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  1. #1
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    Default Can You Sue a College for Having Sexual Consent Rules

    My question involves civil rights in the State of: Idaho

    My public university made a policy that threatens to defame and expel any student who breaks it by exercising their free speech. I'm so upset about the threat that my grades declined and I withdrew from my classes, but am still signed up for the fall.

    1. If I drop those classes, will I immediately lose standing to sue for injunction?
    2. I believe my school, like thousands of others, is bowing to threats by federal administrators. Should I sue my school in state court or federal court? (I suspect I don't have standing to challenge the federal administrators directly).
    3. Would I likely have standing under the chilling effect doctrine?
    4. If forcing my school to change its policies puts it at risk of liability from federal administrators, should I just bow out, or am I doing a good thing by challenging this?

    My school says that when two students are kissing each other, they must ask permission for each kiss. The previous kiss does not constitute consent. If they don't ask, that does not mean the school will punish them. But if one of them complains, they will ask the other if they asked permission for that kiss and got a yes. If they say no, they get suspended for sex misconduct. Some students got their names in the paper, though the school denies involvement there.

    I should not have to ask permission 50 times. I met with administrators and asked if their policy really meant what I think it does. They said yes. They want students to ask. I told them that violates my free speech and freedom of association. I should only have to ask the first time, and then pay attention for signs of likely future welcomeness, not certain future welcomeness to the specific action. I'm OK with asking before penile penetration, but not for every other kind of touch 50 times.

    If I date, I must either ask 50 questions until my date kicks me out, or I must know that she can have me expelled and branded for sexual assualt if she wants to. The Department of Justice has also defined sexual assault as any sexual touch without explicit consent. To know you have it, you must ask in advance, otherwise you take a risk. For now I've chosen to not date at all, rather than be forced to choose between the 2. It made me angry. No one follows those rules, yet they threaten to enforce them and do for the unlucky.

    5. Is this unconstitutional? I would love to set a federal precedent striking them all down, but will settle for just my state.


    The justification is that requiring students to get consent first prevents sexual assault. The problem I see with that reasoning is that rapists will just claim they asked for and got consent at every state. The Stanford swimmer claimed just that. Luckily there were witnesses to prove otherwise. All this rule does is control the speech of those who are not sexually assaulting anyone.

    Thank you.

  2. #2
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    Default Re: How Do I Sue My School to Repeal a Policy That Chills Civil Libertiesl

    Guess what? There's no right to freedom of speech in an (even public) university. You being "upset" and allowing your grades to decline isn't anybody's fault but your own.

    1. Injunction for what? An injunction has to have some action that you want to enjoin.
    2. So what?
    3. You've not said anything that indicates a restraint on your speech that the doctrine would apply.
    4. Again, so what? Liability is always a concern for organizations.
    5. No.

  3. #3
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    Default Re: How Do I Sue My School to Repeal a Policy That Chills Civil Libertiesl

    Quote Quoting flyingron
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    Guess what? There's no right to freedom of speech in an (even public) university.
    Not so. There is a right to freedom of speech at a public university. But like all rights, the right to free speech is not absolute.

    But in any event I doubt that a court will say that these rules involve any unwarranted restriction on free speech. As ridiculous as I think this trend on college campuses is for these sorts of rules that require explicit permission for every single touch in a romantic situation, the school is likely allowed to have such rules. I’d vote with my feet and attend a university that does not cave so easily to the liberal position of the day. It’s only when students speak out against this kind of ridiculous policy and threaten to pull their dollars out of the school will administrators actually listen and come up with more realistic policies to deal with campus rape than rules that totally ignore how real people interact.

    But if the OP wants to take it up as a free speech issue, he certainly may try, and he could do so in federal court if he pleases. It will take at least a year to litigate, probably, and cost many thousands of dollars in legal fees. Trying to litigate a case like this without an attorney is pretty much a sure set up for failure. Even with a lawyer, like I said, I doubt the courts will frame this as a first amendment issue so the litigation may still fail anyway.


  4. #4
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    Default Re: Can You Sue a College for Having Sexual Consent Rules

    Quote Quoting MikeSmith321
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    If they don't ask, that does not mean the school will punish them. But if one of them complains, they will ask the other if they asked permission for that kiss and got a yes. If they say no, they get suspended for sex misconduct.... If I date, I must either ask 50 questions until my date kicks me out, or I must know that she can have me expelled and branded for sexual assualt if she wants to.
    As you indicate, these rules only come into play if you are accused of non-consensual sexual activity. If you are obsessed with worry that your partner might accuse you of sexual assault, your actual problem is not the college rules -- it's that you are either exceptionally careless in your choice of sexual partners, or that you resent that you can get into trouble for ignoring your partner's objections if you get a "yes" for the first kiss.

  5. #5
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    Default Re: How Do I Sue My School to Repeal a Policy That Chills Civil Libertiesl

    Begin thread hijack:

    a university that does not cave so easily to the liberal position of the day. Ah yes, things were so much better back when a star athlete could rape someone, get an absurdly light sentence because to actually pay for his actions would "have a severe impact on him"" and then whine that after all, since she was drunk how could anyone say she didn't consent? - oh wait, that happened last month.

    Of course the school policy is absurd. But it's cases like the above that have set the tone for them. Maybe if more guys were able to accept that fact that no one owes him sex because he buys her dinner or a drink, no one would feel the need to set such ridiculous rules.

