Senator McCain Demands Answers from DOJ over Campus Censorship “Blueprint”

Foundation for Individual Rights in Education
June 26, 2013

WASHINGTON, June 26, 2013—Arizona Senator John McCain sent a letter to the Department of Justice today challenging its recent settlement with the University of Montana. The Foundation for Individual Rights in Education (FIRE) has led national criticism of the May 9 settlement, which mandates a breathtakingly broad definition of sexual harassment and rejects the use of a “reasonable person” standard. The Department of Justice (DOJ) and the Department of Education (ED) proclaimed the joint settlement to be a “blueprint” for how colleges across the country must handle sexual misconduct allegations.

“We are grateful to Senator McCain for posing these crucially important questions to the Department of Justice,” said FIRE Senior Vice President Robert Shibley. “We urge the DOJ to retract this indefensible and unconstitutional threat to free expression and academic freedom on our nation’s college campuses.”

In today’s letter, Senator McCain writes: “Without congressional authorization or even any formal agency rulemaking, Assistant Attorney General Thomas Perez and a group of lawyers in the DOJ’s Civil Rights Division have single-handedly redefined the meaning of sexual harassment at all universities and colleges across the country that receive public funding.”

The full text of the letter is included below.

Senator McCain’s letter poses a range of questions to Attorney General Eric Holder and the DOJ about the May 9 “blueprint.” Specifically, the letter inquires about the source of the DOJ and ED’s authority to engage in de facto rulemaking; the possibility of wrongful convictions under the new low standard for harassment; and why the DOJ and ED reject the definition of sexual harassment in the educational context provided by the U.S. Supreme Court in Davis v. Monroe County Board of Education (1999).

Senator McCain also asks whether everyday expression protected by the First Amendment—including students joking or listening to music that contains sexual content, or a teacher assigning a work which includes sexual content—could now be grounds for filing a sexual harassment complaint. Senator McCain writes: “What safe harbors are available to students and teachers so that they can be assured that innocent behavior is not investigated and punished?”

FIRE has warned that, under the federal blueprint, students engaged in protected speech are indeed potential harassers, should their neighbors find their expression simply “unwelcome” or offensive. FIRE offers a comprehensive FAQ about the mandate on its website.

“FIRE is delighted that Senator McCain is demanding answers from the DOJ,” said Joe Cohn, FIRE’s legislative and policy director. “We hope that this inquiry leads the Department to reevaluate the legality and wisdom of the blueprint’s directives.”

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, freedom of expression, academic freedom, due process, and rights of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America can be viewed at