The Administration's War on Due Process

Obama's Department of Education has been issuing a series of new rules to colleges that accept government funds (ie pretty much all of them) that going forward, they will be required to

  • Expand the definition of sexual harassment, forcing it to include even Constitutionally-protected speech.  Sexual harassment will essentially be redefined as "somehow offending a female."
  • Eliminate traditional protections for those accused of sexual harassment under these new definitions.  The presumption of innocence, beyond a reasonable doubt guilt standards, the ability to face and cross-examine one's accuser, and the right of appeal are among centuries old common law traditions that the DOE is seeking to eliminate in colleges.

Unfortunately, this is a really hard threat to tackle.  Most of those concerned with civil rights protections outside our small libertarian community are on the left, and these same people are often fully vested in the modern feminist belief that all men are rapists.  It also puts libertarians in the position of defending crude and boorish speech, or at least defending the right to that speech.

But at the end of the day, the DOE needs to be forced to explain why drunk and stupid frat boys chanting crude slogans outside the women's center on campus should have fewer rights as accused than does a serial murder.

Michael Barone has more today in the Washington Times:

But more often they involve alleged offenses defined in vague terms and depending often on subjective factors. Lukianoff notes that campus definitions of sexual harassment include "humor and jokes about sex in general that make someone feel uncomfortable" (University of California at Berkeley), "unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people" (Iowa State University) or "elevator eyes" (Murray State University in Kentucky).

All of which means that just about any student can be hauled before a disciplinary committee. Jokes about sex will almost always make someone uncomfortable, after all, and usually you can't be sure if flirting will be welcome except after the fact. And how do you define "elevator eyes"?

Given the prevailing attitudes among faculty and university administrators, it's not hard to guess who will be the target of most such proceedings. You only have to remember how rapidly and readily top administrators and dozens of faculty members were ready to castigate as guilty of rape the Duke lacrosse players who, as North Carolina Attorney General Roy Cooper concluded, were absolutely innocent.

What the seemingly misnamed Office of Civil Rights is doing here is demanding the setting up of kangaroo courts and the dispensing of what I would call marsupial justice against students who are disfavored by campus denizens because of their gender or race or political attitude. "Alice in Wonderland's" Red Queen would approve.

As Lukianoff points out, OCR had other options. The Supreme Court in a 1999 case defined sexual harassment as conduct "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." In other words, more than a couple of tasteless jokes or a moment of elevator eyes.

Women'g groups all the time say things like "all men are rapists."  That's pretty hostile and degrading to men.  My guess is that somehow this kind of gender-hostile speech will not be what gets investigated by these kangaroo courts.

I wrote about related events at Yale here.


  1. Brian:

    "the DOE needs to be forced to explain why drunk and stupid frat boys chanting crude slogans outside the women’s center on campus should have fewer rights as accused than does a serial murder."

    And maybe even more appropriately, why do the drunken frat boys have fewer rights than the sober feminists chanting crude slogans everywhere else on campus?

  2. Judge Fredd:

    You'll never get an answer about the "all men are rapists" canard. They'll simply hide behind: "That's your PRIVILEGE talking."

    And to that I respond, "fuck off."

    Privilege be damned.

  3. Chris:

    "Women’g groups all the time say things like “all men are rapists.” That’s pretty hostile and degrading to men."

    Agreed, but us men do a poor job of defending ourselves and even submit to the "conventional wisdom." I was recently on the campus of a prestigious Catholic university in the upper mid-west and saw multiple posters hanging on walls where male students had signed a special pledge not to rape a woman. How ridiculous is that?!

  4. eCurmudgeon:

    Eventually, higher education in America will be restricted to women only after it is determined that the very presence of men on college campuses constitutes a "hostile and threatening environment" for (women) students and (women) faculty.

  5. perlhaqr:

    To be fair, "No means yes, yes means anal" (which is what the stupid frat boys in question were chanting) implies a willingness to commit rape, and certainly implies that one does not take rape all that seriously. This is hardly just "somehow offending a female."

    I concur that due process should not be violated.

  6. Rick C:

    The obvious solution to this problem is for men to seek out instances of women saying things that could be in any way, shape, or form, construed as sexual harassment, and filing complaints, at which point the people promulgating these rules will realize how much of an embarrassment they are (when used against them), and quietly retire them.

    If I were still in college I'd do it myself.

  7. Stephen:

    Three years ago I got involved in a case where a girl at a prominent university alleged that a boy there had raped her. She went to the local police and prosecutor, who, after hearing her side of the story, declined to press charges, meaning that they believed that there was not even probable cause to believe that any crime (rape or the myriad other attendant charges like sexual battery) had been committed. The girl then made a complaint to the college. The alleged offense occurred on the last day of classes, and the school slated the disciplinary hearing right after everyone had left campus after exams. He came to me the same day that he got the notice from the school, and they had the hearing scheduled for two days later. He had no opportunity to get witnesses, was not provided with anything beyond the nature of the allegations against him, not told who the witnesses against him were going to be, told that he could have counsel present, but counsel would not be able to examine any witnesses, or even argue in his favor. I filed suit in federal court seeking an injunction to prevent the hearing from going forward on due process grounds, and sent out preliminary requests for discovery. Some slug in the dean's office actually sent me copies of the entire file before the school's attorney could stop it. Long story short, with that information I was able to coach the boy on the statements to make and to point out the incredible factual inconsistencies in the story told by the girl and her witnesses, and, having sued every member of the kangaroo court personally prior to the hearing, and thereby being able to lay out his case for innocence in the allegations to show due process violations, even that bunch found no violation. He is now at a very good law school himself. In his application he was, of course, asked if there had ever been disciplinary action taken against him. Even without the criminal charges, a finding against him by the school would most likely have prevented him from attending any graduate school.
    But for the fact that his family had the means to hire an attorney, that the attorney had his schedule free enough to work around the clock for three days, and that a complete copy of the file was inadvertently provided to him, he would have been absolutely railroaded and his life ruined. How in God's name anybody could think that this process should apply to any violation is beyond me.

  8. caseyboy:

    Do these rules cover men sexually harassing other men? Or does that fall under some other form of victim harassment rule? It is easy to get confused with so many categories of victims and so many ways in which to offend/harass them.

  9. Yngvar:

    Girl: "After the new rules went into effect he wouldn't make eye contact and refused to even talk to me. It made me feel, like, uncomfortable and a bit offended, actually."
    Administrator: "So what do you want us to do?"
    Girl: "I want that boy kicked out!"