From FIRE (Foundation for Individual Rights in Education), on a controversy we’ve followed closely over the course of the year:
The federal government is backing away from the nationwide “blueprint” for campus speech restrictions issued this May by the Departments of Education and Justice. The agencies’ settlement with the University of Montana sought to impose new, unconstitutional speech restrictions, due process abuses, and an overbroad definition of sexual harassment and proclaimed the agreement to be “a blueprint for colleges and universities throughout the country.”
But in a letter sent last week to the Foundation for Individual Rights in Education (FIRE), the new head of the Department of Education’s Office for Civil Rights (OCR), Catherine Lhamon, said that “the agreement in the Montana case represents the resolution of that particular case and not OCR or DOJ policy.”
FIRE adds that the Department’s recent actions in cases involving public colleges no longer insist on “the worst features of the Montana settlement.”
EEOC v. Boh Brothers is a new Fifth Circuit en banc decision allowing liability on a theory of hostile workplace environment sex discrimination arising from crude and aggressive locker-room banter in an all-male workplace (on facts differing somewhat from those in Oncale v. Sundowner, the 1998 Supreme Court case countenancing such liability). The dissent by Judge Edith Jones, p. 46 at footnote 3, cites my “Sentence First, Verdict Afterward,” from the July issue of Commentary magazine, on the federal government’s unhealthy interest lately in developing legal doctrines that pressure private institutions into adopting speech codes aimed at protecting listeners’ sensitivities.
Don’t miss the “Etiquette for Ironworkers” parody legal memo on p. 58, either. How many dissents include a parody legal memo?
In many cases, I’m sympathetic when government defendants who get sued ask for their legal costs to be covered. Among other reasons: 1) claims against individual supervisors are regularly advanced tactically in cases that really arise from discontent aimed at the government as employer; and 2) the in terrorem effect of individual liability can otherwise create pressure for pre-emptive settlement. Does it make a difference when the alleged misconduct serves the purpose of personal gratification for the boss rather than advancing the interests of the government employer? Or — in the case of San Diego’s mayor — that his bad behavior toward women has apparently been an open secret in the city’s political circles for years? [San Diego Union-Tribune]
His new column for Bloomberg concludes:
One danger is that speech that should be allowed will effectively be banned by the federal government. Another is that even when allegations concern things that should be banned, the process will be unfair to accused students and professors who are innocent of them.
No one doubts that some victims of genuine harassment — and worse — get treated badly by university administrators. And sometimes “he said, she said” conflicts just don’t generate enough evidence to determine who’s in the right, and real misconduct can therefore go unpunished. But there are also false accusations, misinterpretations, ambiguities. Whatever the solution to the problem is, the system that President Barack Obama’s administration is creating isn’t it.
Recommended. (Earlier here, etc.)
At the Foundation for Individual Rights in Education, Greg Lukianoff offers “Four Key Points About Free Speech and the Feds’ ‘Blueprint’“. He notes that overbroad notions of harassment have been the key driver of university speech codes and disciplinary action against dissenting and unpopular speakers, that DoJ and ED lack credibility in their new claim that the rules are only meant to encourage reporting as distinct from discipline, and that the implications go far beyond sexually oriented speech or flirtation to include wide swaths of controversial speech having nothing to do with sex. More: “OCR Descends into Self-Parody in Front of Incredulous College Lawyers” [Robert Shibley, FIRE; Chronicle of Higher Education] and Sen. John McCain demands answers.
Separately, FIRE has kind words for my new Commentary article on this controversy:
In the July/August issue of Commentary, Cato Institute Senior Fellow Walter Olson puts the Departments of Education (ED) and Justice’s (DOJ’s) May 9 Title IX compliance “blueprint” in its historical context and emphasizes several of its alarming repercussions….
Olson continues, explaining that the purported distinction between reporting speech and punishing speech under OCR’s definition of harassment is negated by other troubling side effects of the blueprint:
This is a distinction without a difference. To begin with, the process itself amounts to punishment: Once people realize that a certain type of joke or gossip can get them summoned involuntarily into a grievance process of indefinite length and destination, many will get the message and shut up. Second, in defining such speech as harassment while claiming the intent is merely to record and document but not to suppress it, OCR is departing from the commonly shared meaning of the word harassment as something objectionable that should be stopped.
