08/27/2011
By Carey Roberts
If college administrators were turning a cold shoulder to rape victims and female students were dropping out like flies, the recent Department of Education sex mandate might begin to make a little more sense.
But here we are. The once-unthinkable has become a Brave New World reality, in which a bewildered Alice quakes before an arrogant Queen proclaiming, "Sentence first — verdict afterwards."
Let's say you're a student at Cal State-Monterey Bay. There, any sexual "innuendoes made at inappropriate times, perhaps in the guise of humor" can get you into trouble with university administrators. At Alabama State University, any "behavior that causes discomfort, embarrassment or emotional distress" is deemed to be harassing.
You may wonder if such vague definitions are constitutional, and indeed they are not.
In Davis v. Monroe County Board of Education, the Supreme Court ruled that only behavior that is "so severe, pervasive, and objectively offensive, and...so undermines and detracts from the victims' education experience" can be considered to represent sexual harassment."
Nonetheless, such far-reaching concantations of student misconduct have become the norm. According to a recent survey by the Foundation for Individual Rights in Education, 67% of top American colleges have enacted speech codes that are unconstitutional under First Amendment standards.
Which means if your son utters a gratuitous "son of a bitch" remark, that could land him in a load of trouble. And a professor teaching a course on 19th century erotic art could be accused of inflicting embarrassment on overly sensitive students — a concern that recently compelled the American Association of University Professors to demand the DED Office for Civil Rights withdraw the regulation.
Or let's say a student and his new-found paramour share a celebratory glass of Pinot Noir and indulge in a frolic of consensual sex. Surprise! The Office for Civil Rights directive astonishingly dictates the woman (or man) is unable to give consent "due to the victim's use of drugs or alcohol."
We're not talking about a drunken lovefest or even getting a little tipsy — the mere "use" of alcohol now renders the person a "victim."
It gets crazier, because university disciplinary committees originally were set up to hear cases of cheating or plagiarism, not adjudicate cases involving potential criminal misconduct that arise from murky 'he-said, she-said' disputes.
So now it's your day in court, so to speak. Knowing that the accusation is utterly baseless, you didn't bother to engage an attorney to argue your case. You plan to cross-examine your former girlfriend on your own behalf.
Sorry, the Department of Education will have none of that. The delicate-as-a-wallflower victim is now deemed too distraught to answer your questions.
In the past, such cases were decided under the "clear and convincing" standard of proof, which means the lay jury needed to be about 75% sure that wrong-doing had occurred. But now, the college must comply with the "predominance of the evidence" standard, which only requires a 51% level of proof.
Fortunately, the disciplinary committee found you innocent of the charges. Now you can go back to your normal routine, hoping your classmates will stop giving you those dirty looks.
Hold on, Joe, because your ex- can still appeal the decision. Double jeopardy is prohibited under criminal law, but in the DED's Alice in Wonderland universe, she gets a second bite at the apple.
Such Kangaroo Court proceedings do not take place in a vacuum.
Student orientation programs alert doe-eyed coeds to the looming specter of date rape. Women's studies programs hold frenzied "Take the Night" marches. Faculty members indulge in diatribes about "rape culture." And at Arizona State University, students are ominously warned to "avoid parties where males greatly outnumber females."
The effects on the falsely accused can be far-reaching. A recent Wall Street Journal editorial lamented, "Not only is he likely to be expelled, but he may well be barred from graduate or professional school and certain government agencies, suffer irreparable damage to his reputation, and still be exposed to criminal prosecution."
In short, the Department of Education DED Office for Civil Rights is working to remove the constitutionally rooted due process rights of the accused.
Fortunately, the solution is simple. We take away their money.
The Office for Civil Rights enjoys a $103 million budget, including a cushy $730,000 for employee awards and overtime. Right now Congress is searching high and low for ways to trim the federal deficit. I say we cut their budget to $50 million.
And for good measure, we'll mandate the remaining OCR employees to take a course in Constitutional Law 101.
