The Emasculation of America

The Case Against Feminism:

Second DOE Appeal—Page 2

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Text Box: The PDAs included: (1) arguments as to the legal contradictions and illogic in claiming the study literature was not innately discriminatory – which included the proposed analogy between discriminatory sex-typecasting in textbooks and the prohibition of the use of “Male and Female” headings in employment want-ads; (2) lengthy input that it is student’s, not educator’s, free-speech and academic freedom that is being violated; (3) an in depth analysis of the primary Supreme Court precedents in this area (Tinker and Hazelwood), which definitively indicate that educator’s rights to free-speech/expression with respect to students is subject to major restrictions; and (4) questions as to whether OCR-KC is legally authorized to enforce educator’s First Amendment rights at all, much less give them priority over student’s civil rights and other the articles of the Constitution. Please note that OCR-KC’s “preliminary” determinations were made one-working-day after they received my second grievance on 5/20, and their “final verbal” decisions were adopted just two-working-days after receiving the first complaint on 6/6. In addition, no one from OCR-KC performed a due-diligence legal interview with respect to any aspect of this complaint. Nor did the liaison person initiate noteworthy inquiries in any area. This “trial” was adjudicated without making inquiries, and solely on the basis of written claims. (C) Complaint Denial (CD): Mr. Nigro sent a “still evaluating” memo on 6/28, which referred to my letters of 6/10 and 6/13, but not the vital memo of 5/31that included a copy of my first grievance to the College, which reports that StLCC had denied educational benefits. This prompted sending an organized binder containing all prior submissions to OCR-KC on 7/4. Mr. Mr. Nigro’s Denial (a.k.a. refusal to investigate or case “closure”) on 7/29/05. The “final” written Denial included OCR’s verbally reported prior position that the claim violated educator’s speech and academic freedoms. But it unexpectedly added the “you were not subjected to different treatment” and “this case is not sexual harassment” arguments. Without explanation, OCR-KC dropped its position that “the textbook is not innately discriminatory,” and failed to reply to the student’s position that, like “Male/Female” want-ads, the textbook is also illegal. It also failed to address any of the input in items two through four above. Question #5: Why did OCR-KC abandon its primary rationale for denial – i.e. that the data itself is not innately discriminatory? Did it discover that this position was legally invalid, and conclude that so indicating would only strengthen the claimant’s complaint? Why did it fail to respond to the other three major issues raised by the claimant? Could OCR-KC find no legally justifiable way to counter these arguments, and thus chose silence in order to avoid having to actually investigate this case? [OCR-E’s positions on items “B: 2 thru 4” above are requested elsewhere below.] (D) First Appeal (FA): An appeal was sent to Ms. Bennett at OCR-KC on 8/5/05. Follow-up memos were also sent of 8/26, 8/27, 8/29, and 11/25/05, but were never acknowledged. (E) Appeal Denial (AD): On 7/19/06, 350 days after the FA, OCR-KC reaffirmed its Denial. The AD overtly evaded the input about the College’s denial of educational benefits; rejected arguments with respect of disparate effects and disproportionate impacts; and refused to address the argument that OCR-KC claiming the College “giving” a student the “opportunity” to withdraw from class was like telling a woman she had the “privilege” to quit her job in order to keep from being discriminated against by her employer or boss. Proposition #3: The above suggests that OCR-KC was predisposed to deny this claim regardless of its legal merits; that it pre-judged the case in the absence of vital information; and that it chose the aspects of the complaint’s content it would attend to or disregard and legal issues it would address in order to avoid having to investigate and the enforce sex-discrimination issues raised in this complaint. Proposition #4: OCR’s published policies state: “OCR’s role is to be a neutral fact-finder… (and it) does not act as an advocate for either party... ” OCR-KC violated this policy when it set itself up act as defender of the College and faculty’s hypothetical First Amendment rights, and failed to enforce an individual student’s and the rest of StLCC’s male-student body’s actual rights to protection from sex-discrimination, as well as under the First and Fourteenth Amendments. The Appeal Preparation: By the time I prepared the FA, the above had led me to seriously doubt OCR-KC’s gender-neutrality and legal intentions. Mr. Nigro reportedly works under Ms. Bennett’s authority, thus the CD, if not overtly or tacitly pre-approved, most likely conformed to her perspectives. Subordinates who want to advance and/or remain comfortably employed seldom take actions contrary to their superior’s views. Thus, the way OCR’s appeal process is setup, it seemed likely an appeal would be denied regardless of what facts I might submit. My confidence in attaining an objective evaluation or legally appropriate treatment from OCR-KC was so eroded that an immediate appeal of some kind seemed warranted. Another level of review is not referred to in the “Complaint Resolution Summary,” so I chose to approach the Dept. of Justice, indicating that I believed OCR-KC was discriminating based on sex, and asking them to monitor or even take-over review of my complaint. After five months, the DOJ refused to comply with my “request to review a determination made by another agency,” which incidentally misstates both the situation and what I asked the DOJ to do. An appeal to the DOJ was denied seven months later, but