A massive attack on civil liberties on campus

A massive attack on civil liberties on campus
Image: YouTube screen grab (via wochit News)

Over the last seven years, the Obama administration has repeatedly attacked civil liberties, especially on college campuses. Things will get even worse if Hillary Clinton becomes president. She is likely to attack free speech both on campus and in society generally. That includes ratcheting up the IRS’s targeting of conservative and libertarian non-profits, which recent court filings show never ended, and never had any legal justification. In a recent ruling, federal judge Michael Barrett found that the IRS is still targeting conservatives: “In a series of stark findings, Judge Barrett ruled that the IRS did in fact single tea party groups out for special scrutiny because of their political viewpoints in opposition to President Obama — undercutting congressional Democrats who said liberal groups faced the same level of targeting.”

As Reason Magazine’s Anthony Fisher and Robby Soave have noted, Hillary Clinton is philosophically much more hostile to free speech than Barack Obama, “is likely to be a more dangerous enemy of the First Amendment,” and has more “censorious tendencies.” As journalist Matt Welch notes, Hillary Clinton has a “long and terrible record on all things free speech.” The Obama administration’s assaults on civil liberties on campus will likely continue and accelerate under the Clinton administration, since Hillary Clinton supports large budget increases for the bureaucracies responsible for these assaults on civil liberties.

The Obama administration has repeatedly attacked free speech on campus, in investigations and demands made by the Education Department’s Office for Civil Rights (OCR) and the Justice Department’s Civil Rights Division. They have demanded 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 suspensions. It has shown contempt for religious freedom and the due process rights of private colleges.

  1. Free Speech Under Attack

The Obama Education and Justice Departments have told some universities investigated under Title IX — such as the University of Montana — to classify all “unwelcome” speech about sexual matters as “sexual harassment.” It did so even though this violates free speech, and even though courts have never defined sexual harassment that broadly. 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).

The Obama administration’s 2013 letter to the University of Montana claimed that sexual speech need not even create a “hostile environment” or offend a “reasonable person” to be harassment. Thus, it would classify speech as harassment even if only a hypersensitive person would have objected (like a student offended by a classmate or professor discussing how AIDS is transmitted).

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, an attorney in OCR’s Philadelphia office wrongly told Frostburg State University to eliminate common-sense language in its sexual harassment policy assessing whether conduct is harassment based on the “perspective of a reasonable person.” That could prompt harassment complaints by hypersensitive students who seek to silence discussion of sexual issues by classmates. Under overly-broad campus sexual and racial “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, or discussing the death penalty or objecting to homosexuality.

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 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 pressured K-12 schools to violate free-speech rights, too. In an October 26, 2010 “Dear Colleague” letter to the nation’s school boards about bullying, the Office for Civil Rights tried to change the legal definition of sexual harassment to reach homophobic and other offensive speech outside of school.

OCR’s head 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 education. She also targeted speech outside of school, claiming that harassment includes speech, such as “graphic and written statements” on the “Internet” and elsewhere.

Disturbingly, OCR also suggested that speech could violate Title IX even if it was not “aimed at a specific target.” Banning such speech can create serious free-speech problems. An appeals court cited the First Amendment to dismiss 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 went well beyond its jurisdiction under Title IX. Courts have held that Title IX does not hold schools liable for even serious off-campus sexual misconduct in rulings like Roe v. Saint Louis University (2014).

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 an essay she published in the Washington-based Chronicle of Higher Education, “Sexual Paranoia Strikes Academe.” Hypersensitive students claimed her essay offended them and thus constituted sexual harassment. They then accused her of “retaliation” in violation of Title IX when she subsequently defended herself against the charges on Twitter (even though she did not even identify her accusers 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,” and cannot be based on just a “single instance.”

The Obama administration expects colleges to meddle in 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.and even in “cases in which students chose not to file a formal complaint” or even to pursue an “informal resolution process.”

  1. Due Process Eroded

The Administration stacked the deck against students accused of sexual harassment or assault. 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 even want a college investigation (only a criminal investigation), and it suggested the University might have to reward the false accuser with 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 said 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. Later, it pressured two universities to subject accused students to the disciplinary equivalent of double jeopardy.

  1. Racial Double Standards

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. Resulting changes to disciplinary policies have led to increased violence and disorder in some large urban school districts.

That pressure to use racial quotas is illegal. 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.” That would lead to even more racial quotas in school discipline.

Contrary to the assumption of Clinton and the Obama administration, school officials are generally not racist against black students: black students’ higher suspension rates largely reflect their higher rates of misbehavior.

As Katherine Kersten notes 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 ignored well-publicized instances of racial harassment against white students on campus. For example, 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 also 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 some minority protesters considered “cultural appropriation,” and praising the expulsion of white students for a disgusting racist chant that law professors said was nevertheless constitutionally-protected speech).

The Obama administration said nothing about the anti-white harassment at Berkeley, 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.

  1. Religious Freedom and Educational Choice Undermined

The Obama administration has selectively applied regulations to destroy trade schools and for-profit colleges that have better track records than other, politically-correct colleges that it allows to receive government money without any accountability. The net result is to leave students with fewer educational choices and worse job opportunities.

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 left-leaning Washington Post, which has not endorsed a Republican for President since 1952, viewed this as a violation of due process. As the Post observed,

“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…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 Education Department continues to subsidize and provide financial aid to low-quality colleges that have far lower graduation rates and worse salaries for graduating students than ITT.

The Obama administration has also refused to respect the constitutional and statutory rights of religious schools and colleges. For example, the Obama Justice Department made the radical claim that the government could restrict the criteria churches and religious schools use in hiring ministers, clergy, and theology teachers. The Supreme Court rejected this power grab in its 2012 Hosanna-Tabor decision, which dismissed a federal lawsuit against a Lutheran school. Taken to its logical extreme, the Obama administration’s position would have allowed the government to pass laws preventing churches from hiring clergy based on religion. The Supreme Court ruled that such government control over who churches can hire would violate the First Amendment.

This June, a political appointee in HHS’s Office for Civil Rights 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, the Obama administration thumbed its nose at the Weldon Amendment, which Congress passed to prevent just such coercion, and allowed the state to get away with mandating abortion coverage for even some priests and nuns.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”

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