18, 20 (discussing timing and drafting of a negotiation impasse or 

impending enforcement action letter consistent for carrying out the regulations for fund termination).

384 20 U.S.C. § 1682 (“In the case of any action terminating, or refusing to grant or continue, assistance because of 

failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency 

shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity 

involved a full written report of the circumstances and the grounds for such action. No such action shall become 

effective until thirty days have elapsed after the filing of such report.”).

385 U.S. Department of Education, Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of 

Students by School Employees, Other Students, or Third Parties (2001) 

http://www2.ed.gov/about/offices/list/ocr/docs/shguide.html; see also 28 C.F.R. § 42.108(a).

386 James Cadogan, Then-Senior Counselor to the Assistant Attorney General, Civil Rights Division, Department of 

Justice, Briefing Transcript, pp. 77-78.

387 Tyler Kinkade, “Colleges Warned They Will Lose Federal Funding for Botching Campus Rape Cases,” 

Huffington Post, July 14, 2014, https://www.huffpost.com/entry/funding-campus-rape-dartmouthsummit_n_5585654, (quoting then-Assistant Secretary for the Office for Civil Rights, Catherine E. Lhamon as 
Free to Learn: Speech and Sexual Harassment on Campus 70

OCR would not shy away from pursuing the termination of federal funds: “[W]hen [OCR] 

investigate[s], we find a problem and we’re not able to reach a voluntary resolution, the 

administration is committed to going to enforcement and, as the Title IX authorizes, terminating 

federal funds. And that stick that we have, and we’ve had it for a long time, is a very effective tool 

in reaching voluntary resolutions.”

388

Limitations of Title IX

Others have also criticized the statutory scheme of Title IX and noted that “the legal system alone 

is not an adequate mechanism for reducing or eliminating sexual harassment. Adherence to legal 

requirements is necessary but not sufficient to drive the change needed to address sexual 

harassment.”389 The criticism is that legal policies and procedures are “the triumph of form over 

substance in sexual harassment law” because “rules are developed and incentives are created with 

little to no attention paid to whether those legally mandated [] interventions are likely to prevent 

harassment or adequately redress the harm it creates when prevention fails,” to wit focusing on 

Title IX coordinators, grievance procedures, and written policies, as opposed to combatting sexual

harassment.390

The Department of Education has not just focused on enforcement to encourage the writing of 

policy documents, i.e., form over substance, but has also offered technical assistance on preventing

and reducing sexual harassment on higher education campuses. ED OCR has described its 

technical assistance as providing “[e]ducators, parents, and students [with] the knowledge and 

skills to identify, prevent, and address discrimination or get help when [discrimination] occurs.”391 

Between FY 2009 and FY 2016, ED OCR conducted over 1,800 technical assistance presentations

on Title IX.

392

 

saying “It [the threat of termination of federal funding] is one I’ve made four times in the 10 months I’ve been in 

office. So it’s one that’s very much in use.”).

388 Galanter, Briefing Transcript, p. 44.

389 National Academies Sexual Harassment Report, 93.

390 Ibid., 98-99 (quoting Joanna Grossman).

391 Department of Education, Office for Civil Rights, Delivering Justice: Report to the President and Secretary of 

Education, p. 26 (2015), https://www2.ed.gov/about/reports/annual/ocr/report-to-president-and-secretary-ofeducation-2015.pdf.

392 See Appendix A.
Title IX 71

Congressional Efforts to Amend Title IX

Recent legislation offered by members of Congress generally focuses on the need for more strict 

procedural and reporting requirements,393 more comprehensive training and resources for Title IX 

coordinators,394 as well as introducing or reviewing the need for civil penalties for educational 

institutions that do not comply with Title IX requirements.395 Legislation has also been introduced 

to address the lack of transparency in grievance procedures and would require schools to report 

the number of complaints filed and submit findings of sexual harassment to federal agencies.396

 

393 See Campus Accountability Act, S. 856, 115th Cong., H.R. 1949, 115th Cong. (2018) (mandating 

implementation and reporting of student surveys); Education Department Civil Rights Transparency Act, H.R. 6537, 

115th Cong. (2018) (mandating annual reporting of Title IX violations); Title IX Protection Act, H.R. 4030, 115th

Cong. (2017) (codifying requirements that were previously included in Dep’t of Education guidance); HALT 

Campus Sexual Violence Act, H.R. 6464, 115th Cong. (2018) (mandating the publishing of names of institutions 

under investigation or sanctions).

394 See Patsy T. Mink and Louise M. Slaughter Gender Equity in Education Act, S. 3110, 115th Cong., H.R. 6184, 

115th Cong. (2018) (mandating that Dep’t of Education create an Office for Gender Equity to provide resources and 

training for Title IX coordinators). 

395 See Campus Accountability Act, S. 856, 115th Cong., H.R. 1949, 115th Cong. (2018) (authorizing civil penalties 

not to exceed $150,000 for each violation or misrepresentation for institutions failing to comply with Title IX 

requirements); HALT Campus Sexual Violence Act, H.R. 6464, 115th Cong. (2018) (creating a task force to review 

need for civil penalties for failure to comply with Title IX requirements).

396 See Combating Sexual Harassment in Science Act of 2018, H.R. 7031, Section 7(d)(2) (requiring federal 

recipients to submit findings of sexual harassment to federal agencies); see also id, Section 7(e)(3) (requiring federal 

recipients to make public the number of complaints received); see also Federal Funding Accountability for Sexual 

Harassers Act, H.R. 6161, 114th Cong. (introduced Sept. 22, 2016), https://www.congress.gov/bill/114thcongress/house-bill/6161/text. 
Free to Learn: Speech and Sexual Harassment on Campus 72

FINDINGS AND RECOMMENDATIONS

Findings 

1. Education institutions that receive federal funds must maintain campuses free from sexbased discrimination. Federal courts and the federal government have recognized sexual 

harassment as one form of sex-based discrimination for decades. 

2. Unwanted sexual harassment occurs with frequency in higher education institutions and 

can have life-changing impacts. Sexual harassment can have a significant negative affect 

on the academic experiences, health, and well-being of those being harassed. It has been 

shown to relate to disengagement, poor grades, symptoms of depression and anxiety, and 

raise concerns about campus safety. When perpetrated by faculty or staff, it can lead to 

feelings of institutional betrayal. 

3. Sexual harassment can undermine career advancement, such as by being deterred from 

attending professional events due to harassment concerns. 

4. The Department of Education enforces Title IX and its regulations through administrative 

investigation of complaints, compliance reviews, directed investigations, and monitoring 

of resolution agreements. The Department of Education also issues policy guidance, and 

provides technical assistance to educational institutions. 

5. Since the enactment of Title IX in 1972, across Republican and Democratic 

administrations, the Department of Education’s Office for Civil Rights has issued guidance 

including Dear Colleague letters and/or pamphlets discussing sexual harassment. 

6. ED OCR continues to publicly address the question of how Title IX enforcement comports 

with the First Amendment. Across Republican and Democratic presidential administrations 

ED OCR has explained: “OCR has consistently reaffirmed that the Federal civil rights laws 

it enforces protect students from prohibited discrimination, and are not intended to restrict 

expressive activities or speech protected under the U.S. Constitution’s First Amendment.” 

It continues to note that “Schools can also encourage students on all sides of an issue to 

express disagreement over ideas or beliefs in a respectful manner. Schools should be alert 

to take more targeted responsive action when speech crosses over into direct threats or 

actionable speech or conduct.” 

7. Colleges and universities are not generally required to report to ED OCR or provide to the 

public the number of sexual harassment complaints filed or resolved, shielding information 

about rates of reported sexual harassment and institutional responsiveness. 

8. Consistent with maintaining the right to free speech, courts have held that schools may still 

act to discipline students who harass or threaten other students. 
FINDINGS AND RECOMMENDATIONS 73

a. The Fourth Circuit recently ruled that the First Amendment does not prohibit a 

University from disciplining students for online “true threats,” explaining that 

“First Amendment concerns about penalizing speech lack a proper basis” where 

students set out a case under Title IX regarding online sexual harassment “because 

‘true threats’ are not protected speech.” 

b. Similarly, the Eleventh Circuit held in 2018 that suspending a male student for 

engaging in persistent and excessive unwanted contact with a female student, 

including lewd, threatening text messages about the female student’s body, did not 

violate his First Amendment right to free speech.

9. Investigative reporting has shown that lax enforcement from ED OCR can result in schools 

not taking claims of sexual harassment seriously. 

