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Author: Hans Bader

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Hans Bader

The president of George Mason University wants to give minorities a big advantage in hiring until the faculty is as heavily minority as the school's student body and the future, mostly non-white U.S. population. This is illegal, say lawyers and law professors. Indeed, GMU's president, Gregory Washington, recognized that objection in an April 15 email to the university's faculty, before saying it wouldn't stop him from giving minorities a preference in hiring. Washington quoted a professor as saying:

The Obama administration is turning a blind eye to racial harassment – because the victims are white students. The harassment, which occurred at the University of California at Berkeley, was captured on video on October 21, and nationally publicized. As the Daily Caller reported:
“A video of Friday’s protest shows a large group of protesters preventing white students from passing over a bridge while allowing access to students of color. In addition to blocking access to Berkeley’s Sather Gate, a key bridge on the route to many classes, the wall of protesters also prevented white students from studying in the Student Union and stopped traffic at the main intersection in the front of campus.”

I and my wife are happily married, and neither of us is abusive, much less criminal. But under the University of Virginia's broad new "sexual assault" policy, my wife could be deemed guilty of "sexual assault" when she hugs me without advance permission. So, apparently, would any couple in America that engages in making out, without lots of explicit discussion in advance -- that is, pretty much every person in America who is married or in a committed relationship.  U. Va.'s policy bans a wide array of conduct that is perfectly legal under Virginia state law, and that neither involves sexual intercourse, nor occurs against anyone's wishes. This is an outrageous invasion of students' privacy, and an insult to U.Va. alumni and state taxpayers (like me). U.Va. adopted its new "Interim Policy on Sexual and Gender-Based Harassment" to appease the Office for Civil Rights, where I used to work. Under its policy, if you hug your boyfriend, and as an inevitable result your "clothed" "body parts" (such as "breasts") touch him, you could be accused of “sexual assault” that "consists of" "sexual contact.” That's because U.Va. now defines such touching, “however slight,” as sexual assault, lumping together both touching and intercourse as "sexual assault" when they are deemed "sexual" and occur without "affirmative consent."

Can federal officials declare you in violation of the law, not for actions that flout the text of a statute, but for failing to parrot the agency’s controversial views about how the statute should be applied in hypothetical situations? Recently, the Education Department's Office for Civil Rights (OCR) did just that to Harvard Law School. OCR, where I used to work, found Harvard Law School in violation of Title IX for its failure to recite at length OCR officials’ views about the optimal handling of Title IX sexual harassment claims. Ironically, these views were expressed in “guidance” from agency officials that had expressly claimed to “not add requirements to applicable law.” As I explain at this link, this is a violation of the Administrative Procedure Act.
Although the new procedures were adopted precisely to appease the Education Department, OCR nevertheless found them in violation of Title IX, not for what they did, but what they failed to say: For failing to make assertions about sexual harassment made in OCR’s own sexual harassment guidance which are seldom found in any real-world sexual harassment policy, including about obscure procedural or jurisdictional matters that seemingly had nothing to do with any specific harassment case that actually occurred at Harvard Law School. (Title IX is much shorter and less complex than other civil rights laws, like Title VII of the Civil Rights Act, but employers routinely win sexual harassment lawsuits under Title VII despite having a sexual harassment policy that runs only a few sentences, and recites none of the assertions that OCR faulted Harvard for not reciting)....

How does classifying most consensual sex as rape help rape victims? As a lawyer who has handled rape and sexual harassment cases, I can't imagine how. But this radical result is what some want to happen in California. In endorsing a bill in the California legislature that would require "affirmative consent" before sex can occur on campus, the editorial boards of the Sacramento and Fresno Bee and the Daily Californian advocated that sex be treated as "sexual assault" unless the participants discuss it "out loud" before sex, and “demonstrate they obtained verbal 'affirmative consent' before engaging in sexual activity." Never mind that consent to most sex is non-verbal, and that rape has historically been understood to be an act against someone's will, rather than simply a non-violent act that they did not consent to in advance. Perhaps in response to the bill, the University of California, on February 25, adopted a policy requiring affirmative consent not just to sex, but to every form of "physical sexual activity" engaged in. The affirmative-consent bill, Senate Bill 967, does not expressly require verbal permission to demonstrate consent, although it warns that "relying solely on nonverbal communication can lead to misunderstanding." But supporters of the bill are very clear about their desire to require verbal discussion or haggling prior to sex. The Fresno Bee praised the bill because “it adopts in campus disciplinary cases the 'affirmative consent standard,' which means that 'yes' only means 'yes' if it is said out loud." The Daily Californian declared that “the proposal’s requirement that defendants in a sexual assault case demonstrate they obtained verbal 'affirmative consent' before engaging in sexual activity makes SB 967 a step in the right direction."

Obamacare contains many racial preferences. But that fact has drawn remarkably little attention, even though the U.S. Commission on Civil Rights concluded back in 2009 that the healthcare bill was racially discriminatory, in two ways. First, Obamacare is filled with “sections that factor in race when awarding billions in contracts, scholarships and grants” and give “preferential treatment to minority students for scholarships.” Second, as an African-American member of the Commission noted, it “creates separate and unequal operating standards for long-term care facilities that serve racial and ethnic minorities.” By granting HHS “the discretion to waive substantial penalties . . . for failing to report elder abuse and other crimes committed against residents of long-term care facilities that serve racial and ethnic minorities,” it “could increase the probability that residents of such facilities won’t receive the same level of protection as residents of nursing homes that serve non-minority populations.”