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Authors: John Fund

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This did not happen during the Bush administration, when there were adults in charge who kept the radical career lawyers in the division in check—there was not a single such case that the division lost where it had to pay attorneys' fees and costs. But in the Holder Justice Department, the political appointees are as radical if not more so than the career lawyers.

The Holder Civil Rights Division has even twisted federal discrimination laws to go after school districts like the Mohawk Central School District in upstate New York for having a dress code that prevents boys from wearing makeup, nail polish, wigs, and high heels. This administration apparently believes that it is a violation of federal law for high schools to have a dress code that makes distinctions between what is appropriate dress for males and what is appropriate dress for females. Obviously, schools should not allow bullying or violence of any kind. But it is ludicrous to launch federal investigations of schools for having dress codes that differentiate between males and females or to equate such dress codes with sex discrimination.

This unanchored reading of the law on sex discrimination extends to universities. The division (in conjunction with the U.S. Department of Education) sent a bizarre letter to the University of Montana in 2013 that tells the university how it is supposed to handle sexual harassment allegations. This letter is also intended to “serve as a blueprint for colleges and universities throughout the country”
21
and goes so far that it would make asking someone for a date a federal crime. It lays out a legal rule that directly contradicts Supreme Court rulings that actionable harassment must be objectively offensive to a reasonable person. Instead, DOJ's Orwellian letter dictates that universities must institute a policy that defines sexual harassment as “any unwelcome conduct of a sexual nature.”

In 1999 the Supreme Court stated in
Davis v. Monroe County Board of Education
that, for a school to be liable for student-on-student sexual harassment, the conduct in question must be “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Needless to say, one could steer a cruise ship through the vast gulf between the actual state of the law and the twisted policy being advanced by the Holder Justice Department.

Under Holder's rule, a single instance of conduct that is “offensive” to one individual would constitute a violation of the law, even if that individual's reaction is totally unreasonable. DOJ also insists that sexual harassment includes “unwelcome” (not just offensive) conduct that is “verbal, nonverbal, or physical conduct.”

The breadth of this new mandate, plucked from the mists occupied only by the most radical ideologues, is staggering. Under this definition, a student asking another out on a date could violate the law if the person being asked out found the question “unwelcome” and somehow believed it was the pretext to a sexual advance. If a student was taking a health class where biological reproduction was discussed, the teacher could be found guilty of sexual harassment if a student found the discussion “unwelcome,” even if no one else in the class and no reasonable person found it unwelcome or offensive. In other words, under this definition the most trivial conduct could be considered sexual harassment. And, get this—if a university did not take immediate and severe action to punish the “transgressor,” it could lose its federal funding.

There is no question that sexual harassment is a serious issue and that schools should take appropriate steps to stop it. But this new DOJ policy is political correctness madness that essentially implements a zero-tolerance policy in colleges for any verbal conduct a hypersensitive listener deems unwelcome. It will have a severe impact on the First Amendment rights of students, restricting not just the dating routines on campus, but also free discussion and discourse on many different issues.

But DOJ's bizarre attitude gets worse, requiring universities to implement what amounts to a “guilty-until-proven-innocent” rule that is completely at odds with impartial justice and fundamental due process. Justice criticizes the University of Montana's procedure for investigating sexual harassment complaints because it has “multiple stages,” including an appeals process! The fact that Eric Holder's Justice Department is offended that a student might be able to go through several levels of review and appeal of an adverse decision is something that should scare all of us.

Apparently, Eric Holder would prefer a Star Chamber that immediately slams the door on anyone accused of sexual harassment. How else is one to interpret the directive in the letter that an “appropriate step” by a university would include “taking disciplinary action against the harasser” before “the completion” of the investigation!? Holder appears to want universities to apply the Queen of Heart's admonition in
Alice in Wonderland
to lop off the heads of anyone accused of sexual harassment before there has even been an investigation or hearing to determine whether the accusations are true.

In the
Davis
case, the Supreme Court said it was not outlawing “insults, banter, teasing . . . and gender-specific conduct that is upsetting to students” and that it “trust[ed]” courts would not be misled to impose “sweeping liability.” But it is exactly that type of “sweeping liability” that ideologues serving in this administration are now trying to impose by administrative fiat.

In another wacky view of the law that affects higher education, Eric Holder's Civil Rights Division is suing universities over the food they serve in school cafeterias. Contrast this with the 1960s when there was real discrimination in American colleges and the Justice Department fought hard, serious battles to stop such civil rights abuses.

But in 2013, like a scene out of a Monty Python sketch, Holder actually threatened to sue Lesley University in Massachusetts for supposedly violating the Americans with Disabilities Act for not adequately accommodating students with food allergies. Apparently, the school did not have enough gluten- and allergy-free “hot and cold” options in its cafeterias. In the view of Eric Holder, the university was preventing students from equally enjoying “the privileges, advantages, and accommodations of its food service and meal plan system.” So according to the Justice Department, what a university chooses to put on (or leave off its menus) could violate federal law and subject it to prosecution by the chief law enforcement agency of the U.S. government.

Faced with expensive litigation, the university unfortunately settled the case with an agreement that not only defines what kind of food it can serve and how its kitchen facilities have to operate, but requires the university to let students “pre-order” their meals and provide them a restricted room to which only allergy “disabled” students have access—it even defines what equipment has to be in the restricted room ranging from a toaster to a freezer.

