The Obama administration has repeatedly violated civil liberties on campus. The Education Department’s Office for Civil Rights (OCR) has been the chief culprit, but the Department of Justice has played a role too. They have attacked free speech, demanding that school officials censor politically-incorrect speech. They have also pressured colleges to stack the deck against students accused of sexual harassment or assault by denying them the right to due process. The Obama administration has violated the Constitutional guarantee of equal protection by demanding racial quotas in school discipline and turning a blind eye to campus racial violence against whites. It also has shown a contempt for religious freedom and the due process rights of colleges themselves.
- The Attack on Free Speech
The Obama administration has told colleges investigated under Title IX — such as the University of Montana — to classify all “unwelcome” sexual conduct or speech as “sexual harassment.” It did so even though this violates free speech, and even though courts have never defined sexual harassment that broadly. In 2013, a political appointee in the Obama Justice Department and an official in the Education Department’s Office for Civil Rights (OCR) demanded that the University of Montana impose a sweeping campus speech code treating all “unwelcome” speech about sexual issues as “sexual harassment,” even if only a hypersensitive person would have objected (like a student offended by a classmate or professor discussing how AIDS is transmitted).
Education writers like Joanne Jacobs pointed out that this definition of sexual harassment would effectively brand every student a sexual harasser (like a student asking another student out on a date). It also would ban jokes, cartoons and discussions that only the most sensitive people find offensive, at a huge cost to free speech.
The Obama administration’s letter to the University of Montana claimed that sexual speech need not even create a “hostile environment” to be harassment. But a federal appeals court rejected that argument in DeJohn v. Temple University (2008). It ruled that a college harassment policy violates the First Amendment if it defines as sexual harassment speech that does not “objectively” create a “hostile environment.” Even if it does create a hostile environment, the sexual speech still “may be protected” by the First Amendment if it discusses political or social issues.
In September 2016, an OCR attorney encouraged unwarranted sexual harassment complaints based on constitutionally-protected speech in yet another way. She told Frostburg State University that its sexual harassment policy was wrong to determine whether the conduct was harassment based on the “perspective of a reasonable person.”
This opened the door to sexual harassment complaints by hypersensitive students who seek to silence discussion of sexual issues by classmates. Under broad campus “harassment” codes, students have been investigated or punished merely for expressing commonplace opinions about sexual and racial issues, such as criticizing feminism or affirmative action.
As Reason Magazine noted, in rejecting the reasonable person standard, the OCR official was “effectively saying that colleges should base their decisions on the perspective of an unreasonable person.” That flouted Supreme Court rulings, which the Daily Caller notes have long applied “a reasonable person standard to decide whether sexual harassment occurred.” For example, in 2001, the Supreme Court overturned a ruling against the Clark County School District, ruling that a “reasonable person” could not “have believed that [a] single incident” of offensive remarks amounted to harassment.
The Obama administration has also told grade schools to violate the free-speech rights of their students. In an October 26, 2010 “Dear Colleague” letter to the nation’s school boards about bullying, the Office for Civil Rights rewrote the legal definition of sexual harassment to reach homophobia and offensive speech outside of school.
It claimed that “harassment does not have to . . . involve repeated incidents” to be illegal under Title IX, but rather need only be “severe, pervasive, or persistent” enough to detract from a student’s educational benefits or activities. It also targeted speech outside of school, claiming that harassment includes speech, such as “graphic and written statements” on the “Internet” and elsewhere.
Disturbingly, it also suggested that speech could violate Title IX even if it was not “aimed at a specific target.” Banning academic speech not aimed at the complainant creates enormous free-speech problems.
A federal appeals court relied on the First Amendment in dismissing a racial harassment lawsuit by a university’s Hispanic employees against a white professor over his recurrent racially-charged anti-immigration emails. In its ruling in Rodriguez v. Maricopa County Community College (2010), the court noted that the messages were not “directed at particular individuals” but rather aimed at “the college community” as a whole.
OCR’s attempt to restrict off-campus speech also went well beyond its jurisdiction under Title IX. Courts have held that Title IX does not hold schools liable for even serious off-campus misconduct in decisions like Roe v. Saint Louis University (2014), which rejected a lawsuit over an alleged student-on-student rape.
OCR’s pressure on colleges to regulate off-campus conduct and speech led to a speech-chilling investigation of Professor Laura Kipnis that lasted for months. She was investigated under Title IX for her essay in the Chronicle of Higher Education, “Sexual Paranoia Strikes Academe” (which hypersensitive students claimed offended them and constituted sexual harassment) and her subsequent statements defending herself on Twitter (which the students claimed constituted “retaliation” in violation of Title IX, even though she did not identify them by name).
OCR’s sweeping definition of “sexual harassment” is at odds with the Supreme Court’s decision in Davis v. Monroe County Board of Education (1999), which held that to be illegal under Title IX, sexual harassment must be “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”
Furthermore, the Supreme Court explained that the requirement of both severity and pervasiveness means that a lawsuit cannot be based solely on a “single instance” of “severe” peer harassment — contrary to OCR’s “Dear Colleague” letter about bullying, which claimed harassment does not have to “involve repeated incidents” to violate Title IX.
The Obama administration expects colleges to students’ lives, even off campus. It has told colleges to investigate students for sexual harassment or assault even when their allegedly victimized partner does not want any investigation. It instructed the University of Virginia to investigate further even when the accused has already admitted guilt (even though that could needlessly force a victim to relive her trauma) and even in “cases in which students chose not to file a formal complaint” or even to pursue an “informal resolution process.”
