The federal government has ruled that in order to meet its demands under Title IX, the law regulating equal access to educational opportunities at colleges and universities, the schools must violate the First Amendment, an activist organization has charged.
“The Department of Justice now interprets Title IX to require colleges and universities to violate the First Amendment,” a report from the Foundation for Individual Rights in Education confirmed this week.
It cited a recent letter from the agency to the University of New Mexico that “found the university improperly defined sexual harassment. DOJ flatly declared that ‘[u]nwelcome conduct of a sexual nature’ – including ‘verbal conduct’ – is sexual harassment ‘regardless of whether it causes a hostile environment or is quid pro quo.’”
“The Department of Justice has put universities in an impossible position: violate the Constitution or risk losing federal funding,” said FIRE President Greg Lukianoff. “The federal government’s push for a national speech code is at odds with decades of legal precedent. University presidents must find the courage to stand up to this federal overreach.”
At issue is how colleges and universities handle complaints of sexual assault and more.
In the demand to the University of New Mexico, the federal government requires controls and punishment for verbal statements to which it objects.
“To comply with Title IX, DOJ states that a college or university ‘carries the responsibility to investigate’ all speech of a sexual nature that someone subjectively finds unwelcome, even if that speech is protected by the First Amendment or an institution’s promises of free speech,” the report said.
The report called the mandate a “shockingly broad conception of sexual harassment” and said it “all but guarantees that colleges and universities nationwide will subject students and faculty to months-long investigations – or worse – for protected speech.”
It listed a number of recent cases, such as the months-long investigation into Northwestern University Professor Laura Kipnis who questioned “sexual paranoia” on campus. Also, the comedic articles posted by a satire blog by a Syracuse University law student got him investigated for harassment, FIRE’s report said.
The organization noted that the DOJ statement “would not just legitimize” all such investigations, “it would require campuses to either conduct such investigations routinely or face potential federal sanctions.”
“The school has responsibility to respond to allegations of sexual harassment of which they are or should have been aware, regardless of whether a student has complained, asked the school to take action, or identified the harassment as a form of discrimination,” the letter said.
The school also was instructed to do its own investigation of allegations even while an associated criminal investigation is proceeding.
And it defined what a wide range of actions – or even inactions – can be construed as sexual harassment: “Sexual harassment is unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence. ”
FIRE’s report said the federal government’s rationale “doubles down on the unconstitutional and controversial ‘blueprint’ definition of sexual harassment jointly issued by the DOJ and the Department of Education’s Office for Civil Rights in a May 2013 findings letter to the University of Montana.”
“Requiring colleges to investigate and record ‘unwelcome’ speech about sex or gender in an effort to end sexual harassment or assault on campus is no more constitutional than would be a government effort to investigate and record all ‘unpatriotic’ speech in order to root out treason,” said Robert Shibley, FIRE’s executive director. “Students, faculty, and administrators must not give in to this kind of campus totalitarianism…”
The organization sponsored a lawsuit earlier this year against Louisiana State University in which the definitions from the federal government are challenged.
There, Teresa Buchanan, a tenured associate professor of early childhood education in LSU’s acclaimed teacher certification program, was fired for “sexual harassment” under an LSU policy that tracks the federal government’s broad definition. Her lawsuit challenges the constitutionality of that situation.
WND also reported weeks ago that American universities already have paid some $36 million to students who sued after they were injured by federally mandated campus sexual-misbehavior rules that are based on a “preponderance of evidence.”
Shibley said the OCR circumvented federal law in its pronouncements at the time that students an be convicted based on that standard of evidence.
But last September, Colorado’s openly homosexual member of Congress, Rep. Jared Polis., D-Colo., advocated an even lower standard for expelling students.
“If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people,” said Polis.
Reason.com reported Polis said colleges should remove students even if there is only a suspicion of guilt.
“It certainly seems reasonable that a school for its own purposes might want to use a preponderance of evidence standard, or even a lower standard,” he said during a House Subcommittee on Higher Education and Workforce Training hearing.
“Perhaps a likelihood standard. … If I was running a (private college) I might say, well, even if there is only a 20 or 30 percent chance that it happened, I would want to remove this individual,” he said.
See the Polis comments:
While only four lawsuits were filed against universities in response to their handling of allegations from 2008 to 2010, between 2012 and 2014 there were 18 cases, representing a four-fold increase, according to a report by Stop Abusive and Violent Environments that is touted as the “most comprehensive listing of campus sex lawsuits ever.”