New Education Department Guidelines: Violating 3 Constitutional Amendments Simultaneously

I have been meaning to write on the new Obama Administration guidelines to colleges for treating speech as sexual assault and reducing the due process rights of accused students.  But George Will does such a great job I am going to let him do it.

Responding to what it considers the University of Montana’s defective handling of complaints about sexual assaults, OCR, in conjunction with the Justice Department, sent the university a letter intended as a “blueprint” for institutions nationwide when handling sexual harassment, too. The letter, sent on May 9, encourages (see below) 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 “e-mails or Web sites of a sexual nature.” Or display or distribute “sexually explicit drawings, pictures, or written materials” that are “unwelcome.”

It takes some work to simultaneously violate this many Constitutional protections in one letter, but the Obama Administration continues to demonstrate its heroic determination to ignore that aging document.

By the way, I cannot find any story about a single university President in the whole country who has objected to these rules.  What a bunch a spineless conformists we running universities.

A few things I would add to Will's comments:

  1. I have written about this emerging "right not to be offended" on University campuses for some time.  This is the Obama Administration trying to codify this nutty BS "right" into law.
  2. There is no way in a rule of law where one can have a law where only the opinion of the victim matters in determining culpability.  To some extent, the loss of due process rights are almost secondary here -- if it is a crime if the victim says it is (ie they were offended), then what defense can one have, anyway?
  3. Given that everyone takes offense to something nearly every day, this law would quickly cause everyone to be kicked out of school.  The Venn diagram of speech that is offensive either to, say, fundamentalist Christians or Muslims and to radical feminists would encompass essentially all of speech related to sex.    Since everyone will not be kicked out of school, the rules will almost certainly be enforced disparately, likely punishing speech with which the university administration disagrees but being far less aggressive in pursuing "unwanted" sexual speech with which it might disagree.


  1. marque2:

    Unfortunately more protected groups would get a wink wink and the offense would be brushed under. Some extremist group calls for the extermination of Jews - well, um, we - you know free speech and all. A Christian timidly says they aren't for gay marriage, and will the book thrown at them for hate speech.

    And we know women will get offended rights over men. If a gal upsets a male, the complaint will be stonewalled, male offends woman, and the dogs will be called out.

    Unfortunately, since I don't believe it will be enforced evenly, this will end up being another way for leftists to enforce PC dogma, and PC thought.

  2. perlhaqr:

    Yeah, I pointed this out during my HR onboarding at the local university, during the "Sexual Harassment" portion of the lecture.

    "So, I grew up Mormon, and while I'm not a member any longer I certainly can recall that they aren't all that happy about homosexuality. And since you've explicitly declared that 'intent' has nothing to do with whether sexual harassment has occurred, your own rules make it sexual harassment if a gay guy merely mentions having gone out on a date with another fellow."

    "Oh, well, uh... Hey look! An elephant! How did that get in the closet?"

  3. LarryGross:

    I think when something is directed at a specific individual and it borders on an assault - there is concern since we have obvious examples on FB and youtube these days.

    it's one thing to have "free speech" that is about things that are not about specific individuals - but when you target specific people or even specific groups - it's considered tantamount to assault.

    free speech is not yelling "fire" in a theatre...

  4. Chris Kahrhoff:

    you really have no idea what your talking about on virtually any issue do you?

  5. MingoV:

    The worst thing is that this bullshit is legal. Colleges and universities enter into contractual relationships with their students. But, contracts cannot be negotiated. Students who don't accept the college's rules cannot attend. Since nearly all colleges adopted similar asinine conduct rules, prospective college students can only choose between the bad and the horrific.

