U.S. college students have been disappointingly passive in the face of assaults on free speech and due process on college campuses over the last two years, but their professors have shown somewhat more spine: the American Association of University Professors, the faculty of Harvard Law School, and new faculty organizations like Heterodox Academy have all spoken out against regulations that suppress basic freedoms on campus.
This week, still more faculty added their voices to the chorus. From an open letter, signed by 21 distinguished law professors from Stanford, Harvard, NYU, George Washington, and other institutions, condemning the federal government’s role in the campus civil liberties crackdown:
[The Office of Civil Rights in Education] has unlawfully expanded the nature and scope of institutions’ responsibility to address sexual harassment, thereby compelling institutions to choose between fundamental fairness for students and their continued acceptance of federal funding. […]
In the wake of these directives and enforcement actions, many universities feel obligated to investigate virtually any allegation of harassment, regardless of its objective merit. These complaints are often cloaked in language such as “micro-aggressions” or a “lack of safe space.” By virtue of their vague and subjective nature, these allegations are not amenable to being disproven in any legal sense. In an attempt to forestall such complaints, many colleges have established so-called “free speech zones” and implemented speech codes banning words presumed to be offensive.
The signatories note that Department of Education’s Office for Civil Rights in Education has routinely exceeded its authority, rewriting sexual harassment law without legislative approval, and forcing universities to investigate or punish students and faculty for what is in many cases innocuous conduct. (This is the same agency that just last week unilaterally ordered all K-12 schools in the country to create transgender bathroom policies). Meanwhile, Congress has more-or-less given the OCR free rein, with some members grumbling and holding superficial hearings, but never actually clarifying the limits of the agency’s executive powers. Until one of the many several lawsuits against the OCR makes its way through the courts, we can expect it to continue down its current path—especially under a Hillary Clinton administration that is eager to curry favor with campus left-wing activists.
President Obama, to his great credit, has repeatedly condemned the trend toward ideological intolerance on college campuses. So why is his administration seemingly doing all it can to encourage it? The president—a former law professor himself—should listen to the complaints raised in the open letter, and instruct his Department of Education to back off.