TCC has been on the front lines of campus controversies around the country. Our writers were present for the protests against Ben Shapiro at CSULA, witnessed the campus insanity at Western Washington University, have reported on #TheChalkening–and student and alumni pushback against it–at Emory University. We have also extensively covered major news events around the country, most recently through our extensive commentary during CPAC 2016.
One of TCC’s newer writers, Jake Goldberg, is upping the stakes: he’s directly challenging Congress to act against the Department of Education and to protect students against ED’s newest threat to free speech on campus.
In late March, Goldberg reported on the case of Yale University senior Jack Montague, who was found guilty by a Yale University disciplinary panel of having non-consensual sex with a female student. Yale, like many other campuses around the country, has changed its sexual misconduct adjudication processes to conform to highly problematic federal standards. Under these standards, promoted by the Department of Education’s Office of Civil Rights, schools have been pressured into relying on lower burdens of proof when reviewing accusations of sexual misconduct, and have denied or minimized the rights available to accused students.
Goldberg, however, observed another problem with the regulations: in an open letter to U.S. Senators, Goldberg argues that the new standards also threaten students’ rights to free speech. “Through its 2011 “Dear Colleague” letter (DCL), OCR has severely threatened students’ rights to free speech and due process on our college campuses. DCL fails to explicitly differentiate offensive speech from sexually harassing conduct.”
Legally, there is a distinction between conduct that constitutes unlawful “sexual harassment” and lawful free speech of a sexual nature. Goldberg explains in his letter how the OCR abandoned this distinction in recent years and threatened students’ rights:
… [T]hese protections were lost with the issuance of the 2011 DCL, which lacked any substantial speech protective directives. This lack of safeguarding free speech enabled OCR’s 2013 Findings Letter with the University of Montana to further jeopardize our rights. This document created a broad definition of sexual harassment by defining it as unwelcome conduct of a sexual nature that does not have to be objectively offensive. … By allowing vague and far-reaching restrictions on speech to be incorporated into sexual harassment policies, DCL’s directives have led to the deprivation of our constitutional and contractual rights to free speech and expression. (Emphasis Added)
Congress has held hearings on the Department of Edcation’s efforts in the past, which TCC writer Mike McGrady reported on last October. Representatives of ED’s Office of Civil Rights have repeatedly claimed that their “guidance letters,” which are publicly-available letters written by government regulators in response to questions about how regulations might apply in given situations, don’t have the force of law.
Despite these claims, however, schools have nevertheless felt pressured into conforming their procedures at the risk of facing government backlash. Goldberg continues:
Equally as important is the fact that the mandates set forth in the 2011 DCL have forced our schools to enact policies which effectively deny us of our due process rights when we are accused of violating sexual harassment policies and face disciplinary proceedings. By mandating a preponderance of the evidence standard for vague and far-reaching sexual harassment codes, DCL promotes a standard of evidence that is inconsistent with the severity of alleged conduct. Colleges and universities have responded to the mandates of OCR by establishing biased procedures with no regard to due process protections or a presumption of innocence. There is no reason that sexual harassment cannot be adequately addressed and simultaneously provide all students involved with fair and balanced procedures.
A full copy of the letter has been posted over at Legal Insurrection.
Without some serious threat of consequences, the Department of Education will continue suppressing free speech and expression on college campuses nationwide. Efforts like Goldberg’s are critical to defend the rights of students across America, and we would encourage everyone to contact their elected representatives to speak out on this issue.