Zero tolerance policies have led to elementary students being suspended for playing cops and robbers on the playground. Now, the federal government is telling colleges that behavior as innocuous as asking a fellow student for a date is sexual harassment and a potential violation of both Title IX, the federal law prohibiting sex discrimination in education, and Title IV of the Civil Rights Act.
In a bizarre letter to the University of Montana, the government lays out the rules on how the university must handle “allegations of sexual assault and harassment at its Missoula campus.” The letter specifically says that it “will serve as a blueprint for colleges and universities throughout the country.”
The letter comes from the Department of Education and the Justice Department’s Civil Rights Division, which is headed by Assistant Attorney General Thomas Perez, President Obama’s nominee to be the new secretary of Labor. It is signed by Anurima Bhargava, chief of the Civil Rights Division’s Educational Opportunities Section. Bhargava was the director of the NAACP’s Legal Defense and Education Fund before Perez bypassed career civil service lawyers within the Division and hired her to head the Section.
As PJ Media previously reported in its “Every Single One” series on hiring in the Division, when Bhargava was at the NAACP, she tried unsuccessfully to convince the Supreme Court that local schools should be allowed to assign public students to different schools based on their race. She told a United Nations Forum on Minority Issues that it was imperative that schools consider race, language, immigration status, and religion in placement decisions.
In other words, the head of the Justice Department’s Education Section believes that schools should be able to discriminate on a wholesale basis — as long as it is the “right” kind of discrimination. When she was at the ACLU, she was actually honored for her work opposing state referenda trying to outlaw racial preferences.
The DOJ/DOE letter lays out a legal rule that directly contradicts Supreme Court rulings. It criticizes the University of Montana’s policy that conduct must be objectively offensive to constitute sexual harassment. The university policy provides that “whether a conduct is sufficiently offensive to constitute sexual harassment is determined from the perspective of an objectively reasonable person of the same gender in the same situation.” But the Orwellian letter dictates that the university must institute a policy that defines sexual harassment as “any unwelcome conduct of a sexual nature.”
In 1999 the Supreme Court stated in Davis v. Monroe County Board of Education that, for a school to be liable for student-on-student sexual harassment, the conduct in question must be “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Needless to say, one could steer a modern cruise ship through the vast gulf between the actual state of the law and the twisted policy being advanced by the Obama administration’s Justice and Education Departments.
Indeed, the rule that DOJ/DOE is pushing would mean that a single instance of conduct that is “offensive” to only one individual would constitute a violation of the law, even if that individual’s reaction is totally unreasonable. DOJ/DOE also insists that sexual harassment includes “unwelcome” (not just offensive) conduct that is “verbal, nonverbal, or physical conduct.”
The breadth of this new mandate, plucked from the mists occupied only by the most radical ideologues, is staggering. Under DOJ/DOE’s definition of sexual harassment, a student asking another out on a date could conceivably violate the law if the person being asked out found the question “unwelcome”and somehow believed it was the pretext to a sexual advance or romantic proposal. Or if a student was taking a health class where biological reproduction was discussed, the teacher might be found guilty of sexual harassment if one student found the discussion “unwelcome,” even if no one else in the class and no reasonable person found it unwelcome or offensive. In other words, under this definition, the most trivial conduct could be considered sexual harassment. And, get this — if a university did not take immediate and severe action to punish the “transgressor,” it could lose its federal funding under Title IX.
This political correctness madness essentially implements a zero tolerance policy in colleges for any verbal conduct a hypersensitive listener deems unwelcome. It could have a severe impact on the First Amendment rights of students, restricting not just the dating routines pervasive on campus, but free discussion and discourse on many different issues. It will damage the careers of students who are suspended or expelled for innocuous speech and behavior.
But DOJ/DOE’s policy directive gets worse, limiting the due process rights of students and requiring universities to implement what amounts to a “guilty-until-proven-innocent” rule that is completely at odds with impartial justice.
Bhargava criticizes the university’s procedure for investigating sexual harassment complaints, noting that it has “multiple stages,” including an appeals process which can take “months” to resolve. She seems particularly piqued that an initial finding against one accused student “resulted in reversal” after it was appealed. A Justice Department offended that a defendant might be able to go through several levels of appeal is something that should scare all of us. What’s wrong with an even-handed, deliberate process with appeals that protect the rights of both the accuser and the accused?
Perhaps Tom Perez’s Civil Rights Division would prefer a Star Chamber that immediately slams the door on anyone accused of sexual harassment. How else is one to interpret Bhargava’s suggestion that an “appropriate step” by a university might include “taking disciplinary action against the harasser” before “the completion of the Title IX and Title IV investigation/resolution”? They appear to want the university to apply the Queen of Heart’s admonition in Alice in Wonderland and lop off the heads of anyone accused of sexual harassment before there has even been an investigation or hearing to determine whether the accusations are true.
The university is also faulted for using a “clear and convincing evidence” standard instead of a “preponderance of the evidence” standard. In other words, in a situation involving very serious charges that could end a student’s college career, DOJ/DOE insist that the university use a weak legal standard that will find a student guilty if the likelihood that the sexual harassment occurred is only slightly higher than 50 percent. Such a “toss-a-coin” standard is an attack on very basic due process rights, which is why institutions like the University of Montana and Harvard University have long followed a higher standard of requiring clear and convincing evidence that an individual engaged in unlawful conduct.
This is another broad overreach by high-level government officials driven by rank ideology, not the best interests of students in an academic setting. Sexual harassment is a serious issue and should be treated as such. But the Justice and Education Departments are trying to ban speech protected by the First Amendment even if it is “unwelcome” and behavior that any reasonable person would find harmless.
In the Davis case, the Supreme Court said it was not outlawing “insults, banter, teasing…and gender-specific conduct that is upsetting to students” and that it “trust[ed]” courts would not be misled to impose “sweeping liability.” But it is exactly that type of “sweeping liability” that ideologues serving in this administration are now trying to impose.