Thursday, January 12, 2012

Alaska Redistricting Lawsuit And College Speech Codes Show How The Federal Civil Rights Bureaucracy Complicates Lives And Violates Presumption Of Innocence

Proposed HD-38 in purple; go HERE for larger version
Two stories this week provide good illustrations on how the federal civil rights bureaucracy complicates our lives and violates the presumption of innocence.

Currently, a lawsuit targeting Alaska's legislative redistricting plan is being heard by Superior Court Judge Michael McConahy in Fairbanks. George Riley and Ron Daerborn argue that creating the new House District 38 (as illustrated above), which integrates Ester and Goldstream Valley, where the two men live, with parts of the Denali Borough and the western coast, violates Alaska constitutional standards for socioeconomically integrated districts. In response, the redistricting board maintains that pairing of rural villages with a portion of Fairbanks was necessary to build a fifth district where Alaska Native voters can have a decisive voice, as required under the federal Voting Rights Act. What makes the federal role problematic is that a Voting Rights Act expert, Lisa Handley, told the board that none of the alternative plans offered by political groups would have been approved by the Department of Justice voting rights bureaucracy.

This shows that if it wasn't for interference by the federal government, we could have already solved the redistricting problem in a matter meeting Alaska's needs, and this lawsuit most likely would not have been filed. The problem is that the Department of Justice assumes that discrimination will take place if Alaska Native voters aren't extended preference, simply because discrimination took place in the past; the fact that remedies are available if discrimination takes place doesn't matter to the feds. This violates the customary presumption of innocence.

The Foundation for Individual Rights in Education (FIRE) highlights another example of obstructive federal civil rights preemption. FIRE has just released its 2012 report on speech codes at universities around the United States, and reports that 65 percent of the 392 schools surveyed have speech codes that clearly fail to meet First Amendment standards, which FIRE labels "red light" speech codes. Included on this list is the University of Alaska-Anchorage (UAA) and the University of Alaska-Southeast (UAS), while the University of Alaska-Fairbanks earns a "yellow light".

However, on page 28 of their report, FIRE discloses that the greater threat to student rights on campus today comes not from the actions of individual universities, but from the federal government — specifically, the Office for Civil Rights (OCR) of the U.S. Department of Education. On April 4th, 2011, OCR sent a guidance letter to all schools within its jurisdiction reminding them of their obligations under Title IX, the federal law prohibiting sex discrimination in federally-funded educational programs. The letter discussed universities' existing requirements under Title IX and introduced new ones, two of which seriously jeopardize the due process rights of students accused of sexual harassment or sexual assault:

-- (1). In adjudicating cases of sexual harassment or sexual violence (but not other violent acts), campus judiciaries must utilize a "preponderance of the evidence" evidentiary standard. This is the lowest evidentiary standard used in our judicial system, and is not used in the criminal justice system because it does not sufficiently protect an accused person's right to due process.

-- (2). If a school provides the accused with the right to an appeal, the accuser must have the same right. This requirement resembles "double jeopardy," a situation in criminal law where someone is tried twice for the same crime.

What also makes this a problem is that students found responsible in university proceedings for what are widely understood to be serious offenses can still face serious lifelong consequences, even if there is no criminal prosecution. Yet many schools, fearful of having their federal funding cut off, maintain vague and overly broad sexual harassment policies, and often confuse speech protected by the First Amendment with speech or conduct that is actually punishable as harassment in order to placate federal inquisitors.

FIRE reports that there has been a decline in the number of "red-light" schools over the past five years, from 75 percent in 2006 to 65 percent in 2011. This indicates that many college administrators want to permit more free speech. But more won't follow suit until they can be assured that a predatory civil rights bureaucracy won't witch-hunt them and arbitrarily cut off their federal funding for not being prescient and foresighted. The Department of Education needs to back off and let colleges teach; intervene only in response to an unresolved complaint. And restore the "guilt beyond reasonable doubt" standard in all adversarial proceedings.

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