Former Department of Education Office for Civil Rights attorney Hans Bader says the department should be careful when it comes to “enforcing the civil-rights laws in a way that violate the First Amendment.”
In an article referencing the desire by the Feminist Majority Foundation and other groups to “pursue legislation that would regulate Yik Yak” if the company doesn’t identify alleged harassers, Bader notes that the Office — “and individual OCR officials” — can be sued if their efforts run afoul of First Amendment protections.
OCR’s demands under the civil-rights laws were once held to have violated the First Amendment in Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board (1978). A chapter of the Klan had sought to meet together during non-school hours in an empty classroom, the way other groups were permitted to do by the school district. But it was barred from doing so by the school district, acting under pressure from the Office for Civil Rights, which argued that its presence would be illegal racial discrimination. A federal appeals court ruled that the school district and OCR had violated the Klan’s free-speech rights, which could not be overridden by Title VI of the Civil Rights Act or OCR’s requirements.
Similarly, another federal appeals court ruled that individual federal civil-rights officials could be sued for restricting speech in White v. Lee (2000). That ruling emphasized that speech can’t be punished just because it incites illegal discrimination. It also ruled that federal officials could be sued for threatening citizens with civil fines for speaking out against a minority housing project, even if the speech persuaded a city to delay a housing project that would house members of a protected minority group. That decision also indicated that the restrictions on speech found in workplace racial or sexual harassment rules cannot be applied to society generally under non-workplace discrimination laws.
Bader points out that although “[s]ome of the [Feminist Majority Foundation, et al.] letter’s demands are probably too extreme to be endorsed” by the OCR, it nonetheless at times has “shown a disregard for the First Amendment and limits on its statutory jurisdiction.”
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