Recommendations 

1. ED OCR should vigorously enforce Title IX, consistent with the recognition that failure to 

enforce nondiscrimination principles may have deleterious effects on students, such as 

disengagement and psychological distress, and on campus communities more broadly. 

2. ED OCR should continue its general practice to state that case resolutions address the 

specific facts identified in investigation in the specific cases and not refer to resolution of 

any particular case as a blueprint. 

3. Given the significant level of concern expressed to this Commission on these topics, ED 

OCR should continue to make clear to the regulated community that ED OCR’s 

enforcement standards comport with and continue to adhere to First Amendment 

principles. 

4. ED OCR should continue to provide guidance and technical assistance to schools on 

prevention and reduction of sexual harassment on higher education campuses. 

5. ED OCR should collect data from colleges and universities on the number of sexual 

harassment complaints filed with or incidents reported to the college or university, and how 

the college university investigated and resolved each complaint or report. The data should 

include whether the complaint or report resulted in a misconduct finding and whether the 

subject of the complaint or report was disciplined and how. 
Free to Learn: Speech and Sexual Harassment on Campus 74

COMMISSIONERS’ STATEMENTS AND REBUTTALS

Statement of Chair Catherine E. Lhamon 

The Commission began the investigation that led to this report before I joined the Commission and 

while I was still Assistant Secretary for Civil Rights at the U.S. Department of Education. At that 

time, I welcomed the Commission’s examination of federal civil rights enforcement of protections 

against sexual harassment in schools, and I was pleased to send my Principal Deputy Assistant 

Secretary, Seth Galanter, to testify at the Commission’s briefing. While Commission staff were in 

process of drafting the report, I was surprised when the Commission sponsor for the report chose 

to dramatically narrow the scope of the investigation to the topic this report now covers: sexual 

harassment related to free speech in higher education institutions to the exclusion of K-12 schools 

and to the exclusion of the gamut of other issues Title IX protects related to sexual harassment. 

Nonetheless, out of courtesy to my Commission colleague who sponsored the project, I acceded 

to her narrowing of the investigation, and I continue to welcome the Commission’s contribution, 

in this report, to debunking a false narrative that the Department of Education’s Office for Civil 

Rights has been or is uninterested in free speech protection or that speech protection is 

incompatible with protection against harassment. As important as I know the full range of issues 

related to effective federal enforcement of Title IX’s protection against sexual harassment in 

schools to be, I am grateful that the Commission could contribute even to this narrow topic. 

Congress has for 47 years provided that “[n]o person” shall be subjected to discrimination on the 

basis of sex in schools,1and, as this report documents, the Office for Civil Rights has, for nearly 

all those years, explicitly recognized that that protection extends to sexual harassment of students 

in schools.2 We are well past the time for debates over core coverage of that concept or for pretense 

that that protection irreconcilably conflicts with constitutional protection of speech. I thank my 

Commission colleagues for devoting resources to explaining this critical area of civil rights and 

for identifying the recommendations this report offers for improving students’ learning experience. 

 

1 Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681.

2 Report at 32. 
COMMISSIONERS’ STATEMENTS AND REBUTTALS 75

Statement of Commissioner Karen Narasaki

This report is the result of my first hearing as a Commissioner over five years ago. It was a bit of 

a shock to me the callousness with which some of the witnesses approached the topic which 

focuses on the balance between Title IX prohibitions on sexual harassment and the protection of 

free speech in a publicly funded institution of learning. Those witnesses alarmed by the effort of 

the Obama Administration to provide guidance to help schools to better protect their students 

against sexual harassment did not seem very concerned about the impact of such harassment on 

its victims and their education. One seemed to take the position that short of actual physical 

violence being involved in an incident, the school could not and should not take any disciplinary 

action, ignoring the very real impact other forms of harassment can have.1 

At our hearing, a representative from AAUW presented survey results for middle and high 

school students, finding that a third of harassed students felt sick to their stomachs, 30% said 

they had a hard time studying as a result of harassment, 19% had trouble sleeping, 8% quit a 

sport or activity, and 4% actually changed school because of harassment.2 She noted that they 

found similar results on campuses for students age 18 to 24. In both groups—the middle and 

high school students and the college students—the effects reached both boys and girls, but with 

stronger negative effects for girls.3 

 

1

“Enforcement of Sexual Harassment Policy at Educational Institutions by the U.S. Department of Education’s 

Office for Civil Rights and the Civil Rights Division of the Department of Justice,” Briefing before the U.S. 

Commission on Civil Rights (July 25, 2014) (hereinafter “Briefing Transcript”), 

https://www.usccr.gov/calendar/trnscrpt/CommissionBriefingTranscript_July-25-2014_%20final.pdf, at 242-44: 

COMMISSIONER NARASAKI: So my example would be, say you have a whole ring of boys who are 

harassing a group of girls, calling them sluts, calling them, you know, herpes-carrying, you know just 

generally degrading them. To you, that would be protected by the First Amendment.

MR. VOLOKH: Yes. 

COMMISSIONER NARASAKI: That no one could do anything about. 

MR. VOLOKH: Well, people could do things about it, but the government actors ... can neither throw in 

jail or impose administrative punishment on students who are expressing this [...], college and university 

students. I'm not talking about K through 12, who are expressing derogatory opinions about others. Again, 

Hustler v. Falwell is an example, that Jerry Falwell was --- 

COMMISSIONER NARASAKI: That's fine. That's fine. 

COMMISSIONER HERIOT: Herpes, I assume, is a fact issue. If it's a false statement --

MR. VOLOKH: If it's a false statement, then yes, that is, indeed --- that falls in the slander section. If it's 

true, well, that's something people may very well talk to each other about.

2

Ibid., 141. 

3

Ibid., 143. 
Free to Learn: Speech and Sexual Harassment on Campus 76

Schools that understand this as a threat to their educational mission find themselves in a bind. 

Research suggests that sexual harassment is indeed a pervasive problem on campus: A 2015 

survey of undergraduate and graduate students found that 48 percent of all students indicated 

they had experienced sexual harassment—including 62 percent of undergraduate females and 43 

percent of undergraduate males.4 Schools need government to give them guidance that gives the 

space to protect their students. Ignoring harassers until they cross the line into physical violence 

ignores the very real emotional and mental toll such harassment can take. Forcing victims to 

have to attend classes with or live in dormitories with their harassers unless there is a criminal 

procedure is cruel and makes the school complicit in the torture inflicted by the harasser. It also 

sends a message to others that reporting is useless and that such behavior will be condoned. 

I have talked to too many parents whose daughters have been victimized by harassment and now 

suffer long term consequences to not believe that we must do better. 

The responsibilities cannot be just on the government and the schools. Parents need to do better, 

too. At a dinner I attended during the height of one of the many school scandals after the hearing, 

mothers discussed their concerns that their sons might be falsely accused or might unwittingly 

cross a line. They derided a California effort to go beyond “no means no” and require an actual 

“yes” as being unrealistic. And one complained that now she would need to do more to “warn” 

her son. Yes, absolutely. Parents should be talking to their sons as much as they talk to their 

daughters. Society has for too long placed the responsibility for protecting against sexual 

harassment and unwanted sex solely and unfairly on the girls. A 2015 study, for example, 

evaluated 500 sexual assault prevent tips found on college websites, and found that over 80 

percent of them were directed at women, less than 14 percent were directed at men, and six 

percent were gender neutral.5 The researchers conclude: “Findings imply that the burden of 

college sexual assault prevention still falls primarily on female students.” 

We should be encouraging students, particularly young men and their families, to affirmatively 

promote respectful interactions and consent-driven sexual activity. The “It’s on Us” campaign 

provides a refreshing alternative perspective.6 Instead of painting boys and young men on 

campus primarily as bystanders to campus rape culture, it empowers them to drive positive 

change. It provides resources for bystander intervention, consent education, and survivor 

support. It places boys and young men as equal partners in making the necessary changes to 

campus culture to give everyone an equal right to succeed. 

The focus that the last administration raised on this issue put universities on notice that they need 

to do better, and many of them have. Unfortunately, the current administration took issue with 

the Title IX guidance issued by the Obama administration and has rescinded that guidance, 

 

4 Report at 10; Westat, Report on the Association of American University Campus Climate Survey on Sexual 

Assault and Misconduct (2017), p. 84, https://www.aau.edu/sites/default/files/AAU-Files/KeyIssues/CampusSafety/AAU-Campus-Climate-Survey-FINAL-10-20-17.pdf. 

