Monday, May 05, 2014

Catholic School Celebrates 'Year of Lady Gaga'

Buyer beware those promising a "Catholic education."

Saint Mary's Institute is the Catholic grade school in my wife's New York hometown, Amsterdam. It is affiliated with Saint Mary's Catholic Church, whose pastor Rev. John Medwid pens the opening to the Saint Mary's Institute annual newsletter.

"In September at the opening Mass I officially announced that this was going to be the Year of Our Lady at SMI," the letter began.

How nice. Except that's not what he wrote. There was someone else he had in mind to honor besides the Virgin Mary.

"In September at the opening Mass I officially announced that this was going to be the Year of Lady Gaga at SMI."

That's what he proclaimed. Apparently during mass, too. Why Lady Gaga? Was every other living or dead female or male on planet Earth or anywhere else unavailable? The answer, he explains, is "complex," which is a euphemism for scandalous.

First, he writes, "many people may not realize that Lady Gaga is the product of Catholic education." (To which the response would be: so was Hitler.) Her real name, he tells us, is Stefani Joanne Angelina Germanotta, as if she were some obscure Italian saint. She is a graduate of the Convent of the Sacred Heart, where — and here we're getting to the point — "she was someone who followed her own path ... It takes a great deal of courage especially for young people to blaze their own trails in life!"

Exactly which trail blazed should Catholic children find commendable?

Was it her attire during the nationally broadcast MTV Video Music Awards last year, watched by millions of children — a thong?

Was it her video earlier this year in which she simulates all manner of sexual activities while bizarrely "resurrecting" from their tombs Michael Jackson, Mahatma Gandhi and — maybe this was it? — Jesus Christ?

Was it her song "Judas" in which she proclaims: "I'm still in love with Judas, baby. Jesus is my virtue," but "Judas is the demon that I cling to"?

Was it how she constantly promotes gay themes in her music and bashes the military for its treatment of gays? Or maybe she's a trailblazer of another sort.

Speaking at a gay-left dinner in 2011, President Barack Obama began by joking, "I took a trip out to California last week, where I held some productive bilateral talks with your leader, Lady Gaga."

Medwid's second reason for having a Catholic grade school honor Lady Gaga is also vague. It is "to highlight her immense creativity."

Was Medwid impressed when Lady Gaga said of Pope Benedict XVI, "What the Pope thinks of being gay does not matter to the world"?

Maybe it was the video "Alejandro" he found so immensely creative. In it she dressed in a nun's habit, swallowed a rosary and engaged in simulated erotic activities with her male backup dancers. As the Catholic League's Bill Donohue put it, Lady Gaga "has now become the new poster girl for American decadence and Catholic bashing."

Maybe it was her "Marry the Night" music video in which she depicts herself having an abortion.

Maybe it was the song she deliberately released on Christmas Day, "Stuck on F—-in You" (and no, nothing's edited in the song).

Maybe it's other creative talents grade school children can admire. A couple of years ago Lady Gaga released a new fragrance called "Fame." She referred to the scent as "a very slutty perfume." She boasted: "It was taken out of my own blood sample, so it's a sense of having me on your skin. I wanted to extract sort of the feeling and sense of blood and semen ... "

Or is it just her mind we should celebrate, as when she stated on an MTV program in 2010: "For me this evening, if we don't stand up for what we believe in, and if we don't fight for our rights pretty soon, we're going to have as much rights as the meat on our own bones. And, I'm not a piece of meat."

That statement by Lady Gaga makes just about as much sense as a supposedly Catholic grade school, bearing the highest of responsibilities - providing a moral education to children — honoring her.


CAIR's Hypocrisy At America's Schools

Earlier this month, the Muslim Students Association and the Council for American-Islamic Relations (CAIR) jointly hosted a Muslim Youth Leadership symposium at George Washington University, open to all Muslims aged 14-22. No featured speakers were publicly named for the event, but the panels and workshops are listed on CAIR's website - including the alluringly-titled, "How To Get What You Want: Politicking 101."

It's an appropriate topic for a CAIR event: the Hamas-linked organization is a champion at getting what it wants," and ironically, given the nature of this event and its venue, its officials have become particularly adept of late at "getting what they want" at schools and universities. Academia, you might even say, has become CAIR's latest target, and its newest tool - not only in its campaign to silence critics of Islam - but too, to promote and spread messages of pro-Muslim hate groups among American Muslim youth.