Ms. Monroe at the DOE was notified of my appeal by the DOJ. Rhetorical Question: I note OCR organization charts show OCR-KC reporting to OCR-E, thus I am also concerned about the adjudication of this appeal. Can a truly legally objective ruling be rendered by the same “court” that made the determination in the first place? The answer will, of course, be apparent in the way OCR-E adjudicates this appeal. I sincerely hope the answer is – YES!!! Proposition #5: OCR-E’s lack of response to my letter of 10/10/06 asking its help in getting disclosure of any communications between OCR-KC and third-parties in this case is not encouraging. The failure to provide such information also suggests that OCR’s policies were in fact violated by OCR-KC, and that it might even be hiding something legally dubious about the way this case was handled as well. Disclosure of that information is still requested. When I received the CD, I took it on faith that OCR-KC had accurately represented the legal authorities and internal documents in which it has expertise. I now realize it did no such thing. But having made that assumption, it seemed a waste of time to study all of the statues, OCR policies, and legal precedents involved. The content of the CD and all of my legal research on Tinker and Hazelwood had also taught me OCR-KC would ignore or “dance around” any legal input in an area of their expertise as it suited their purposes. Finally, it did not occur to me that students would be required to have in-depth knowledge of the law, or have to hire an attorney, to file an effective complaint with OCR. Thus the only recourse seemed to be to rely on my basic understanding of our nation’s laws, and look elsewhere for legal reinforcement. I have now invested well-over a month of full-time-equivalent effort, including two weeks unpaid vacation, trying to digest a six-inch-high-stack of regulations, OCR publications, and Federal Court and OCR rulings. After reviewing and hopefully grasping that data, I have found that: 1. My prior understanding of our nation’s Constitution, discrimination, and other civil rights laws was fundamentally correct. 2. The legal rationale OCR-KC used to deny this complaint is not supported by the applicable regulation, and, in large part, by OCR’s policies and standards as well. 3. OCR-KC Denial letters a confusing hodge-podge of legal principles from 34CFR 106 misleadingly intermixed with the content of OCR’s SHGs, various erroneous legal arguments, and its completely unsubstantiated extra-legal opinions. 4. In preparing its Denials, OCR-KC took a complaint written by a civil rights and legal novice in laymen’s language, and generally reinterpreted them in a very narrow and legalistic manner; and in ways that substantially altered the original meaning in many vital areas. It also misrepresented most of major legal issues raised in the case, as well as the issues that it is legally authorized to enforce. Factors like the above made it very difficult to decipher and contrast OCR-KC’s positions with the regulatory and administrative documentation involved. It would seem other laymen, and perhaps even most non-civil-rights attorneys, would have the same difficulty. I have therefore also had to invest another month of full-time effort organizing and writing this Appeal. I apologize up front for its overall execution, as well as my weakness of not be able to see typos or editing errors without a long “incubation” period – but I have simply ran out of time. Since my understanding of the legalities and OCR’s publications differs dramatically from the way they were described and/or applied by OCR-KC in this case, it seems prudent to begin by outlining the essence of these documents so we start from the same understanding of the hierarchy and levels of authorities applicable to this case as identified by OCR-KC and OCR. Applicable Laws, OCR Policies, and Other Considerations: Title IX… §1681: The actual statue applicable to every form of sex-discrimination, which simply states, “No person… shall, on the basis of sex, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal assistance, except…(none of which are applicable here).” 34CFR 106: Title IX’s implementing regulation, which establishes the broad principles affecting all forms of discrimination based on sex in covered educational institutions. In sum, it defines student’s rights and protections, and the school and its staff’s obligations and prohibitions with respect to sex-discrimination. Educator’s civil rights are protected under other statutes/regulations. It states that schools may not support organizations or persons that discriminate, and that a student shall not, on the basis of sex, be subject to: 1. Different qualifications in admissions, recruitment, or eligibility for aide, benefits, and services; 2. Separate rules, sanctions, or treatment in any program or activity; or 3. Otherwise be limited, denied, or deprived of a right, privilege, advantage, or educational opportunity. The content of 34CFR 106 does not: 1. Identify, describe, or differentiate among Sexual Harassment, Quid Pro Quo, Hostile Environments, “Different Treatment,” or any other form of sex-discrimination. They are not defined or discussed in the regulation. 