Caught choking a female student in a women’s restroom at St. Louis Community College in Meramec, a male student was released by campus police a few hours later. Jevon Mallory told a sexual harassment counselor he didn’t know the victim but was trying to “withdraw her from life.” Only when the victim went to the media was Mallory arrested and charged with felony assault.
The Obama administration’s move to “dramatically undermine students’ and faculty rights at colleges across the country” is another government scandal, writes Greg Lukianoff of the Foundation for Individual Rights in Education (FIRE) in the Wall Street Journal.
The Education Department and Justice Department rewrote the federal government’s rules about sexual harassment and free speech on campus in a May 9 letter to the University of Montana. To retain federal funding, colleges and universities must punish
“unwelcome conduct of a sexual nature,” including “verbal conduct,” otherwise known as speech.
Till now, sexual harassment had to be “objectively offensive” to a “reasonable person.” That’s gone. Anyone who claims to be offended is a victim of harassment. Furthermore, colleges must respond to “student-on-student harassment” off campus and on, and may discipline the accused before the harassment charge has been investigated.
Last week’s letter is part of a decades-long effort by anti-”hate speech” professors, students, activists and administrators to classify any offensive speech as harassment unprotected by the First Amendment. Such speech codes reached their height in the 1980s and 1990s, but they were defeated in federal and state court and came in for public ridicule.
Still, a FIRE survey of 409 colleges this year found 62 percent maintain speech codes that violate First Amendment standards. Students aren’t the only victims.
In 2011, the University of Denver suspended a professor and found him guilty of sexual harassment because his class discussion on sexual taboos in American culture (in a graduate-level course) was considered too racy. Last year, Appalachian State University suspended a professor for creating a “hostile environment” after she criticized the university’s treatment of sexual-assault cases involving student-athletes and screened a documentary critical of the adult-film industry.
The government’s sweeping definition of sexual harassment will extend to other forms of speech, Lukianoff predicts.
At Tufts in 2007, a conservative student publication was found guilty of harassment for criticizing Islam. The same happened to a professor at Purdue University at Calumet in 2012, who faced a four-month investigation.
University administrators live in fear of discrimination and harassment lawsuits and costly investigations by the Education Department’s Office for Civil Rights, Lukianoff writes. You could call it harassment.
John asks Mary for a date. She says no. The request was unwelcome, so he’s a sexual harasser. Professor Smith discusses the risk of HIV transmission through anal sex, making one of his 500 students uncomfortable. He’s a sexual harasser. Just about everyone on campus is guilty of sexual harassment under rules set out May 9 by the U.S. Departments of Justice and Education, charges the Foundation for Individual Rights in Education (FIRE).
The University of Montana’s mishandling of sexual assault charges – assault, not jokes — triggered a Letter of Findings and Resolution Agreement intended to be “a blueprint for colleges and universities throughout the country.” The DOJ and DOE declared that sexual harassment should be defined as “any unwelcome conduct of a sexual nature,” including “verbal conduct” (speech).
It then explicitly states that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the same gender in the same situation”—if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.
Without a “reasonable person” standard, anyone can silence anyone else by claiming to be offended. FIRE lists some “forms of expression now punishable on America’s campuses by order of the federal government.”
Any expression related to sexual topics that offends any person. This leaves a wide range of expressive activity—a campus performance of “The Vagina Monologues,” a presentation on safe sex practices, a debate about sexual morality, a discussion of gay marriage, or a classroom lecture on Vladimir Nabokov’s Lolita—subject to discipline.
Any sexually themed joke overheard by any person who finds that joke offensive for any reason.
Any request for dates or any flirtation that is not welcomed by the recipient of such a request or flirtation.
Colleges and university that take federal funds — nearly all of them — must try to enforce the rule. ”The federal government has put colleges and universities in an impossible position with this mandate,” said FIRE’s Greg Lukianoff. “The DOJ and DOE have doomed American campuses to years of confusion and expensive lawsuits.” And the federal letter misquoted a Supreme Court opinion to mandate an unconstitutional rule, he added.