5 Samantha Allen, “Rape Prevention is Still a Woman’s Job, Campuses Say,” The Daily Beast, April 13, 2017. 

https://www.thedailybeast.com/rape-prevention-is-still-a-womans-job-campuses-say?ref=scroll

6 https://www.itsonus.org/
COMMISSIONERS’ STATEMENTS AND REBUTTALS 77

instead issuing a proposed new rule on Title IX7that falls far short of providing support for 

survivors. 

The proposed rule by the new Administration would be both a step backward for schools that 

have already taken steps to do the right thing, as well as signaling a troubling shift in the 

government’s attitude about who has responsibility for preventing campus sexual harassment and 

violence. Patsy Mink, the first woman of color and Asian American woman to serve in 

Congress, was a primary author and sponsor of Title IX. When speaking about her legislation, 

later posthumously named in her honor, she explained “Discrimination against women in 

education is one of the most insidious forms of prejudice extant in our Nation. Few people 

realize the extent to which our society is denied full use of our human resources because of this 

type of discrimination.”8 She recognized then, in 1972, what many are fully coming to recognize 

only now—limitations on women’s access to education is a core issue of civil rights, with 

consequences for the entire country. 

 

7 Report at 40-42. 

8 Statement of Senator Daniel Inouye, Congressional Record, 107th Congress, 2nd Session, Issue: Vol. 148, No. 126, 

p. S9706. 
Free to Learn: Speech and Sexual Harassment on Campus 78

Dissenting Statement of Commissioner Gail Heriot

“Move along. There’s nothing to see here.” That seems to be this report’s message. It was 

supposed to take a hard look at how the Department of Education’s Office for Civil Rights 

(“OCR”) pushes colleges and universities to crack down on speech—speech that may be protected 

by the First Amendment or by academic freedom. Instead, the report and the two other 

Commissioner Statements glide over those issues. It assumes that as long as OCR denies an intent 

to require colleges and universities to violate the First Amendment, there can be no First 

Amendment problem. From there, it blandly concludes that, apart from people worrying too much, 

everything is fine: 

Given the significant level of concern expressed to this Commission on these topics, 

[OCR] should continue to make clear to the regulated community that [OCR’s] 

enforcement standards comport with and continue to adhere to First Amendment 

principles.1

The problem isn’t quite that simple. OCR has repeatedly warned schools that they must exercise 

control over students or faculty members who make “sexual comments, jokes or gestures,” “spread 

sexual rumors” (even true ones), or apparently write just about anything deemed to be offensive 

“of a sexual nature.”2 If they don’t, OCR tells them they can be subjected to a costly investigation 

and possibly denied federal funding. Or they can be sued. The standard for showing actionable 

harassment is cumulative, so schools have an incentive to discourage anything, even trivialities, 

that can add to the likelihood of Title IX liability. 

It should be obvious that much of the expression OCR warned of is protected by the First 

Amendment and/or the norms of academic freedom. It should be equally obvious that as long as 

schools have more to fear from Title IX liability than from being accused of First Amendment 

violations, there will be a problem.

What might cause the Commission to dismiss so cavalierly issues that the First Amendment 

experts who testified as our briefing take seriously? Maybe the fact that our Chair, Catherine 

Lhamon, was previously the Assistant Secretary of Education for Civil Rights has something to 

do with it. While in that office from 2013 to 2017, she was in charge of OCR’s Title IX 

enforcement. This report, which the Commission voted to undertake before she was appointed, 

was in many ways designed to examine her performance in that office. 

 

1 See supra at Recommendation 3, p. 73.

2 Dear Colleague Letter of October 26, 2010, available at 

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf. See also “Sexual Harassment: It’s Not 

Academic,” September 2008, https://www2.ed.gov/about/offices/list/ocr/docs/ocrshpam.pdf (Archived.) 
COMMISSIONERS’ STATEMENTS AND REBUTTALS 79

I am told that a Commissioner is not required to recuse herself from a report unless she has a 

financial interest at stake. One’s professional reputation is not considered a financial interest for 

this purpose. I have no reason to doubt the accuracy of that legal analysis (though I have not 

studied the question carefully myself). There may well be good reason for it. But it is awkward.

At the very least, it is important for readers to be aware of the circumstances of the report. 

Situations like this tend to have an effect on content. For example, up until the week before the 

Commission voted on this report, its title was Sexual Harassment and Free Speech on Campus. 

At Chair Lhamon’s request, it was changed to Free to Learn: Speech and Sexual Harassment on 

Campus. 

See the difference? In the first version, by using the term “free speech,” the report implicitly 

acknowledged the importance of the Constitution’s insistence that speech be free of government 

control. The latter version sends a somewhat different message. In it, speech is just speech. But 

“freedom to learn” implicitly suggests that the government has a duty to intervene to prevent or 

discourage certain kinds of speech that may be deemed offensive.

The change in title is just one among many changes that this project has undergone since its 

inception. The final draft bears little resemblance to the first. I do not mean to suggest, however, 

that those changes were only the result of Chair Lhamon’s appointment to the Commission. They 

were not. Long before Chair Lhamon arrived, my progressive colleagues (to my surprise) made it 

clear that they had very little interest in the First Amendment and academic freedom issues raised 

by Title IX enforcement methods.3 Alas, this appears to reflect the shift in viewpoint many of 

 

3

In this vein, Commissioner Narasaki’s Commissioner Statement mischaracterizes the testimony of one of our 

witnesses, UCLA law professor and First Amendment scholar Eugene Volokh. She writes that Volokh took the 

position that “short of actual physical violence being involved in an incident, the school could not and should not 

take any disciplinary action, ignoring the very real impact other forms of harassment can have.” As support for this 

statement, she quotes an exchange between Volokh and her from the briefing transcript, in which Commissioner 

Narasaki posed a hypothetical to Professor Volokh involving a “ring of boys who are harassing a group of girls, 

calling them sluts, calling them, you know, herpes-carrying, you know just generally degrading them.” Professor 

Volokh testified that “people could do things about it, but the government actors... can neither throw in jail or 

impose administrative punishment on students who are expressing this... college and university students. I’m not 

talking about K through 12...” I then jumped in to clarify, “Herpes, I assume, is a fact issue. If it’s a false 

statement...” and then Professor Volokh agreed, “If it’s a false statement, then yes, that is indeed – that falls in the 

slander section.” In other words, the quoted statement does not support the proposition that a school cannot take any 

disciplinary action in cases not involving physical violence. Slander is not physical violence. 

Elsewhere, Professor Volokh testified that types of speech not protected by the First Amendment in colleges and 

universities level include “threats,” “fighting words,” “libel or slander,” (223) and “continued unwanted messages to 

someone after they said stop” (240.) He also testified that there are fewer legal protections on speech at the K-12 

level. There, schools may restrict “vulgar” speech, “speech “encouraging illegal behavior or drug use,” and speech 

“substantially disruptive of the environment.” 227-8. None of these exceptions can be fairly characterized as “actual 

physical violence.” 
Free to Learn: Speech and Sexual Harassment on Campus 80

those on the left side of the political spectrum have undergone in the last few decades.4 It saddens 

me. And it is a little frightening.

 

Commissioner Narasaki further states that “Schools need government to give them guidance that gives them the 

space to protect their students. Ignoring harassers until they cross the line into physical violence ignores the very real 

mental and emotional toll such harassment can take.” None of our witnesses took the position that schools cannot 

separate students from one another until or unless one student commits physical violence. Also, generally schools 

are capable of figuring out how to separate students from one another appropriately without the express permission 

of the Department of Education.

She states that “Forcing victims to have to attend classes with or live in dormitories with their harassers unless there 

is a criminal procedure is cruel.” No witness at our briefing took the position that the First Amendment prevents 

schools from separating harassers and victims. It is true that a student who is accused of harassment is entitled to due 

process. But nobody at our briefing or elsewhere, to the best of my knowledge, has argued that “due process” 

requires criminal prosecution before a university may act to keep students separate. 

4 Even the American Civil Liberties Union, long a champion of the right of free speech, is not immune. Cato Institute 

scholar Walter Olson wrote in the Wall Street Journal in 2017:

Two hundred of [the ACLU’s] 1,300 staffers signed a letter earlier this month calling on the group 

to reconsider its “rigid stance” in favor of the freedom of speech. Over the years the ACLU has 

expanded its mission to housing discrimination, LGBT issues, school finance and even supporting 

ObamaCare—issues with little connection to the Bill of Rights. The organization’s joked-about 

“Civil Liberties Caucus” is fast becoming an old guard, giving way to progressives who are there 

for equality and social-justice work.

