From Minding the Campus. (H/T Hans Bader)

Excerpt:

There’s no federal law against bullying or homophobia.  So the Department of Education recently decided to invent one.  On October 26, it sent a “Dear Colleague” letter to the nation’s school districts arguing that many forms of homophobia and bullying violate federal laws against sexual harassment and discrimination.  But those laws only ban discrimination based on sex or race – not sexual orientation, or bullying in general.  The letter from the Education Department’s Office for Civil Rights twisted those laws, interpreting them so broadly as to cover not only bullying, but also a vast range of constitutionally protected speech, as well as conduct that the Supreme Court has held does not constitute harassment.  In so doing, it menaced academic freedom and student privacy rights, and thumbed its nose at the federal courts.

[…]The Education Department’s letter, from Assistant Secretary for Civil Rights Russlynn Ali, flouts the Supreme Court’s harassment definition, claiming that “Harassment does not have to . . . involve repeated incidents” to be actionable, but rather need only be “severe, pervasive, or persistent” enough to detract from a student’s educational benefits or activities.  The letter goes out of its way to emphasize that harassment includes speech, such as “graphic and written statements” and on the “Internet.”

The letter falsely implies that anti-gay harassment is generally discrimination based on sex.  It cites as an example of illegal “gender-based harassment” a case in which “a gay high school student was called names (including anti-gay slurs and sexual comments) both to his face and on social networking sites.”  This is exactly what most federal appeals courts have said does not constitute gender-based harassment.  It is not clear whether this case is merely a hypothetical example, or – more disturbingly — a finding by the Education Department’s Office for Civil Rights (OCR) in an actual case.  The letter says that “each of these hypothetical examples contains elements taken from actual cases.”

If it actually found a school district guilty of harassment over this, then the Education Department has flagrantly disregarded court rulings, not just about what harassment is, but about how officials are supposed to respond to harassment.  In this example of anti-gay harassment, the Education Department says the school district is liable for harassment even though “the school responded to complaints from the student by reprimanding the perpetrators,” which stopped “harassment by those individuals,” because such discipline “did not, however, stop others from undertaking similar harassment of the student.”

That totally contradicts the Supreme Court’s Davis decision, which said school districts are not liable for harassment just because it continues, and are only liable if they are “deliberately indifferent” to harassment once they learn of it; they need not actually succeed in “purging schools of actionable peer harassment” or ensuring that all “students conform their conduct to” rules against harassment.

Even in the workplace, where institutions are liable for mere “negligence” regarding harassment, they are not liable for harassment that continues after steps “reasonably calculated” to prevent harassment – such as when employees stubbornly engage in harassment for which other employees have already been properly disciplined, as a federal appeals court ruled in Adler v. Wal-Mart (1998).  Indeed, an institution may sometimes avoid liability even where there was no discipline at all, if it was unclear whether the accused employee was guilty, given due-process concerns.

Essentially, the Education Department has turned harassment law upside down, making schools more liable for harassment than employers, when the Supreme Court intended that they be less subject to liability.  (The Education Department letter also suggests racial “sensitivity” training – never mind that this often backfires on institutions.  In Fitzgerald v. Mountain States Tel & Tel. Co. (1995), where adverse employee reactions to diversity training spawned a discrimination lawsuit, the appeals court noted that “diversity training sessions generate conflict and emotion” and that “diversity training is perhaps a tyranny of virtue.”)

The letter also implies that it does not matter whether speech is “aimed at a specific target” in considering whether the speech is “harassment.”  This stretches harassment law well beyond its existing reach even in the workplace, effectively prohibiting a vast range of speech that a listener overhears and objects to.  Employees have tended to lose lawsuits alleging harassment over speech not aimed at them (the California Supreme Court’s 2006 Lyle decision being a classic example), although there are occasional exceptions to this rule.  The courts reason that “the impact of such ‘second-hand’ harassment is obviously not as great as harassment directed toward” the complainant herself.

Banning such speech also raises serious First Amendment issues.  Recently a federal appeals court cited the First Amendment in dismissing a racial harassment lawsuit by a university’s Hispanic employees against a white professor over his racially-charged  anti-immigration messages.   In its decision in Rodriguez v. Maricopa County Community College (2010), the court noted that the messages were not “directed at particular individuals” but rather aimed at “the college community” as a whole.

So the state has basically decided to use the government-run school system, which is funded through compulsory taxation, to potentially criminalize speech critical of certain Democrat special interest groups.

All sensible people are opposed to “bullying” and “harassment” – when someone hits someone else in a school or workplace, that should be stopped. Because schools are a place of learning, just as businesses are a place of working. But this administration is going beyond the punishment of actual crimes to punish thoughts that disagree with their their thoughts. This is just fascism – the imposition of moral values and beliefs by the state onto individuals through the use of threats, coercion and force. And you can bet that conservative groups – like the pro-life groups who are regularly banned from speaking – will not be the beneficiaries of these laws.

To learn more about Kevin Jennings, the man Obama has appointed to spearhead this efforts, read this post at Gateway Pundit. And this post at Gateway Pundit.