Dissenting Statement of Commissioner Gail Heriot

Abstract

On February 19, 2020, the U.S. Commission on Civil Rights released a report entitled Free to Learn: Speech and Sexual Harassment on Campus. This individual Commissioner Statement was a part of that report.

The Commission originally undertook this project in 2013 in order to examine the Department of Education’s enforcement efforts under Title IX, which at least according to many experts, required colleges and universities to regulate speech on campus in a way that violated the First Amendment. The report faced many delays. One of those delays occurred when President Obama in December of 2016 appointed the then-outgoing Assistant Secretary of Education for Civil Rights to chair the Commission. Since the report was originally intended to examine Title IX enforcement during her tenure as the Department of Education’s chief Title IX enforcement officer, that did not bode well for the report. Not surprisingly, the final version of the report is more laudatory than critical. This short Statement dissents from the report and takes the position that the First Amendment and academic freedom issues raised by the witnesses at the Commission briefing are very real and need to be addressed in a serious manner.

Keywords: First Amendment, free expression, Title IX, sexual harassment, Commission on Civil Rights, civil right