07 Apr 2011

Unlearning Liberty on Campus

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Wendy Kaminer comments on the Department of Education’s witch hunt in search of hostile atmosphere creators at Yale.

What accounts for such feminine timidity, this instinctive unwillingness or inability to talk or taunt back, without seeking the protection of university or government bureaucrats? Talking is apparently beside the point. “I just want to be able to walk back to my dorm at night without hearing all this crazy stuff from these guys,” one student complains. I sympathize (I was a young woman once, too), but “hearing crazy stuff” from people in public is part of life in a free society, a society in which you enjoy equal rights to say crazy stuff.

Putatively progressive feminists might agree, if only they regarded women as equal to the task of talking back, if only they distinguished between men who “say stuff” about women and men who “do stuff” to women. In the feminist view reflected in the Yale draft complaint, the misogynist rants of some undergraduate men (perhaps a relatively small percentage of them) is not speech. It’s a series of “dangerous,” “sex-discriminatory threats” that “intimidate” and “terrorize” women, constituting a hostile environment (or “rape culture”) that causes sexual violence.

That simplistic, practically hysterical anti-libertarian approach to offensive speech appears to be shared by the Obama administration. OCR [Department of Education's Office for Civil Rights] has initiated an investigation of alleged civil-rights violations at Yale, and, coincidentally, on April 4th, it issued a “Dear Colleague” letter to schools, colleges, and universities nationwide, clarifying their obligations to prevent and address sexual harassment. OCR’s letter conflates harassment and rape. It defines sexual harassment as “including” sexual violence and ignores the conflicts between sexual harassment regulations and free speech, or, in public schools, the constitutional limits on regulating “offensive” speech. Given OCR’s expansive and potentially repressive approach to punishing and preventing “bullying,” it’s not surprising but still distressing to find no concern for speech in its letter on harassment.

The only nod to civil liberty in OCR’s letter is a reminder that students accused of sexual harassment (including sexual violence) should be accorded due process. Indeed, “(p)ublic and state-supported schools must provide due process to the alleged perpetrator” — but not too much due process, it seems: “However, schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant.” This suggests, oddly and ominously, that the statutory rights of the accuser trump the constitutional due-process rights of the accused.

Generally, the OCR letter displays much more concern for the sensitivities of accusers over the rights of the accused. Schools should, for example, separate complainants and alleged perpetrators while investigations are pending, and in doing so, they should “minimize the burden on the complainant.” Why not also minimize the burden on the alleged perpetrator? The Obama administration, like the administrations of so many colleges and universities, implicitly approaches sexual harassment and sexual violence cases with a presumption of guilt.

Campus investigations and hearings involving harassment or rape charges are notoriously devoid of concern for the rights of students accused; “kangaroo courts” are common, and OCR ‘s letter seems unlikely to remedy them. Students accused of harassment should not be allowed to confront (or directly question) their accusers, according to OCR, because cross-examination of a complainant “may be traumatic or intimidating.” (Again, elevating the feelings of a complainant over the rights of an alleged perpetrator, who may have been falsely accused, reflects a presumption of guilt.) Students may be represented by counsel in disciplinary proceedings, at the discretion of the school, but counsel is not required, even when students risk being found guilty of sexual assaults (felonies pursuant to state penal laws) under permissive standards of proof used in civil cases, standards mandated by OCR.

I don’t know the ages of Obama’s OCR appointees, but they seem to be operating under the influence of the repressive disregard for civil liberty that began taking over American campuses nearly 20 years ago. As FIRE President Greg Lukianoff remarks, students have been “unlearning liberty.” Concern about social equality and the unexamined belief that it requires legal protections for the feelings of presumptively vulnerable or disadvantaged students who are considered incapable of protecting themselves has generated not just obliviousness to liberty but a palpable hostility to it.

The Left simply invokes a simplistic kind of sophistry to re-define speech it doesn’t like as an aggressive act and to transform disapproval and displeasure at oppositional mocking speech into victimization.

“Those DEKE and Zeta Psi initiations dared to ridicule our self-important ideology of victimization, and that created ‘a hostile atmosphere’ preventing us from feeling equal, and that should be a federal offense.”

The claim being made here is arrant nonsense, which any rational adult should recognize immediately, but American society has not been headed by rational adults since at least the 1960s.

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