No one minimizes the problems that some students may have with food allergies and universities should work with students and their families to accommodate such problems when they can. But a federal court in a case called
Land v. Baptist Medical Center
said that a food allergy is not a disability under the Americans with Disabilities Act since it does not substantially limit a student's ability to engage in activity. The idea that this is a federal issue or that the Justice Department should burn up its resources investigating university dining halls is a complete absurdity and contrary to the law. It is another sign of the mindless mission creep that is a hallmark of the Holder Justice Department.

Under this entirely warped view of federal disability law, the Perez-led division actually threatened to sue Princeton, Arizona State, and Case Western Reserve if they dared to participate in an experimental program that would have made the Amazon Kindle available for students to replace traditional textbooks.
22
Perez claimed that allowing students to use Kindles would violate the Americans with Disabilities Act because while the Kindle has a text-to-speech audio feature, the menu that allows you to choose that option requires sight to use. The program was entirely voluntary and no student was forced to participate. According to Princeton, there wasn't even anyone with a visual impairment in any of the three classes that would have been part of the initial program.
23
In essence, Perez took the position that if blind students couldn't use the device, then no student should be allowed to use it. In other words, sighted students needed to be punished under federal discrimination law that was intended to protect the disabled. As Russell Redenbaugh, a former member of the U.S. Commission on Civil Rights, and who lost his sight when he was a child, says, “it's a gross injustice to disadvantage one group, and it's bad policy that breeds resentment, not compassion.”
24
Unfortunately, all of the schools gave in to the Justice Department's intimidation and threats and agreed that no student would be allowed to use electronic books like the Kindle until they were all completely accessible to the blind.

Even in areas of public safety, the division has used federal discrimination laws to try to impose racial hiring quotas and go after fire and police departments to eliminate racially neutral qualification exams. For example, the division pushed the New York Fire Department to hire firefighters who miss 70 percent of the questions on a fire academy entrance exam. It forced the Dayton, Ohio, police department to lower its testing standards because it claimed not enough black recruits were passing the recruitment exam, with the result that Dayton would have to hire individuals who scored an F. This was so outrageous that even the president of the local chapter of the NAACP, Derrick Foward, criticized the division, saying that he did “not support individuals failing a test and then having the opportunity to be gainfully employed.”

Eric Holder's Civil Rights Division under Thomas Perez has waged a war on election integrity, trying to stop state voter ID laws or other steps to improve the security of elections. For example, in 2012, the division filed a lawsuit in the battleground state of Florida to stop the state from removing noncitizens from the voter rolls. Even though it is a felony for noncitizens to register or vote in a federal election, Perez claimed that removing aliens was a violation of the National Voter Registration Act (NVRA). Fortunately, the federal court ruled against the division in what was essentially a frivolous claim, holding that the NVRA does not prevent “the revocation of an improperly granted registration of a noncitizen.”
25
But it had the intended political effect, because the fear of a Justice Department lawsuit caused county election directors all over the state to refuse to participate in the state program to investigate possible noncitizens and remove them from the registration rolls before the November election. In this battleground state, every vote (even illegal ones) could have made the difference in who won the presidential contest.
26

But this also shows the lengths to which Perez was willing to go to try to protect illegal aliens. This is no surprise given his background in private life as the former president of Casa de Maryland, an extreme advocacy organization that opposes the enforcement of our immigration laws. This group has encouraged illegal aliens not to speak with police officers or immigration agents; it has fought restrictions on illegal aliens' receiving driver's licenses; it has urged the Montgomery County, Maryland, police department not to enforce federal fugitive warrants; it has advocated giving illegal aliens in-state tuition rates; and it has actively promulgated “day labor” sites, where illegal aliens and disreputable employers openly skirt federal prohibitions on hiring undocumented individuals. What does it say about Eric Holder and Barack Obama that they believed that someone with such a cavalier and contemptuous view of the rule of law should run the Civil Rights Division and be rewarded for his misdeeds and misuse of federal authority by being nominated to an even higher position as the secretary of the Department of Labor?

But Holder's attitude toward election integrity was made clear in a speech at the LBJ Library at the University of Texas in 2011. In a setting obviously designed to evoke Lyndon Johnson's historic signing of the Voting Rights Act in 1965, Holder railed against voter ID laws and other changes to election procedures designed to protect against voter fraud. As he dismissed the danger of fraud and stolen elections, Holder seemed oblivious to the irony of making such a claim at the LBJ Library, given the infamous Ballot Box 13 and the stolen 1948 election that launched LBJ on his political career.

This was not the speech we should expect from the government's chief lawyer, whose job it is to enforce federal election laws in an objective, nonpartisan manner. Instead Holder was parroting the erroneous and incendiary talking points used by Democratic politicians and racial grievance organizations like the NAACP that falsely compare voter ID requirements and other election reform efforts to the scurrilous and violent actions of a half century ago by state officials who kept black citizens away from the polls.

This comparison to Jim Crow is historically preposterous and insults the heroic work of so many who helped end those injustices. Holder's claim that such practices “remain all too common” shows just how factually challenged he is. Voter ID laws cannot compare on any level to the literacy tests, wholesale intimidation, and violence prevalent in the 1960s. It was also quite ironic to hear Holder refer to the “billy clubs and fire hoses, bullets and bombs” that voters had to confront in that same time period, given that it was his Justice Department that dismissed the voter intimidation lawsuit against the New Black Panther Party and its billy club–wielding thugs.
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BOOK: Obama's Enforcer
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