In July, we reported that the Foundation for Individual Rights in Education (FIRE) and a broad coalition of organizations and individuals urged the Department of Education and the Department of Justice (DOJ) to retract a controversial “blueprint” for campus sexual harassment policies.

Their efforts at retraction appear to have at least stalled the implementation of those new rules.

The University of Montana’s new sexual harassment policy, adopted in late August shortly after the start of classes, does not contain the broad definition of “sexual harassment” that sparked months of national criticism led by the Foundation for Individual Rights in Education (FIRE). Drafted in consultation with the Department of Education’s Office for Civil Rights (OCR) and the Department of Justice (DOJ), the new policy defines sexual harassment more narrowly and promises to comply with “free speech requirements for students and employees.”

Troublingly, however, the Departments have thus far failed to officially approve the policy. The agencies’ approval is required by the settlement agreement signed with the university this past May, which states that “[i]t is the intent of the parties that the revised policies, procedures, and internal guidance be adopted no later than July 15, 2013.” But nearly two months after this deadline—and well into the academic year—the University of Montana’s policy remains without federal approval.

The new policy suggests a significant departure from requirements issued by the Departments earlier this year following a joint investigation into the University of Montana’s sexual misconduct policies and procedures. In May, the agencies announced a settlement agreement with the university that included a breathtakingly broad definition of sexual harassment. Proclaiming the settlement to be a “blueprint” for campus sexual harassment policies nationwide, OCR and DOJ stated that sexual harassment must be defined as “any unwelcome conduct of a sexual nature,” including “verbal conduct” (that is, speech). The agencies also explicitly rejected the use of a reasonable person standard in determining whether conduct constitutes sexual harassment.

….Joined by civil liberties organizations and distinguished civil libertarians, national commentators, First Amendment experts, editorial boards, and even Senator John McCain, FIRE has pointed out that the “blueprint” definition of sexual harassment contradicts longstanding legal precedent from federal courts—including the Supreme Court of the United States—and endangers speech protected by the First Amendment.

In contrast to the “blueprint,” the new University of Montana policy states that while sexual harassment “can include” unwelcome speech of a sexual nature, sexual harassment must involve an abuse of power or must create a “hostile environment” to be prohibited. Only conduct that is “sufficiently serious (i.e., severe, pervasive, or persistent) and objectively offensive” to restrict a student’s participation in university activities will constitute hostile environment harassment.