  6. LarryGross:

    go back and read what they are saying.... " 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 “e-mails or Web sites of a sexual nature.” Or display or distribute “sexually explicit drawings, pictures, or written materials” that are “unwelcome.”"

    if the recipient feels threatened by this kind of talk that they feel is directed at them - then it's considered tantamount to assault.

    you need to consider what the legal definition of "assault" is:

    "An assault is carried out by a threat of bodily harm coupled with an apparent, present ability to cause the harm. It is both a crime and a tort and, therefore, may result in either criminal or civil liability. Generally, the common law definition is the same in criminal and Tort Law. There is, however, an additional Criminal Law category of assault consisting of an attempted but unsuccessful Battery."

    if you say things that are directed towards others and they perceive it as a threat.......
    Colleges are being told - that if they take Federal dollars - that they have to take responsibility for speech that threatens others.

    this is not "politically correct" .... this is about a hostile environment fostered by others.

    It's the college equivalent of a hostile workplace.

  7. mesaeconoguy:

    Gee Larry, I find your speech to be offensive(ly stupid), so you should go away.


  8. Chris Kahrhoff:

    Assault is a crime right? Prosecuting individuals isn't enough for you?

    ...."sexual rumors (even if true)"

    "hey I heard Monica gave Bill a BJ in his office" Now if I say that on a college campus I've committed a crime?

  9. Matt:

    "The Venn diagram of speech that is offensive either to, say, fundamentalist Christians or Muslims"

    Oh, for Christ's sake, NOBODY is ever going to enforce any rules against offending Christians. Ever. And when the time comes for feminists and muslims to negotiate who gets to kick who around and how hard, they'll settle that between themselves.

    To imagine that this stuff will ever be enforced in favor of out-of-favor groups like Christians is astonishingly naive and ignorant. You know those sovereign-citizen clowns who think that courts legally can't enforce laws if there's a fringe on the flag? You're at that level of naivety.

    My girlfriend just looked over my should and asked why I bother. It's a good question. If it feels good to imagine you live on a different planet than the rest of us, have at it.

  10. marque2:

    And yet he is an expert on every issue.

  11. marque2:

    I think we have found ourselves a crime!

  12. mesaeconoguy:

    If only it were punishable by death....

  13. mesaeconoguy:

    He is our resident expert moron, that's for damn sure.

  14. marque2:

    There are more protections going to a public school, since government officials still have less authority to stifle free speech

  15. LarryGross:

    the same thing is going on at K12 schools where bullying via FB and texting are ongoing.

    people are threatening other people in new ways via technology and the rules are changing.

  16. marque2:

    It probably can be, but on the Internet you get almost infinite lives. He who is this GarryLross his views seem familiar, hmm

  17. marque2:

    I should have said public University rather than school

  18. LarryGross:

    I thought you had kids guy.... are you not concerned about this issue with regard to them?

  19. marque2:

    Yes if some guy is standing close to my daughter and says, gee she looks hot, I don't want my daughter to be able to get him expelled - that would be assinine.

    So yes I am concerned.

  20. marque2:

    Sad crime story.

    Two peanuts were walking down the street, when one was a-salted!

  21. LarryGross:

    no matter what is said to your daughter?

    I bet you do care guy. if someone is threatening your daughter, even in a round about way via FB or text, you care.

  22. Chris Kahrhoff:

    Larry, again, that is already a crime, and probably should be. Why do we need to get the university involved in this?

  23. LarryGross:

    for the same reason the k12 schools are now involved.

    with technology, bullies have found new ways that are not obviously or easily detected and it's become a kind of zero tolerance deal.

    parents of harmed kids have accused the schools of not acting when they should have.

    I'm not necessarily justifying the specifics - but I disagree with the characterization of it as inhibiting free speech or political correctness.

    It's much more than that and it's a disservice to once again turn something like this, yet another sound-bite cause celebre for the right wing echo chamber.

    You only need to read the news and look at YouTube to see what is going on these days with regard to people making threats to others and .sometimes carrying them out.

    If you do this at work - you get fired. There is concern that schools are similar and that such people are turning schools into hostile environments.

  24. Chris Kahrhoff:

    I feel like this is the most elaborate trolling of all time.

