Earlier in December, some Yale students signed a petition to repeal the 1st Amendment. It made some embarrassing national buzz. It is ironic since the right to petition is part of the 1st Amendment. In reality, the 1st Amendment is under attack in multiple ways in almost all our public schools and colleges. It is not just the right to petition that is under attack; the establishment of religion clause, freedom of the press, free speech, and the right to peaceably assemble are also under attack. Unfortunately, many school and college administrators are willing to trample over these rights and indoctrinate these young skulls full of mush to do as they say, even when it is unlawful or even unconstitutional.
Ten years ago, Governor Butch Otter used to have a stump speech asking do you know the rights enshrined in the 1st Amendment. Nowadays, many people would ask, “Can he name those five aforementioned rights?” I would ask, “What happened to that speech and obligation?” To blame Governor Otter alone is also unfair. Obama’s Department of Education, under its Office for Civil Rights, sent out unilaterally rewritten Title IX implementation rules in 2011 with some serious consequences. Title IX involves sexual discrimination, sexual harassment, and sexual assault. Those rules did not go through the Administrative Procedures Act and did not get codified. In other words, they are not law and the public was not allowed to comment on this fuzzy worded edict. These “new” rules weakened Habeas Corpus, 1st, 5th, 6th, and 14th Amendment rights and directly reinterpreted a U.S. Supreme Court decision (Davis v. Monroe County Board of Education, 526 U.S. 629 (1999)).
So what does this Title IX stuff mean to you directly? The effects are different in higher education than primary and secondary education. In either case, it is drastic. If you are a school or college administrator or a board/trustee member, you are personally at greater risk of being sued. If you are a parent, your parental obligations, family values, and religious teachings for your kids are being undermined. If you are a student, your “due process” recourses are being taken away along with your reputation. For the students, you will be presumed to be guilty before proven innocent.
The White House formed a task force to go after Title IX matters a few years ago as well. For some colleges, it means political pressure to comply with the White House’s wishes. The Department of Education is reopening some closed cases for examination; this can violate double-jeopardy in the 6th Amendment. The University of Idaho is on this task force list.
The 1st Amendment constitutional rights of teachers and professors, by being public employees, are actually under attack via a different mechanism called Garcetti v. Ceballos (547 U.S. 410 (2006)), which is not related to the Title IX rules.
The Department of Education does not have the power to directly force any school or school district to do anything, but they can withhold funding. Administrators (e.g., school district superintendents and college vice-presidents) and board/trustee members have the choice of that federal funding being jeopardized for not parroting the official line (http://www.cnsnews.com/commentary/hans-bader/bureaucrats-demand-harvard-parrot-their-uncodified-sexual-harassment-views) or quietly infringe on civil liberties in the hopes nobody notices too much. The uniform funding of our public school system is under attack systematically to induce the infringements on parental rights and civil liberties. I can understand the embarrassment these administrators must have, but we have to be adults and discus these matters publicly. The Obama administration was even critical of liberal Harvard when its law school professors pointed out the Title IX legal problems; those professors included former federal judges and a former employee of the Department of Education’s Office for Civil Rights. How could a small or middle size school district financially fight this, when Harvard felt it couldn’t? This was one of the reasons the universities and colleges that receive federal aid were targeted more aggressively.
Administrators and board/trustee members have to worry about “whipsaw” liability; they can be sued by either the alleged victim or the alleged perpetrator. By taking out the 5th and 14th Amendment “due process” protections as the Department of Education asked, they bias the system for a preferred result. The Department of Education even advocated withholding testimony and witnesses from the accused in Title IX matters. This violates Habeas Corpus as well, which is written into the Idaho Constitution. How can you defend yourself if you cannot find out who made the charges against you, what the charges were, and even if you have access to the evidence? It also violates another U.S. Supreme Court decision (Goss v. Lopez 419 U.S. 565 (1975)); there are minimum requirements before a person can be suspended or expelled and part of this involves a fair process to contest matters.
One big change the Department of Education advocated was the acceptance of the “preponderance of evidence” standard.” The Davis v. Monroe County Board of Education case requires a higher standard than a “preponderance of evidence.” The Monroe standard involves being “deliberately indifferent to sexual harassment, of which the recipient has actual knowledge, and that harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” The standards of evidence being made “clear and convincing” corrects a major “due process” constitutional problem; this can be done with state legislation. But this lower “preponderance of evidence” standard actually makes another problem worse; schools and colleges are being forced to adjudicate matters before police investigations are finished.
Schools and colleges do not have to have miniature judicial system with all the trimmings, but they are making life-changing decisions. Strangely, I have to agree with Janet Napolitano (https://www.thefire.org/napolitano-criticizes-ocr-overreach-and-questions-colleges-ability-to-investigate-and-adjudicate-campus-sex-assault-cases/) that crimes should be investigated by the police and not university administrators. First, what law enforcement training do college and school officials receive? Second, what happens when the school or college expels someone and the police investigation comes back not supporting the accusations? Third, will that school or college refuse to readmit the expelled student in light of the police investigation? Refusing to readmit a student has occurred in other states.
On page 3 of the 19 page Department of Education “Dear Colleague” letter, the nebulous term “gender-based harassment” is hidden in the footnotes. Please check the accompanying link they provide (http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf). The Obama Administration considers sexual orientation a part of sexual discrimination. This is why your kids are being asked publicly about their sexual orientation in class and you were informed about this when your kids tell you what they did in school today. If you didn’t ask your kids, you probably weren’t even informed. “Transgendered” bathrooms are trying to make inroads into grade schools via these new rules as well. This also means your kids will be socially pressured into accepting “alternative lifestyles” before you will be given the chance to have the “birds and the bees” talk with them. This is a far cry from needing parental consent for “sex ed” in health class and tramples on many family values. It also does not help parent-teacher trust and understanding.
Now that we have a view on how our schools and colleges fail to handle constitutional rights other than the 1st Amendment, let’s look at the 1st Amendment.