Only the Department of Education would try to stop bullies by becoming one! Instead of starting a dialogue about what constitutes sexual harassment, the agency is ordering colleges to adopt its radical new definitions -- or lose federal funds. Like the rest of the Obama administration, the DOE has gotten into the habit of throwing its weight around without any accountability or justification in the law. And while one of the biggest culprits of that, Secretary Arne Duncan, may be gone, his legacy of intimidation continues.
Not surprisingly, the engine driving this politically correct train is the Education Department's Office of Civil Rights (OCR), which has long been an enemy of free speech. Obviously, we all care about sexual assault and bullying, but the changes the DOE requires would fundamentally trample the First Amendment. For starters, the former head of the ACLU pointed out, it would change sexual harassment to mean any "speech with any sexual content that anyone finds offensive." That overly broad definition, warned Nadine Strossen, "actually does more harm than good to gender justice, not to mention free speech." The policies for non-verbal abuse are so broad that even a neck rub could be considered "sexual battery."
Its heavy-handed approach to bullying policies and sex-related incidents is so over the top that even the former president of the ACLU is raking the agency over the coals. Now, thanks to Senators Lamar Alexander (R-Tenn.) and James Lankford (R-Okla.), she has company. In a scathing letter to Acting Secretary John King, Senator Lankford demands to know why the department is bypassing the normal rules process and ordering universities to change their sexual misconduct policies -- or else.
Dozens of universities have complained about the agency's meddling, especially since, as Senator Lankford points out, their guidance isn't legally binding. So how are they getting away with it? Well, as we've seen from other Obama agencies, this is where the federal carrot-and-stick comes in. Instead of using the force of law, OCR is threatening to pull the financial rug out from under colleges who don't comply. And while several campuses are too afraid to speak out against this bureaucratic blackmail, two heavyweights -- Harvard Law and Penn Law -- are. In blistering complaints, they argue that not only are the rules fundamentally flawed (ignoring due process and stacking the deck overwhelmingly in the accusers' favor), but they slipped through without ever being vetted.
"Perhaps," Senator Lankford wrote, "OCR sought to avoid notice-and-comment procedures, fearing that education officials and other interested groups would have voiced substantive objections to the letters' policies if given an opportunity." As the universities pointed out, "Sexual assault is indeed an important problem, but the federal government has dictated a set of policies and twisted universities' arms into compromising some of the safeguards that we teach our students are essential to fairness." Unfortunately for students, this is just another example of an administration bent on fundamentally transforming America.
