UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS
400 MARYLAND AVE., S.W.
WASHINGTON, D.C. 20202-1100
THE ASSISTANT SECRETARY
July 28,
2003
Dear Colleague:
I am writing to confirm
the position of the Office for Civil Rights (OCR) of the U.S. Department
of Education regarding a subject which is of central importance to our
government, our heritage of freedom, and our way of life: the First
Amendment of the U.S. Constitution.
OCR has received inquiries
regarding whether OCR's regulations are intended to restrict speech
activities that are protected under the First Amendment. I want to assure
you in the clearest possible terms that OCR's regulations are not intended
to restrict the exercise of any expressive activities protected under
the U.S. Constitution. OCR has consistently maintained that the statutes
that it enforces are intended to protect students from invidious discrimination,
not to regulate the content of speech. Harassment of students, which
can include verbal or physical conduct, can be a form of discrimination
prohibited by the statutes enforced by OCR. Thus, for example, in addressing
harassment allegations, OCR has recognized that the offensiveness of
a particular expression, standing alone, is not a legally sufficient
basis to establish a hostile environment under the statutes enforced
by OCR. In order to establish a hostile environment, harassment must
be sufficiently serious (i.e., severe, persistent or pervasive) as to
limit or deny a student's ability to participate in or benefit from
an educational program. OCR has consistently maintained that schools
in regulating the conduct of students and faculty to prevent or redress
discrimination must formulate, interpret, and apply their rules in a
manner that respects the legal rights of students and faculty, including
those court precedents interpreting the concept of free speech. OCR's
regulations and policies do not require or prescribe speech, conduct
or harassment codes that impair the exercise of rights protected under
the First Amendment.
As you know, OCR enforces
several statutes that prohibit discrimination on the basis of sex, race
or other prohibited classifications in federally funded educational
programs and activities. These prohibitions include racial, disability
and sexual harassment of students. Let me emphasize that OCR is committed
to the full, fair and effective enforcement of these statutes consistent
with the requirements of the First Amendment. Only by eliminating these
forms of discrimination can we fully ensure that every student receives
an equal opportunity to achieve academic excellence.
Some colleges and universities
have interpreted OCR's prohibition of âharassmentâ 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 victimâs position, considering
all the circumstances, including the alleged victimâs age.
There has been some confusion
arising from the fact that OCR's regulations are enforced against private
institutions that receive federal-funds. Because the First Amendment
normally does not bind private institutions, some have erroneously assumed
that OCR's regulations apply to private federal-funds recipients without
the constitutional limitations imposed on public institutions. OCR's
regulations should not be interpreted in ways that would lead to the
suppression of protected speech on public or private campuses. Any private
post-secondary institution that chooses to limit free speech in ways
that are more restrictive than at public educational institutions does
so on its own accord and not based on requirements imposed by OCR.
In summary, OCR interprets
its regulations consistent with the requirements of the First Amendment,
and all actions taken by OCR must comport with First Amendment principles.
No OCR regulation should be interpreted to impinge upon rights protected
under the First Amendment to the U.S. Constitution or to require recipients
to enact or enforce codes that punish the exercise of such rights. There
is no conflict between the civil rights laws that this Office enforces
and the civil liberties guaranteed by the First Amendment. With these
principles in mind, we can, consistent with the requirements of the
First Amendment, ensure a safe and nondiscriminatory environment for
students that is conducive to learning and protects both the constitutional
and civil rights of all students.
Sincerely,
Assistant Secretary
Office for Civil Rights
Department of Education