Walter Olson, The ACLU Yields to the Heckler’s Veto, Wall St. J., October 24, 2017, available at 

https://www.wsj.com/articles/the-aclu-yields-to-the-hecklers-veto-1508884285. 

Less than a year later, the ACLU’s retreat from its role as the champion of free speech became even more evident. 

Former ACLU board member Wendy Kaminer wrote in the Wall Street Journal:

The American Civil Liberties Union has explicitly endorsed the view that free speech can harm 

“marginalized” groups by undermining their civil rights. “Speech that denigrates such groups can 

inflict serious harms and is intended to and often will impede progress toward equality,” the ACLU 

declares in new guidelines governing case selection and “Conflicts Between Competing Values or 

Priorities.”

In some sense, this wasn’t news. As Kaminer put it:

This is presented as an explanation rather than a change of policy, and free-speech advocates know 

the ACLU has already lost its zeal for vigorously defending the speech it hates. ACLU leaders 

previously avoided acknowledging that retreat, however, in the apparent hope of preserving its 

reputation as the nation’s premier champion of the First Amendment.

Kaminer noted that fundraising and communications specialists helped formulate the new guidelines and laments that 

the ACLU’s donors have changed: “[T]raditional free-speech values do not appeal to the ACLU’s increasingly 

partisan progressive constituency—especially after the 2017 white-supremacist rally in Charlottesville.” That 

constituency has pushed for the ACLU to expend more of its resources fighting for progressive causes and less 

on free speech per se. In particular, the new guidelines “cite as a reason to decline taking a free-speech case 
COMMISSIONERS’ STATEMENTS AND REBUTTALS 81

I proposed this project back in 2013. Since the Commission was then divided 4-4 between 

appointees chosen by Democratic and Republican office holders, I was looking for something 

that I thought would have a bipartisan and cross-ideological appeal.5 At our meeting in 

November of 2013, several of my progressive colleagues voted to approve my proposal in 

exchange for my vote to approve Commissioner David Kladney’s patient dumping concept 

paper.6 Shortly thereafter President Obama made two new appointments to the Commission, 

resulting in a 6-2 Commission in favor of appointees chosen by Democratic office holders.

The patient dumping report proposed by Commissioner Kladney was completed and published in 

September of 2014—less than a year later. On the other hand, my project—i.e. this report—will 

in the end have taken more than six years (and many changes to its scope) to be completed. It 

has been astonishingly slow in coming to fruition. 

 

‘the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are 

contrary to our values.’”

Wendy Kaminer, The ACLU Retreats from Free Expression: The Organization Declares that Speech it Doesn’t 

Like Can “Inflict Serious Harms” and “Impede Progress,” Wall St. J., June 20, 2018, available at 

https://www.wsj.com/articles/the-aclu-retreats-from-free-expression-1529533065. 

Conservative/libertarian organizations like the Foundation for Individual Rights in Education (FIRE) and Speech 

First have taken up the “First Amendment banner.”

5 When I proposed the topic, I had become interested in the debate about a then-recent joint letter from the Department 

of Education’s Office for Civil Rights (“OCR”) and Department of Justice’s Civil Rights Division to the University 

of Montana, which stated that it would “serve as a blueprint for colleges and universities throughout the country to 

protect students from sexual harassment and assault.” The letter required Montana to investigate harassment claims 

even if a reasonable person would not have found the speech in question objectionable. The blueprint defined 

harassment as “unwelcome conduct of a verbal nature” (that is, speech) of a sexual nature – a definition broader than 

that found in Supreme Court precedent, which requires that sexual harassment be severe, pervasive, and objectively 

offensive to be actionable.

Critics charged that this letter misstated applicable law and would chill some constitutionally protected speech of 

students, faculty and staff. Some of the criticism of this letter – and of OCR’s efforts to increase enforcement of sexual 

harassment more generally – was coming from liberals, progressives, and moderates who might otherwise be inclined 

to support a Democratic administration. After an initial round of criticism, then-Assistant Secretary Lhamon even 

appeared to back away from some of the language in the Montana Letter that was most harshly criticized. I’d therefore 

hoped that the Commission might issue a report with a recommendation along the lines of “We have different views 

about how to interpret Title IX and the law of sexual harassment, but we all agree that the tension between free speech 

and sexual harassment law as currently interpreted is a serious problem that needs careful attention from OCR and 

DOJ.” 

6 Transcript of Business Meeting of November 15, 2013 at 45-48.
Free to Learn: Speech and Sexual Harassment on Campus 82

As I alluded to above, the report was originally supposed to be fairly narrowly focused on the 

conflict between the First Amendment and free expression on the one hand and sexual 

harassment law as applied on college and university campuses on the other.7 At the time I 

believed (and I continue to believe) that the Commission should try to select topics that are more 

modest in scope than it has selected in the past. When the Commission issues what I call 

“battleship reports,” it seldom manages to make a genuine contribution to the literature. 8

Alas, it was not to be. From the beginning, my colleagues successfully sought to expand the 

topic to include sexual violence, thus moving the topic away from First Amendment and free 

expression issues and toward the enforcement of Title IX more generally. Indeed, the first 

witness at the briefing (which took place on July 25, 2014) discussed only sexual violence in her 

 

7 A secondary issue for me was concern about how sexual harassment laws are interpreted at the K-12 level to restrict 

ordinary physical contact among young children or between them and their teachers. I had been told by schoolteacher 

acquaintances that they were counseled against hugging their young charges because of fears about sexual harassment 

liability. I started poking around the internet to see how common this sort of thing was and was startled to find news 

articles about kindergartners getting suspended for sexual harassment. See Juju Chang, Alisha Davis, Cole Kazdin, & 

Olivia Sterns, First-Grader Labeled a Sexual Harasser, ABC News (April 4, 2008), available at 

http://abcnews.go.com/GMA/AsSeenOnGMA/story?id=4585388; 6-Year-Old Boy Accused of Sexual Harassment,

WSPA-7-On-Your-Side (April 4, 2008); Yvonne Bynoe, Is that 4-Year-Old Really a Sex Offender?, WASH. POST

(October 21, 2007), available at http://www.washingtonpost.com/wpdyn/content/article/2007/10/19/AR2007101901544.html; Gitika Ahuja, First-Grader Suspended for Sexual 

Harassment, ABC News (February 7, 2006), available at http://abcnews.go.com/US/story?id=1591633. According 

to the Maryland Department of Education, 166 elementary school students were suspended in the 2006-2007 school 

year for sexual harassment, including three pre-schoolers, sixteen kindergarteners, and twenty-two first graders. In 

Virginia, 255 elementary school students were suspended for offensive touching in that same year. Juju Chang, Alisha 

Davis, Cole Kazdin, & Olivia Sterns, First-Grader Labeled a Sexual Harasser, ABC News (April 4, 2008), available 

at http://abcnews.go.com/GMA/AsSeenOnGMA/story?id=4585388. 

I thought persons across the political spectrum ought to be able to agree that this was absurd, and that maybe even our 

divided Commission could agree to recommend to OCR and DOJ that they should correct any misunderstandings that 

Title IX required this. 

But almost from the start, my efforts to learn more about over-zealous interpretations of sexual harassment laws and 

training materials in K-12 got lost. The staff members who would have been assigned to the task clearly did not want 

to do it. Moreover, I was told by the Commission’s then-General Counsel that we could not mail out an information 

request to K-12 school districts because it would violate the Paperwork Reduction Act. I sent out nine letters myself 

as Freedom of Information Act requests and submitted the responses I received to the Staff Director as part of the 

record. While they were discussed briefly in the first draft of the report (see draft at 23), none of the responses are 

discussed in the final report. 

8

In her Statement, Chair Lhamon says that she was “surprised that I wanted to “dramatically narrow the scope of the 

investigation” of this report. As I discuss above, my request wasn’t to dramatically narrow the scope of the project, 

but to keep the project within the scope of the concept paper approved by the Commission, and I believe that the 

Commission had good reasons for keeping the scope of the project narrow. 
COMMISSIONERS’ STATEMENTS AND REBUTTALS 83

testimony. One of our later witnesses that day, Kenneth Marcus (then of the Brandeis Center, 

now Assistant Secretary for Civil Rights at the Department of Education) noted sardonically, 

“the Commission has been exceptionally efficient at co-locating two different briefings in the 

same place at the same time, one on sexual violence, the other on speech issues.”9 I couldn’t 

suppress a rueful smile.

