May 27, 2013

George Will: Initiative finds college students guilty of harassment until proven innocent

Federal officials encourage punishment of anyone who's said anything that might offend someone else.

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: Many scandals mean cursory scrutiny of most. Now, notice the scant attention being given to an assault on civil liberties by the Education Department's misnamed Office for Civil Rights.

Reacting to what it considers the University of Montana's defective handling of complaints about sexual assaults, the Office for Civil Rights, in conjunction with the Department of Justice, sent the university a letter intended as a "blueprint" for institutions nationwide when handling sexual harassment, too. The letter, sent 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" 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."

UCLA law professor Eugene Volokh, a specialist in First Amendment jurisprudence, notes (on the 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 suit, 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 any "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 single hypersensitive person could declare herself sexually harassed because she considers "unwelcome" a classroom lecture on the novel "Lolita" or a campus performance of "The Vagina Monologues."

Wendy Kaminer, a civil liberties lawyer who writes for The Atlantic, traces the pedigree of the OCR-DOJ thinking to the attempt by some feminists in the 1980s to define pornography as a form of sexual assault and hence a civil rights violation. Volokh, too, believes that the government is blurring the distinction between physical assaults and "sexually themed" speech in order to justify censoring and punishing the latter.

The OCR-DOJ "blueprint" requires, Kaminer says, colleges and universities to hear harassment complaints under quasi-judicial procedures "that favor complainants." Under 2011 rules, establishing a low standard of proof, she 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.

Hans Bader, a former OCR lawyer now with the limited-government Competitive Enterprise Institute, notes that this "Alice in Wonderland" -- "sentence first, verdict afterwards" -- system "casts a cloud over academic freedom and the ability to discuss topics that are offensive to some listeners."

The OCR-DOJ mischief underscores today's widespread government impulse for lawless coercion -- the impulse that produced the Internal Revenue Service's suppression of political speech that annoys the Obama administration.

So the administration is making conservatism's case against the unlimited arrogance that is both a cause and a consequence of unlimited government.

George Will is a columnist for The Washington Post. He can be contacted at:

georgewill@washpost.com

 

Were you interviewed for this story? If so, please fill out our accuracy form

Send question/comment to the editors




Further Discussion

Here at PressHerald.com we value our readers and are committed to growing our community by encouraging you to add to the discussion. To ensure conscientious dialogue we have implemented a strict no-bullying policy. To participate, you must follow our Terms of Use.

Questions about the article? Add them below and we’ll try to answer them or do a follow-up post as soon as we can. Technical problems? Email them to us with an exact description of the problem. Make sure to include:
  • Type of computer or mobile device your are using
  • Exact operating system and browser you are viewing the site on (TIP: You can easily determine your operating system here.)