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Nov 22, 2013 12:45 PM EST

Justice and Education Departments Backing Away from Controversial 'Blueprint' for Sexual Misconduct Policy

The U.S. Departments of Education and Justice are now moving away from the sexual assault policy of the University of Montana (UM) as a "blueprint" for colleges nationwide to follow.

The policy garnered scrutiny in Sept. and Oct. when it defined punishable harassment as "any unwelcome conduct of a sexual nature [including] verbal conduct." The Foundation for Individual Rights in Education (FIRE) has lead the way in criticizing the policy and asking for its revision.

According to a press release from FIRE, the Education Department's Office for Civil Rights (OCR) said a recent agreement does not represent the views of the OCR or DOJ.

UM made an agreement with the Justice and Education Departments that introduced what FIRE viewed as unconstitutional changes that restrict free speech. Now, OCR's new head Catherine Lhamon wrote in a letter to FIRE the agencies are not associating themselves with the agreement.

"Assistant Secretary Lhamon's clear statement that the Montana agreement does not represent OCR or DOJ policy - meaning it's not much of a 'blueprint' - should come as a great relief to those who care about free speech and due process on our nation's campuses," said FIRE President Greg Lukianoff. "Colleges have been bewildered trying to reconcile their obligations under the First Amendment with the requirements of the 'blueprint' - essentially an impossible task. OCR and DOJ now need to directly inform our nation's colleges and universities that they need no longer face that dilemma."

OCR has also shown in recent actions that the federal government will not force public schools to adopt these changes. Further, UM has seemed to back off their controversial policy by implanting ones that deviate from the overly broad definition they previously introduced.

"After a national outcry from concerned citizens and civil liberties groups this summer, OCR appears to be rethinking its ill-conceived attempt to deem vast swaths of student and faculty speech 'sexual harassment.' This is a welcome development," said FIRE Director of Legal and Public Advocacy Will Creeley. "A great deal of work remains to be done, but advocates of free speech and academic freedom on campus should be cheered by this progress."

OCR did, however, defend one provision of the Montana agreement that stated anyone may be punished for sexual misconduct before a hearing takes place to determine if the offense actually occurred. Another controversial provision was mandatory meetings for faculty members to learn the new policy.

According to the Missoulian, any faculty member who fails to attend these meetings will be reported by name to the Justice Department. The newspaper reported the requirement has been partially dropped following several complaints. Now, just departments will be reported, but some faculty members are still worried they could be identified.

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