And The Cancer Spreads: DoJ Orders UNM To Violate First Amendment

That students demonstrate no grasp of the First Amendment is nothing surprising. In a weird sense, it’s not their fault. They’ve been told that it means whatever they feel it should mean, with a plethora of wild expectations and demands that pop into their collective heads for no particular reason. They’ve been indoctrinated with such simplistic fortune cookie nonsense as “rights come with responsibilities,” and those responsibilities mean “hate speech” is not protected. They just make up whatever “responsibilities” suit their feelings.

Combined with their narcissistic entitlement to inform others, like lawyers or House Masters, of their personal vision of law, it’s amusing, exasperating and, invariably, idiotic. But they’re kids. You expect kids to be kids. You expect them to believe all manner of nonsense that comports with their sense of propriety. Isn’t that what childishness is all about?

What is not expected, or acceptable, is for the Department of Justice to hop aboard the crazy train driven by the Queen of the Gender War, the Department of Education’s Office of Civil Rights rogue bureaucrat, Catherine Lhamon. Her reach beyond her limited authority under Title IX to unlawfully seize jurisdiction over every sexual (at least, sexual as perceived by the “victim”) interaction between students has been thoroughly discussed, not that anyone in Congress has shown sufficient interest in reining in the out-of-control Avenging Angel of sad sexual survivors.

In a 37-page letter, the Department of Justice, by Shaheena Simons, [Acting] Chief of the Educational Opportunities Section, Civil Rights Division, and the New Mexico United States Attorney, Damon Martinez, has taken Lhamon’s micromanagement of student relations under wing, and with the prosecutorial fiat of DoJ, threatened the University of New Mexico to capitulate by violating the Constitution.  This isn’t a tangential suggestion, but a direct command: Violate the Constitution. Or else.  Whereas the DoE’s only clout is withholding federal educational funds, the DoJ’s power is far more nefarious. They wield the bludgeon of prosecution.


The United States conducted this investigation and review of the University under its Title IX and Title IV authority. Title IX and its implementing regulations, 28 C.F.R. Part 54, prohibit discrimination on the basis of sex in education programs and activities operated by recipients of federal financial assistance. Title IV prohibits discrimination against students in public schools and colleges and universities based on sex, race, color, religion, and national origin. The University is a public school that receives federal financial assistance and therefore is subject to the requirements of both Title IX and Title IV. In the context of court actions for injunctive relief and administrative enforcement actions, the United States interprets Title IX and Title IV as applying the same standard to allegations of sex-based harassment. Thus, in the context of this investigation and compliance review of the University, the United States applied the same legal standards under Title Ix and Title IV to conduct its legal analysis and reach its findings.4

And what does footnote 4 say? You have to ask?

4  For consistency in federal administrative compliance reviews, (the Department follows the legal standardsestablished by the Departmentor Education’s Office or Civil Rights in the RevisedSexual HarassmentGuidance: Harassment or Students by SchoolEmployees, Other Students, or Third Parties, available at: 19, 2001); and its subsequent interpretive documents: The Dear Colleague Letter on Sexual Violence, available at: (Apr. 4, 2001), and “Questions and Answers on Title IX and Sexual Violence” (Apr. 29, 2014), available at:· 20 1404-title-ix. pdf

Yup. That would be the DoE’s “guidance” letters usurping authority over every aspect of student relations, given force of law under threat by the DoJ. The cancer has now metastasized, from the mind of Lhamon to the prosecutorial force of the Department of Justice. That didn’t take long at all.

As Hans Bader explains at Unyielding Liberty, the command is clear:

On April 22, the Justice Department ordered the University of New Mexico adopt an unconstitutional speech code. It is demanding that the University label as “sexual harassment” all “unwelcome” sexual conduct, including “verbal” conduct (that is, speech). The university must encourage students to report it as such; and investigate it when it is reported.

Thus, if a student is offended by a professor’s comment in a lecture about how AIDS is transmitted through anal sex, or by another student’s sexual joke, it would be deemed “sexual harassment.” So would politely asking a student out on a date, if that offends her. This definition of “sexual harassment” as including any “unwelcome” sexual speech is vastly broader than the definitions struck down as unconstitutionally overbroad by the federal appeals court rulings in DeJohn v. Temple University (2008) and Saxe v. State College Area School District (2001). Those decisions ruled that even unwelcome, “hostile or offensive” speech about sexual issues is generally protected speech unless it “objectively denies a student equal access to a school’s education resources.”

The DoJ’s demand that UNM act to prevent sexual harassment doesn’t appear, on its face, to be such a terrible thing. There is no advocacy group dedicated to the cause of spreading sexual harassment. But the devil, as always, is in the details, that any words between students, if perceived by the recipient of the sound as “unwelcome,” can constitute sexual harassment. Except the First Amendment says otherwise, but what’s the Constitution compared to Catherine Lhamon’s Utopian vision?

