Trigger Warning — We Don’t Have the Right Not to Be Offended

Freedom of speech is front and center again on American campuses as the Department of Education continues to abuse its authority over university policies. Dirty jokes are now banned, as are expressing suicidal thoughts.

The flawed notion that “safe spaces” and “trigger warnings” are healthful, wise, or even vaguely constitutional is not only disturbing but dangerous for the safety and well-being of all students.

Last year, when I was working on an article about 1st Amendment rights on college campuses I asked my son, who attends the University of Michigan, what were the arguments being advanced among the student body in favor of prohibiting certain speakers from addressing college-sponsored gatherings? He explained that some students didn’t want their taxpayer dollars benefitting speech they found disagreeable at a publicly funded institution. Okay, they’re entitled to that opinion, and certainly their freedom to voice it, but no, students and the citizenry at large do not possess the authority to ban campus speech, including that of paid speakers. Complain – yes by all means, ban – not so much. By way of analogy — I don’t much care for my tax dollars going towards war machines and corporate welfare, but that’s not within my direct authority to change.

John Ellison, the dean of students at the University of Chicago, recently sent a welcoming letter to incoming freshmen admonishing them that the administration has no intention of catering to their delicate sensibilities. The only surprise in this communication is that it was deemed necessary at all. Several years ago my son and I attended a campus tour there, and the overarching message was that this was an institution dedicated to the flourishing of a diversity of ideas — both in the classroom, plus, in and off campus. No shrinking violets admitted.

Ellison’s letter specifically cautioned:

“Our commitment to academic freedom means that we do not support so-called “trigger warnings”, we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual “safe spaces” where individuals can retreat from ideas and perspectives at odds with their own.”

Janet Napolitano, the former Secretary of Homeland Security and current president at the University of California, penned an op-ed this week in the Boston Globe expressing similar concerns on the topic. Although mildly critical of Ellison’s stance against triggers and safe zones, she was spot-on in her assessment of the danger of policy creep leading to 1st Amendment violations, reminding us that exceptions to free speech, such as yelling “fire” in a crowded theater “should be narrowly construed because history teaches us that even narrowly drawn exceptions to free speech inevitably lead to broader limitations.”

This is exactly what is occurring under the cover of expanded and unconstitutional Title IX regulations.

The otherwise laudable and simple intent of the 1972 law has been hijacked over the decades by political appointees at the Office for Civil Rights (OCR), a division of the Department of Education. Sometimes for better, but mostly for worse, they’ve repurposed the law’s original meaning through a series of surprise regulations — blindsiding schools and bypassing the legal standard of “notice and comment” which requires full disclosure of the question at hand accompanied by an open comment period among stakeholders prior to enactment.

The OCR derives much of its power through Title IX, and they have been wielding it like the Sword of Damocles in the realm of higher education.

In 2011, through new rules they shut-down basic due process for those accused of sexual harassment. Then in 2013, again by fiat, they completely redefined the term to include any unwelcome conduct of a sexual nature, including speech.

Yes, that includes dirty jokes, watching objectionable videos (including the likes of Amy Schumer or Chris Rock), asking a person on a date, casual pick-up lines, films with nudity or strong language….you get the picture — anything college students do on a regular basis.

As if lumping harassment in with honest to god sexual assault isn’t bad enough, redefining harassment to include the petty everyday behavior of students is the height of absurdity.

The Foundation for Individual Rights in Education (FIRE) reports that approximately 300 cases are pending under these OCR regulations — with frivolous claims taking-up critical resources needed to investigate serious crimes.

Robert Sibley, FIRE Executive Director and author of Twisting Title IX, offers a number of compelling examples of recent abuses, among them:

Northwestern University professor Laura Kipnis penned a 2015 op-ed in the Chronicle of Higher Education critical of Title IX’s sketchy interpretations where it comes to faculty members involved in consensual relationships with former students.  She was charged by the university for violating Title IX after several students complained about the content of her essay. When another person stepped forward in her support, he too was similarly hit with charges. Ironically, it wasn’t until she wrote a follow-up piece in the same publication, titled My Title IX Inquisition, that the university was shamed into dropping their harassment case against her.

In his book, Sibley cites another egregious overreach which recently occurred in Oregon to a female student who, while studying during exam week, blew off a little steam by yelling from her dorm room window “I hit it first” to a couple outside. The couple, whom she did not know, complained to her RA, resulting in a personal apology. End of story? No. The student was slammed with five conduct charges over the silly prank, including sexual harassment under Title IX.

The important question is why are schools cowering under this abusive and arguably unconstitutional tyranny? Sibley explains that schools have become more focused on the possibility of OCR punitive actions than lawsuits from students and faculty because the OCR holds the purse strings to federal funding. He estimates that there are currently 60 to 70 lawsuits from students over possible Title IX overreach, saying:

“OCR is the agency that has the ability to go to the Department of Justice and ask them to go through proceedings to cut-off federal funding to a school. At most schools, that’s a death sentence  … Whereas, a lawsuit is most certainly not going to be the death sentence for most schools.”

So, schools continue to settle with litigants, with every party understanding that the OCR would lose in a Supreme Court contest were a school to challenge the rules. FIRE refers to the legal dance as a “game of chicken.” The hostility between academia and the OCR has created toxic environments on campuses where students who are in dire need of support are denied, while minor offenses result in harsh punishments.

At Baylor University the Title IX apparatus has become utterly dysfunctional with one lawsuit calling the school a “hunting ground for sexual predators“, and this week brings news of the resignation of the Title IX coordinator and her lawsuit against Baylor claiming the administration prevented her from doing her job.

It seems that it’s mostly individual students who pay the price for the incompetence of college administrators and federal regulators. And in the case of Northern Michigan University, they may well pay with their lives.

The Marquette, Michigan school had, until very recently, a long-standing policy prohibiting students from discussing thoughts of self-destruction and suicide with fellow students. Known for its academic rigor, NMU had been sending disciplinary letters to students suspected of communicating personal troubles with classmates. Beyond being a clear violation of protected speech, the policy is appalling given that suicide is on the rise in our nation with about 43,000 deaths a year, and many more incidents of failed attempts. A recent exposé revealed that Michigan’s Upper Peninsula in particular suffers from a suicide problem — a situation only made worse by the lack of available counseling. Friends and family are typically the first line of defense. Under intense media pressure, including warnings from FIRE about the constitutional issues, the university has scraped the policy.

Clearly, this battle isn’t over by a long shot.

DSCN0444Amy Kerr Hardin

 

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