Rape, Harassment and Free Speech

Recently, the Office of Civil Rights (OCR) of the Department of Education along with the Civil Rights Division of the Department of Justice has been in the news with respect to a case involving the University of Montana in Missoula. They were responding to an official complaint filed against the school with the local office In Seattle. The complaint alleged sexual harassment charges against the school and the football program. Although the entire circumstances of the complaint are not clear due to redacted areas, the complainant felt threatened or harassed since in some response to a question- the details are murky as to the context of the question and response- the responder said they were “going to train them.”

To put the entire episode in some context which the DOJ investigation provides greater detail, there were allegedly some 80 rape complaints in Missoula, many involving the university’s football team members. Many of these complaints were handled, at the very least, without tact and at worst negligently. Some of the complaints involved allegations of gang rape. Hence, the reference of “training” someone- a slang term for gang rape- led to the allegations of harassment.

If the allegations of rape are true, then one would hope the perpetrators are caught and convicted. To date, there has been one high profile trial of a Montana football player and he was found innocent. There are pending charges against other players involving a gang rape. The athletic director and head football coach have been fired. To hear some commentary from many sources, this type of behavior on college campuses is more common than many think which, if so, is truly unfortunate. The OCR has no business in the criminal aspects of this case, but they are bound by Title IX which prohibits harassment of any kind in any educational institution that receives any kind of federal funds (just about them all).

Apparently, the OCR determined that these incidents were the result of a campus administrative culture that did nothing to deter, investigate, or deal with these incidents. But, there is or was an ominous conclusion to this entire episode.

But first, it is very important that one distinguishes between rape and harassment. The differences are obvious. The concept of sexual harassment in particular is nothing new. Originally, the most noticed type was of the quid pro quo variety- “you do something for me, I do something for you.” Usually the “something” was sex in exchange for a promotion or continued employment. But, there is another type of sexual harassment- the hostile work environment type, or in this case, the hostile campus environment type. In the workplace, the obvious example would be the male employee who has Playboy’s Playmate of the Month spread nude full frontal as their screen saver. And there can be less obvious, more subtle forms of such harassment.

The OCR cannot bring legal charges, but they can bring down the bureaucratic weight of the Department of Education on colleges and universities. Most importantly, they can cut funding, including Pell grants and Stafford loans to schools that fail to obey the educational civil rights laws. The OCR determined that the problems at the University of Montana were attributable to their definition of sexual harassment in the first place. However, the University simply adopted guidelines released by the OCR in 2001. Specifically, the University’s policy reached only the hostile environment aspect. The new suggested guidelines require a broader definition of sexual harassment and hostile environment. This is the best explanation of the problem as given by William Creeley, the Director of Legal and Public Advocacy for the Foundation for Individual Rights in Education (FIRE):

“By separating ‘sexual harassment’ from ‘hostile environment’ harassment, OCR has also separated ‘sexual harassment’ from the set of evaluative factors it uses…to determine if sexual harassment has taken place. These factors include whether the conduct affected the student’s education, whether the conduct was a pattern of behavior, the identity and the relationship of the individuals involved, the context of the conduct, and more.”

By using these evaluative factors, schools were able to investigate to see whether the conduct created a hostile environment or whether the speech was simply offensive or unwanted. There is a huge difference. The OCR directive, which is described as a blueprint for ALL college harassment guidelines, does not include the reasonable person standard which the courts have adhered to according to the case DeJohn vs. Temple University. In short, the new guidelines grant the most unreasonably sensitive student the power to determine what sexual or gender-based expression is allowed on campus. There is the suggestion that those thus accused receive punishment before any investigation is completed. In short, the alleged offender forfeits their due process rights because they inadvertently said something that MAY have offended someone. That is the most chilling part of this alleged blueprint compared to the 2001 OCR guidelines: campus speech can be defined and controlled while hiding behind civil rights laws.

In actuality, these OCR guidelines are nothing more than the nationalization of liberal-backed speech codes that exist on more than 70% of all US college campuses- public and private. The list of actions taken by school administrators is numerous and, quite frankly, disturbing and I will list just a few major ones since November 2012:

November, 2012: At the State University of New York at Oswego, a student was suspended for contacting hockey coaches from rival colleges for their view on SUNY’s coach stating that the view does not have to be positive. This was interpreted as “harassment” of the SUNY-Oswego coach;

November, 2012: The administration at Michigan State University refused the college’s Libertarian student group’s request to sponsor a speech by a noted free market scholar;

November, 2012: The University of Texas at Austin attempted to ban fraternities and sororities from wearing their Greek letters on any clothing;

December, 2012: Western Piedmont Community College in North Carolina attempted to bar students from using the word “Christmas” when selling Christmas trees for a fundraiser;

January, 2013: Montclair University in New Jersey issued a gag order against a student for referring to someone’s weight on their personal Facebook page;

February, 2013: A student was suspended at Valdosta College for posting a flyer critical of the college’s plans to build a campus parking garage;

