Making a Request for a Date Could Be a Federal Crime
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.