Obama’s Sex Harassment Policy for Colleges:
Unauthorized, and Very Likely Unconstitutional

In settling a dispute at the University of Montana, the federal government decided to impose  a “blueprint” that envisioned speech codes at virtually all American universities. An outcry arose from all ideological quarters. George Will criticized the arrangement–but so too did the liberal editorial page of the Los Angeles Times and such usual defenders of the campus status quo as the AAUP.

Virtually the only public defenders of the settlement were an intern at ThinkProgress, Kumar Ramanathan, and an attorney for SUNY general counsel’s office, both of whom interpreted the blueprint in a highly peculiar fashion (they seemed to see it as merely a “reporting” tool) and then proceeded to celebrate the idea of a government mandate requiring universities to investigate publicly-protected speech. Posts by FIRE eviscerated both of these items.

Then, in late June, Arizona senator John McCain penned a letter to the Justice Department, co-sponsor of the blueprint, along with the Education Departments’s Office of Civil Rights.  It asked–wholly reasonably–under what authority either the DOJ or the OCR interpreted Title IX as giving them the right to create a “blueprint” to impose campus speech codes. (Davis v. Monroe County Board of Education, which the OCR apparently doesn’t consider a binding precedent any longer, stated 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.”) McCain quoted from a letter critiquing the “blueprint” penned by the AAUP’s Committee on Women in the Academic Profession (not exactly a right-wing group) before posing a series of questions of his own. For instance, he wondered to what extent “the broad nature of the new and judicially untested ‘unwelcome conduct of a sexual nature’ standard [might] increase the risk of a wrongful conviction.”

That an influential U.S. senator expressed concern about the OCR’s efforts–a rare event, indeed–might have led to more robust public condemnation of the administration’s years-long assault on campus due process. Instead, if anything, the reverse has occurred. Fairly high-profile left-of-center publications, apparently operating under the premise that the opponent of an ally must be my friend, have denounced McCain’s letter and leapt to OCR’s defense–as if campus speech codes are somehow a “liberal” value. This demonstration of political tribalism exemplifies why it’s so difficult to mobilize political input addressing the woes of higher education.

The blowback began with a second post from ThinkProgress’s Ramanathan (the former intern, by this point a “guest blogger”), which the organization tweeted in the following manner: “John McCain thinks sexually harassing college students is a constitutional right.” (Is this the type of elevated discourse that John Podesta envisioned for TP?) Ramanathan’s post, which repeated his earlier, highly dubious, argument about the blueprint’s primary purpose being a reporting requirement, was most notable for falsely claiming that the standard McCain opposed dealt with “sexual contact,” not “sexual conduct.” The blog subsequently deemed this significant error a “typo,” and it neither identified the actual error from the original post nor explained how the post’s analysis–based, as it was, on a seeming belief that McCain was complaining solely about sexual intercourse or rape–could remain unchanged.

Despite the mistaken quote, the ThinkProgress interpretation spread to at least one other left-of-center publication. New York, which before the McCain letter had ignored the “blueprint” debate, published a piece entitled, “John McCain Stands Up for Dirty Jokes.” Kat Stoeffel defended the blueprint, mirroring TP’s erroneous argument that the arrangement isn’t problematic because OCR only envisioned reporting of student or faculty speech. The OCR, Stoeffel explained, “has said over and over that the new definition will not govern the enforcement of sexual harassment policies.” In fact, nothing in the blueprint says any such thing–much less “over and over”–and in any case, since when has the government forcing colleges to investigating protected speech become a liberal value?

But, much like Ramanathan, Stoeffel’s chief desire seemed to be not accurately analyzing a key issue in higher education, but instead mocking McCain and expressing an adversarial attitude toward vaguely-defined “conservatives.” Imposing a left-right divide that up until that point hadn’t really existed on the issue (as with TP, New York ignored the dissents of the L.A. Times or the AAUP), Stoeffel charged that “conservative pundits and, apparently, McCain believe the new definition will impinge upon students’ free speech . . .” Yet the first item to which she linked came from neither a “conservative” nor a “pundit,” but from Greg Lukianoff, a liberal Democrat who heads FIRE. Despite tweets from FIRE staffers asking her about the inaccurate description of Lukianoff, no correction has yet appeared on the New York website.

On Huffington Post College, reporter Tyler Kingkade at least gave something approximating a good-faith description of the critics’ concern with the blueprint. (Kingkade’s item is technically a news article, but his previous work raises some doubts about his objectivity in reporting on campus sexual issues.) But he, too, fell into the uncritical left-right divide: “A number of conservative columnists and think tanks have criticized the University of Montana resolution, taking their cues from FIRE.” Since Kingkade didn’t interview any of these “conservative columnists and think tanks,” it’s not at all clear how he determined from whom they took “their cues.” (His sole source for this extraordinary claim was none other than ThinkProgress’ Ramanathan, who similarly didn’t interview any “conservative columnists” or think tank representatives for his posts.) And, like Ramanathan and Stoeffel, Kingkade didn’t account for any of the non-“conservative” opposition to the blueprint.

Kingkade’s description of the “blueprint,” meanwhile, read more like an OCR press release than an objective article. “The agreement,” he wrote, “pushes Montana toward more aggressively combating sexual misconduct by its students.” But the whole issue is that the agreement redefined–and dramatically expanded–what constitutes “sexual misconduct.” Kingkade framed his article in such a way that minimizes the threat. “The Education Department’s Office for Civil Rights,” he noted, “responded to FIRE in a May 29 letter, saying that the agreement ‘did not create any new or broader definition of unlawful sexual harassment.’ Colleges and universities are still required, the office wrote, ‘to examine both whether the conduct is objectively offensive and its subjective impact on an individual.'”

But the document to which Kingkade linked was an e-mail, not a letter. While posted on FIRE’s website, it wasn’t a response to FIRE. And Kingkade surely knows–though most of his readers do not–an e-mail sent to a private citizen doesn’t legally override a “blueprint” formally entered into by the OCR and the DOJ. Indeed, they only way the typical general counsel’s office would even know of the e-mail would be if the counsel routinely browses FIRE’s website.

We live in highly polarized times. And there’s considerable literature–both among political scientists and among media critics–showing how people (on both sides of the ideological divide) interpret events in such a way that conforms to the position of their political preference. But we should expect more from the media, even those who work for publications or websites that tilt to the left or right. Simply because a prominent Republican senator criticizes an administrative initiative doesn’t mean that the only criticism of the proposal can come from “conservatives,” or that liberals and Democrats must automatically defend the initiative, even if doing so requires either obscuring the initiative’s provisions or abandoning traditional liberal defenses of free speech and due process.

By seeking to defend their “team” in a political confrontation, rather than choosing to speak truth to power or standing up for free speech, Ramanathan, Stoeffel, and (to a lesser extent) Kingkade badly failed their readers.