Coyote Blog

FIRE is looking for a client (University or aggrieved student) whom it can help sue the Department of Education over their sexual misconduct guidance

Five years ago today, the Department of Education’s Office for Civil Rights (OCR) announced sweeping new requirements for colleges and universities adjudicating allegations of sexual misconduct. By unilaterally issuing these binding mandates via a controversial “Dear Colleague” letter (DCL), OCR ignored its obligation under federal law to notify the public of the proposed changes and solicit feedback.

To correct this error, and to begin to fix a broken system of campus sexual assault adjudication that regularly fails all involved, the Foundation for Individual Rights in Education (FIRE) seeks a student or institution to challenge OCR’s abuse of power. FIRE has made arrangements to secure legal counsel for a student or institution harmed by OCR’s mandates and in a position to challenge the agency’s violation of the Administrative Procedure Act(APA). In keeping with FIRE’s charitable mission to advance the public interest, representation will be provided at no cost to the harmed party.

“In the five years since its issuance, OCR has acted as though the 2011 Dear Colleague letter is binding law—but it isn’t,” said FIRE Executive Director Robert Shibley. “By circumventing federal law, OCR ignored all stakeholders: victims, the accused, civil liberties advocates, administrators, colleges, law enforcement, and the general public. Real people’s lives are being irreparably harmed as a result. It’s time that OCR be held accountable.”

The DCL requires that schools use the low “preponderance of the evidence” standard of proof (i.e., that they find an accused student guilty with just 50.01 percent certainty) when adjudicating claims of sexual assault and sexual harassment. The DCL’s requirement that colleges use this standard—found nowhere in Title IX or its implementing regulations, and specified before 2011 only in letters between OCR and individual schools—effectively creates a new substantive rule for institutions to follow.

Here is what is amazing to me:  Not a single university has challenged this rule, even though trashes the due process rights of is male students.  These same universities had no problem defying the law on things like ROTC and army recruiting (which represent mostly voluntary enticements of their students) but have rolled over and played dead over this much more direct threat to their students' well-being.

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.

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.