As everyone but members of the National Ostrich Society now knows, Washington, D.C. is beset by three actual or potential scandals: the Benghazi matter; the IRS’s politicization; and the wiretapping of the Associated Press by the DOJ. These matters are important and call for genuine investigation and concern.
But there is another controversy emanating from Washington that should also be of great concern to citizens who care about the education of the nation’s young men and women and the status of free speech and thought in our country. And once instituted, the policy involved could metastasize into other domains as well.
On May 9, the Department of Education’s Office of Civil Rights and the Department of Justice wrote a letter to the president of the University of Montana, mandating a broad new sexual harassment standard for that institution. But rather than limiting itself to that institution, the letter portrayed itself as “a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” This would be fine if the standard for harassment were properly defined, consistent with the standard proffered by the United States Supreme Court in 1999 Davis case.
Davis drew the proper balance between freedom of speech and the right to be protected against harassment: conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”
Sadly, the ED/DOJ standard makes a mockery of the Davis standard. Rather than adhering to the reasonable balance the Supreme Court struck, the new mandate maintains that “sexual harassment should be more broadly defined as ‘any [my italics] unwelcome conduct of a sexual nature,’” including “verbal conduct.” Any verbal conduct that someone happens to find “unwelcome?” Has our government forgotten the famous maxim of Justice Holmes, one of the godfathers of the modern doctrine of speech, that freedom of speech means “freedom for the thought we hate?”
Laws dealing with standards of conduct almost always include an objective “reasonable person” provision. Indeed, this has been a mainstay of established harassment law, as the Davis test demonstrates. Conduct and expression do not constitute harassment unless they are severe, pervasive, and “objectively offensive.” But not according to DE/DOJ’s new definition! Under the new definition, it is harassment simply if a target or subject of the expression considers it so, no matter how extreme or unreasonable such interpretation might be.
This is not a standard at all, but rather a recipe for endless prosecutions of speech about sensitive matters that highly and extremely sensitive (or politicized) persons find objectionable. And we all know that this result would often disempower any sexual discourse of which dominant ideologies on campus disapprove. Anyone who has studied First Amendment law knows instantly that such a subjective “standard” turns First Amendment and free speech principles on their heads. It might be appropriate to Alice’s Wonderland, governed by the “standards” of the Queen of Hearts. But not to a constitutional democracy that was “conceived in liberty,” as Lincoln said.
So what might have inspired this path-breaking move by the government whose officials have taken an oath to protect the Constitution? And what does the policy tell us about our government? Here are some initial thoughts to stir further thinking.
First, it is evident that a misguided feminist agenda is being extended. A first step was taken a few years ago when the same federal outfits called on campuses to change the standard of proof employed in campus sexual misconduct cases.
Many schools, including mine, previously required student judicial boards to find defendants guilty by “clear and convincing evidence,” which is the second highest standard of culpability next to the “beyond a reasonable doubt” standard. Clear and convincing evidence is usually translated as “substantial probability” of guilt. The new standard—which Wisconsin and other schools adopted under the threat of losing their federal funding—is “preponderance of the evidence,” which simply means “more likely than not.” Given the campus politics of sexual misconduct and the training of student adjudicators about which I have been informed, “preponderance” in these cases often boils down to de facto presumptions of guilt. (See Judith Grossman, “A Mother, A Feminist, Aghast,” Wall Street Journal op-ed)
The new harassment standard appears to be the next step in this process. Many citizens who, like me, brandish liberal feminist credentials find this movement degrading of women because it treats them as second class citizens who are incapable of withstanding the rigors of free speech and due process. The new standard implies that women are essentially victims, not responsible agents who can handle “unwelcome” ideas that fall short of constituting harassment reasonably and objectively defined. Constitutional feminists should be insulted.
Second, the policy is yet another example of something I always tell my students, but which most citizens, voters, and even the press do not often heed: the powerful roles played by unelected bureaucrats who comprise a necessary part of the presidential entourage. It matters whom administrations appoint to key bureaucratic posts, as does the persons these individuals appoint and whom they promote among the bureaucracy careerists. National government is primarily government by bureaucracy; and bureaucrats can have their own agendas and incentive systems that are not always in sync with the norms and beliefs that We, the People, bring to the Constitutional Table.
The new sexual harassment policy behooves us to examine who is behind the new policy, what they believe about constitutional freedom, and what they believe regarding the appropriate relationship between means and ends. As Louis Brandeis, the other godfather of modern free speech doctrine wrote, “Sunshine is the best disinfectant.” Can anyone say “IRS”?
Finally, the new DE/DOJ policy reminds us, yet again, that we must remain on guard against threats to our freedom, and organize politically to stop questionable movements. It is reassuring to see that such groups as the Foundation for Individual Rights in Education (FIRE) and Minding the Campus are on the case. (Minding the Campus is carrying an essay on the matter by Harvey Silverglate, one of FIRE’s founders.) So is the academic freedom group I lead at Wisconsin, the Committee for Academic Freedom and Rights, which will take necessary political action as we have in many other cases. Only organized countervailing pressure can check bureaucratic power when it needs checking. As Madison wrote in Federalist #51, “Ambition must be made to counter ambition.”