The Office for Civil Rights of the U.S. Department of Education recently issued a resounding affirmation of free-speech rights on college campuses.

In a “Dear Colleague” letter July 28, OCR Assistant Secretary Gerald Reynolds addressed concerns that OCR’s antidiscrimination policies required restricting speech. As Reynolds noted in his letter, “Some colleges and universities have interpreted OCR’s prohibition of ‘harassment’ as encompassing all offensive speech regarding sex, disability, race or other classifications,” Reynolds said. “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.”

Such interpretation have given rise to Byzantine speech codes at colleges and universities nationwide. Campuses have also instituted such things as “Free Speech Zones,” with the understanding being that the rest of the campus is a restricted-speech zone. Civil libertarians and First Amendment champions have been harshly critical of those, saying that at public universities (which fall under the First Amendment), the entire campus is a free speech zone. Reynolds’ letter bolsters their position.

“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 statues enforced by OCR,” Reynolds writes. “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.”

Recent actions concerning offensive speech at University of North Carolina institutions show that they are among those laboring under the misinterpretation rectified by Reynolds’ letter. A few examples:

• UNC-Chapel Hill threatened to revoke its recognition of several student groups, most of them Christian organizations, on the basis that the groups “excluded persons from membership and full participation based on race, gender or religious belief.”

Public outcry, in part brought by the free-spech advocacy group Foundation for Individual Rights in Education (FIRE), forced UNC-CH to back down. Even so, Chancellor James Moeser said that the issue “is not a simple matter. While the University continues to seek to ensure that our facilities and resources are not used in any way that fosters illegal discrimination, we also wish to uphold the principles of freedom of expression.”

• N.C. State investigated — and exonerated — Professor Philip Muñoz after a black student charged him in 2002 with discrimination for not being sufficiently critical of a white student who said “go back to Africa” to the black student before the beginning of the class. Muñoz had entered the class while the students were arguing over the black student’s comments that America and its founders were racist and corrupt, and upon the “go back to Africa” remark stopped their argument and said discourse in his class would be civilized and academic.

Even though Muñoz was exonerated, the incident was cited this summer in The News & Observer of Raleigh as one of two proofs of N.C. State’s poor climate for racial diversity. The other incident was racially offensive graffiti written in the “Free Expression Tunnel,” the appearance of which prompted Chancellor Marye Anne Fox to proclaim, “It’s good to have a place to have free expression. First Amendment speech is valued on campus. But when it goes beyond the boundaries and advocates violence or is just inappropriate behavior among civilized people, that’s just too much.”

• UNC-Wilmington investigated, and exonerated, Professor Mike Adams for harassment in 2001-02 for his response to a student’s e-mail. The student, Rosa Fuller, sent a campuswide e-mail blaming the United States for the terrorist attacks on its soil, since America is the world’s “main source of oppression.”

Adams responded to all recipients by saying Fuller’s opinions were “undeserving of serious consideration” and “an intentionally divisive diatribe.” Ironically, given UNCW’s subsequent investigation of him, which included poring over the rest of his e-mail messages for corroborating evidence of the alleged harassment, Adams said, “The Constitution protects your speech just as it has protected bigoted, unintelligent, and immature speech for many years.” In fact, Adams’ “harassing” e-mail was solidly in keeping with OCR’s understanding of the primacy of the First Amendment. “No OCR regulation,” Reynolds writes, “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.”

Jokes, annoyance, and a “free speech gazebo”

Earlier this year, FIRE launched a campaign against campus speech codes, which the group’s CEO, Thor Halvorssen, declared “a moral and legal outrage.” FIRE was one of the organizations that had pressed OCR for a clarification of its regulations, since “[c]ollege and university administrators have defended restrictions on free speech on the grounds that OCR and other federal regulations require them to ban ‘offensive’ speech as a form of discrimination.”

FIRE’s campaign has already witnessed success. In June, in the face of a FIRE lawsuit, Citrus College in California dropped its code. According to FIRE, Citrus College’s code “quarantined free speech to three small and remote parts of campus. Speakers outside of these areas could be suspended, expelled, or even arrested. Students were required to notify the college not only of their intent to use the ‘free speech areas’ but also of their intended message. No sound amplification whatsoever was allowed. Lastly, the areas could be used only on weekdays from 8 a.m. to 6 p.m. — even though more than a third of students take classes between 4 p.m. and 10 p.m.”

At present, FIRE has speech-code lawsuits pending against Shippensburg University in Pennsylvania and Texas Tech University.

Shippensburg’s code prohibits “conduct which annoys, threatens, or alarms a person or group.” Prohibited conduct includes “verbal” and other expressions such as “sexual innuendo, suggestive comments, insults, sexual propositions, humor/jokes about sex or gender-specific traits” and also such “non-verbal” expressions as “suggestive or insulting sounds, leering, whistling, [and] obscene gestures.”

Save for expressions made within its “free speech gazebo,” Texas Tech prohibits any “communications that are intended to… humiliate any person.” These communications include “sexual teasing jokes and gestures,” “referring to an adult as ‘girl,’ ‘boy,’ or ‘honey,’” “sexual innuendos or stories,” “unwelcome pressure for dates,” “letters, phone calls, and materials of a sexual nature,” “sexually suggestive looks,” “sexually explicit visual materials (calendars, posters, cars, software),” or “catcalls or whistling in a demeaning manner with sexual overtones.”

The OCR announcement was welcome news to FIRE. “For too long, colleges and universities have used OCR’s anti-harassment regulations as an excuse for passing restrictive speech codes and punishing students and faculty for ‘offensive’ speech,” said FIRE co-director and Boston lawyer Harvey A. Silverglate. “By issuing this letter, OCR has clarified once and for all that OCR regulations cannot and do not trump the First Amendment.”

Sanders is an assistant editor at Carolina Journal.