In spite of these challenges, the 2014 briefing managed to attract a strong group of witnesses who 

were prepared to discuss free speech issues in detail. They included UCLA law professor Eugene 

Volokh, who is a leading scholar of the First Amendment, Greg Lukianoff, a public interest 

attorney and author who specializes in representing clients whose speech rights have been curtailed 

by colleges or universities, and the previously mentioned Kenneth Marcus. 

The first draft of the report was an unusually long time in coming. I don’t entirely know why. 

Ordinarily, the Commissioner who proposes a topic has a lot to do with shepherding the report 

through the drafting, editing, and approval process. That practice doesn’t seem to apply when the 

Commission is 6-2 and the proposing Commissioner is in the minority. When the draft finally did 

come, it was essentially a lightly edited transcript of the briefing. That is not unusual for 

Commission reports. Commissioners are then given the opportunity to weigh in with their 

individual Commissioner Statements, and the Commission as a whole adopts “Findings and 

Recommendations.” 

I am told by Commission staff members that several of my fellow Commissioners made clear that 

they would not vote to approve that first draft. They thought it was too focused on First 

Amendment issues and not enough on the emotional toll on the victims of sexual assault and 

harassment. Moreover, it made OCR look bad. By this time, with the addition of Chair Lhamon 

and Commissioner Debo Adegbile, the Commission’s membership had changed again (though it 

remained 6-2 in favor of Commissioners appointed by Democrats). 

The General Counsel’s office was directed to go back and do another draft. The resulting version 

– the one in front of you – has far less to say about free speech.10 I appreciate the General Counsel 

and her staff’s efforts to come up with a draft that could garner the support of a majority of the 

 

9 U.S. Commission on Civil Rights, Briefing Transcript, July 25, 2014, at 81, available at 

https://www.usccr.gov/calendar/trnscrpt/CommissionBriefingTranscript_July-25-2014_%20final.pdf. 

10 Some crude numbers that give a sense of the shift in the draft: of the witnesses whom I’d describe as broadly in 

favor of more protection for speech, Professor Eugene Volokh is cited once in the new report and seven times in the 

old report. Greg Lukianoff is cited three times in the new report and five in the old. Kenneth Marcus is cited five 

times in the new report and nine times in the old. The drop is all the more striking because some of the citations in 

the second draft refer to Marcus’s work at the Department of Education post-2018 and not to his briefing testimony. 

Ada Meloy of the American Council for Education is cited three times in the current report and eight times in the 

previous draft.
Free to Learn: Speech and Sexual Harassment on Campus 84

Commission. Still, this is not the report or the findings and recommendations that I had hoped to 

see. It did not garner my vote or Commissioner Peter Kirsanow’s.11

Ordinarily, that would not be the worst thing in the world. I am used to making my points in my 

Commissioner Statement rather than in the body of the report as approved by the Commission as 

a whole. Unfortunately, that won’t be the case with this report. I had hoped to write a serious 

critique of OCR’s Title IX enforcement methods (as well as the current state of harassment law 

more generally) as they affect free expression. And I still intend to do that as an independent 

article. But in 2019 there has been a sprint to get out a wave of long withheld reports before 

President Trump makes two new appointments and the Commission’s partisan and ideological 

balance shifts. During this year, the Commission has published three reports and plans to publish 

three more (including this one) by year’s end. Another was completed and approved this year, but 

will be published just after the new year. Like my Commissioner colleagues, I am a part-time 

Commissioner. My full-time job is elsewhere. In the 30 days I have been given to write this 

statement (with overlapping 30-day periods for other reports), I cannot do justice to this very 

important and complex topic.12

 

11

 Among other problems, it sometimes misstates the law. For example, in a footnote inserted at Chair Lhamon’s 

request, the report blithely suggests that there are no First Amendment concerns when a private college or university 

regulates the speech of its students and no Fifth Amendment due process concerns when it adopts adjudicative 

procedures that are unfair:

Like the First Amendment, constitutional due process protections do not apply in private schools. 

See First Amendment on Private Campuses, Harvard Civil Rights-Civil Liberties Law Review, Dec. 

1, 2015, https://harvardcrcl.org/first-amendment-on-private-campuses/ (citing Robert M. O’Neill, 

Free Speech in the College Community 225 (1997)). Nonetheless the Commission repeats the 

criticism here as it has been levied, notwithstanding its legal inapplicability.

Supra at _____.

This misses the point. What this report is supposed to deal with is the fact that the Federal government (or more 

particularly OCR) has been requiring private colleges and universities (as well as public ones) to regulate the speech 

of their students, faculty and staff. 

A private college or university may, consistently with the Constitution, require its students to speak and act in ways 

that the federal government may not. But that doesn’t mean the federal government can command a private college 

or university to do so. The Constitution does not prevent private schools from accepting only Roman Catholic, Baptist 

or Buddhist students. It does not even prevent private schools from accepting only Democrats, only Republicans or 

only students who promise to support all federal policies, right or wrong. But the federal government cannot require 

private schools to do this. Nor can it condition the receipt of federal funds on such an admissions policy, especially 

given that in today’s world that would essentially be the same as a flat requirement. 

12 I asked Chair Lhamon for an extension of time to complete a decent Statement. The tradition as I understand it is 

that extensions that are asked for in good faith are routinely given; indeed they are expected when reports overlap in 

time (as they did in this case). For example, Commissioner Yaki received extensions that added up to about six 

months in our forthcoming Stand Your Ground report (though that was an extraordinary case in terms of length of 

time.) Nevertheless, she declined to do so in my case. She took the position that in order to accommodate the desire 
COMMISSIONERS’ STATEMENTS AND REBUTTALS 85

In that independent article, I will address developments at the national level that have been more 

positive,13 rendering some of the briefing testimony supporting this report outdated, as well as 

developments on campuses around the country that have been less positive. 

One problem that I’m unlikely to have is finding college and university actions undertaken in the 

name of Title IX enforcement that are genuinely troubling. You can find them on practically every 

campus if you take the time to look.14 A young intern who attended several of our meetings last 

year had a troubling personal story. At Yale University, as an undergraduate philosophy major, 

he wrote a paper criticizing Plato’s tripartite theory of the soul as follows:

I believe spirit can be allied with appetite against reason. Take any 

drunken-fest. People drink spiritedly even when they know it is 

against their greater good. Even if an argument will be presented in 

that case that people’s reason is impaired at the time they drink, and 

thus not in conflict with their spirit, consider the case of a rapist. A 

rapist may rape with much vigor, or in anger. Here, presumably, 

 

of Commissioner Narasaki (whose term will expire shortly) to file a Statement, the due dates could not be extended. 

But Commissioner Narasaki’s term ended on November 29, 2019. She will have to file any Statement and any 

rebuttal or surrebuttal material by that date in any event and, moreover, has no history of expanding her individual 

Statement to include individual rebuttal material (and apparently has not done so in this case). An extension of the 

date for other Commissioners to file either their Statements or their rebuttal material would not have interfered with 

her ability to file a Statement. If the Chair had extended the deadline for me and other Commissioners either for a 

Statement or for rebuttal material, it would have given us a longer period of time to write than Commissioner 

Narasaki. But it would not have prejudiced her ability to file her own Statement. 

13 Under the Trump Administration, OCR and DOJ have withdrawn some (but not all) of the guidances that I 

consider to be most problematic.

14 During the time allotted for rebuttal to other Commissioners’ statements, an interesting news story broke in this 

vein regarding Indiana University Kelley School of Business professor Eric Rasmusen’s tweets about race, sex, and 

sexual orientation. After these tweets went viral, Indiana University was “inundated” with calls that he be fired. The 

Executive Vice President and Provost issued a memo in response, stating that the university could not fire Rasmusen 

for engaging in First Amendment protected speech. She said, however, that the tweets did raise concerns about 

whether Professor Rasmusen might illegally discriminate against students based on their sex, race, or sexual 

orientation. Although no students have complained about Rasmusen discriminating against them, the university was 

nonetheless going to take certain prophylactic actions against Rasmusen to avoid violations of anti-discrimination 

laws, such as making sure that no student is required to take Professor Rasmusen’s classes and requiring that all of 

his class assignments be double blind graded. Memo available at 

https://www.rasmusen.org/special/2019kerfuffle/provost1.pdf.