Best-known of CAIR's manipulations on college campuses is its recent success persuading Brandeis University president Frederick Lawrence to rescind his offer of an honorary degree to Ayaan Hirsi Ali, the controversial Somali-born women's rights activist whose often-strident, but deeply insightful anti-Islam speeches Lawrence called "inconsistent with Brandeis University's core values."

But Brandeis was just one in a lengthening chain of such incidents. Simultaneous with the Brandeis affair, CAIR also drove Knox County, Tenn. to revoke permission for an event scheduled at a local high school, aimed, according to its organizer, ACT! For America, at informing the public about Sharia law. In a statement, Knox County Superintendent Jim McIntyre explained his decision: "The primary purpose of our school facilities is to provide a safe, healthy and comfortable learning environment for our students. When other uses of the facility begin to impinge on or interfere with the administration's ability to provide a suitable education atmosphere, it is necessary for us to reconsider that use."

In response, ACT! For America observed pointedly: "Why is it that Muslims engage in teaching about how good Islam is for Tennessee at the Cedar Bluff Library - a public building - but feel 'uncomfortable' when ACT! For America plans an event to show the opposite viewpoint at a public building?"

What ACT! neglected to point out was the salient fact that this is not just any public building, but a school - a forum for the exchange of ideas and for learning. So important is the "freedom of expression" in schools that even CAIR claims to champion it. Earlier this month, the organization successfully campaigned to defeat a measure that "would have restricted student groups at Maryland's public colleges and universities from supporting boycotts of foreign countries like Israel." While CAIR's support for the right to boycott is valid, its reasoning is less so, focusing "protest against Israel's illegal occupation of Palestinian territory and human rights abuses against Palestinians." (Note that it does not suggest supporting boycotts "of foreign countries like Iran" or other Islamic countries where human rights abuses are endemic.)

But evidently that "free expression" has its limits, at least for CAIR, which seems to find the free exchange of some ideas a threat. Take, for example, the goings-on in Ohio, where the nice people at CAIR are demanding an investigation into the activities of Oberlin College Arabic Professor Samir Amin Abdellatif, charging him with "anti-Muslim bigotry and crude stereotypes of Muslims in his writings and on campus.

Abdellatif gained notoriety with the (self)-publication of his treatise, The Unknown History of Islam, which CAIR claims is riddled with "outlandish conspiracy theories about the Muslim [sic] and promotes xenophobic views about Muslim immigration to the West." Oberlin, CAIR warned the school's president in a letter, risks "tarnishing" its reputation by keeping the tenured Abdellatif on its faculty.

But Abdellatif's colleagues see it differently, according to a source I contacted at Oberlin. Rather, he is known for emphasizing stereotypes of all kinds in his lectures, based on the belief that all stereotypes contain a kernel of truth. "That is what he teaches," according to my source. "So if Abdellatif's academic thesis about stereotypes is taken out of context, I suspect it could be seen as promoting anti-Muslim bigotry and crude stereotypes." But then, taking anything out of context can be viewed in any way one wants to twist it.

In truth, it is not Oberlin's reputation Abdellatif stands to tarnish, but that of the school's French Professor Ali Yedes. A Muslim, Yedes, who has been embroiled in several lawsuits involving the college, now stands accused of sexual harassment, and of issuing death threats to fellow French professor Eunjun (Grace) An.

Ms. An is now suing the college for failing to protect her from his menace.

Yedes accused An of "betraying" him in January, 2006, and informed her that "in his culture, he could have her killed because of his perceived mistreatment by her," the lawsuit said. Abdellatif, who claims that Yedes also told him he planned to kill "an Asian French professor at Oberlin," is a witness in her suit.

It gets more complicated. CAIR says Oberlin is also trying to fire the tenured Yedes, who serves as an adviser to the school's Muslim Student Association (MSA) - a national group with ties to the Muslim Brotherhood. And the school is counting on Abdellatif to testify against Yedes on their behalf.

Could this be why CAIR wants him gone? It is striking that an organization that claims to stand for justice and civil rights has done nothing to reprimand Professor Yedes for his alleged threats against Professor An. Or do their officials not view his statements, like Abdellatif's, as "outlandish" misrepresentations of Islam? Do they feel it is appropriate for students to be exposed to his views (as they are alleged), but not to those of ACT! For America - or, for that matter, Samir Abdellatif?

