First Amendment of the Constitution of the United States, November 3, 1791:
Congress Shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of people peaceably to assemble, and to petition the government for a redress of grievances.
Thoughtful judicial interpretation of laws in light of the Constitution is the courts’ proper role. But through judicial activism by liberal judges usurping the role of the legislature in making laws, the courts have appropriated unto themselves a law-making role never intended by the Founders. Additionally, their power to decide what is right and wrong is all too frequently based on man’s law, not God’s laws. These abuses of power by the judiciary have significantly undermined the Founders’ meaning and intent with regard to the Constitution.
As these modern false meanings with regard to the Constitution have gain currency and faux-legitimacy in twenty-first century American culture, the courts, the bureaucracy, and their sycophant fellow travelers implement these radical perversions into the minutiae of everyday life of the citizenry and their institutions. During the almost half-decade of the Obama administration, the volume and intrusiveness of these flawed regulations, requirements, and obligations imposed upon the nation have been astounding but should be no surprise to those who understand the humanistic worldview and its pervasive presence in our government.
The attack upon freedom of speech has reached monumental proportions during President Obama’s tenure in the White House. Illustrative of big government arrogance, the recent agreement between the Department of Justice and Department of Education’s Office of Civil Rights with the University of Montana-Missoula is but one example of the attack by our government gone wild in the pursuit of absurd understandings of equality and justice. The university was accused of mishandling sexual assault-harassment claims (the university handled the claims but not to the satisfaction of the DOJ and DOE) and settled by signing a sixteen page Resolution Agreement. The subsequent thirty-two page letter of findings detailed the sins of the university and remedies thereto which will cost the university hundreds of thousands of dollars annually in time and money to meet the specifications dictated.
The regulatory cost affects not only the University of Montana, but as the DOJ/DOE letter made clear, “The Agreement will serve as a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” One need not wonder at the reason for the astronomical cost of higher education in the US after reading the DOJ/DOE’s compliance requirements. I encourage those with the stamina and stomach to read these documents.
But the loss of freedom of speech on American college campuses far exceeds the DOJ/DOE’s financial bludgeoning of American universities, students, parents, and taxpayers. The sweeping new definitions of sexual harassment have effectively trumped any consideration of constitutionally-guaranteed freedom of speech. According to the DOJ/DOE,
Sexual harassment is a form of sex discrimination prohibited by Title IX and Title IV. Sexual harassment is unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence. [DOJ/DOE letter, p. 4.]
So, what is the standard for determining what is unwelcome verbal conduct (i.e., speech) of a sexual nature and therefore is to be deemed sexual harassment? There is no standard measure other than the opinion of the hearer who perceives any speech unwelcome if he/she considers it to be of a sexual nature, unwanted, and harassment. Effectively, the definition of sexual harassment is unleashed from the standards of law and culture with regard to what a reasonable person considers offensive or whether it was sufficiently severe and pervasive as to create a hostile environment.
But there are other Constitutional problems with the DOJ/DOE letter.
In addition, a university must take immediate steps to protect the complainant from further harassment prior to the completion of the Title IX and Title IV investigation/resolution. Appropriate steps may include separating the accused harasser and the complainant, providing counseling for the complainant and/or harasser, and/or taking disciplinary action against the harasser. These steps should minimize the burden on the complainant and should not be delayed until the outcome of a criminal proceeding. [DOJ/DOE letter, p. 6.]
By fiat, the DOJ/DOE has dispensed with due process of law for those accused of sexual harassment. Due process of law is a foundational protection in American society, is found as a part of the Fifth and Fourteenth Amendments to the Constitution, and stretches back to clause 39 of the Magna Carta of thirteenth century England.
Notice the DOJ/DOE requirements: immediate steps must be taken, and those appropriate steps may include “…provision of counseling for the complainant and/or harasser…” (notice the absence of “alleged” before harasser), or “…taking disciplinary action against the harasser.” In other words, the harasser (guilty or not) may be immediately counseled and/or punished before due process of law runs its course. Such is the Machiavellian thought processes of those that have abandoned the biblical worldview of law and justice upon which the Founders’ constructed the Constitution.
Being the law enforcement arm of government and understanding the supreme position of the Constitution with regard to the nation’s laws and regulations, why would Department of Justice officials render so blatantly unconstitutional regulations? The answer lies in their humanistic view of their role in society. For progressives such as President Obama and bureaucrats found in the DOJ and DOE, the top-down approach is a progressive’s statement of the natural order of things. The restrictions and regulations of the humanist society (which must ultimately evolve to a socialistic system of organizing society) are decided by its social engineers who believe in the perfectibility of man and deny his fallen nature. Therefore, man and his society must be molded and shaped by the elites or conditioners of society (as C. S. Lewis called them).
However, the falseness and folly of the progressives’ view becomes apparent when we once again refer to Tocqueville’s words of 180 years ago as he spoke of the new despotism (which is now called socialism) that succinctly describes American government in the twenty-first century.
…the ruling power, having taken each citizen one by one into its powerful grasp and having molded him to its own liking, spreads it arms over the whole of society, covering the surface of social life with a network of petty, complicated, detailed, and uniform rules through which even the most original minds and the most energetic of spirits cannot reach the light in order to rise above the crowd.
The ruling powers at the DOJ and DOE have chosen their own artificial norms which are inherently domineering, restrictive, and restraining in the details of life and which ultimately lead to loss of freedom on American college campuses. Even as court challenges will surely reverse the most extreme elements of the regulations, the ever present powerful grasp and pervasive reach of Big Brother will still sap much of the spirit and energy of all but the hardiest of American citizens.
Larry G. Johnson
Sources:
Department of Justice, Civil Rights Division and Department of Education, Office of Civil Rights, DOJ Case No. DJ 169-44-9, OCR Case No. 10126001, Resolution Agreement – The University of Montana, Missoula, Montana, (May 8, 2013). http://www2.ed.gov/documents/press-releases/montana-missoula-resolution-agreement.pdf (accessed May 28, 2013).
Department of Justice, Civil Rights Division and Department of Education, Office of Civil Rights, DOJ Case No. DJ 169-44-9, OCR Case No. 10126001, Letter to President Royce Engstrom, Office of the President The University of Montana, Missoula, Montana, (May 9, 2013), pp. l, 4, 6. http://www2.ed.gov/documents/press-releases/montana-missoula-letter.pdf (accessed May 28, 2013).
Alexis De Tocqueville, Democracy in America, Gerald E. Bevan, Trans., (London, England: Penguin Books, 2003), p. 806.
