Courts are growing increasingly impatient with ham-handed university sexual assault and sexual harassment policies. This week’s judicial victim is the University of Kansas, which expelled a student after claiming that a series of rude and aggressive tweets violated the university’s sexual harassment policy. There was no evidence, however, that the student tweeted from campus grounds, and the university’s policies — by their own terms — applied only to on-campus conduct or conduct at school-sponsored events. The university, however, tried to expand its power by arguing that the Obama administration’s infamous 2011 “Dear Colleague” letter imposed affirmative obligations on the university to regulate students’ off-campus conduct. The court was unimpressed:
Note the [Dear Colleague] letter does not direct the school to take action off-campus. Instead, the letter clearly advises that the school must take steps to prevent or eliminate a sexually hostile environment. It seems obvious that the only environment the University can control is on campus or at University sponsored or supervised events. After all, the University is not an agency of law enforcement but is rather an institution of learning.
There is no question that the Obama administration is using the Dear Colleague letter to place immense pressure on universities to police student conduct — to turn them into agencies of law enforcement — but don’t weep for higher education. The Obama administration’s letter is an utterly lawless document — issued without the required rulemaking process. Universities can and should challenge its legality, but they’re so cowed by on-campus radicals that they dare not lift a finger to protect either their own institutions or the innocent students victimized by the Obama administration’s mandated witch-hunts.
Universities have proven, however, that they have no reluctance to challenge the federal government when it’s politically convenient. To the thunderous applause of the campus Left, a coalition of universities challenged federal law requiring that taxpayer-funded campuses open their doors to military recruiters — and they took that quest all the way to a 8-0 defeat at the Supreme Court. If colleges feel under siege from the Department of Education, they should sue. Until they do, they richly deserve each every judicial rebuke they will inevitably receive.