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.
Sad to say, but feminism helped lead the
assault on civil liberty and now seems practically subsumed by it.
Decades ago, when Catherine MacKinnon, Andrea Dworkin, and their
followers began equating pornography with rape (literally) and calling
it a civil-rights violation, groups of free-speech feminists fought
back, in print, at conferences, and in state legislatures, with some
success. We won some battles (and free speech advocates in general can
take solace in the Supreme Court's recent decision upholding
the right to engage in offensive speech on public property and public
affairs). But all things considered (notably the generations of students
unlearning liberty) we seem to be losing the war, especially among
progressives.
This is not simply a loss for liberty on campus and
the right to indulge in what's condemned as verbal harassment or
bullying, broadly defined. It's a loss of political freedom: the
theories of censoring offensive or hurtful speech that are used to
prosecute alleged student harassers are used to foment opposition to the
right to burn a flag or a copy of the Quran or build a Muslim community
center near Ground Zero. The disregard for liberty that the Obama administration displays in its approach to sexual harassment and
bullying is consistent with its disregard for liberty, and the
presumption of innocence, in the Bush/Obama war on terror. Of course,
the restriction of puerile, sexist speech on campus is an inconvenience
compared to the indefinite detention or show trials of people suspected
of terrorism, sometimes on the basis of un-reviewed or un-reviewable
evidence. But underlying trivial and tragic deprivations of liberty, the
authoritarian impulse is the same.
Image: Wikimedia Commons