February, 2013: Students protesting in favor of gun control were prohibited from wearing empty holsters at Santa Fe Community College in New Mexico;

February, 2013: Students at DePaul University were reprimanded for reporting other students who had vandalized a pro-life display;

March, 2013: A student at Oakland University in Michigan was suspended for certain notes he kept in a journal for a writing assignment that referred to the looks of the teacher;

March, 2013: A professor at Appalachian State University was denied tenure because he showed a film chronicling the history of the adult film industry in the United States;

March, 2013: The administration at Central New Mexico Community College threatened the student newspaper if they published an issue dedicated to sex;

April, 2013: John Hopkins University refused to recognize a pro-life student group;

April, 2013: A student at Hinds Community College was expelled for saying that another student was “going to f#@! up their GPA” while outside the classroom which another student overheard and took offense to;

May, 2013: A new code at Trinity College mandates that any fraternity or sorority be coed and that 40% of their leadership be of the opposite sex under threat of losing their charter and property;

May, 2013: A student was expelled from Syracuse University for a satirical picture he posted on Facebook critical of the University, and;

May, 2013: A professor was reprimanded for an in-class joke when he said the students were acting like he “was on a shooting spree.”

One of the greatest things about a college education is the exposure of students to opposing viewpoints that challenge their worldview. However, these college speech codes, disguised as harassment guidelines, chill the speech of students and professors alike on both ends of the political spectrum. As noted in the examples above, often the boom falls harder on those with conservative viewpoints. This is apparent since most of today’s colleges and universities are dominated by liberal-thinking administrators that foster the liberal viewpoints to the disadvantage of the conservative ones. Unfortunately for them and fortunately for the everyone else, there is a First Amendment. The same amendment that allows someone to display a crucifix in a jar of urine, for a college professor to tell students to jump on a picture of Jesus Christ, or for anyone to desecrate an American flag ALSO protects the actions of people and groups who are pro-life, who believe in free market economic principles, or who happen to believe that Barack Obama is NOT the best thing to come along since sliced bread.

Additionally, the codes which attempt to force fraternities and sororities to become “co-ed” or that ban the wearing of letters on their clothes seriously runs afoul of the right of free assembly also enshrined in the First Amendment. Any student- indeed any person- has the constitutional right to associate with like-minded individuals and tamping down opposing political or social views through these college codes in the name of rooting out harassment on college campuses is nothing short of liberal brainwashing of today’s crop of college graduates. Students and professors should not be forced to walk on eggshells in any academic setting in fear of possibly offending the lone wolf student whose feelings may be upset, or who may take offense to something. In fact, in any context, one should not have to walk on eggshells. Only when the words become action or become so out of hand does it become a problem. The new guidelines are, in essence, a zero-tolerance policy. In practice, an ounce of prevention costs you your constitutionally-protected free speech, free assembly and due process rights. In short, these students need to grow up and grow a spine rather than hiding behind the skirt of these codes and guidelines.

I had the pleasure of knowing a rather liberal college professor at a nearby college who taught political science. He has since passed away. He was at the vanguard of the student free speech movement in the 1960s having participated in sit-ins at Columbia while an undergraduate student. He was an admitted liberal and made no apologies for it. However, he became disturbed by these policies of colleges and saw their ominous intents and lamented that the liberal free speech movement that many earnestly fought for had come full circle. In the same of political correctness, they had perverted the free speech movements. It was the liberals who now were dictating the very policies they fought against in the 1960s. He himself had to alter his course description and be careful of what he said in class regarding race relations (he taught a class in race relations) lest he offend a black or Hispanic student (he was reprimanded for quoting a reference from a KKK flyer). To show how silly the situation can and has become, a student at Notre Dame University was reprimanded for reading a book about how that university helped fight the KKK in Indiana. A passing student took offense to the picture of the robed Klansman on the cover, reported the incident to administrators who then reprimanded the reader for reading a book they themselves put in their own library!

The problem is that these codes are arbitrarily decided-upon protocols of politically correct speech actually stifling speech on college campuses. And the emerging college graduate enters the workforce with this perverted view of “free speech.” These hindrances on speech are seeping into elementary, middle and high school education where views that go against the liberal status quo views are likewise stifled. An off-hand remark is “prosecuted” as “bullying.” The odd student who does not buy into global warming belief a la Al Gore is ostracized. The codes themselves are vaguely worded to capture even the most mundane of comments all in the name of eradicating what others deem offensive. Besides eliminating due process safeguards- the accused is assumed guilty- the most recent events in Montana illustrate that the Obama Department of Education will stoop to new depths to push their agenda upon America. Forget about the Justice Department; we already know about them and the IRS and EPA. Using a potentially serious rash of alleged rapes involving University of Montana students, this is their “crisis” to take advantage of to push that agenda. Certainly, any sane American would want allegations of rape to be taken seriously, investigated fully, and the guilty properly punished. But, those same sane Americans would stop short of using alleged rapes as an excuse to stifle free speech.

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