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Legal expert warns most inflammatory speech is protected; OCR staffing cuts hamper investigations
Summary
Legal scholar David Cole told a House committee that most inflammatory or offensive speech is constitutionally protected and that Title VI liability requires targeted harassment or conduct so severe and pervasive it denies equal access to education.
David Cole, the George J. Mitchell Professor in Law and Public Policy at Georgetown University Law Center, told the House Education and Labor Committee that U.S. constitutional law protects offensive or hateful speech in most circumstances and that federal civil-rights law (Title VI) reaches only certain forms of harassment that deny an individual equal access to educational opportunities.
Cole outlined two narrow Title VI circumstances in which speech can lead to liability: 1) harassment targeted at an individual because of that individual's Jewish identity and 2) conduct or speech that is so severe, pervasive and objectively offensive that it deprives a class of students of access to educational opportunities. He cited the Supreme Court standard from Davis and stressed the "deliberate indifference" threshold for institutional liability: a school violates Title VI only if it is deliberately indifferent to known harassment and that standard is fact-intensive.
Cole warned that broad, public accusations without case-specific fact-finding risk chilling protected speech and urged careful investigation of specific incidents rather than public condemnation without a factual record. He said the committeerooms are not the right venue to adjudicate particular campus incidents and urged that adjudication take place through OCR or campus disciplinary processes.
Several members and witnesses expressed concern about OCR's ability to investigate complaints. Multiple statements in the hearing cited OCR regional-office closures and staff reductions; witnesses and some members said seven of 12 regional OCR offices have been closed and reported staff reductions that have left remaining staff with very high caseloads. Witnesses and members urged the committee to examine OCR staffing and process as part of any effort to hold institutions accountable.
Cole recommended due-process protections in fact-finding and judicially recognized standards be maintained to avoid misclassification of protected expression as Title VI violations.