There is a core issue here that has completely escaped review, that the DoE OCR has no jurisdiction under Title IX to micromanage individual actions between students, sexual or otherwise. Its mandate is limited to conduct that is so pervasive and severe that it “denies a student equal access to a school’s education resources” based upon their “sex.”

But isn’t a single act of sexual assault, whether physical or verbal, sufficiently severe? The point was driven home by Judge Gregory Woods in dismissing the suit by Paul Nungesser against Columbia University over their support of Mattress Girl, Emma Sulkowitz.

“On the basis of sex,” as used in Title IX, refers to one’s status, not to whether the underlying conduct was sexual in nature. “[T]he natural meaning of the phrase ‘on the basis of sex’ is on the basis of the plaintiff’s sex . . . . Even within Title VII of the Civil Rights of 1964 itself, Congress used the phrase ‘on the basis of sex’ as shorthand for discrimination ‘on the basis of such individual’s sex.’” Thus, “[t]he mere fact that sexual harassment proceedings have as their subject sexual behavior and speech does not itself implicate sex discrimination . . . ” .

Harassment, “even harassment between men and women” is not automatically considered to be gender-based discrimination “merely because the words used have sexual content or connotations.” In order to be considered gender-based harassment, the harassing conduct must “support an inference of discrimination on the basis of sex.” . . .

In other words, the basis for the DoJ, not to mention DoE, seized jurisdiction over ordinary student to student interaction is a lie, a conflation of the word “sex” as meaning “gender” in Title IX with sexual (or not, based upon the peculiar delicacy of the “survivor”) conduct. That’s it. The entire foundation of this seizure of jurisdiction is a lie perpetrated so gender warriors like Lhamon can rationalize control over students on campus the law never provided.

And now, the DoJ, putting its prosecutorial weight behind Lhamon’s illegal excesses, has commanded that schools violate the First Amendment or suffer the consequences. This isn’t an implicit command, but a direct order to violate the Constitution handed down by the Department of Justice. Did you see that coming?

How, you might wonder, has the DoE, and now DoJ, gotten away with stealing control that Congress never gave them over the intimate speech and conduct of students in the first place? The answer, unfortunately, is pathetically obvious: the only parties to have standing to challenge the DoE OCR’s usurpation of control would be schools subject to Title IX control.  And there has yet to be a single school anywhere that has shown any interest in challenging Torquemada. If anything, they’ve been unduly solicitous, asking only how many more males they should expel before DoE OCR will leave their federal funds alone.

And lest we only dump on obsequious educational institutions, Congress may gripe a bit about the details of how the Star Chambers are managed, but it, too, has failed to act to stop Lhamon’s reign of terror.  Instead, they’re backing a huge increase in appropriations for Lhamon:

Sens. Kirsten Gillibrand, Tim Kaine, Claire McCaskill and Mark Warner have written a letter calling for increased funding for the Department’s Office for Civil Rights, which has been investigating schools for alleged violations of the anti-sex discrimination law known as Title IX. The senators are requesting a budget of $137.7 million for OCR. Last year, the office’s budget was $107 million, which means the senators are asking for a nearly 30 percent increase in funding for this one department.

After all, it’s not cheap to have a bureaucrat in every dorm room, just in case some student whispers unwelcomed “sweet nothings” that another student might someday find offensive.

But there is still fault to go around. Even though colleges have created their own entrenched, and very expensive (such that even Title IX apologists are appalled at the diversion of funds from education to administration), bureaucracy to administer OCR’s dictates, where are the academics crying foul over OCR’s demand that colleges sacrifice some students on the altar of hurt feelings of other students?  For the most part, they’ve proven themselves too intellectually bankrupt and cowardly to risk being hated as “rape apologists” and “misogynists” by speaking out against OCR’s seizure of control.

And now, the DoJ will enforce Lhamon’s jihad. But don’t say anything, or else.

7 thoughts on “And The Cancer Spreads: DoJ Orders UNM To Violate First Amendment

  1. Hal

    Just in case Barleycorn can’t chew through the restraints and get to a computer, let me commend you for another great piece of writing.

    I’m going to go bang my head against a wall for a while and then friends and I will sit shiva for the Bill of Rights.

  2. Fubar

    From a DOJ strategy memorandum not subject to FOIA requests:

    To make sexual matters genderical,
    just use reasoning perfectly spherical.
    Then roll in the fiction:
    Voila! Jurisdiction.
    Get more funding. Support the hysterical!

  3. Pingback: Campus climate roundup - Overlawyered

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