New Liberal Idea: “Common Sense” is Bad because it Violates Title IX

From the Daily Caller News Foundation:

Defining sexual harassment using “common sense and reason” is a violation of Title IX, the Department of Education declared in a letter released Friday.

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The letter, released by the department’s Office for Civil Rights (OCR), concerns an investigation into alleged Title IX violations at Frostburg State University in Maryland. Title IX prohibits sex discrimination at all schools receiving federal funds, and recently OCR has begun investigating schools for allegedly violating the law by creating a hostile sexual environment for women.

OCR found the school mishandled sexual misconduct complaints, and the university has agreed to reimburse women for counseling expenses and make other changes to resolve the complaint.

Notably, though, OCR faults Frostburg’s policies for defining sexual harassment based on “common sense” and what a reasonable person would believe:

[T]he Sexual Harassment Policy inappropriately stated that ‘in assessing whether a particular act constitutes sexual harassment forbidden under this policy, the rules of common sense and reason shall prevail. The standard shall be the perspective of a reasonable person within the campus community.” This standard falls short of the preponderance of the evidence standard required to satisfy Title IX.

In other words, OCR asserts a “reasonable person’s” idea of sexual harassment is too strict for a school to receive federal funds. It’s hard to imagine a lower standard for a school to use, other than one relying on the opinions of an unreasonable person.

OCR’s interpretation seems to be at odds with the Supreme Court. In Harris v. Forklift Systems, decided in 1993, the court itself used a “reasonable person” standard to decide whether sexual harassment occurred. Other court rulings have used the same standard, and the Equal Employment Opportunity Commission, responsible for policing workplace discrimination, has followed them in crafting its sexual harassment guidance.

OCR’s aggressive definition of sexual harassment is a byproduct of the Obama Administration’s 2011 “Dear Colleague” letter, which radically overhauled federal Title IX policy by requiring schools to police sexual misconduct at a low standard of evidence, with extremely severe consequences (such as a loss of federal funds) threatened if they did not obey.

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