- Due Process Undermined
The Administration has also stacked the deck against people accused of sexual harassment or assault in campus disciplinary proceedings. For example, in Title IX investigations, it has required that colleges impose “interim measures” against accused students before they ever receive a hearing on the charge against them, measures that can include expulsion from a dorm and classes shared with the accuser. It perversely faulted Michigan State for not investigating a false complaint fast enough, even though the complainant didn’t want a college investigation at all, and it suggested the University might have to offer the false accuser academic “remedies.”
In its April 4, 2011 Dear Colleague letter to the nation’s colleges, OCR instructed to colleges to restrict cross-examination, even though the Supreme Court has declared that cross-examination is the “greatest legal engine ever invented for the discovery of truth.” It also ordered colleges to abolish the clear-and-convincing standard of evidence that was once the norm in college discipline, recommending instead the far weaker “preponderance of evidence standard (50.001 percent certainty).
OCR also has recently required some investigated colleges (such as Harvard and SUNY) to conduct “individual complaint reviews” for all allegations in past academic years to see if the college “took steps” against harassment in each case. That creates the risk of students being investigated all over again for an offense the college previously found them not guilty of, much like double jeopardy.
- The Attack on Equal Protection
The Obama Justice and Education Departments have pressured school districts to adopt racial quotas in school suspensions, falsely claiming that it generally violates Title VI of the Civil Rights Act to suspend black students at a higher rate than whites. Such racial quotas have led to increased violence and disorder in some large urban school districts.
This pressure flouts federal court rulings. A federal appeals court ruled in People Who Care v. Rockford Board of Education (1997) that schools cannot use racial quotas in discipline, striking down a rule that forbade a “school district to refer a higher percentage of minority students than of white students for discipline.”
Yet, “Hillary Clinton has called for Education Department’s Office for Civil Rights to crack down on school districts that discipline higher percentages of black students, and has advocated further increasing OCR’s budget to increase its muscle over school districts.”
Contrary to the assumption of Clinton and the Obama administration, school officials are not racist against black students: black students’ higher suspension rates simply reflect higher rates of misbehavior among blacks.
As Katherine Kersten wrote months ago in the Minneapolis Star-Tribune, black students’
discipline rate is higher than other students’ because, on average, they misbehave more. In fact, a major 2014 study in the Journal of Criminal Justice found that the racial gap in suspensions is “completely accounted for by a measure of the prior problem behavior of the student.” That problem behavior can manifest itself in other ways. Nationally, for example, young black males between the ages of 14 and 17 commit homicide at 10 times the rate of white and Hispanics of the same ages combined.
The Obama administration has also turned a blind eye to racial discrimination and harassment committed against white students on campus. One example is when minority students at Berkeley racially harassed whites, prevented them from studying, and blocked the access of white students to key areas of campus while letting minority students through. Berkeley’s administration did nothing, even though it was all caught on videotape, witnessed by nearby campus police, and reported on by Fox News, the Washington Times, and Reason Magazine.
The Obama administration likewise did nothing, even though the White House has weighed in on far more trivial campus racial controversies that offended minorities (such as praising protests against Halloween costumes minority students considered “cultural appropriation,” and praising the expulsion of white Oklahoma students for a disgusting racist chant that law professors said was constitutionally-protected speech, but which the college president said was “racial harassment” of minorities who learned about it later). It did nothing, even though the Obama Education Department has investigated colleges for sexual harassment based on press reports, even when the purported victim did not complain to the Education Department, and did not even want a Title IX investigation. It ignores such racial discrimination, even though federal courts have ruled that civil rights laws forbid racial harassment and violence aimed at whites based on their race.
- The Attack on Colleges’ Own Religious Freedom and Due Process Rights
The Obama administration has selectively applied regulations in ways that destroy trade schools and for-profit colleges. For example, it forced the shutdown of ITT Tech, which had successfully operated for 50 years, displacing 40,000 students in the process. Even the liberal Washington Post, which has not endorsed a Republican for President since 1952, viewed this as a violation of due process. As the Post put it,
“What is so troubling about the department’s aggressive move — which experts presciently called a death sentence — is that not a single allegation of wrongdoing has been proven against the school. Maybe the government is right about ITT’s weaknesses, but its unilateral action without any semblance of due process is simply wrong. ‘Inappropriate and unconstitutional,’ said ITT officials. Such unfairness sadly is a hallmark of the Obama administration policy toward higher education’s for-profit sector.”
Meanwhile, the Administration continues to subsidize and provide financial aid to low-quality colleges that have far lower graduation rates and salaries for graduating students than ITT.
The Obama administration has also refused to respect the statutory and constitutional rights of religious schools and colleges. For example, on June 21, it rejected a “right of conscience” complaint by religious orders and schools who objected to the State of California’s requirement that their health insurance plans include coverage for elective abortions. In so doing, it thumbed its nose at the Weldon Amendment, which Congress passed to prevent just such coercion.
That provision withholds federal funds from states that require health care entities to “provide, pay for, provide coverage of, or refer for abortions.” As lawyers for the Alliance Defending Freedom noted, the Obama administration’s action allowed California to illegally regulate the healthcare coverage of even priests and nuns, and allowed California to get away with a “blatant violation of the law.”