The Title IX Final Rule considers the first amendment with respect to sexual harassment. Sexual harassment is prohibited under Title IX but because of the unique environment of an educational setting, be it a college or university, or even a K-12 school, students, employees, faculty are afforded certain protections under the First Amendment, freedom of speech, in other words.
The school would have to do a balancing test between speech and other expressive behavior or conduct that is protected by the First Amendment under freedom of speech versus sexual harassment or alleged sexual harassment that would be prohibited under Title IX. A balancing test would ultimately have to be done to see if whether the speech or expressive conduct is, in fact, allowed or if it were to be prohibited.
The Title IX Final Rule did take this into account when the Title IX definitions were established because this was often a issue at schools, colleges, universities previously under the old Title IX guidance where first member protections would not be considered in such a context. If you're facing it a Title IX case, having an experienced attorney-adviser in your corner from as early as possible in the process will help allow for a fair process and a fair rule outcome.
