If you care about free speech on campus, watch closely the First Amendment case of Teresa Buchanan.
An education professor at Louisiana State University for nearly two decades, Ms. Buchanan was skilled at teaching people how to teach others. She was widely published, secured over $1 million in research grants, and held important positions in respected professional organizations. On the strength of her record, Ms. Buchanan was recommended for promotion to full professor in November 2013.
Only a month later, however, an LSU administrator informed Ms. Buchanan that she was being pulled from her spring classes. She wasn’t given an explanation, beyond vague allegations of “inappropriate comments.” Six months later, Ms. Buchanan was charged with sexual harassment, though no student (or anyone else) had accused her of such.
Ms. Buchanan readily admits that she occasionally joked or used profanity in her classroom—sometimes to get students’ attention, other times during role-playing exercises meant to prepare aspiring teachers for language they’ll hear while on the job. When it fired her, LSU specifically cited her use of a crude term for female genitalia, a joke about lesbianism, and a joke about sex after marriage.
After two decades Ms. Buchanan’s teaching methods hadn’t changed—but the understanding of “sexual harassment” had. In 2013 the federal government announced a new definition intended as a “blueprint” for colleges nationwide. It explained that sexual harassment was “any unwelcome conduct of a sexual nature,” including “verbal conduct.” Free-speech advocates warned that the feds’ broad definition, if adopted, would sharply curtail First Amendment rights on campus.
LSU’s sexual-harassment policy mirrors the federal blueprint by prohibiting “unwelcome verbal, visual, or physical behavior of a sexual nature.” It’s not clear what prompted the university to adopt that language, or when it did so. But after LSU was criticized for firing Ms. Buchanan, it rushed out a statement that explained: “The Office of Civil Rights of the U.S. Department of Education has advised universities that ‘harassment does not have to include intent to harm, be directed at a specific target, or involve repeated incidents.’ ”
Why is this happening? Federal pressure.
Under ever-tightening federal pressure, Ms. Buchanan’s teaching became a liability. When a student complained about Ms. Buchanan’s teaching style in 2012, the letter made its way up the administrative ladder. After an investigation was called, the faculty panel tasked with reviewing such cases unanimously recommended last March that Ms. Buchanan be slapped on the wrist but kept on the job, because the comments were not “systematically directed at any individual.” But in June the school’s administrators overruled the decision and fired her anyway.
With the help of the Foundation for Individual Rights in Education, my employer, Ms. Buchanan last month filed a First Amendment lawsuit against Louisiana State University, asking to be reinstated. She also seeks to strike down LSU’s sexual-harassment definition as unconstitutional.
LSU’s decision to fire a star professor on trumped-up sexual-harassment charges makes sense only in light of recent pressure from the Education Department’s Office for Civil Rights. Since 2011 this office has aggressively pursued investigations into colleges it suspects have failed to conform to its expansive interpretation of Title IX, the federal law prohibiting discrimination on the basis of sex.
The office’s mandates on Title IX are legally suspect and constitutionally unsound. But because it may terminate the federal funding of any institution it deems noncompliant—a death sentence for all but the wealthiest schools—colleges have hastily revised their policies to meet the new dictates, sacrificing free speech and due process.
Federal $$$ is a lever to wield unconstitutional, un-elected power.
Ms. Buchanan isn’t the only victim of this misguided, illiberal crackdown on sex-related speech. Last year Northwestern University Professor Laura Kipnis endured a Kafkaesque investigation on Title IX charges. Ms. Kipnis had written an article about sexual controversies on campus, concluding that “sexual paranoia reigns; students are trauma cases waiting to happen.”
Subsequently, two students filed Title IX charges against her. They alleged that the essay had a “chilling effect” and that, by discussing previous Title IX cases, it amounted to retaliation, though Ms. Kipnis hadn’t used any students’ names. Still, she was dragged through an investigation that stretched on for two months. Only after she published another piece, titled “My Title IX Inquisition,” was the investigation ended.
Colleges nationwide are adopting the Education Department’s “blueprint” as operational policy. So these cases could be replicated at campus after campus. But not if Teresa Buchanan can help it. If her lawsuit against LSU is successful, it will send other schools and the federal government a powerful message about the importance of the First Amendment in higher education.