Education Department Attack on Free Speech and Due Process Criticized in Washington Post, Chronicle, and Other Papers
May 29, 2013
by Hans Bader
Earlier, I wrote about a recent letter from the Education and Justice Departments demanding that the University of Montana define as a reportable “sexual harassment” offense “any” speech on sexual topics that is “unwelcome” to any listener, even if most listeners do not find it “unwelcome,” and it would not offend the “reasonable person.” This pretty obviously violatesthe First Amendment, as I explain here in the Chronicle of Higher Education at this link.
The government calls this letter a “blueprint” for the nation’s colleges and universities to use. If the colleges follow this “blueprint,” they will open themselves up to First Amendment lawsuits, as The Washington Post’s George Will notes, quoting civil libertarians (and me) objecting to the government’s demands. Other op-eds criticizing the government’s demand for censorship, such as Wendy Kaminer’s commentary in The Atlantic, and syndicated columnist Mona Charen’s op-ed, can be found here, here, and here.
The government’s demands also disregard past government guidance as to what constitutes “sexual harassment”; Supreme Court decisions defining sexual harassment and rejecting college curbs on “indecent” speech in campus debates; and rulings by the U.S. Third Circuit Court of Appeals, and federal district court judges, striking down campus sexual harassment codes that restricted speech protected by the First Amendment.
As George Will notes,
The OCR-DOJ “blueprint” requires, Kaminer says, colleges and universities to hear harassment complaints under quasi-judicial procedures “that favor complainants.” Under 2011 rules that establish a low standard of proof, Kaminer says, “students accused of harassment are to be convicted in the absence of clear and convincing evidence of guilt, if guilt merely seems more likely than not.” And schools are enjoined to “take immediate steps to protect the complainant from further harassment,” including “taking disciplinary action against the harasser” prior to adjudication. So the OCR-DOJ “blueprint” and related rules not only violate the First Amendment guarantee of free speech but are, to be polite, casual about due process.
Hans Bader, a former OCR lawyer now with the limited-government Competitive Enterprise Institute, notes that this “Alice in Wonderland” — “sentence first, verdict afterwards” — system “casts a cloud over academic freedom and the ability to discuss topics that are offensive to some listeners.” Indeed, to one listen
We earlier discussed why the government’s demand that colleges change the burden of proof for students accused of sexual harassment and sexual offenses violates the Administrative Procedure Act and is not supported by the very court rulings it purports to rely on.
Mona Charen says that Education Department policies — such as its change in the burden of proof, and pressure on schools to impose interim sanctions before any disciplinary hearings in some cases — have led to many due-process violations:
Following the Education Department’s directive, the University of Hawaii announced that students may be evicted from dormitories after no more than an accusation. At Yale, an unsubstantiated charge of sexual assault against a star football player was enough to deny him a Rhodes scholarship. . . .Caleb Warner was banned from the campuses of the University of North Dakota for three years. When police investigated the case, they issued an arrest warrant for his accuser, charging her with making a false rape charge. Only after repeated interventions on Warner’s behalf by the Foundation for Individual Rights in Education (FIRE) did the university finally admit that the charges were without foundation.