Beyond Due Process, The Title IX Attack On Free Speech

At FIRE, which has picked up the gauntlet tossed in the trash by the ACLU on such civil liberties issues as free speech for people who don’t pray at the alter of identity politics (or donate to the ACLU), which has taken up arms against the proposed changes to Title IX regs for campus sex tribunals.

• eliminating students’ right to a live hearing;
• eliminating the right to cross-examination;
• weakening students’ right to active legal representation;
• allowing a single campus bureaucrat to serve as judge and jury;
• rejecting the Supreme Court’s definition of sexual harassment in favor of a definition that threatens free speech rights;
• requiring colleges and universities to use the weak “preponderance of the evidence” standard to determine guilt, unless they use a higher standard for other alleged misconduct.

But buried a bit further down in FIRE’s discussion of this effort to return colleges to the Inquisition is the issue of free speech.

The 2020 regulations also protected free speech rights by defining “sexual harassment” consistent with Supreme Court precedent. Previous federal guidance to colleges discouraged or otherwise failed to require these crucial protections.

What this refers to is the definition of actionable “sexual harassment” crafted by the Supreme Court in Davis v. Monroe Count BOE, reflecting a rhetorical trick played by Catherine Lhamon by conveniently misstating the legal definition, and ignoring that the law was in the conjunctive rather than disjunctive, and now pretending that conforming the rules to the law diminishes the definition. Of course, Lhamon’s “definition” expanded far beyond the Supreme Court’s, but then Lhamon is omnipotent and SCOTUS is just a bunch of judges.

However, the issue raised with this latest round of Title IX wack-a-mole goes not only a bit further, but a bit off to the side of the previously understood limits to free speech the ignominiously named “Office of Civil Rights” seeks to impose. Not only do they want to return to the previous definition of harassment, which would be “severe, pervasive or objectively offensive” when the Supreme Court expressed required that all three criteria be met, but has expanded the scope of “sex” discrimination under Title IX to include gender orientation and gender identity under the guise of Bostock,

Consider what these two changes, in conjunction, would mean on a college campus. Discussions in class, or frankly anywhere, about the issues surrounding transgender athletes, for example, would be sufficient to establish the basis for a complaint of sexual harassment. While it may be protected speech, that does not mean that hearing it doesn’t make another person feel “unsafe” or harassed. Is it “severe, pervasive and objectively offensive,” as Davis would require? Hardly, but it could easily been deemed by a single investigator on a college campus to be sufficiently severe or objectively, based on her vision of objectivity, offensive, sufficient to result in the expulsion of a student from college.

Even more concerning is the potential that preferred pronouns will be compelled upon threat of Title IX sanctions. Notably, this can be disconnected from any student who takes transgender status, as students assume gender identities that carry no significant, and take  special pronouns to establish a special identity where no other basis exists.

Whether it involves students talking about a student not present, but within earshot of someone who notes the improper use of a pronoun, or the pronoun of an otherwise ordinary student who assumes the “nonbinary” identity and takes odd (xi/xir) or incoherent pronouns (they/them) to be hip and edgy. But should another student fail to use them, a Title IX complaint for sexual harassment could well occur.

The issue here isn’t whether you think gender orientation and identity should be honored on campus, together with the accouterments like preferred pronouns, no matter how silly. If that’s your view, so be it, and if reflected in social norms on campus, students will adopt it because they choose to not become social pariahs and to acquiesce in the latest fashion trends.

The issue here is making these trends enforceable under the umbrella of Title IX, dictating speech that is prohibited and required to conform to woke gender dictates upon pain of expulsion. It’s one problem to feel unable to engage in discussion of controversial issues because they are politically incorrect. It’s a very different problem when this becomes enforceable by law, when it could officially destroy a life by expulsion from college on the basis of being inadequately woke that one’s utterance offends someone.

There are a litany of reasons why this renewed attack on due process is wrong, no matter how many “survivors” express their fears for their safety. But beyond the issue of returning to untenable peer-to-peer sex policing is a far broader, far more intrusive, speech policing that bears no connection to either sex discrimination or the ability to enjoy educational benefits.

While the focus has been on sexual conduct, real or imagined, in the past, the future brings significant free speech risks that shouldn’t be ignored as we look backward to what would be lost without realizing that there will be new harms, new risks, going forward under Lhamon’s new regime.