Generally, the OCR letter displays much more concern for the sensitivities of accusers over the rights of the accused. Schools should, for example, separate complainants and alleged perpetrators while investigations are pending, and in doing so, they should "minimize the burden on the complainant." Why not also minimize the burden on the alleged perpetrator? The Obama administration, like the administrations of so many colleges and universities, implicitly approaches sexual harassment and sexual violence cases with a presumption of guilt.

Campus investigations and hearings involving harassment or rape charges are notoriously devoid of concern for the rights of students accused; "kangaroo courts" are common, and OCR 's letter seems unlikely to remedy them. Students accused of harassment should not be allowed to confront (or directly question) their accusers, according to OCR, because cross-examination of a complainant "may be traumatic or intimidating." (Again, elevating the feelings of a complainant over the rights of an alleged perpetrator, who may have been falsely accused, reflects a presumption of guilt.) Students may be represented by counsel in disciplinary proceedings, at the discretion of the school, but counsel is not required, even when students risk being found guilty of sexual assaults (felonies pursuant to state penal laws) under permissive standards of proof used in civil cases, standards mandated by OCR.

I don't know the ages of Obama's OCR appointees, but they seem to be operating under the influence of the repressive disregard for civil liberty that began taking over American campuses nearly 20 years ago. As FIRE President Greg Lukianoff remarks, students have been "unlearning liberty." Concern about social equality and the unexamined belief that it requires legal protections for the feelings of presumptively vulnerable or disadvantaged students who are considered incapable of protecting themselves has generated not just obliviousness to liberty but a palpable hostility to it.

Sad to say, but feminism helped lead the assault on civil liberty and now seems practically subsumed by it. Decades ago, when Catherine MacKinnon, Andrea Dworkin, and their followers began equating pornography with rape (literally) and calling it a civil-rights violation, groups of free-speech feminists fought back, in print, at conferences, and in state legislatures, with some success. We won some battles (and free speech advocates in general can take solace in the Supreme Court's recent decision upholding the right to engage in offensive speech on public property and public affairs). But all things considered (notably the generations of students unlearning liberty) we seem to be losing the war, especially among progressives.

This is not simply a loss for liberty on campus and the right to indulge in what's condemned as verbal harassment or bullying, broadly defined. It's a loss of political freedom: the theories of censoring offensive or hurtful speech that are used to prosecute alleged student harassers are used to foment opposition to the right to burn a flag or a copy of the Quran or build a Muslim community center near Ground Zero. The disregard for liberty that the Obama administration displays in its approach to sexual harassment and bullying is consistent with its disregard for liberty, and the presumption of innocence, in the Bush/Obama war on terror. Of course, the restriction of puerile, sexist speech on campus is an inconvenience compared to the indefinite detention or show trials of people suspected of terrorism, sometimes on the basis of un-reviewed or un-reviewable evidence. But underlying trivial and tragic deprivations of liberty, the authoritarian impulse is the same.

Image: Wikimedia Commons



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