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theodore M I R A L D I mpa ... editor, publisher, writer
Saturday, June 29, 2013
McCain demands sex-assault answers from Holder
'From what source does DOJ claim its authority to revise jurisprudence?'
Sen. John McCain, R, Ariz., who challenged Barack Obama for the White House in 2008, has demanded Obama’s attorney general, Eric Holder, answer why his agency is arbitrarily changing court-approved sex-assault standards for American colleges and universities.
The dispute is raging over a settlement the DOJ with the University of Montana that inserts new language into requirements for the proper investigation and prosecution of sexual-assault allegations on campus.
The new DOJ standard says that “any unwelcome conduct of a sexual nature” is sexual harassment, which critics already have argued could include unwanted flirting or date invitations and some content of classroom curricula.
And the new policy demands immediate discipline for those accused of offending – hearkening to “Alice in Wonderland,” where the standard was sentence first, verdict later.
McCain, the ranking member of the Senate’s Permanent Subcommittee on Investigations, wrote to the DOJ expressing his concern that the civil rights division under Assistant Attorney General Thomas Perez “has circumvented the regular rulemaking process and congressional authority by redefining long-standing legal precedent,” according to the Foundation for Individual Rights in Education.
In a letter posted on the group’s website, McCain said: “I am writing to request more information on the settlement reached between the Department of Justice (DOJ) and the University of Montana-Missoula with regard to the enforcement and application of Title IX of the Education Amendments of 1972 (“Title IX”). Without congressional authorization or even any formal agency rulemaking, Assistant Attorney General Thomas Perez and a group of lawyers in DOJ’s Civil Rights Division have single-handedly redefined the meaning of sexual harassment at all universities and colleges across the country that receive public funding.”
McCain explained: “It is troublesome that significant changes to nationwide sexual harassment policy were unilaterally dictated by DOJ – through a settlement – rather than through congressional or regulatory action. In short, Assistant Attorney General Perez and DOJ have used a settlement to effectively change the law, avoiding public accountability for their actions.”
He accused Perez of ignoring “years of Supreme Court jurisprudence regarding Title IX” in the action.
For years the standard has been 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.”
Said McCain, “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.”
That definition is “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,” McCain wrote.
The senator included a list of questions concerning how the change would affect constitutional rights and what definitions the Obama agency now is using. One was, “From what source does DOJ claim its authority to revise court-approved Title IX jurisprudence?”
The same issue was raised earlier by a coalition of education organizations. The letter was written by Kevin Theriot, senior counsel, and David J. Hacker, senior legal counsel, of the Alliance Defending Freedom on behalf of leaders of Young America’s Foundation, National Association of Scholars, Students for Life of American, Ratio Christi, Campus Bible Fellowship International, Collegians for a Constructive Tomorrow and Beta Upsilon Chi.
The letter warns that “the agreement fails to require UM and other universities to show ‘continuing danger to persons or property,’ or provide notice and a hearing immediately following the disciplinary action.”
“As one commentator noted already, this is ‘reminiscent of Alice in Wonderland’s ‘sentence first, verdict afterwards,’” the letter says.
“But a mere investigation into clearly protected activity violates the Constitution. … The agreement requires UM and other universities to violate students’ due process.”
The department advisory apparently eliminated the standard of whether a “reasonable person” would consider certain actions harassment. It explained that any comment, action, insinuation or implication would be harassment if it were unwanted.
The advisory also warned that the school’s sexual harassment policy “improperly suggests that the conduct does not constitute sexual harassment unless it is objectively offensive.”
The university policy had held that “whether conduct is sufficiently offensive to constitute sexual harassment is determined from the perspective of an objectively reasonable person of the same gender in the same situation.”
That standard is not acceptable, according to the advisory, signed by Anurima Bhargava, chief of the U.S. Department of Justice Civil Rights Division Educational Opportunities Section, and Gary Jackson, a region chief for the U.S. Department of Education.
“Whether conduct is objectively offensive is a factor used to determine if a hostile environment has been created, but it is not the standard to determine whether conduct was ‘unwelcome conduct of a sexual nature’ and therefore constitutes ‘sexual harassment,’” the advisory said.
The advisory was addressed to University of Montana President Royce Engstrom and university lawyer Lucy France. It was a “resolution” of an investigation into the sexual harassment climate at the school and its “compliance review” of officials’ actions.