Because these prophylactic measures still adversely affect Professor Rasmusen, even though not as drastically as 

firing him would, one constitutional law professor, Josh Blackman, has questioned whether they would also violate 

the First Amendment. See Josh Blackman, “What is the difference between firing tenured professors and removing 

them from required classes?” The Volokh Conspiracy, November 24, 2019. Since the facts are still being sorted out 

in this case, I flag it only as evidence that there are significant First Amendment issues arising on campuses today in 

this area of the law. The Commission should not have brushed them aside as it did.
Free to Learn: Speech and Sexual Harassment on Campus 86

reason should dictate not to rape. Is spirit not allied with appetite 

against reason in case?”15

The teaching assistant of his course complained to the Title IX office about the paper, and he was 

ordered to attend sensitivity training and cease contact with her.16 He later sued Yale, and the case 

was settled out of court.

There is much to worry about the fate of free and open expression on campuses these days. The 

Commission should have taken this situation—and the federal government’s role in creating it—

more seriously.

 

15 Quoted in John Doe’s complaint against Yale University, available at

http://dailynous.com/2017/04/05/philosophy-papers-part-title-ix-lawsuit/. 

16 Complaint at 19-20. 
87 Appendix A: Sexual Harassmant Complaints, Compliance Reviews, and Technical Assistance 

by Fiscal Year

APPENDIX A: SEXUAL HARASSMANT COMPLAINTS, COMPLIANCE 

REVIEWS, AND TECHNICAL ASSISTANCE BY FISCAL 

YEAR

Overall # of 

Complaints

Overall # of 

Complaints 

based on Sexual 

Harassment/Sex

ual Violence

Overall # of 

Complaints 

based on 

Sexual 

Violence

Overall # of 

Compliance 

Reviews 

Initiated

Technical 

Assistance 

Provided

2016

16720 

(7747 total 

complaints 

arising from 

Title IX) 673 260 13 110

https://www2.ed.gov/a

bout/reports/annual/ocr

/report-to-presidentand-secretary-ofeducation-2016.pdf

2015

10392 

(2939 total 

complaints 

arising from 

Title IX) 536 226 7 130

https://www2.ed.gov/a

bout/reports/annual/ocr

/report-to-presidentand-secretary-ofeducation-2015.pdf

2014 9989 854 38

2013

9950

(5845 total 

complaints 

arising from 

Title IX 

2013-2014)

192 (128 for 

FY '14; 64 

for FY '13) 30 278

https://www2.ed.gov/a

bout/reports/annual/ocr

/report-to-presidentand-secretary-ofeducation-2013-14.pdf; 

https://www2.ed.gov/a

bout/reports/annual/ocr

/report-to-presidentand-secretary-ofeducation-2015.pdf

2012 7833

1137 (breakout by 

year not N/A) 31

More than 

100 (37 in 

2009)

1325 

(breakout 

by year 

N/A)

https://www2.ed.gov/a

bout/reports/annual/ocr

/report-to-president2009-12.pdf

2011 7841 40

https://www2.ed.gov/a

bout/reports/annual/ocr

/report-to-president2009-12.pdf

2010 6933 35

https://www2.ed.gov/a

bout/reports/annual/ocr

/report-to-president2009-12.pdf
Free to Learn: Speech and Sexual Harassment on Campus 88

2009

6364 (4138 

total 

complaints 

arising from 

Title IX 

2009 to 

2012) 22

https://www2.ed.gov/a

bout/reports/annual/ocr

/report-to-president2009-12.pdf

2008 6194 328 42 185

https://www2.ed.gov/a

bout/reports/annual/ocr

/annrpt2007-

08/annrpt2007-08.pdf

2007 5894 327 23 165

https://www2.ed.gov/a

bout/reports/annual/ocr

/annrpt2007-

08/annrpt2007-08.pdf

2006 5805 334

95 (sexual 

harassment) 9 170

https://www2.ed.gov/a

bout/reports/annual/ocr

/annrpt2006/index.html

2005 5533 319 73

https://www2.ed.gov/a

bout/reports/annual/ocr

/annrpt2005/index.html

2004 5044 283 53

https://www2.ed.gov/a

bout/reports/annual/ocr

/annrpt2004/index.html

2003 5141 335 74

https://www2.ed.gov/a

bout/offices/list/ocr/ann

rpt2003/index.html

2002 5019 353 11

https://www2.ed.gov/a

bout/offices/list/ocr/An

nRpt2002/index.html

2001 4571 313 21

https://www2.ed.gov/a

bout/offices/list/ocr/An

nRpt2002/index.html

2000 4897 396 47

https://www2.ed.gov/a

bout/offices/list/ocr/An

nRpt2000/edliteindex.html

1999 6628 1010 76

https://www2.ed.gov/a

bout/offices/list/ocr/An

nRpt99/index.html

1998 4847 545 102

https://www2.ed.gov/a

bout/offices/list/ocr/An

nRpt98/index.html
89 Appendix A: Sexual Harassmant Complaints, Compliance Reviews, and Technical Assistance 

by Fiscal Year

1997 5296 152

https://www2.ed.gov/a

bout/offices/list/ocr/An

nRpt97/edliteindex.html

1996 4828 152

https://www2.ed.gov/a

bout/offices/list/ocr/An

nRpt96/edliteindex.html

1995 4981 96

https://www2.ed.gov/a

bout/offices/list/ocr/An

nRpt95/edliteindex.html

1994 5302 144

https://www2.ed.gov/a

bout/offices/list/ocr/An

nRpt96/edlitea96rpt03.html

1993 5090 101

https://www2.ed.gov/a

bout/offices/list/ocr/An

nRpt96/edlitea96rpt03.html

1992 4432 77

https://www2.ed.gov/a

bout/offices/list/ocr/An

nRpt96/edlitea96rpt03.html

1991 3809 41

https://www2.ed.gov/a

bout/offices/list/ocr/An

nRpt96/edlitea96rpt03.html

1990 3384 32

https://www2.ed.gov/a

bout/offices/list/ocr/An

nRpt96/edlitea96rpt03.html

1986 2648

https://www2.ed.gov/a

bout/reports/annual/ocr

/report-to-presidentand-secretary-ofeducation-2016.pdf

1985 2199

https://www2.ed.gov/a

bout/reports/annual/ocr

/report-to-presidentand-secretary-ofeducation-2015.pdf
Free to Learn: Speech and Sexual Harassment on Campus 90

1982 1840

https://www2.ed.gov/a

bout/reports/annual/ocr

/report-to-presidentand-secretary-ofeducation-2015.pdf

1981 2887

https://www2.ed.gov/a

bout/reports/annual/ocr

/report-to-presidentand-secretary-ofeducation-2016.pdf
Appendix B: Chart of Department of Education Sexual Harassment Guidance (1981-2018) 91

APPENDIX B: CHART OF DEPARTMENT OF EDUCATION SEXUAL 

HARASSMENT GUIDANCE (1981-2018)
Free to Learn: Speech and Sexual Harassment on Campus 92

Date Source Definition of Sexual Harassment Def. of Hostile 

Environment

1981 Sexual Harassment: An 

Overview Monograph, Vol. 

2, No. 1 (Feb. 1987), 

https://archive.org/stream/E

RIC_ED301755/ERIC_ED3

01755_djvu.txt. 

“Sexual harassment consists of 

verbal or physical conduct of a 

sexual nature, imposed on the basis 

of sex, by an employee or agent of a 

recipient that denies, limits, provides 

different or conditions the provision 

of aid, benefits, services or treatment 

protected under Title IX.” (quoting

Aug. 1981 Memo from Director for 

Litigation, Enforcement and Policy 

Service to Office for Civil Rights

Regional Directors)

”

1998 Sexual Harassment: It’s Not 

Academic Pamphlet, 

https://files.eric.ed.gov/fullte

xt/ED330265.pdf. 

“Sexual harassment consists of 

verbal or physical conduct of a 

sexual nature, imposed on the basis 

of sex, by an employee or agent of a 

recipient that denies, limits, provides 

different or conditions the provision 

of aid, benefits, services or treatment 

protected under Title IX.” (quoting

Aug. 1981 Memo from Director for 

Litigation, Enforcement and Policy 

Service to Office for Civil Rights

Regional Directors)

1997 Sexual Harassment 

Guidance: Harassment of 

Students by School 

Employees, Other Students, 

or Third Parties, 

https://www.gpo.gov/fdsys/p

kg/FR-1997-03-13/pdf/97-

6373.pdf. 

“Sexually harassing conduct (which 

can include unwelcome sexual 

advances, requests for sexual favors, 

and other verbal, nonverbal, or 

physical conduct of a sexual nature) . 

. . .”

