By the way, the feds also pushed super-broad speech codes for campuses this week
posted at 7:21 pm on May 15, 2013 by Mary Katharine Ham
Bad news, kids, you could already be a harasser, according to the new definition. Perhaps nowhere in the nation is speech more potentially dangerous than on a college campus. Reason TV offers a great explanation:
Mona Charen gives some history on this issue, and the related loss of basic due process on campus:
In a 2011 letter to colleges, the Education Department’s Office of Civil Rights (OCR) mandated that in cases of suspected sexual harassment or sexual assault, universities were to reduce the standard of proof to a more-likely-than-not standard. The new standard requires that fact finders believe only that there is a 50.01 percent chance that the charges are true.
I warned at the time that students falsely accused could see their lives upended and possibly destroyed. Clearly, if a student has committed a crime or serious offense, the university has a duty to investigate. But serious charges, which can blight careers, require serious guarantees of the rights of the accused. In a court of law, a defendant has the right to confront witnesses against him, the right to see any exculpatory evidence the state discovers, the right to be represented by counsel, and the presumption of innocence. In felony cases, the state must prove beyond a reasonable doubt that the defendant is guilty.
No such safeguards are available to accused college students. As self-described feminist Judith Grossman discovered to her horror when her son was falsely accused of “non-consensual sex” by a former girlfriend, the Department of Education’s OCR “has obliterated the presumption of innocence that is so foundational to our traditions of justice.” Grossman recounted in the Wall Street Journal that her son was denied counsel, subjected to a two-hour-long inquisition, refused the opportunity to present evidence (in the form of e-mails from the former girlfriend and other documents), and denied the opportunity to question witnesses against him. Thanks to Grossman’s legal expertise and assistance, her son was eventually cleared. Other students are not so fortunate.
Despite court rulings that require harassment be defined as something more than speech that offends one person, the administration’s latest removes that safeguard.
In a letter sent yesterday to the University of Montana that explicitly states that it is intended as “a blueprint for colleges and universities throughout the country,” the Departments of Justice and Education have mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment. The mandate applies to every college receiving federal funding—virtually every American institution of higher education nationwide, public or private.
The letter states that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature’” including “verbal conduct” (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the same gender in the same situation”—if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.
This result directly contradicts previous Department of Education guidance on sexual harassment. In 2003, the Department of Education’s Office for Civil Rights (OCR) stated that harassment “must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.” Further, the letter made clear that “OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances, including the alleged victim’s age.”
But, hey, it’s not like campuses are a hotbed for blithely persecuting students for unpopular political speech or hate crime hoaxes, so everything should be cool.
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