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First Amendment for College Administrators

Lesson 4: Harassment Policies on Campus

Video 2: Legal Landscape for Harassment in Higher Education

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Video Transcript

It is an unfortunate reality that both the interpretation of discrimination law and its enforcement have always been politicized. This has been particularly evident since the Department of Education’s April 4, 2011, Dear Colleague letter outlined an expansive interpretation of Title IX that many critics, including ÃÛÖ­ÏãÌÒ, believed to threaten free speech and due process on campus. That sparked a series of back-and-forth regulations and guidance that may not yet be over. And because of the threat of being stripped of all federal funding, schools have been very reluctant to challenge enforcement actions in court, even when the Department of Education seemed to be demanding schools violate students’ and faculty’s well-established free speech or due process rights.

Now, add to that the new emphasis on Title VI, which prohibits discrimination based on race, color, and national origin in federally funded programs. Since 2003, the Department of Education, under both political parties, has considered Title VI to extend to discrimination based on shared ancestry or ethnic characteristics, such as anti-Semitic discrimination. But in the wake of the 2023 Israel-Hamas conflict and the widespread allegations of anti-Semitic discrimination on campus, the Department of Education has engaged in enforcement actions suggesting schools must act to squelch certain kinds of political speech in order to prevent a hostile, anti-Semitic environment on their campuses. 

It remains to be seen if any colleges will risk challenging Title VI enforcement actions. And the political winds driving enforcement priorities are simply not within the power of individual schools to affect. However, there are easy steps schools can take to mitigate adverse findings or consequences, or to suggest to enforcement agencies that their time would be better spent on other institutions. 

First, thoroughly document all complaints. Every resolution letter in the first group of Title VI actions stemming from post-October 7 complaints faulted the target school for failing to consistently document that it had considered whether the alleged violation had created a hostile environment, what it decided, and why. Ensuring that your school properly documents its process is an easy way to demonstrate to regulators that you take the laws they enforce seriously.

Second, ensure your school has reasonable and legal procedures, follow them, and document it all. In case after case, the Department of Education has faulted schools for not following their own procedures – a problem that raises red flags with regulators and courts alike. Even if departures from procedure are the result of carelessness or confusion rather than bad faith, this kind of ambiguity is an invitation for outside actors to assume the worst – especially in more challenging political environments. Nobody likes more paperwork, but when it comes to discrimination law, periodic checks to ensure procedures are being followed can go a long way towards avoiding later embarrassment.  

Finally, when in doubt, apply the Golden Rule: Put yourself in the shoes of the person across the metaphorical table and ask whether it would be fair if it were your speech being censored. Remember, people are amazingly sensitive to unfairness when it’s applied to them, even if they wouldn’t be when it’s applied to someone else. You may feel under intense pressure from cultural and political forces to make certain findings and avoid others. But if there’s one thing the last few years have reminded us, it’s that the winds of culture and politics can change on a dime. A long track record of demonstrably fair and honest behavior is the best defense against unfair attacks.

FIRE come to college to learn, explore new ideas, and grow into independent adults. Often, that process involves pushing boundaries and making mistakes. Your role as an administrator is to facilitate a robust exchange of ideas – the very purpose of a university – while ensuring all students are able to learn and live in a harassment-free environment. It is essential universities succeed at striking this careful balance. 

Now that we’ve learned more about the federal laws impacting harassment regulation on campus, we’ll discuss cyberbullying and bias response teams – two terms you are most certainly already familiar with. In the next lesson, we’ll explain these concepts and discuss potential consequences of maintaining policies that could improperly punish protected expression under those umbrella terms.

Suggested Resources

• FIRE, "Feds’ new ‘anti-harassment’ mandate to universities: Violate the First Amendment" (2024)

• Greg Gonzalez and Tyler Coward, "Department of Education’s newest ‘Dear Colleague’ letter relies on unconstitutional standards, but offers some promise" (2023)

• FIRE, "FIRE urges Senate to oppose the Antisemitism Awareness Act" (2024)

• FIRE, "So to Speak podcast transcript: The Antisemitism Awareness Act" (2024)

• Tyler Coward, "OCR’s new Title VI letter: ÃÛÖ­ÏãÌÒ’s analysis and recommendations" (2025)