By R. Tamara de Silva
August 20, 2011
The Obama Administration has dealt a solid blow to the civil liberties of all college and university students in America, and it has done so without fanfare or protest-in deafening silence, not even deemed ratings worthy by the media. New law was made via regulation, as agencies and departments of the Executive Branch have done for decades- by edict, or interpretation, or as in this case one seemingly unassuming, albeit verbose, letter.
By way of some background, all colleges and universities depend upon Federal financing of some sort. They have to abide by Federal law to receive Federal funds. On April 4, 2011, the Department of Education's Office for Civil Rights, distributed a 19-page letter explaining to all colleges and universities what their new policies must be upon learning of any instance of alleged misconduct by one student towards another based upon sex. The Department of Education established brand new responsibilities that all institutions of higher learning are now to follow pursuant to Title IX of the Civil Rights Act.
One of the frightening problems with this new edict is that the prohibited behavior is definitely subject to interpretation. It is not to me as a lawyer, prima facie clear what is prescribes and what is not. This puts a college age matriculant in clear danger.
The letter states, "Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX." But what is sexual harassment?
The question of what behavior is encompassed by sexual harassment is subject to shifting definition by continual litigation in any Federal courthouse on any given day. The boundaries of this definition simply cannot be presumed common knowledge to an 18 year old because it cannot succinctly be defined by 99 percent of all lawyers. Sexual harassment clearly encompasses speech, can it encompass other non-physical conduct? What about staring for a time period that is deemed harassing? A behavior like staring that may lack any intent to cause harm, may be offensive or harassing dependent on the personality, mores, cultural and religious background of the target. Admittedly, colleges and universities are some of the most diverse environments in America.
The letter implies that a school must investigate an instance of misconduct or harassment even if a complaint has not been made. Can the audience or witness to an alleged misconduct raise the alleged misconduct to a school official? Would issues of standing apply? What about the notoriously unreliable nature of eye-witness testimony?
"Sexual violence," according to the OCR letter, encompasses "physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent." Having any disabilities (not sure whether this includes ADD, ADHD or the myriad of learning disabilities that are now exhibited by an unprecedently and statistically impossibly large portion of the student population), use of drugs and of course, alcohol would presumably remove consent. Would depression be considered mental impairment also? Obssessive compulsive behavior? Those exhibiting a tendency to "hoard" things? What else is encompassed by popular culture's understanding of mental impairment? More importantly, how is one to know whether anyone is mentally impaired upon a superficial interaction-much less an 18 year old at a frat party?
What is worse is that the procedures for investigating wrong-doing eliminate all pretense of safeguarding civil liberty to the extent that it is safeguarded at all in the criminal justice system.
For instance, the Obama Administration has de facto lessened the standard for culpability in alleged instances where college students are found guilty of assault, rape or harassment from what the justice system requires to be "guilt beyond a reasonable doubt," to the standard of by"preponderance of the evidence"-a standard that is never applied in criminal cases!
What is equally troubling is that as I have observed happen all to often at the state level, through administrative law judges and bureaucrats, laymen be they school administrators or bureaucrats, without the requisite training (in this case the law, the Constitution and its crucial protections of civil liberty) stand in judgment as both judges and juries in determining whether a student accused by another student of any misconduct, towards a female student would be found guilty or not.
In other words, the ability of a handful of administrators and bureaucrats to make decisions on criminal culpability that can alter the rest of a student's life, without any of the protections afforded by the rules of criminal procedure, the laws of evidence, or the Constitution's guarantees of the right to remain silent et. al is terrifying and I would argue violative of the Constitution.
I say this for many reasons upon a cursory review of the letter. For instance, the letter suggests that the accuser not be made to face the accused-violating the Sixth Amendment's right of confrontation in a proceeding that can become criminal. Also, the investigatory stage of the school's proceeding, which includes interviewing and taking testimony, can be followed by a more formal phase wherein the entire adjudication is repeated-in plain violation of double jeopardy. There are other instances but I leave a complete treatment of the letter for a more eager law review writer.
It is not known when administrators play Torquemada what if any rights are preserved or can be expected to be retained-in egregious violation of fundamental freedom and liberty. This new regulation presumes knowledge of a complex body of law that only a small percentage of its practitioners understand. What they law cannot clearly announce is prescribed, it must never punish-but it now will. Administrators and bureaucrats and even students-suited up to comprise disciplinary boards, will now have the power to be wrong in their play acting of lawyers and judges and jurors and in the process, ruin young and what I predict will be innocent lives-at the moment their adulthood commences.
Needless to say, the effect of this new regulation, enacted by letter, is likely to be disproportionately suffered by male students, who should now be taught before beginning their freshman years before any consideration of Plato or Aristotle, "a practical primer on sexual harassment law"-to be updated twice every week. @
R. Tamara de Silva
August 22, 2011