Schools Have a Legal Obligation to Keep Harassers Like Milo Off Campus

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Analysis Law and Policy

Schools Have a Legal Obligation to Keep Harassers Like Milo Off Campus

Noah Schabacker

Harassment by people like Ann Coulter and Milo Yiannopoulos can create a hostile environment on campus and is exactly the sort of conduct that schools need to prevent to meet their obligations under Title VI and Title IX.

Ann Coulter canceled a speech earlier this month at the University of California, Berkeley after students opposed her appearance. In response, pundits and politicians—many of them liberal—leapt to her defense. In New York Magazine, Jonathan Chait used it as part of his familiar complaint about the “illiberal left” restricting the glorious marketplace of ideas. Sen. Bernie Sanders (I-VT) acknowledged that Coulter was “outrageous” but accused critics of “intellectual weakness.” Sanders and Chait agreed that Coulter has a First Amendment right to come to campus and say whatever she wanted.

Meanwhile, other commentators, such as Ulrich Baer, a vice provost at New York University, offered a history of the idea of free speech, and suggested that schools balance free expression against the need to “ensure that other members of a given community can participate in discourse as fully recognized members of that community.”

This philosophical debate fails to recognize that schools likely have a legal obligation to refuse space to people like Coulter or Milo Yiannopoulos, who harass students and marginalized communities because of their race or sex. Title IX of the Education Amendments Act of 1972 requires schools to ensure they are free of gender-based discrimination and harassment. And while it’s not talked about as much, Title VI of the Civil Rights Act requires any program that receives federal funds, including schools, to prevent discrimination based on race, color, and national origin.

These are similar to employment non-discrimination laws recognizing that harassment can be targeted at a specific individual or group, or can be more diffuse and permeate the entire workplace culture—which creates a “hostile environment.” Relying on U.S. Supreme Court decisions, the Department of Education currently recognizes that its definition of hostile environment harassment derives from employment discrimination case law. Harassment by people like Coulter and Milo can create a hostile environment on campus and is exactly the sort of conduct that schools need to keep away to meet their obligations under Title VI and Title IX.

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When a school allows student groups to invite speakers to campus, they have to comply with the First Amendment: In general, they can’t pick and choose between speakers based on what they’ll say. But the First Amendment does not prevent schools from enforcing reasonable time, place, and manner regulations on those speakers, as Berkeley did with Coulter. When she couldn’t speak exactly when and where she wanted, despite Berkeley’s efforts to accommodate her, she canceled her appearance and cried censorship.

So, if Berkeley wanted to tell Coulter she couldn’t speak at all, the U.S. Supreme Court would require the university to show that doing so would “serve a compelling state interest and that it was narrowly drawn to achieve that end.” Fortunately, the Court recognizes that “acts of invidious discrimination … cause[s] unique evils that government has a compelling interest to prevent—wholly apart from the point of view such conduct may transmit.” Since harassment because of a person’s gender or race or national origin is a form of prohibited discrimination, schools can meet that burden.

It’s pretty clear that a big part of Milo’s routine is harassing students. At the University of Colorado, Boulder, he made rape “jokes” and announced that women who aren’t Republicans were ugly. Students were even required to pay for the privilege of the hostile environment he created, with their student fees going to cover security, parking, and audio-visual equipment. At a speech at the University of Wisconsin, Milwaukee, he displayed a photo of a trans student, referred to her as “he,” claimed that she “forced [her] way into the women’s locker rooms,” said she wasn’t “passing,” used anti-trans slurs, and insulted her in other ways.

Milo’s attacks simultaneously denied this trans student’s existence and belittled her because she doesn’t look the way he thinks women should look. She was understandably outraged that the school would give Milo the chance to harass her and other students. Meanwhile, as far back as 2001, the Department of Education made it clear that harassment based on sex-stereotyping, the “failure to conform to stereotyped notions of masculinity and femininity,” is a form of harassment forbidden by Title IX. Since that’s exactly what Milo did, the student understandably felt that the school’s statement about disagreeing with Milo was insincere.

Employment discrimination case law helps further illustrate just how badly schools fail students when they allow harassment like this on campus. In 2010, the Eighth Circuit Court of Appeals determined that a woman had a reasonable basis for proceeding with a lawsuit when she was fired because her manager thought she wasn’t “pretty” and didn’t have a “Midwestern girl look.” In another case, the Fifth Circuit found that making fun of an employee because he was not sufficiently “manly” was evidence supporting a finding of sexual harassment. In both these cases, the insults to the employees were nowhere near as savage as Milo’s attacks on the college student he targeted. Yet somehow, students are supposed to view this sort of harassment as a valuable part of their education.

As for Ann Coulter, we don’t know what she would have said at Berkeley since she canceled her speech. But we know that she writes that Latin America is a “peasant culture” that is “brimming with rapists, pederasts, and child abusers,” concluding that “immigrant workers seem to spend all their time raping little girls.” She claims there is a “Mexican cultural trait of littering” and that immigration from Latin America harms the environment. Again, these kinds of “offensive or derogatory remarks about a person’s national origin … or ethnicity” are the type that the Equal Employment Opportunity Commission explains is forbidden by Title VII.

The Department of Education explains schools have a legal responsibility to prevent harassment and “lessen the harm to students if, despite their best efforts, harassment occurs.” They have an obligation to address harassment that they know or reasonably should know about. And just because that harassment happens in a place where the First Amendment otherwise applies does not mean that the First Amendment stops them from addressing it.

There are plenty of politically conservative speakers who don’t mistake harassment for thoughtful commentary. It’s almost as if harassment is the point of inviting people like Coulter and Milo.

The arguments that free speech partisans make show they don’t have a problem with students enduring the sort of conduct that Congress outlawed in 1964 and the Supreme Court found unlawful almost 30 years ago. But applying these well-settled principles of civil rights laws would both protect students and avoid overblown fears about government censorship. Civil rights laws do not limit speech protected by the First Amendment, but instead prohibit conduct that harms people because of their gender or race or disability or other protected characteristics. Even Chait knows that racial and sexual harassment are unacceptable in the workplace—he should recognize that similar behavior doesn’t belong on campus. There’s no reason to believe that keeping harassers away would interfere with the free exchange of ideas at universities. Just like forbidding discrimination in the workplace helps people focus on work, keeping harassment off campus would allow students to focus on their education.