by Reuben Guttman, Founding member, Guttman,Buschner & Brooks PLLC
*This piece was originally posted on Huffington Post.
There is a scene in the movie Private Parts – the life and career of Howard Stern – where NBC officials, committed to dumping the shock jock, check out the latest ratings and learn, to their dismay, that the DJ’s popularity has rocketed. Pouring through the data, they find that the “number one reason” people tune into Stern is because they are waiting to hear what he will say next.
For all the time that Donald Trump spent on the Stern show, this may be the one lesson he learned. From North Korea’s “rocket man” to “crooked Hillary,” and a dash of Ryan and McConnell bashing, people tune in to this President to hear what he will say or tweet next. For their part, the members of the news media seem to fixate on Trumpian commotion.
Call him the great distractor. While the world focuses on Trump and wonders what he will do or say next, his minions are busy dismantling government. It is as if the Trumpeteers are robbing the rule of law while Trump is distracting the security guards.
Consider Department of Education Secretary Betsy DeVos. Last month – before the Harvey Weinstein sexual harassment scandal broke – the Secretary appeared before an audience at George Mason University and spoke about Title IX enforcement.
Promulgated by Congress 45 years ago, Title IX ensures that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any education program or activity receiving federal financial assistance.” Title IX is part of a myriad of civil rights laws enforced by the Department of Education’s Office for Civil Rights. These laws also proscribe discrimination based on race, color, national origin, disability, and age.
For her part, DeVos spoke out against campus sexual misconduct, noting that she is “grateful to those who endeavored to end sexual misconduct on campuses.” It was – at one level – a seemingly uneventful speech. Yet, on another level, it was a speech replete with dog-whistle-like messaging communicating an intent to dismantle regulation proscribing sexual harassment and discrimination at our nation’s colleges.
Referring to an unidentified school official, DeVos said she was told that the Department’s “Office for Civil Rights has ‘terrified’ schools.” Citing another unnamed school official, DeVos noted that “[o]ne university leader was rightly appalled when he was asked by an Office for Civil Rights official: ‘Why do you care about the rights of the accused?’” Referring to required processes to investigate and address sexual harassment, DeVos said, “It’s no wonder so many call these proceedings ‘kangaroo courts.’” She complained that “[t]his failed system has generated ‘hundreds upon hundreds of cases’ at the Office for Civil Rights while generating “dozens upon dozens of lawsuits” filed “by students punished for sexual misconduct.” And – like her boss who freely opines on matters squarely within the orbit of an independent judicial process – she spoke of a football player who had been dismissed from school – in her mind wrongfully – because he had been determined to have engaged in sexual harassment. “There are men and women, boys and girls, who are survivors, and there are men and women, boys and girls who are wrongfully accused,” said DeVos.
And DeVos said this: “Punishing speech protected by the First Amendment trivializes actual harassment. It teaches students the wrong lesson about the importance of free speech in our democracy.”
No Madam Secretary; you are wrong! Our nation has long regulated speech when it hinders equal opportunity in employment, housing, public accommodation, and, yes, education. And at least in the employment context, our half-century-old civil rights laws view the legality of the speech from the vantage point of the listener and not the speaker. And no Madam Secretary, it is not for you to determine how much a woman will take before it is called harassment.
The Secretary of Education has now telegraphed her intention to dismantle Title IX compliance enforcement. If this were the only regulatory scheme that Trump’s minions were trashing, it would be tragic but perhaps manageable. Unfortunately, there are regulatory wrecking balls at all government agencies. And, of course, trade agreements and nuclear non-proliferation agreements are not safe from demise.
At some point the Trump presidency will end. We will than begin the process of picking through the rubble of a dismantled regulatory system that once fostered equal opportunity from education to the workplace and housing, protected workers on the job from hazard, and safeguarded our natural resources from contaminants. The measure of our task will of course depend on how much damage we can prevent, and prevention means not being distracted by the side show of the great distractor Donald Trump.