    End thread hijack

  6. #6
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    Default Re: How Do I Sue My School to Repeal a Policy That Chills Civil Libertiesl

    Quote Quoting cbg
    View Post
    Begin thread hijack:

    a university that does not cave so easily to the liberal position of the day. Ah yes, things were so much better back when a star athlete could rape someone, get an absurdly light sentence because to actually pay for his actions would "have a severe impact on him"" and then whine that after all, since she was drunk how could anyone say she didn't consent? - oh wait, that happened last month.

    Of course the school policy is absurd. But it's cases like the above that have set the tone for them. Maybe if more guys were able to accept that fact that no one owes him sex because he buys her dinner or a drink, no one would feel the need to set such ridiculous rules.

    End thread hijack
    By the same token, we must be extremely wary of creating policies based on emotion and/or moral outrage. It's never good when the pendulum does a complete 180 in either direction.

    But back to this OP. I'm a tad concerned that the policy as described has caused enough turmoil that the OP's grades have actually dropped and he withdrew from classes.

    Why is that?

  7. #7
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    Default Re: How Do I Sue My School to Repeal a Policy That Chills Civil Libertiesl

    There is a HUGE push today on college campuses to doubly assure that all sexual activity is consensual. Yes, many are going overboard, but, it is the plethora of new laws to blame, not so much the universities. These new "affirmative consent" laws are sweeping the country, and in my state of CA they have recently proposed further legislation that will pretty much guarantee that males who have relations with an impaired partner could be charged with rape (never mind that there are already laws on the books addressing this). So, get used to these laws. In fact, some universities actually have legal documents that you can download and have a partner sign. Say goodbye to spontaneity and hello to release of liability.

    Oh, and such laws are NOT unconstitutional. Draconian, perhaps, but, not unconstitutional.
    **********
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  8. #8
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    Default Re: How Do I Sue My School to Repeal a Policy That Chills Civil Libertiesl

    Quote Quoting Dogmatique
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    By the same token, we must be extremely wary of creating policies based on emotion and/or moral outrage. It's never good when the pendulum does a complete 180 in either direction.
    Oh, agreed. I said the policy is ridiculous. I'm just commenting on the culture that created an atmosphere where anyone should think it was necessary at all.

  9. #9
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    Default Re: How Do I Sue My School to Repeal a Policy That Chills Civil Libertiesl

    Quote Quoting cbg
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    Ah yes, things were so much better back when a star athlete could rape someone, get an absurdly light sentence because to actually pay for his actions would "have a severe impact on him"" and then whine that after all, since she was drunk how could anyone say she didn't consent? - oh wait, that happened last month.
    I never said that, never implied that, never said that rape was ever ok, and that you would even imply that is disingenuous at the very least. Note that in no state today, if rape is actually proven, is the student likely to get “an absurdly light sentence.” Have you looked at the rape laws of even your own state? If you have taken any time to look at them you will see that rape sentences are from light.

    The problem with many of these cases is proof; we don’t (or at least shouldn’t) send a guy to prison for years, possibly decades, and saddle him with all the limitations of sex offender status that follows, without proof that he is in fact a rapist. I trust you agree with that, don’t you? Or do you think it ought to be open season on men when rape is alleged, evidence be damned?

    Quote Quoting cbg
    View Post
    Of course the school policy is absurd. But it's cases like the above that have set the tone for them. Maybe if more guys were able to accept that fact that no one owes him sex because he buys her dinner or a drink, no one would feel the need to set such ridiculous rules
    That’s poor argument, and I think you know it. You are in effect justifying a clearly ridiculous rule because a few men (and it is only a few, despite the prominence of this issue lately) commit rape on college campuses. You are saying all men (and though the rule is ostensibly gender neutral I think few would disagree it targets men) deserve to be saddled with a ridiculous rule for the transgressions of a few. Evidently though you believe all (or at least most) men think that a woman “owes him sex because he buys her dinner or a drink” or you’d not have made what to me is an offensive generalization. The generalization is not true. All men do not think that way. All men do not have the mindset of a rapist.

    Our institutions of higher learning are supposed to be run by some of the smartest people we have. And yet this kind of rule is the best they can do to combat college rape? They abrogate their responsibility to student safety when they put out rules like this and then claim that will solve the problem. Does anyone really believe that? I can’t believe colleges say it with a straight face, but they do. Certainly college rape is a serious issue that needs serious attention. Colleges can certainly do better than this to fight the problem without coming up with ridiculous stuff like this.


    Quote Quoting cbg
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    End thread hijack
    That will end my rant of your hijack.

  10. #10
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    Default Re: How Do I Sue My School to Repeal a Policy That Chills Civil Libertiesl

    These rules have nothing to do with any legislative trend, as there is no legislative trend to pass laws that would require anything like these rules. They exist to simplify the lives of college administrators who would rather do something with their time other than trying to address sexual abuse claims between students or deal with the media fallout when their efforts are inadequate or are alleged to be inadequate. While a "he said, she said" element will remain even with this sort of rule, it's probably as close as a college can get to a bright line rule that allows them to impose discipline without having to get into the issue of intent. The rule is not so much about resolving disputes between students as it is about avoiding accusations that the campus has created an atmosphere that tolerates sexual abuse, or negative media coverage associated with that type of allegation.

    If you don't like this type of rule and are inclined to want to identify somebody at whom you can point a finger, it in fact is the administrators who are "to blame".

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