It’s also covered in Italian-language ThinkNews (“il magazine ‘Commentary’, uno dei più prestigiosi mensili di analisi della vita americana.”) Earlier here, etc.
Defending the Obama administration’s new rules governing discipline at colleges and universities, ThinkProgress makes it all sound more reasonable by erroneously reporting that the crackdown is on “unwanted contact”; the actual phrase is “unwanted conduct,” with “verbal conduct,” i.e. speech, very much part of that [Will Creeley, FIRE]
In the July Commentary I have an article on the controversy over the new blueprint (“Sentence First, Verdict Afterward“). It’s behind a paywall, but you can purchase it individually, or better yet subscribe to Commentary which is full of other great articles as well.
I’ve got a new post up at Cato at Liberty on three important decisions for the business community decided today at the Supreme Court, two on employment law and one on pharmaceutical pre-emption: Vance v. Ball State on liability for supervisorial harassment, University of Texas Southwestern v. Nassar on mixed-motive retaliation, and Mutual v. Bartlett (more) on design default preemption for a generic drug. (& welcome Coyote, Point of Law, SCOTUSBlog, Taegan Goddard/WonkWire readers)
FIRE, Hans Bader, Eugene Volokh and other free speech advocates are sounding the alarm about remarkable and extreme guidelines on university discipline emanating from the Department of Justice Civil Rights Division and Education Department Office of Civil Rights. I’ve got more details at Cato at Liberty. Earlier here, here, etc.
“Unsubstantiated accusations against my son by a former girlfriend landed him before a nightmarish college tribunal.” Washington has recently made things worse, through Department of Education regulations that force colleges to jettison protections for the accused such as requirements that misdeeds be proved through at least “clear and convincing” evidence. [Judith Grossman, WSJ; earlier here, here, here, here, here, here, here, etc.] More: Scott Greenfield.
In an effort to reduce possible exposure to harassment claims, employers have occasionally adopted “anti-fraternization” policies that prohibit some types of contact between employees, as by prohibiting male and female employees from being alone together behind closed doors. It has long been predicted that such policies might themselves generate worker discontent and result in litigation. Now a woman is suing Dallas-based law firm Scheef & Stone LLP alleging, among other things, that its former anti-fraternization rules kept female employees from developing mentor relationships and resulted in their being marginalized in the workplace. [Courthouse News via Becket Adams, The Blaze]
There’s nothing new about the impulse to call in the cops against wolves, mashers, and fresh guys on street corners and public conveyances [Alexis Coe, The Atlantic]:
As early as 1897, Missouri representative Prichard B. Hoot introduced a bill that sought to regulate flirting on trains, but the endeavor ultimately proved unsuccessful. That same year, Senator James G. McCune recommended Virginia make flirting a misdemeanor; like his earlier proposal to outlaw football, this bill did not come to fruition.
A former Bethlehem, Pa. city employee who “was charged with and ultimately pled guilty to harassment” after persistently bothering an ex-girlfriend co-worker has lost his wrongful-termination suit against the city, with the Third Circuit upholding its dismissal on summary judgment. [Eric B. Meyer]
Harassment complaints filed by men are on the rise, up from 9 percent to 16 percent over the past two decades, according to the EEOC. Now male employees at the Department of Homeland Security have filed a complaint saying they were subjected to a hostile environment under female management. Alison Yarrow of Newsweek/Daily Beast has a new report that quotes me on several points.
A Minnesota man named Aaron (no relation) Olson has met with no success in legal efforts to force his uncle to remove “innocuous [but surely awkward] family photographs” with snarky captions. [Christopher Danzig, Above the Law; Venkat Balasubramani/TMLB]
Is life at the university fairer under the new sex-complaint procedures mandated by the federal Department of Education? Don’t ask the New York Times [Peter Berkowitz via Ann Althouse] More: Kathleen Parker, WaPo; Brisbane/NYT via Romenesko.