McCain Calls out DOJ/DED on Sexual Harassment Policy

Robert O’Hara

June 28, 2013

On Wednesday, June 26, Arizona Senator John McCain issued a press release challenging the Department of Justice on its stance concerning the new sexual harassment definitions on U.S. college campuses.  The press release featured a letter addressed to Attorney General Eric Holder in which he expressed grave concerns over the D.O.J’s unilateral action to change the laws concerning sexual harassment.

He states in his letter:

“The Civil Rights Division, led by Assistant Attorney General Perez, ignored years of Supreme Court jurisprudence regarding Title IX when it decided to unilaterally make its new standard.  Whereas the Supreme Court held in Davis v. Monroe County Board of Education that sexual harassment must be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit,” Assistant Attorney General Perez on his own volition, unauthorized and unchecked by Congress, has issued a much broader definition that may compromise the constitutional rights of students and teachers.

According to the Civil Rights Division’s Letter of Findings, DOJ now defines sexual harassment as “any unwelcome conduct of a sexual nature.”  DOJ also requires that universities immediately take actions against students accused of harassment before the completion of any investigation.  DOJ’s new interpretation of sexual harassment and its suggested disciplinary procedures are direct hindrances to students’ and teachers’ First Amendment rights as well as their right to due process.” [1]

He is referring to a recent settlement with the University of Montana in the wake of an investigation into what was purported to be an epidemic of sexual assault and sexual harassment.  The investigation failed to substantiate a sexual misconduct problem anywhere near the scope and size of the initial complaints.  In spite of this, or perhaps in an attempt to characterize more behavior as unacceptable,  a letter sent on May 9th, now called the “blueprint,”  re-defines the definition of sexual harassment stating that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature’” including “verbal conduct“. [2]

It goes on to  explicitly state that allegedly harassing expression does not need be offensive to an “objectively reasonable person of the same gender in the same situation.”  This essentially opens the door for expulsion of any student who says something that another student finds offensive.

This is a complete turnaround from a guideline set down by the Department of Education’s Office of Civil Rights in 2003 which stated that harassment “must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive” and that  “OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances, including the alleged victim’s age.”

In 1999 the Supreme Court ruled in Davis v. Monroe County Board of Education the phrase “severe, pervasive, and objectively offensive”  is used to set the standard of sexual harassment.  But in the May 9th letter the phrase was misquoted the Supreme Court stating:

“While the Supreme Court in Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999), requires deliberate indifference by the recipient to “severe and pervasive” harassment of which a recipient had actual knowledge to establish liability for damages under Title IX, shortly after those decisions were issued, OCR clarified in its 2001 Guidance that a recipient’s failure to respond promptly and effectively to severe, persistent, or pervasive harassment of which it knew or should have known could violate Title IX for purposes of administrative enforcement.”

Thus conveniently omitting the use of the words “objectively offensive.”

This leaves open any topic of discussion about sex, sexuality, any sexual advance no matter how innocuous or even the act of asking someone out on a date punishable.  Just as important is the implications for open discussion about gender issues on campus such as events held at the University of Toronto.  It is easy to see how this can be misused by campus feminists to shut down debate and have students talking about men’s issues expelled.

In his letter Sen. McCain gave the D.O.J. until the 17th of July to answer several specific concerns in his letter.  This will mark the first time that an elected official has challenged the recent actions of the D.O.J. in regards to the civil rights of students, administrators and faculty on U.S. campuses.  AVFM called McCain’s office but no one was available to comment.

Sources:

[1] http://www.mccain.senate.gov/public/index.cfm?FuseAction=PressOffice.PressReleases&ContentRecord_id=818fd6f0-b009-240c-b963-7b7bb47f03fb

[2] http://www.justice.gov/opa/documents/um-ltr-findings.pdf

Source: http://www.avoiceformen.com/updates/news-updates/mccain-calls-out-d-o-j-and-d-o-e-on-sexual-harassment-policy/