Campus civil rights groups begin making case to Trump administration
The Foundation for Individual Rights in Education sent an open letter to President Donald Trump on Inauguration Day, offering advice on how the new administration could “help protect free speech, academic freedom and due process on college campu
FIRE President Greg Lukianoff included a description of the major culture problems facing today’s campuses, and provided a solution for each.
The first problem noted by Lukianoff was the lack of free speech on college campuses. To combat this problem, Lukianoff suggested issuing a “stern reminder” to administrators that they risk personal liability for violating the First Amendment by controlling what their students say.
“Not only are speech codes likely to fail if challenged in court, they may prove very costly for administrators who do not recognize their unconstitutionality,” Lukianoff wrote. “Public university administrators may be held personally liable for enforcing policies that violate clearly established constitutional rights.”
Included in the free speech issue is the broadening of the definition of sexual harassment. Now, a student can be punished for sexual harassment if someone overhears a private conversation that includes a cruel joke. Lukianoff wrote in his letter to Trump that such an “overly broad definition trivializes real harassment and forces students and faculty to self-censor rather than risk punishment.”
The solution to this, Lukianoff wrote, is to adopt the Supreme Court’s definition of discriminatory harassment, as presented in Davis v. Monroe County Board of Education. That definition states that harassment must be “so severe, pervasive and objectively offensive, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”
Eavesdropping on a conversation and then being offended by said conversation, as well as many other examples that currently fall under a campus definition of sexual harassment, would not meet the Supreme Court test.
Finally, Lukianoff addresses one of the most-pervasive attacks on civil rights in recent years: The Obama-era guidance that has eroded due process and the presumption of innocence, and all but forces universities to punish students accused of sexual assault, regardless of evidence.
For this problem, Lukianoff proposed multiple solutions: Designating roles for law enforcement and administrators, ensuring the Title IX guidance document that fostered the problem goes through the proper legal channels, and allowing students – both the accused and accusers – to have legal representation during the investigation and hearing.
Dialing for due process
Stop Abusive and Violent Environments has launched a campaign calling for an end to campus “kangaroo courts.”
SAVE cites a recent example from the University of Kentucky in which a college repeatedly failed to provide due process rights to the accused, resulting in multiple hearings and mental harm to the accuser, to bolster the case for more protections for students.
The campaign will focus on lobbying lawmakers about the current state of campus hearings, and will include a media push.
The Trump administration has just begun, but it appears these groups believe they have a good chance to work with the new administration to help students.
Last week, Education Secretary-designate Betsy DeVos wouldn’t commit to upholding Obama-era guidance on sexual assault, giving rights groups that support accused students’ rights to due process some optimism that things could change.