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August 12, 2003
THE OFFICE OF CIVIL RIGHTS AT THE DEPARTMENT OF EDUCATION is making clear that civil rights laws don't support speech codes on campus:
Some colleges and universities have interpreted OCR's prohibition of "harassment" as encompassing all offensive speech regarding sex, disability, race or other classifications. Harassment, however, to be prohibited by the statutes within OCR's jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. Under OCR's standard, the conduct must also be considered sufficiently serious to deny or limit a student's ability to participate in or benefit from the educational program. Thus, OCR's standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim's position, considering all the circumstances, including the alleged victim's age.
There has been some confusion arising from the fact that OCR's regulations are enforced against private institutions that receive federal-funds. Because the First Amendment normally does not bind private institutions, some have erroneously assumed that OCR's regulations apply to private federal-funds recipients without the constitutional limitations imposed on public institutions. OCR's regulations should not be interpreted in ways that would lead to the suppression of protected speech on public or private campuses.
This should be obvious, but it's nice to have them on the record this way. (Via F.I.R.E. -- and note that the author of the OCR memo, Gerald Reynolds, is no relation.) F.I.R.E.'s press release is here.
UPDATE: Eugene Volokh says the letter isn't as good as it looks. I defer to his superior knowledge of this subject.