The Feds on Your Date

The federal government is going to get you for flirting, apparently. This dire, weird, prediction comes from a recent piece by Michael Barone in the Washington Examiner. Barone explains that:

These reflections are inspired by a seemingly innocuous 19-page letter on April 4 from the Department of Education’s Office of Civil Rights to colleges and universities. The letter was given prominence by Greg Lukianoff, president of the Foundation for Individual Rights in Education, which has done yeoman work opposing restrictive speech codes issued by colleges and universities.

The OCR letter includes a requirement that universities adopt a “preponderance of the evidence” standard of proof for deciding cases of sexual harassment and sexual assault. In other words, in every case of alleged sexual harassment or sexual assault, a disciplinary board must decide on the basis of more likely than not.

All of which means that just about any student can be hauled before a disciplinary committee. Jokes about sex will almost always make someone uncomfortable, after all, and usually you can’t be sure if flirting will be welcome except after the fact. And how do you define “elevator eyes”? Given the prevailing attitudes among faculty and university administrators, it’s not hard to guess who will be the target of most such proceedings.

(It’s the dudes.)

He then notes that “frequent targets of campus disciplinary groups are male, conservative, religious or some combination thereof” and wonders if perhaps this might account for the lower college completion rate of male students.

As I’ve pointed out before, this new “preponderance of the evidence” standard is rather questionable and probably not entirely constitutional.

Barone’s worries, however, are unfounded. While the letter of the law might perhaps allow for Kafkaesque intuitions into personal life and grossly unfair punishments based on mere suggestions of sexual impropriety, the Department’s new rules do not redefine flirting as sexual harassment. Realistically such procedures are administered by real people and it seems unlikely the problem will become the one—”[the] Office of Civil Rights… is demanding the setting up of kangaroo courts and the dispensing of…marsupial justice against students who are disfavored by campus denizens because of their gender or race or political attitude”—Mr. Barone fears.

In making up a problem, however, Barone has missed the real one. The trouble here is that the new standards make it so difficult to prove innocence in the case of a real crime, not that people can misconstrue the romantic intentions of poor misunderstood college males.

Daniel Luzer

Daniel Luzer is the news editor at Governing Magazine and former web editor of the Washington Monthly. Find him on Twitter: @Daniel_Luzer