Defines “Hostile 

Environment Sexual 

Harassment” as 

“Sexually harassing 

conduct (which can 

include unwelcome 

sexual advances, 

requests for sexual 

favors, and other 

verbal, nonverbal, or 

physical conduct of a 

sexual nature) by an 

employee, by another 

student, or by a third 
Appendix B: Chart of Department of Education Sexual Harassment Guidance (1981-2018) 93

party that is sufficiently 

severe, persistent, or 

pervasive to limit a 

student’s ability to 

participate in or benefit 

from an education 

program or activity, or 

to create a hostile or 

abusive educational 

environment.” 62 Fed. 

Reg. 12034, 12038 

(Mar. 13, 1997). 

“In deciding whether 

conduct is sufficiently 

severe, persistent, or 

pervasive, the conduct 

should be considered 

from both a subjective 

and objective 

perspective. In making 

this determination, all 

relevant circumstances 

should be considered . . 

. .” Id. at 12041.

2001 Revised Sexual Harassment 

Guidance: Harassment of 

Students by School 

Employees, Other Students, 

or Third Parties, 

https://www.gpo.gov/fdsys/p

kg/FR-2001-01-19/pdf/01-

1606.pdf (notification of 

availability); 

https://www2.ed.gov/about/o

ffices/list/ocr/docs/shguide.p

df (guidance). 

“Sexual harassment is unwelcome 

conduct of a sexual nature. Sexual 

harassment can include unwelcome 

sexual advances, requests for sexual 

favors, and other verbal, nonverbal, 

or physical conduct of a sexual 

nature.” At page 2

“Gender-based harassment, which 

may include acts of verbal, 

nonverbal, or physical aggression, 

intimidation, or hostility based on 

sex-stereotyping, but not involving 

conduct of a sexual nature, is also a 

form of sex discrimination to which 

a school must respond, if it rises to a 

level that denies or limits a student’s 

ability to participate in or benefit 

“[Hostile environment 

harassment] requires a 

further assessment of 

whether or not the 

conduct is sufficiently 

serious to deny or limit 

a student’s ability to 

participate in or benefit 

from the school’s 

program based on sex.” 

At page 5

For hostile 

environment, “OCR 

considers the conduct 

from both a subjective 

and objective 

perspective. In 

evaluating the severity 
Free to Learn: Speech and Sexual Harassment on Campus 94

from the educational program.” At 

page 3.

and pervasiveness of 

the conduct, OCR 

considers all relevant 

circumstances, i.e., ‘the 

constellation of 

surrounding 

circumstance, 

expectations, and 

relationships.’” At page 

5 (quoting Davis, 526 

U.S. at 634 (citing both 

Oncale, 523 U.S. at 82 

and OCR’s 1997 

guidance).

2006 Dear Colleague Letter from 

then-Assistant Secretary for 

Civil Rights, Stephanie 

Moore (Jan. 25, 

2006)(transmitting 2001 

guidance), 

https://www2.ed.gov/about/o

ffices/list/ocr/letters/sexhar2006.html (letter);

https://www2.ed.gov/about/o

ffices/list/ocr/docs/shguide.p

df (guidance).

Same as above. Same as above.

2008 Sexual Harassment: It’s Not

Academic Pamphlet, 

https://www2.ed.gov/about/o

ffices/list/ocr/docs/ocrshpam

.pdf. 

“Sexual harassment is conduct that: 

1) is sexual in nature; 2) is 

unwelcome; and 3) denies or limits a 

student’s ability to participate in or 

benefit from a school’s education 

program.” At page 3

“The conduct can be verbal, 

nonverbal, or physical.” At page 3

“Examples of sexual conduct 

include:

 making sexual propositions 

or pressuring students for

sexual favors;

 touching of a sexual nature;

“Sexual harassment 

also occurs when a 

teacher, school 

employee, other 

student, or third party 

creates a hostile 

environment that is 

sufficiently serious to 

deny or limit a 

student’s ability to 

participate in or benefit 

from the school’s 

program. Whether 

such a hostile 

environment has been 

created depends on the 

particular 
Appendix B: Chart of Department of Education Sexual Harassment Guidance (1981-2018) 95

 writing graffiti of a sexual 

nature;

 displaying or distributing 

sexually explicit drawings, 

pictures, or written 

materials;

 performing sexual gestures 

or touching oneself sexually 

in front of others;

 telling sexual or dirty jokes;

 spreading sexual rumors or 

rating other students as to 

sexual activity or 

performance; or 

 circulating or showing emails or Web sites of a 

sexual nature.” At pages 3-4.

“Must the sexual conduct be 

unwelcome? Yes. Conduct is 

considered unwelcome if the student 

did not request or invite it and 

considered the conduct to be 

undesirable or offensive.” At page 

5.

circumstances of the 

incident(s). Relevant 

considerations include, 

but are not limited to: 

 how much of 

an adverse 

effect the 

conduct had on 

the student’s 

education;

 the type, 

frequency, or 

duration of the 

conduct;

 the identity, 

age, and sex of 

the harasser(s) 

and the 

victim(s), and 

the relationship 

between them;

 the number of 

individuals 

who engaged in 

the harassing 

conduct and at 

whom the 

harassment was 

directed;

 the size of the 

school, location 

of the 

incidents, and 

context in 

which they 

occurred; and

 whether other 

incidents 

occurred at the 

school 

involving 

different 

students.

The conduct does not 

necessarily have to be 

repetitive. If 

sufficiently severe, 
Free to Learn: Speech and Sexual Harassment on Campus 96

single or isolated 

incidents can create a 

hostile environment.” 

At pages 6-7.

2010 Assistant Secretary for Civil 

Rights Russlyn Ali to Dear 

Colleague (Oct. 26, 2010), 

http://www2.ed.gov/about/of

fices/list/ocr/letters/colleagu

e-201010.pdf (Rescinded by 

the Trump Administration in 

2017)

“Harassing conduct may take many 

forms, including verbal acts and 

name‐calling; graphic and written 

statements, which may include use 

of cell phones or the Internet; or 

other conduct that may be physically 

threatening, harmful, or 

humiliating. Harassment does not 

have to include intent to harm, be 

directed at a specific target, or 

involve repeated incidents.”

Harassment creates a 

hostile environment 

when the conduct is 

sufficiently severe, 

pervasive, or persistent 

so as to interfere with 

or limit a student’s 

ability to participate in 

or benefit from the 

services, activities, or 

opportunities offered 

by a school. When 

such harassment is 

based on race, color, 

national origin, sex, or 

disability, it violates the 

civil rights laws that 

OCR 

enforces Harassment 

creates a hostile 

environment when the 

conduct is sufficiently 

severe, pervasive, or 

persistent so as to 

interfere with or limit a 

student’s ability to 

participate in or benefit 

from the services, 

activities, or 

opportunities offered 

by a school. When 

such harassment is 

based on race, color, 

national origin, sex, or 

disability, it violates the 

civil rights laws that 

OCR enforces.”

2011 Assistant Secretary for Civil 

Rights Russlyn Ali to Dear 

“[U]nwelcome conduct of a sexual 

nature. It includes unwelcome 

“When a student 

sexually harasses 
Appendix B: Chart of Department of Education Sexual Harassment Guidance (1981-2018) 97

Colleague (Apr. 4, 2011), 

https://www2.ed.gov/about/o

ffices/list/ocr/letters/colleagu

e-201104.pdf (Rescinded by 

the Trump Administration in 

2017)

sexual advances, requests for sexual 

favors, and other verbal, nonverbal, 

or physical conduct of a sexual 

nature.”

another student, the 

harassing conduct 

creates a hostile 

environment if the 

conduct is sufficiently 

serious that it interferes 

with or limits a 

student’s ability to 

participate in or benefit 

from the school’s 

program. The more 

severe the conduct, the 

less need there is to 

show a repetitive series 

of incidents to prove a 

hostile environment, 

particularly if the 

harassment is physical. 

Indeed, a single or 

isolated incident of 

sexual harassment may 

create a hostile 

environment if the 

incident is sufficiently 

severe.”

2014 Department of Education, 

Office for Civil Rights, 

Questions and Answers on 

Title IX and Sexual Violence, 

(Apr. 29, 2014), 

https://www2.ed.gov/about/o

ffices/list/ocr/docs/qa201404-title-ix.pdf

(Rescinded by the Trump 

Administration in 2017)

“Sexual harassment by school 

employees can include unwelcome 

sexual advances; requests for sexual 

favors; and other verbal, nonverbal, 

or physical conduct of a sexual 

nature, including but not limited to 

sexual activity.”

