DOJ disregards McCain, McCain fails to react

[box] (July 25th, 2013 Washington D.C.) As reported by AVFM News on June 28th, Arizona Senator John McCain sent a letter to Attorney General Eric Holder concerning the May 9th “blueprint” letter, sent to the University of Montana as a settlement agreement to what can only be described as a hysterical witch hunt by the DOJ.  McCain pointed out several serious concerns regarding expanding the definition for sexual harassment, the virtual re-writing of law without involvement of the legislative branch and the erosion of due process for those accused of sexual harassment.  McCain’s letter, sent out on June 26th, imposed a deadline of July 17th  for Holder to respond.

It has now been over a week past that deadline and the DOJ has yet to respond in any way to McCain’s letter.

AVFM News made several calls and email inquiries to both the DOJ and John McCain’s office for comment regarding the letter and the past deadline but was unable to receive a statement from either.  However, Chris Thompson, Montana State University’s Men’s Issues Group founder, did receive a letter from Dr. Sandra Stover from the Department of Education’s Office of Civil Rights in response to his request that the DOE “expediently respond to Senator McCain’s query dated June 26, 2013 concerning apparent improper proceedings of the Department of Justice.”

She stated in her reply:

“OCR and DOJ’s May 9 resolution agreement and letter to the University of Montana require that the University take steps to prevent sexual harassment from creating a hostile environment for any student, and to eliminate and redress any hostile environment that arises.  The agreement and letter are entirely consistent with the First Amendment, and did not create any new or broader definition of unlawful sexual harassment under Title IX or Title IV.”

This is not true.  The May 9th resolution agreement broadly defined sexual harassment as “any unwelcome conduct of a sexual nature” including “verbal conduct.”  And that this “need not be subject to objective definitions.”

Thompson sent the following counter response to Dr. Stover’s email which includes McCain‘s exact questions posed to the DOJ in his June 28th letter:

“Ms. Stover;

To begin, thank you for addressing the queries I have as a father of four sons who will enter the Montana University System in coming years. As concisely as possible, I respectfully resubmit Senator John McCain’s queries as the July 17, 2013 date has passed and, to my knowledge, there has been no formal response from the DOE.

1. From what source does DOJ claim its authority to revise Court-approved Title IX jurisprudence through the settlement with the University of Montana rather than by judicial, regulatory, or legislative means?

2. How do you specifically define “unwelcome conduct of a sexual nature”?   Having promulgated a new regulatory standard regarding the definition of sexual harassment, how does DOJ plan to ensure consistent application of that standard to avoid undesirable outcomes, including vexatious litigation?

3. To what extent does the broad nature of the new and judicially untested “unwelcome conduct of a sexual nature” standard, increase the risk of a wrongful conviction.

4. Could the following scenarios constitute  “unwelcome conduct of a sexual nature” and demonstrate reasonable grounds for filing a sexual harassment complaint under the new definition:
a. A professor assigning a book or showing a movie that contains content of a sexual nature.
b. A student who makes a joke of a sexual nature to a friend and is     overheard by another student.
c. A student asking another student on a date.
d. A student listening to music that contains content of a sexual nature overheard by others.
e. A student giving another student a Valentine’s Day card.
f. A student or professor using masculine terms for generic pronouns (e.g., “Each student must bring his own laptop to the exam.”)

5. What safe harbors are available to students and teachers so that they can be assured that innocent behavior is not investigated and punished?

His email, dated July 21st, has yet to receive a reply.

A broad coalition of groups led by The Foundation for Individual Rights in Education is exerting greater pressure for action against the May 9th blueprint.  In an open letter dated July 16th including numerous signatories from the ranks of civil libertarians, attorneys, and academics FIRE charged:

“The blueprint mandates a shockingly broad definition of sexual harassment—“any unwelcome conduct of a sexual nature,” including “verbal conduct”—and rejects the inclusion of a “reasonable person” standard, endangering academic freedom and freedom of expression on campus. The blueprint also requires university employees to report protected speech for mandatory investigation, allows for punishment before the completion of an investigation, and instructs UMT to keep records of the names of all students and faculty accused of “sexual harassment,” even if no wrongdoing is found.”


It is unclear why McCain, in light of increasing controversy, has uncharacteristically failed to respond to the DOJ’s delinquency in answering his inquiry regarding the basic protection of constitutional rights on U.S. campuses.  AVFM will continue to cover this story.


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