Those of you who went to college in the 90’s might remember Antioch College’s bizarre sexual assault policy. Conceived by campus activists on a late-night political correctness bender, this policy stated that verbal consent was required for any and all sexual activity. Interpreted strictly, this meant that if you did not ask your girlfriend of four years if it was OK to take off her bra, you were potentially guilty of sexual assault and could be expelled. The policy was widely ridiculed.
This was part of a general push on sexual assault and harassment issues in the early 90’s. It wasn’t unjustified — many universities barely had policies on the subject and those policies that did exist were designed to keep it quiet. My own college was involved in lawsuit when they allegedly failed to deal with incidents of rape on campus.
But, as is often the case with campus radicals, they pushed too far, abandoning the idea of “no more in loco parentis” in favor of universities that were empowered to punish any behavior that anyone considered untoward. A rallying cry at the time was the ultimate subjective view of issue: “if someone thinks they’ve been harassed, they’ve been harassed!”
Guess who thinks those activists had the right idea?
In a letter sent yesterday to the University of Montana that explicitly states that it is intended as “a blueprint for colleges and universities throughout the country,” the Departments of Justice and Education have mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment. The mandate applies to every college receiving federal funding—virtually every American institution of higher education nationwide, public or private.
The letter states that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature'” including “verbal conduct” (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the same gender in the same situation”—if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.
Among the forms of expression now punishable on America’s campuses by order of the federal government are:
Any expression related to sexual topics that offends any person. This leaves a wide range of expressive activity—a campus performance of “The Vagina Monologues,” a presentation on safe sex practices, a debate about sexual morality, a discussion of gay marriage, or a classroom lecture on Vladimir Nabokov’s Lolita—subject to discipline. Any sexually themed joke overheard by any person who finds that joke offensive for any reason. Any request for dates or any flirtation that is not welcomed by the recipient of such a request or flirtation.
There is likely no student on any campus anywhere who is not guilty of at least one of these “offenses.” Any attempt to enforce this rule evenhandedly and comprehensively will be impossible.
That last part might be the most important. If a University decides they want to get rid of a student, they can easily find some way he has violated this policy. Maybe someone got offended when he told the joke about the bishop, the monkey and the six cantaloupes. Off with his head!
It’s actually even worse than this. Through the Violence Against Women Act and Title IX, the federal government has been pushing universities toward using a “preponderance of evidence” in sexual assault and harassment cases with the implied threat of revoking their federal financial aid. Under this standard, you don’t need to prove someone committed a sexual assault in order to boot him off of campus and ruin his career. You only have to think there’s enough evidence that he probably did so (this is the standard used in civil cases and grand juries). When you add in that campus courts are often kangaroo courts with rules of evidence and testimony that come from watching Matlock with the sound off, the situation is frightening.
Obviously, no one doubts that universities should protect women from sexual harassment and assault. But they should not do using a standard of justice that would be laughed out of North Korea. We should strive, wherever possible, to make our college campus more free than the rest of society when it comes to freedom of expression. College is where you are supposed to rub elbows with bad ideas and say stupid things.
For far too long, these policies have advanced because their proponents have successfully painted their opponents as evil sexist monsters who want women to be groped and harassed. Such tactics were used to renew the VAWA despite serious problems with the law. But when we’ve gotten to the point where someone can be thrown out of college because a student court thinks it likely that he made a dirty joke, haven’t we gone too far?