    But in case it's not.

    First: Technology improving with regards to social media puts what burden on real life institutions?

    Second, parents who don't parent and rely on government employees to do it for them and then get angry when the incompetents inevitably fail is not exactly a sound rational for making public policy either.

    Third, "threats and carrying them out". This is already against the law, you know that right? Prosecuting these people for the crimes they are already committing isn't enough? We need to chill others speech too?

    Forth, "if you do this at work- you get fired" There you go again conflating public and private. I'm troubled by your lack of distinction here.

    And most importantly of all, This is directed at Universities populated by ADULTS. not K-12.

  25. LarryGross:

    it puts burdens on them demanded by parents of kids - regardless of their ages but most young.

    you can disagree .with whether the measures are needed or not but the facts are that the rationale has to do with bullying and hate speech carried out in schools and people harmed by it.

    workplaces are private and public and so are institutions.

    the "hostile work environment" is now also migrating to a "hostile school environment"

    the age does not matter. it's the act and if that act is inappropriate in a work environment - the thinking now (not mine) is that it's also inappropriate in a school.

    you don't agree. that's fine.

    it's not my rule. I did not create it. but I point out the "why" behind the rule is more than just someone wanting to chill speech.

    Most parents, brothers, sisters, etc take a dim view of a member of their family - being subjected to bullying - work or school, library, you name it, and that is what is driving this.

    you threaten others - you get tossed

  26. jdgalt:

    The sexual-"harassment"-in-employment law has that same problem, but has stood for years. Is any group even litigating the issue (on the good guys' side, that is)? I want to contribute.

  27. jdgalt:

    Nothing you can post on FB, except maybe a threat, deserves the label "bullying."

    I'm all for seeing law enforcement put a stop to bullying -- the real kind, where people get beat up or robbed. But hurting some other kid's feelings? "WAAAH!!!"

  28. marque2:

    The "Deloris" guy actually won a wrongful termination suit

  29. marque2:

    George Soros has done a good job feeding him the PC talking points, he can come up with them in a snap.

  30. perlhaqr:

    Except you're missing the part where if some Random Overly Sensitive Person walking by overhears a private conversation between myself and another, and that person is offended, it's "sexual harassment".

    Me: "Oh, man. I went out on a date with Joe the other night, and holy crap, that boy sure can suck dick."

    My friend: "I told you!"

    ROSP: "I'm very offended! I'm telling on you!"

    Or hell, Joe could claim sexual harassment under this policy, since I was lauding his cocksucking skills.

    If the person being "assaulted" isn't even actually involved in the conversation or being addressed, that definition of assault is really terrible.

  31. Gil:

    Actually by Libertarian reckoning - why isn't assault protected by the 1st Amendment? Threatening a person isn't the same as actively beating them or killing them. They got offended? Aw poor baby.

  32. Another_Brian:

    By the way, I cannot find any story about a single university President in the whole country who has objected to these rules. What a bunch a spineless conformists we running universities.

    Most/all of their funding comes from the government anymore, so it's unlikely they'll do anything to cut off their income stream. The government may claim to be spending so much to fund college loans so everyone can get an advanced education, but the end result is just more control over what the universities teach and how they conduct their business.

  33. Craig:

    Look at some of the things that are covered as "assault"

    1) a guy asks a girl out and she finds him unappealing--it is unwelcome.

    2) college students and dirty jokes--are they supposed to take a poll of the group to see if it is ok to tell it?

    3) college students in dorm have poster of girl in a bikini--someone surely will be offended

    4) professor tries to talk about most any novel since they generally include something sexual

    5) girls on campus running around in short-shorts or sunbathing--surely this offends someone these days (I guarantee it)

    and the real problem is that there is no clear standard but someone taking offense AND that there is no due process. A professor was in big trouble (see FIRE site) for using the word niggardly (which means stingy) and pointing out the meaning was no defense.