Barack Obama, vowing to elevate Washington to the level of his fastidiousness, came from Chicago, where the political machine inoculates itself from scandals by the proliferation of them. Now, notice the scant attention being given to an assault on civil liberties by the misconceived Education Department's misnamed Office for Civil Rights.
Responding to what it considers the University of Montana's defective handling of complaints about sexual assaults, OCR, in conjunction with the Department of Justice, sent the university a letter intended as a "blueprint" for institutions nationwide when handling sexual harassment. The letter, sent on May 9, encourages adoption of speech codes - actually, censorship regimes - to punish students who:
Make "sexual or dirty jokes" that are "unwelcome." Or disseminate "sexual rumors" (even if true) that are "unwelcome." Or make "unwelcome" sexual invitations. Or engage in the "unwelcome" circulation or showing of "emails or Web sites of a sexual nature." Or display or distribute "sexually explicit drawings, pictures, or written materials" that are "unwelcome."
UCLA law professor Eugene Volokh, a specialist in First Amendment jurisprudence, notes (on the indispensable Volokh Conspiracy blog) that the OCR-DOJ's proscriptions are "not limited to material that a reasonable person would find offensive." The Supreme Court has held that for speech or conduct in schools to lead to a successful sexual harassment lawsuit, it must be sufficiently severe and pervasive to create a hostile environment. And it must be "objectively offensive" to a reasonable person. But, Volokh notes, the OCR-DOJ rules would mandate punishment for "conduct of a sexual nature," conduct "verbal, nonverbal or physical," that is not objectively offensive to a normal person. This means any conduct "unwelcome" by anyone.
Greg Lukianoff, president of the Foundation for Individual Rights in Education, says a hypersensitive person could declare herself sexually harassed because she considers "unwelcome" a classroom lecture on the novel "Lolita."
The OCR-DOJ "blueprint" requires, says Wendy Kaminer, a civil liberties lawyer who writes for The Atlantic, colleges and universities to hear harassment complaints under quasi-judicial procedures "that favor complainants." Under 2011 rules, establishing a low standard of proof, Kaminer says, "students accused of harassment are to be convicted in the absence of clear and convincing evidence of guilt, if guilt merely seems more likely than not."
And schools are enjoined to "take immediate steps to protect the complainant from further harassment," including "taking disciplinary action against the harasser" prior to adjudication. So the OCR-DOJ "blueprint" and related rules not only violate the First Amendment guarantee of free speech but are, to be polite, casual about due process.
When the Education Department was created in 1980 (Jimmy Carter's payment to the National Education Association, the largest teachers union, for its first presidential endorsement), conservatives warned that it would be used for ideological aggression to break state and local schools to the federal saddle. Lukianoff says:
"Given that the (OCR-DOJ) letter represents an interpretation of federal law by major federal agencies, most colleges will regard it as binding. Noncompliance threatens federal funding, including Pell grants and Stafford loans."
Most of academia's leadership is too invertebrate and too soggy with political correctness to fight the OCR-DOJ mischief. But someone will. And it is so patently unconstitutional, it will be swiftly swatted down by courts. Still, it is useful idiocy because, coming right now, it underscores widespread government impulse for lawless coercion.
The the administration is making conservatism's case against the unlimited arrogance that is both a cause and a consequence of unlimited government.
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