Perhaps so. CAIR officials have never indicated concern about the well-being of students exposed to the ideas expressed by various speakers at colleges around the country, all invited by local MSA chapters -speakers such as Abdel Malik Ali, who in 2006 told an audience at Chaffey College that Zionists, not the Danes, were behind the controversial Danish cartoons that caused worldwide rioting among Muslims that year.

Nor did they seem distressed when Mohammed Al Asi also condemned Israel and the Jews at the University of California, Irvine, stating, "It's about time we begin to open our eyes, see for ourselves, and identify this cancerous presence of the Israeli interest that has taken over the American body politic."

But maybe this is all part of what CAIR sees as "How To Get What You Want:" promote what you want people to hear, censor the rest, and manipulate the law and Constitution to serve your purposes. However, if CAIR plans to teach Muslim youth in America that they can and should use bullying and propaganda to "get their way," it is all the more important that we teach them otherwise. Unless we do, we'll find that they grow up to be, like CAIR itself, far more Islamist than American. And that is a risk we can't afford to take.


White House Task Force attacks cross-examination & due process rights on campus

Hans Bader   

Supreme Court Justice Louis Brandeis once noted that “The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.”

However well-meaning it may be, the Obama administration’s “guidance” this week on campus rape and sexual harassment contains insidious attacks on cross-examination and due-process rights (as KC Johnson discussed at Minding the Campus.) As the White House Task Force Report notes (pg. 19), “this new guidance clarifies that: . . . the parties should not be allowed to personally cross-examine each other.” Similarly, the Education Department’s accompanying guidance says (pg. 31): “OCR strongly discourages a school from allowing the parties to personally question or cross-examine each other during a hearing on alleged sexual violence.”

These attacks by the administration ignore the fact that the Supreme Court has lauded cross-examination as the “greatest legal engine ever invented for the discovery of truth.” (See Lilly v. Virginia, 527 U.S. 116, 124 (1999).) The new guidance will create serious legal problems for both public and private colleges, as I will explain in future commentaries (colleges that do not follow the administration’s “guidance” risk having their federal funds cut off, and financial aid to their students terminated).

As I explained over a year ago, the Education Department’s attack on cross-examination has no legal basis, especially since cross-examination is permitted all the time in sexual harassment cases in court, showing that cross-examination is entirely consistent with the civil-rights laws. While there is no independent constitutional right to cross-examine in campus disciplinary proceedings, the right has sometimes been afforded by state education codes, collective bargaining agreements, or other contracts or regulations. Title IX does not require that these be disregarded, contrary to the Obama administration’s suggestions. Indeed, as the Supreme Court observed in its Davis decision, a school is entitled “to refrain from” disciplinary action that “would expose it to constitutional or statutory claims,” without risking Title IX liability.

More importantly, in a handful of campus disciplinary cases, such as Donohue v. Baker (1997), judges have ruled that cross-examination was constitutionally required on due-process grounds to test the credibility of the accuser.

The Obama administration’s guidance also overreaches in demanding that schools alter the burden of proof they use in disciplinary proceedings. On page 25 it says, “The school must use a preponderance-of-the-evidence . . . standard in any Title IX proceedings, including any fact-finding and hearings,” rather than a higher standard, like the traditional “clear and convincing evidence” standard. The Obama administration previously demanded that schools stop using the “clear and convincing” evidence standard, in an April 4, 2011 “Dear Colleague” letter to the nation’s colleges and schools.

For examples of seemingly-innocent students expelled or suspended from school based on very weak evidence, in the aftermath of the Education Department’s “Dear Colleague” letter, see here, here, here, here, here, here, and here.

In addition to attacking cross-examination, the guidance would also violate due process by unfairly preventing a student from exonerating himself based on relevant “sexual history” evidence permitted by even the most complainant-protective rape-shield and sexual-harassment-shield statutes (like Federal Rule of Evidence 412(b)). Federal rules of evidence permit the introduction of physical evidence suggesting that “someone other than the defendant” was involved (in certain rape cases), and permit evidence in sexual harassment cases of the complainant’s “sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party,” such as whether the complainant earlier willingly engaged in a category of activity (such as sexual banter) that he or she later claimed to categorically hate engaging in.

The Education Department’s new guidance flatly bans any questioning about “sexual history” with people other than the accused, which may or may not extend beyond physical sexual activity to things like verbal discussion of sexual fantasies, which could be highly relevant in some cases. On page 31, it says, “May the complainant’s sexual history be introduced at hearings? Answer: Questioning about the complainant’s sexual history with anyone other than the alleged perpetrator should not be permitted.”

