Feds pull ‘Alice in Wonderland’ on free speech

June 18, 2013

Coalition of education groups says schools not exempt from 1st Amendment

by Bob Unruh

WND Education

 

“Sentence first. Verdict after.”

A coalition of education organizations has told the U.S. Department of Justice and the U.S. Department of Education that’s the impact of a newly reached agreement regarding sexual assaults at the University of Montana that is being touted as a model for schools nationwide.

‘The agreement provides that ‘a university must take immediate steps to protect’ a party complaining of harassment, even ‘taking disciplinary action against the harasser’ before investigation of the complaint begins,” said a newly released letter that was addressed to Assistant Attorney General Thomas Perez and Seth Galanter, acting assistant secretary for the Education Department.

It was written by Kevin Theriot, senior counsel, and David J. Hacker, senior legal counsel, of the Alliance Defending Freedom on behalf of leaders of Young America’s Foundation, National Association of Scholars, Students for Life of American, Ratio Christi, Campus Bible Fellowship International, Collegians for a Constructive Tomorrow and Beta Upsilon Chi.

The letter warns that “the agreement fails to require UM and other universities to show ‘continuing danger to persons or property,’ or provide notice and a hearing immediately following the disciplinary action.”

“As one commentator noted already, this is ‘reminiscent of Alice in Wonderland’s ‘sentence first, verdict afterwards,’” the letter says.

“But a mere investigation into clearly protected activity violates the Constitution. … The agreement requires UM and other universities to violate students’ due process.”

WND reported the May 9 guidance from the U.S. Department of Education was understood to mean that every flirtation on a college campus in America and every request to go out on a date could be considered sexual harassment.

The federal government then tried to explain away the controversy.

The department advisory apparently eliminated the standard of whether a “reasonable person” would consider certain actions harassment. It explained that any comment, action, insinuation or implication would be harassment if it were unwanted.

The advisory also warned that the school’s sexual harassment policy “improperly suggests that the conduct does not constitute sexual harassment unless it is objectively offensive.”

The university policy had held that “whether 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.”

That standard is not acceptable, according to the advisory, signed by Anurima Bhargava, chief of the U.S. Department of Justice Civil Rights Division Educational Opportunities Section, and Gary Jackson, a region chief for the U.S. Department of Education.

“Whether conduct is objectively offensive is a factor used to determine if a hostile environment has been created, but it is not the standard to determine whether conduct was ‘unwelcome conduct of a sexual nature’ and therefore constitutes ‘sexual harassment,’” the advisory said.

Read the advisory.

The advisory was addressed to University of Montana President Royce Engstrom and university lawyer Lucy France. It was a “resolution” of an investigation into the sexual harassment climate at the school and its “compliance review” of officials’ actions.

“Sexual harassment is unwelcome conduct of a sexual nature. When sexual harassment is sufficiently severe or pervasive to deny or limit a student’s ability to participate in or benefit from the school’s program based on sex, it creates a hostile environment,” the federal officials warned the state.

Hans Bader of the Chronicle of Higher Education called the position adopted by the Department of Education “radical.”

Now the education groups have stepped up to voice their concerns.

“Students should be able to speak freely about issues such as race, gender, religion and politics without fearing retribution,” said senior legal counsel David Hacker. “While we condemn actual harassment, which has a clear legal definition, this anti-harassment blueprint is nothing less than a vague and broadly defined speech code that will end up prohibiting speech the First Amendment protects.”

ADF said the Obama administration strategy “leaves universities with the enormous, and unbridled, administrative burden of policing what is and is not actionable harassment. Free speech will suffer in the end.”

“Free, spontaneous discourse on college campuses is supposed to be a hallmark of higher education rather than the exception to the rule,” added senior counsel Kevin Theriot. “The policies of the Department of Justice and the Department of Education should always allow students to exercise their constitutionally protected freedoms.”

Said the letter to Washington: “There is no question that universities like UM should protect students from actual harassment, but they can do so and comply with the First Amendment under a severe, pervasive, and objectively offensive standard. The agreement’s broad definition of harassment, however, fails to protect real victims. Their cries for help will be drowned out by frivolous complaints of insults, teasing, jokes, and other clearly protected activity. In the end, that leaves speech chilled and victims without justice.”

The Obama administration also recently came under fire for determining that on-campus sex assault cases would not be decided, as in courts, by evidence beyond a reasonable doubt.

The federal government requires colleges to use a preponderance of evidence standard, which means someone would think there is more evidence something did happen than not.

On April 4, 2011, the Education Department issued a directive on campus sexual assault that states, “A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.”

By “sex discrimination,” the department also meant rape. The direction on grievance procedures is listed under a heading titled “What are a school’s obligations under Title IX regarding sexual violence?”

College campus courts using the preponderance of evidence standard to weigh sexual assault cases have many onlookers outraged.

The group Stop Abusive and Violent Environments, or SAVE, believes the department policy is unconstitutional. SAVE issued a statement declaring the preponderance of evidence standard is “stripping the accused of the presumption of innocence and allowing students to be expelled without the benefit of legal counsel.”

SAVE has published a list of 13 organizations that have issued letters calling on the department to rescind its sexual assault directive, including the American Association of University Professors, the American Council for Trustees and Alumni, the National Association for Scholars, Tully Center for Free Speech at Syracuse University, eight civil rights scholars, Accuracy in Media, the Heartland Institute, the Alliance Defending Freedom and Feminists for Free Expression.

A year ago, WND reported a case of severe injustice caused by the department’s preponderance of evidence policy.

Student Caleb Warner was found guilty of sexual assault by a campus court at the University of North Dakota in Grand Forks in 2010 despite the facts established at the time by city police.

Officers not only refused to charge him but also alleged his accuser made a false report. Police issued a warrant for her arrest.

It took 18 months – during which Warner not only was banned from the UND campus but also from all college campuses in the state – after the university to agree to reconsider the conviction and clear his record.

The Foundation for Individual Rights in Education said: “Nobody should be surprised that [Warner] does not want to return to UND. The university showed less than zero concern for disrupting his life and career and branding him a criminal based on an extremely low standard of evidence, and has shown zero inclination to be remorseful about what it has done.”

View this article at WND Education.