My colleague Andrew Coulson has already briefly noted this story, but its constitutional and policy implications — which go well beyond the higher education context — merit a more detailed look.

For more than two years civil rights enforcers at the federal Department of Education and Department of Justice have been readying a crackdown on colleges and universities that they view as excessively lax, lenient, or observant of due process toward the accused in charges of unwelcome sexual conduct. Now, in a letter and resolution agreement sent to administrators at the University of Montana, the enforcers finally seem to have tipped their hand as to how far they’re prepared to go. And the answer is: really, really far.

• The “unwelcome conduct of a sexual nature” that colleges and universities must discipline is to include “verbal conduct,” better known as “speech.”
• To be subject to discipline, speech or conduct won’t have to be objectively offensive to a reasonable person, merely subjectively so to the particular complainant.
• Disciplinable speech or conduct also won’t have to be severe or pervasive enough to do actual damage to a complainant’s environment for learning or employment or research, a departure from the standard that courts have developed for liability in areas like workplace hostile-environment law. This ensures there will be more and tougher discipline handed out for offenses such as, say, posting desk photos of beach-clad spouses or playing a “shock jock” show on a dorm radio.
• The feds say universities are not just free, but affirmatively obliged, to take “protective” action against future harassment — kicking an accused student out of a class might be one such step — before affording a hearing at which that person might defend himself or herself.

Among those outraged: FIRE, or the Foundation for Individual Rights in Education, which calls the development a “shocking affront” to the Constitution’s First Amendment; CEI’s Hans Bader (Washington is now demanding that colleges institute speech codes much broader than many already struck down as overbroad by federal courts), and prominent education blogger Joanne Jacobs (rule could stifle education about sexuality as well as both sides of campus debates on related issues).

FIRE president Greg Lukianoff says the new speech prohibitions are “so broad that virtually every student will regularly violate them… it is time for colleges and the public to push back.”

According to the Foundation for Individual Rights in Education (FIRE), “the Departments of Justice and Education have mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment.”

Here’s what FIRE is, well, fired up about:

The letter states that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature’ ” including “verbal conduct” (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the same gender in the same situation”—if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished. 

So now, in addition to being a sadly moribund institution of dubious value to most students, college will be even more Orwellian in its policing of language than it had already become. Thank heavens technology is making it increasingly dispensable. College is dead. Long live higher education.

The great popularity of TED talks is one of the most encouraging signs that, despite our fossilized school systems, humanity still wants to learn. No one is assigned to watch TED talks. We watch them because they often present a compelling learning experience that excites and entertains. While such experiences sometimes occur in “the dominant education culture” of modern schooling, they occur “in spite of that culture, and not because of it.”

Those quotes are from the final segment of a series of TED talks on education that aired this week on PBS thanks to the New York member station, WNET. The speaker was Ken Robinson, and if you’ve never seen one of his lectures, you’re missing out.

Some highlights of the show:

Management consultant, turned teacher, turned research psychologist Angela Lee Duckworth on the prime importance of Grit in academic and life success. Duckworth explains that Grit is in fact a stronger predictor of such success than IQ—which is interesting because it echoes some very old and it seems mostly forgotten research by Edward Webb, a doctoral student of the intelligence measurement pioneer Charles Spearman. Spearman coined the term “g factor” for the strong intercorrelation that each individual shows across a diverse range of mental tests. It is this g that IQ tests attempt to measure. To make a long story short, Webb went looking for a bunch of personality traits that were also correlated with g. He failed. Instead, he found a completely separate set of intercorrelated traits, which he called w (for “Will”), that basically amount to what Duckworth refers to as Grit. Four of the those w traits were: perseverance, kindness on principle, trustworthiness, and conscientiousness. [For more on this, see Arthur Jensen’s “The g Factor”.] Duckworth’s segment begins at 13:30.

Geoffrey Canada is eloquent about the need to simultaneously encourage innovation and abandon failed approaches; and Ken Robinson is equally so on the failure of the dominant approach to schooling to promote a diversity of methods and curricula, or to stimulate curiosity and creativity, due to its excessive reliance on centralized command-and-control. Of course both of the preceding observations are consistent with the fact that markets are better than monopolies in providing products and services, in education as in other fields, but it’s not clear that either speaker would put the matter in those terms.

And for the artistically inclined, there’s a quite good young poet, 19-year-old Malcolm London, at the 35 minute mark, and a lovely rendition of Cyndi Lauper’s “True Colors” by the host, singer John Legend, at 41:58.