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Oct 01, 2013 03:01 PM EDT

Federal Government Approves Controversial University of Montana Sexual Harassment Policy

U.S. Attorney General Eric Holder
(Photo : Reuters) U.S. Attorney General Eric Holder speaking at the Department of Justice headquarters in Washington D.C.

Even after a major revision to a policy on sexual harassment, the University of Montana (UM) is still causing alarm among its faculty and other watchdog organizations for impeding on basic free speech rights.

According to a Foundation for Individual Rights in Education (FIRE) news release, UM's new sexual harassment policy has gained the approval, from the U.S. Department of Justice (DOJ) and the Office of Civil Rights (OCR), it had been waiting for. Despite the revision and federal approval, FIRE still claims it contains language that threatens faculty and students rights to free speech under the First Amendment.

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The new policy allows the school to "take appropriate action" with a student or faculty member responsible for "discrimination or harassment that creates a hostile environment." The policy allows this "appropriate action" to be taken even if a school investigation does not find the student or faculty member to be at fault.

"Not only has the federal government approved an unconstitutional speech code, it has demanded a list of the names of faculty members who don't attend a training session about it," said FIRE president Greg Lukianoff. "Worse still, students and faculty may face discipline even if they are cleared of harassment and discrimination charges. Couple these flaws with broad, vague definitions, and the result is that UM has vast discretion to silence students and faculty members, to the detriment of fairness, clarity, and free speech."

UM originally attempted to pass a sexual harassment policy that was labeled a "blueprint" for other institutions to follow. That "blueprint" essentially stated a student or faculty member could be punished for any type of speech that the recipient deemed to be harassment.

After FIRE pointed out this glaring flaw, UM received criticism from Sen. John McCain (R-Arz.) and several other political experts and organizations. UM agreed to change the policy, which awaited approval from the OCR and DOJ until last week.

While the new policy backs away from many of the "blueprint's" features, it still causes First Amendment concerns for FIRE.

The new policy defines discrimination as "treating an individual differently" on the basis of 17 different characteristics. One of which is political views. For example, a student or faculty member could be punished for a satirical joke about a certain political party if another person who aligns with that party finds it offensive.

Even the most mean-spirited jokes and statements, be it on the topic of politics, religion or something as trivial as sports, are protected by the First Amendment.

Also with the new policy, faculty members at UM will be required to take a tutorial course on all of its features. Some faculty members troubled by the new policy's language refused to take such a tutorial and expressed their concerns in a letter to UM president Royce Engstrom.

The faculty members also voiced alarm when they learned the DOJ wanted the names of all those who do not attend the tutorial course, the Missoulian reported.

"What information do you regard yourself as obliged to report to the DOJ about those employees who undergo the tutorial and those who fail to?" their letter read. "How do you understand that the DOJ intends to use this information?"

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