“Title IX protects 

students from sex 

discrimination; it does 

not 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 hostile 

environment under 

Title IX. Title IX also 

does not require, 

prohibit, or abridge the 

use of particular 
Free to Learn: Speech and Sexual Harassment on Campus 98

textbooks or curricular 

materials.”

2015 Title IX Resource Guide, 

https://www2.ed.gov/about/o

ffices/list/ocr/docs/dcl-titleix-coordinators-guide201504.pdf. 

“Sexual harassment is unwelcome 

conduct of a sexual nature, such as 

unwelcome sexual advances, 

requests for sexual favors, and other 

verbal, nonverbal, or physical

conduct of a sexual nature.” At page 

15

“Gender-based harassment is another 

form of sex-based harassment and 

refers to unwelcome conduct based 

on an individual’s actual or 

perceived sex, including harassment 

based on gender identity or 

nonconformity with sex stereotypes, 

and not necessarily involving 

conduct of a sexual nature.” At page 

15

“Harassing conduct may take many 

forms, including verbal acts and 

name-calling, as well as non-verbal 

behavior, such as graphic and written 

statements, or conduct that is 

physically threatening, harmful, or 

humiliating.” At page 15

“Title IX prohibits sexbased harassment by 

peers, employees, or 

third parties that is 

sufficiently serious to 

deny or limit a 

student’s ability to 

participate in or benefit 

from the recipient’s 

education programs and 

activities (i.e., creates a 

hostile environment).” 

At page 15.

“The more severe the 

conduct, the less need 

there is to show a 

repetitive series of 

incidents to prove a 

hostile environment, 

particularly if the 

conduct is physical. 

Indeed, a single or 

isolated incident of 

sexual violence may 

create a hostile 

environment.” At page 

15

2017 Dear Colleague and Q&As 

on Campus Sexual 

Misconduct 

https://www2.ed.gov/about/o

ffices/list/ocr/letters/colleagu

e-title-ix-201709.pdf (letter); 

https://www2.ed.gov/about/o

ffices/list/ocr/docs/qa-titleix-201709.pdf (Q&As on 

Campus Sexual Misconduct)

Same as 2001 Guidance Same as 2001 

Guidance

2018 Proposed Rule, “(i) An employee of the recipient 

conditioning the provision of an aid, 
Appendix B: Chart of Department of Education Sexual Harassment Guidance (1981-2018) 99

https://www.regulations.gov/

contentStreamer?documentI

d=ED-2018-OCR-0064-

0001&contentType=pdf

benefit, or service of the recipient on 

an individual’s participation in 

unwelcome sexual conduct; (ii) 

Unwelcome conduct on the basis of 

sex that is so severe, pervasive, and 

objectively offensive that it 

effectively denies a person equal 

access to the recipient’s education 

program or activity; or (iii) Sexual 

assault, as defined in 34 CFR 

668.46(a).” At page 133
Free to Learn: Speech and Sexual Harassment on Campus 100

APPENDIX C: DEPT OF EDUCATION RESOLUTION AGREEMENTS 

WITH HIGHER EDUCATION INSTIUTIONS (2011-2016)
University Name Update Grievance Procedures Update Title IX Policy Title IX Coordinator Climat e Survey Data Collection Review Old Compla ints Employee Training Training for those involved in Title IX Grievance Procedures Student Training Campus Committee (including student representativ es) Coordin

with Lo

Law Enforcem

BioHealth College No. 09-11-2027 Complaint - Sexual Assault 

Yes Yes Yes

Buffalo State College No. 02-15-2085 Complaint - Sexual Assault 

Yes Yes Yes
Butte College 

No. 09-13-2096 Complaint - Sexual Assault 

Yes Yes Yes Yes Yes Yes Yes Yes

Cedarville 

University No. 15-

13-2163 Complaint - University lacks Title IX Coordinator and prompt and equitable grievance procedures

Yes

Yes Yes Yes Yes

Cisco College No. 06-14-2269 Complaint - Sexual Assault 

Yes Yes Yes Yes Yes

City University of New York Hunter College No. 02-13-2052 Complaint - Sexual Harassment & Sexual Assault

Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
Davis & Elkins 

College [several, if not all paragraphs have been redacted] No. 03-14-2370 Complaint - Sexual Assault 

Elmira College No. 02-14-2316 Complaint - Sexual Assault 

Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

Frostburg State University No. 03-13-2328 &No. 03-15-2032 Complaint 1: Alleged rape at an off-campus partyComplaint 2: Alleged sexual assault by a campus police officer

Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
George 

Washington University No. 11-11-2079 Complaint - Sexual Assault 

Yes Yes Yes Yes Yes Yes Yes

Glenville State College No. 03-11-2033 Complaint - Sexual Assault 

Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

Harvard Law School No. 01-11-2002 Compliance Review [stemming from a student complaint that University's grievance policies and proceduresfail to comply with Title IX].

Yes Yes Yes Yes Yes Yes Yes Yes

Humboldt State University No. 09-17-2481 Complaint - Sexual Assault 

Yes Yes
Kentucky 

Wesleyan College No. 03-12-2062 Complaint - Sexual Assault 

Yes Yes Yes Yes Yes Yes 

Massachusetts Maritime Academy No. 01-13-2008 Complaint - Sexual Assault

Yes

Yes Yes Yes Yes Yes Yes

Michigan State University No. 15-11-2098 &No. 15-14-2113 Student A: Complaint - Sexual Assault (Student-onstudent) + Retaliatory Harassment + Retaliatory Harassment from UniversityStudent B: Complaint - Sexual Violence

Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
Minot State 

University No. 05-14-2061 Complaint - Sexual Assault

Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

New School No. 02-11-2094 Complaint - Sexual Assault No violations of Title IX found by OCR. Resolution Agreement is school agreeing to notify complainant of appeal rights.Northern New Mexico College No. 08-11-2125 Complaint - Sexual Assault

Yes Yes Yes Yes Yes

Occidental College No. 09-13-2264 Complaint described allegations on behalf of 46 students, former students and staff/faculty. 

Yes Yes Yes
Ohio State 

University No. 15-10-6002 Compliance Review.

Yes Yes Yes Yes Yes Yes Yes Yes Yes

Pitzer College No. 09-12-2151 Complaint - Sexual Assault 

Yes Yes Yes Yes
Princeton 

University No. 02-11-2025 Complaint - Complainants 1, 2, and 3 alleged failure to adopt and publish grievance procedures that provide for the prompt and equitable resolution of complaints and sexual assault

Yes Yes Yes Yes Yes Yes Yes Yes Yes 

Quincy College No. 01-12-2048 Complaint - Sexual Assault

Yes Yes Yes Yes Yes Yes Yes Yes

Southern Methodist University No. 06-11-2126, No. 06-13-2081, No. 06-13-2088 Complaint 1 - gender harassment, complaint 2 - sexual harassment, complaint 3 - sexual assault

Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
St. Mary's College 

of Maryland [Documents have not been made public]State University of New York system No. 02-11-6001 Compliance Review

Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes 

Tufts University No. 01-10-2089 Complaint - Sexual Assault

Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes 

University of Alaska system No. 10-14-6001 Compliance Review

Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
University of 

Kansas No. 07-12-2007 Complaint - Sexual Assault

Yes Yes Yes Yes Yes Yes Yes

University of Mississippi No. 06-10-20169 Complaint - Sexual Assault

Yes Yes Yes Yes Yes Yes Yes

University of Montana at Missoula No. 10-12-6001 Complaint - sexual assault

Yes Yes Yes Yes Yes Yes Yes

University of Notre Dame No. 05-11-6901 Compliance Review

Yes Yes Yes Yes Yes Yes
University of 

Virginia No. 11-11-6001 Compliance Review

Yes Yes Yes Yes Yes 

Virginia Commonwealth University No. 11-11-2031 Complaint - Sexual Assault, Sex Discrimination & Race Discrimination

Yes Yes

Virginia Military Institute No. 11-08-2079 Complaint

Yes Yes Yes Yes Yes Yes
Wesley College 

(Del.) No. 03-15-2329 Complaint

Yes Yes Yes Yes Yes Yes Yes Yes 

Wittenberg University No. 15-

11-2115, No. 15-13-2141 Both Complaints - Sexual Assault

Yes Yes Yes Yes Yes Yes Yes Yes Yes

Xavier University (Ohio) No. 15-12-2048, No. 15-11-2117, No. 15-12-2018 Complaint - Sexual Assault

Yes Yes Yes Yes Yes Yes Yes Yes

Yale University No. 01-11-2027 Complaint - Sexually Hostile Environment

Yes Yes Yes Yes Yes Yes