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Three organizations that advocate for free speech rights on college campuses filed a petition in Maryland district court seeking to intervene in a lawsuit by the American Civil Liberties Union that challenges the United States Department of Education’s new Title IX regulations.
The Foundation for Individual Rights in Education, Speech First and the Independent Women’s Law Center seek to defend the regulations, which they argue provide First Amendment protections for college students and faculty members. The organizations contend in their June 24 filing that such protections were previously absent from college policies and procedures under Title IX of the Education Amendments of 1972, the law that prohibits sex discrimination in federally funded institutions.
The new regulations were issued on May 6 and adopt a legal definition of “peer-on-peer harassment” that the ACLU and advocates for survivors of sexual assault believe discriminates against women because it differs from the Department of Education’s definition of harassment based on race, national origin and disability as being harassment that is "severe, pervasive or persistent." They argue the definition also deviates from one previously used by the department since 1997, according to the ACLU lawsuit filed on May 14.
The new standard, based on a 1999 Supreme Court case, requires sexual harassment to be so “severe, pervasive and objectively offensive” that it denies a person educational access in order for institutions to initiate a Title IX investigation. Previously this standard was “severe, pervasive or objectively offensive,” and this continues to be the standard for discrimination based on race and other personal characteristics. [Italics added.]
The organizations argue the new definition ensures “that college harassment policies are in line with the First Amendment,” according to a press release from FIRE.
