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The Department of Education on Tuesday announced updates to the handbook governing federal civil rights investigations that emphasize First Amendment principles.
The new addition to the Office for Civil Rights case-processing manual was welcomed by free speech advocates. Civil rights groups, though, raised concerns that speech protections could be used to dismiss serious harassment.
“While every federal government agency is of course bound by the Constitution and Bill of Rights, OCR has in recent years too often ignored this responsibility when it came to both guidance it has issued and its decisions in individual cases,” said Robert Shibley, executive director of the Foundation for Individual Rights in Education. “FIRE hopes that this will serve as a reminder to staff members that they must consider the fundamental civil rights enshrined in the First Amendment while doing the necessary work of enforcing those of our nation's civil rights laws that are under their jurisdiction.”
Shiwali Patel, senior counsel for education at the National Women’s Law Center, said just how far some are pushing the department to interpret the First Amendment could become an issue.
“In the education context, there are limitations on speech if it causes substantial disruption or interference with school activities,” she said. “That would include sexual harassment as well as racial harassment and other kinds of harassment.”
The changes to the Office for Civil Rights case-processing manual are the first since Assistant Secretary for Civil Rights Kenneth Marcus was confirmed by the Senate in June. The update also restored some appeals rights for complainants and dropped a provision added last spring that allowed department officials to dismiss complaints that are part of a pattern of similar complaints.
But the document maintains other recent changes, including restrictions on when the department would launch systemic investigations of civil rights violations at an institution.
“Our top priority in the Office for Civil Rights is ensuring all students have equal access to education free from discrimination,” Marcus said.