The Obama administration’s attack on cross-examination will undermine accuracy in campus disciplinary proceedings. The subjective component of the legal definition of sexual harassment means that there is no category of cases in which cross-examination is more useful or essential to ensure due process. To legally qualify as sexual harassment under Title IX, or racial harassment under Title VI, speech must be severe and pervasive enough to create a hostile learning environment for the listener, and interfere with the listener’s education, both in subjective and objective terms, according to court rulings like the Supreme Court’s 1999 Davis decision.

Transitory offense is not enough. If the accuser admits on questioning that she did not really view the offensive speech as being a “big deal,” or was not shocked or surprised by it, that probably rules out the existence of a subjectively hostile environment. Indeed, a federal appeals court dismissed a racial harassment claim for just that reason in Newman v. Federal Express Corp., 266 F.3d 401 (6th Cir. 2001).

But a wrongly-accused person may not be able to establish the absence of a subjectively-hostile atmosphere without questioning the accuser, and may not be able to show that the accuser wasn’t greatly impacted by the speech without cross-examining the accuser about its alleged effect on her and her studies, such as whether she continued to enjoy her college experience after overhearing the allegedly “harassing” remarks.

There is a fine line between protected speech about unpleasant sexual topics and unprotected sexual harassment, and it is crucial that accused people be able to prove that their speech did not amount to sexual harassment. Even sexually vulgar speech on political issues is protected on college campuses, as the Supreme Court’s Papish decision illustrates.

And perfectly civil, non-vulgar students have been subjected to disciplinary proceedings for sexual and racial harassment, in violation of the First Amendment, merely for expressing commonplace opinions about sexual and racial issues, like criticizing feminism or affirmative action, or discussing the racial implications of the death penalty. (See the examples cited in the Amicus brief of Students for Individual Liberty, et al., in Davis v. Monroe County Board of Education, available at 1998 WL 847365.)

To adequately defend themselves against sexual harassment charges over speech on sexual topics that doesn’t really amount to sexual harassment, people who are wrongly accused of sexual harassment will sometimes need to cross-examine their accuser to show that their speech did not really have any sexually harassing effect, and thus did not legally amount to sexual harassment, despite their accuser’s attempt to make a mountain out of a molehill. The Education Department’s attack on cross-examination will lead to free-speech violations, by resulting in students being convicted of harassment even when their speech did not create a subjectively-hostile environment, much less interfere with the accuser’s educational opportunities.

If the speech has not created such an environment, it has not caused tangible harm, and cannot be banned merely because a hypothetical listener might have objected to it. For example, in Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351 (Or. 1995), the Oregon Supreme Court struck down a religious small-business owner’s fine for religious harassment because the state agency’s harassment rule violated religious-freedom guarantees. Justice Unis, in his concurrence, noted that the rule also violated free speech, and was unconstitutionally overbroad, because it only required that the speech create a hostile environment for a hypothetical reasonable person — not for the actual complainant, who did not need to experience a subjectively-hostile environment.

The Education Department also orders colleges to use the lowest standard of proof in disciplinary proceedings over alleged sexual harassment and rape, known as the preponderance standard. Historically, most colleges and universities used a higher, “clear and convincing” evidence standard in student and faculty discipline cases of all types, to safeguard due process. As James Picozzi noted in 1987 in the Yale Law Journal, “Courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” (James M. Picozzi, University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale L. J. 2132, 2159 n. 17 (1987); see also Nicholas Trott Long, The Standard of Proof in Student Disciplinary Cases, 12 J. College & U.L. 71 (1985).) Contrary to the Education Department’s claims, Title IX does not require a lower standard of evidence.

I earlier explained why the Education Department’s demand that colleges lower the standard of proof is legally erroneous, violates the Administrative Procedure Act, and is not required by Title IX at this link. I explained at a separate link why courts should not defer to the Education Department’s “guidance” on this subject due to its procedural and logical flaws.

The demand that colleges lower the standard of proof was originally made in a 2011 Education Department letter to school officials, known as the “Dear Colleague” letter. Its demands were criticized by many legal scholars, law professors, lawyers, civil-libertarians, and journalists, as well as groups like American Association of University Professors and the Foundation for Individual Rights in Education.


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