2. Delegate OCR priority interest or accountability for the First Amendment. In other words, the applicable regulation offers no significant legal protection for individual instructors, much less entire faculties, with respect to sex-discrimination, other civil rights, or any area of the law – including educator’s free-speech or expression. OCR’s publications and OCR-KC also repeatedly state that Title IX and 34CFR 106 are the only statute and regulation they are delegated to enforce in sex-discrimination cases. Question #6: What legislative enactments, judicial rulings, or Executive Order delegates OCR to proactively act in the interests of or protect the rights to the College, its faculty, or even an individual teacher in any legal domain in a complaint that involves discrimination based on sex? Proposition #6: In the absence of such delegations, denying this claim because enforcing its positions would violate educators rights under First Amendment is beyond OCR-KC’s authority and therefore null and void. OCR Internal Guidances: The OCR has developed two versions of one topic-specific set of policies, standards, and practices – Sexual Harassment Guidance (SHG) 1997 and 2001. These Guides serve as administrative support for OCR’s and educational institution’s staff use in effectively recognizing, understanding, adjudicating, effectuating, and preventing sexuality-based forms of sex-discrimination on behalf of students. In addition to “Harassment,” the SHGs also identify, establish, and develop two additional forms of sexual-discrimination; “Hostile Environments” and “Quid Pro Quo,” which are all also elaborated upon in many other OCR’s publications, as described below. The defining attributes OCR’s Sexual Guidances include their extensive examples of prohibited and allowed behavior, and references to legal precedents. The latter are the primary source of the SHG’s legal validity. In other words, their sole distinct legitimacy is determined by the extent to which they actually conform to the prior rulings, primarily of the Supreme Court, and secondarily of the Federal Courts of Appeal. It is publication in the Federal Register that formally authenticates OCR’s SHG’s. It is vital to note that OCR does not have comparably well-established, developed, or legally substantiated Guidances for any other (i.e. nonsexual) forms of sex-discrimination. In addition, OCR’s SHG’s and other publications repeatedly state that it gives greater attention and priority to one clause of the U.S. Constitution than any of the others – the First Amendment. But it cites no source of authority for treating the free-speech or expression differently then any other Article or Amendment. Proposition #7: If an implied situation-based source of extraordinary constitutional interest is involved here, based on the very nature of civil rights issues and OCR’s role, it would seem that OCR would be giving far greater emphasis to enforcing student’s 14th (equal protection under the law) Amendment rights than student’s 1st (freedom-of-speech) Amendment rights – much less either on behalf educators. Question #7: It is again requested that OCR provide the legislation, Federal Court rulings, or Executive Order authorizing it to proactively protect StLCC or its educator’s First Amendment rights, and that authorize it to allow such rights to take precedence over the suppression of student’s speech and academic freedoms by educators, as well as over student’s rights to protection from sex-discrimination by educators? Proposition #8: In the absence of such delegation, or an alternative legally supported explanation for OCR’s position, denying this complaint because stopping the College’s faculty from systematically teaching male-discriminatory gender/sex-stereotyping violates educator’s First Amendment rights is beyond OCR-KC’s authority and not applicable. [Comment: If this “lack of legal authority” argument is rejected, the validity of OCR-KC’s ruling on other legal grounds is challenged below.] Other OCR Publications: The OCR also publishes documents that include its internal norms, procedures, and rules (e.g. “Complaint Resolution Procedures”), and may issue attention-getting memos on certain topics (e.g. “Dear Colleague Letters”). These documents provide additional administrative information for OCR and educational institution’s staffs. While these have obvious administrative value, such communications offer no direct legal substantiation, and thus have little or no innate legal significance. OCR Precedents: A reservoir of cases previously determined by OCR also exists. It offers a virtual library of data for OCR’s staff’s benefit, but seems to have no reference value to anyone else, unless cited somewhere in an OCR document and then requested. Note: Upon careful examination of both of OCR’s Sexual Guidances (1997/2001), about half of several hundred legal citations supporting those policies and standards are OCR’s prior internal rulings. In seeming contradiction to OCR’s position described in Q#8 below, those references also often include rulings in cases that involve, in whole or part, non-sex-based forms of discrimination, which are, in turn, covered by statues and regulations dealing with race, disability, etc. – not sex. Question #8: OCR-KC denied some of my positions because it claims it is not authorized to consider arguments derived from 34CFR 100 or Dept. of Justice publications designed to serve as a non-mandatory guides for all Federal civil rights enforcement agencies, because both address discrimination based on race, color, or national origin. What basic logic and legal theories, as well as sources of authority, empower OCR to base the legitimacy of its SHGs upon innumerable references to its own internal (primarily), as well as Federal Court’s, rulings that interpret such nonsexual-discrimination statutes/regulations, and then allow its Regional offices to deny claimants the right to refer to those same and similar legal sources and/or more general civil rights agency administrative standards? Proposition #9: Regardless of how often an OCR position has been reinforced in such internal rulings, those decisions are subordinate to the authorities described above and have no innate legal validity beyond the 14th Amendment (i.e. as they effect equal treatment). Repeating an inherently unconstitutional, case-law unsupported, and/or legislatively unauthorized ruling does not otherwise legitimize such internal rulings. Question #9: Are any of above bulleted statements misleading or in error? If so, please advise accordingly and provide requisite supporting references.