Twisting Title IX by Robert L. Shibley

Author:Robert L. Shibley [Shibley, Robert L.]
Language: eng
Format: epub
ISBN: 978-1-59403-922-5
Publisher: Encounter Books
Published: 2016-12-15T00:00:00+00:00

THE FEDS CONCOCT A “BLUEPRINT” FOR SPEECH CODES ACROSS THE NATION

Sarah Emerson’s absurd and unjust situation can be traced straight back to OCR’s Jan. 19, 2001, guidance, which offered a purposely muddled definition of harassment that massively expanded the amount and types of behavior and expression OCR would attempt to regulate. It stated, “Sexual harassment is unwelcome conduct of a sexual nature” and can include “verbal, nonverbal, or physical conduct.” (You and I would call “verbal conduct” speech.) This sounds reasonable on first hearing, but it’s anything but. Let’s take one example OCR and others frequently use: “telling sexual or dirty jokes.” Is telling such a joke within earshot of someone who would rather not have heard it sexual harassment? Common sense says no. The law agrees. Simply telling dirty or sexual jokes is a constitutionally protected activity. But in the plain language of OCR’s definition, such joke-telling on campus is sexual harassment (although not severe enough to create a “hostile environment”).

The genius of redefining constitutionally protected speech as sexual harassment lies in carrying over the impression of moral turpitude that comes from real sexual harassment – like telling your subordinate you’ll promote her in exchange for sex – to speech that isn’t actually harassment by any sensible definition, such as telling dirty jokes or asking someone on a date who would rather not go out with you. It puts free speech advocates immediately on the defensive by making them either appear to side with “sexual harassment” or spend their time on complicated and often boring wrangling about definitions. It is for this reason that the worst college speech codes have long been enacted under the guise of harassment policies. The 2001 guidance took this deceptive ploy a step further, intentionally putting colleges in a political bind by telling them that they should classify some expression as “sexual harassment” but then should refuse to punish that expression because it did not rise to the level of a “hostile environment.”

But it wasn’t until 2013 that OCR (joined by the Department of Justice) finally said schools were actually required to use this unconstitutional definition if they wished to be Title IX–compliant. OCR seized on the opportunity of a Title IX settlement with the University of Montana to set forth what it called “a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” The University of Montana, which had been embroiled in a nauseating sex scandal involving its football team, was in no real position to protest the fact that the “blueprint” demanded an unconstitutional regime for speech regulation. With the blueprint, OCR and the Department of Justice (DOJ) were tacitly taking the position that both Sarah Emerson and Laura Kipnis are indeed sexual harassers (though not necessarily to the extent that they could be punished).

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