UCLA law professor Eugene Volokh, a specialist in First Amendment jurisprudence, notes (on the indispensable Volokh Conspiracy blog) that the OCR-DOJ's proscriptions are "not limited to material that a reasonable person would find offensive." The Supreme Court has held that for speech or conduct in schools to lead to a successful sexual harassment lawsuit, it must be sufficiently severe and pervasive to create a hostile environment. And it must be "objectively offensive" to a reasonable person. But, Volokh notes, the OCR-DOJ rules would mandate punishment for any individual's "conduct of a sexual nature," conduct "verbal, nonverbal or physical," that is not objectively offensive to a normal person. This means any conduct "unwelcome" by anyone. Greg Lukianoff, president of the Foundation for Individual Rights in Education, says a single hypersensitive person could declare herself sexually harassed because she considers "unwelcome" a classroom lecture on the novel "Lolita" or a campus performance of "The Vagina Monologues." Do not even attempt a sex education class.
Wendy Kaminer, a civil liberties lawyer who writes for The Atlantic, traces the pedigree of the OCR-DOJ thinking to the attempt by some feminists in the 1980s to define pornography as a form of sexual assault and hence a civil rights violation. Volokh, too, believes that the government is blurring the distinction between physical assaults and "sexually themed" speech in order to justify censoring and punishing the latter.
The OCR-DOJ "blueprint" requires, Kaminer says, colleges and universities to hear harassment complaints under quasi-judicial procedures "that favor complainants." Under 2011 rules, establishing 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 listener.
When the Education Department was created in 1980 (Jimmy Carter's payment to the National Education Association, the largest teachers union, for its first presidential endorsement), conservatives warned that it would be used for ideological aggression to break state and local schools to the federal saddle. Lukianoff says:
"Given that the [OCR-DOJ] letter represents an interpretation of federal law by major federal agencies, most colleges will regard it as binding. Noncompliance threatens federal funding, including Pell grants and Stafford loans."
Most of academia's leadership is too invertebrate and too soggy with political correctness to fight the OCR-DOJ mischief. But someone will. And it is so patently unconstitutional, it will be swiftly swatted down by courts. Still, it is useful idiocy because, coming right now, it underscores today's widespread government impulse for lawless coercion the impulse that produced the Internal Revenue Service's suppression of political speech that annoys the Obama administration.
Like the IRS abuses of power, the OCR-DOJ initiative demonstrates how permeated this administration is with disagreeable people with dangerous intentions. So the administration is making conservatism's case against the unlimited arrogance that is both a cause and a consequence of unlimited government.