Punishment may be required before a disciplinary hearing, writes Hans Bader, citing the letter of findings.
a university must take immediate steps to protect the complainant from further harassment prior to the completion of the Title IX and Title IV investigation/resolution. Appropriate steps may include separating the accused harasser and the complainant, providing counseling for the complainant and/or harasser, and/or taking disciplinary action against the harasser.
It appears that zero tolerance extends from sexual speech and dating requests to speech about the transgendered, writes Bader. “Gender-based harassment” is defined as “non-sexual harassment of a person because of the person’s sex and/or gender, including, but not limited to, harassment based on the person’s nonconformity with gender stereotypes.”
In a 2001 case, Saxe v. State College Area School District, an evangelical Christian successfully challenged a harassment policy that “forbade certain criticisms of homosexuality,” Bader writes.
If Saxe is kaput, any discussion of homosexuality could be banned. Mary speaks up for gay rights. John says her speech is unwelcome, gender-based verbal conduct that he finds offensive. He doesn’t have to be a “reasonable person” to make her guilty of harassment. Of course, she’s offended by the fact that he’s offended, so he’s a sexual harasser once again.
Update: Eugene Volokh, a UCLA law professor, has more on federally mandated speech codes.
As debt-laden college graduates wait tables, mix drinks and push brooms, the backlash against the “college for all’ idea is growing. But defenders, led by President Obama, say they never wanted everyone to go for a bachelor’s degree.
Also on Community College Spotlight: Human sexuality students at Western Nevada College are required to masturbate, keep sex journals and write a term paper on their sexual histories, according to a federal lawsuit filed by a former student who charged invasion of privacy and sexual harassment.
“Overly broad harassment codes remain the weapon of choice on campus to punish speech that administrators dislike,” writes Greg Lukianoff, president of the Foundation for Individual Rights in Education, in the Washington Post op-ed.
In a decade fighting campus censorship, I have seen harassment defined as expressions as mild as “inappropriately directed laughter” and used to police students for references to a student government candidate as a “jerk and a fool” (at the University of Central Florida in 2006) and a factually verifiable if unflattering piece on Islamic extremism in a conservative student magazine (at Tufts University in 2007). Other examples abound. Worryingly, such broad codes and heavy-handed enforcement are teaching a generation of students that it may be safer to keep their mouths shut when important or controversial issues arise. Such illiberal lessons on how to live in a free society are poison to freewheeling debate and thought experimentation and, therefore, to the innovative thinking that both higher education and our democracy need.
In April, the Office of Civil Rights told colleges to use “the lowest possible standard of evidence” in sexual harassment and assault cases, Lukianoff writes. “The letter makes no mention of the First Amendment or free speech.”
In the 1999 case Davis v. Monroe County Board of Education, the U.S. Supreme Court defined harassment as discriminatory conduct, directed at an individual, that is “so severe, pervasive, and objectively offensive” that “victim-students are effectively denied equal access to an institution’s resources and opportunities.” FIRE and other groups want OCR to adopt the Davis definition of harassment.
Illinois’ B students average a C+ at state universities and community colleges. Some graduates with similar GPAs do much better than others in their first year.
Massachusetts colleges and universities are trying to stem the high college dropout rate for graduates of Boston Public Schools.
When he criticized East Georgia College’s sexual harassment policy for offering no protection to the falsely accused, Professor Thomas Thibeault was accused of sexual harassment himself and escorted off campus by police. No specifics were provided. Now, under pressure from the Foundation for Individual Rights in Education (FIRE), the college has withdrawn the harassment charge for lack of evidence, but reprimanded the professor for “offensive speech.” Once again, Thibeault hasn’t been told who accused him or what he’s supposed to have done. FIRE remains on the case.
FIRE is celebrating its 10th birthday.
Seven years after Los Angeles school officials fired a special education teacher for sexual harassment, a judge has approved the firing of Matthew Kim, reports the LA Times. Kim “was accused of touching co-workers’ breasts and making improper advances toward students.”
All told, the Los Angeles Unified School District has spent nearly $2 million, including Kim’s pay and benefits while he was barred from the classroom.
Known as a “housed” employee, he and about 160 others reported every day to administrative offices, where they were assigned no work.
The state Commission on Professional Competence “agreed that some of Kim’s actions could have been considered sexual harassment but ruled that he should not be fired.” The district won the case on appeal.