CEI’s Myron Ebell Hopes EPA Court Filing Will End Clean Power Plan “In Its Entirety”

Source: Competitive Enterprise Institute

Washington, D.C. - October 7, 2017 (The Ponder News) -- In anticipation of the Environmental Protection Agency’s upcoming filing in the litigation concerning the so-called Clean Power Plan, the Competitive Enterprise Institute’s Myron Ebell said:

“If it had gone into effect, the ‘Clean Power’ Plan rule to limit greenhouse gas emissions from coal and natural gas power plants would have been one of the most expensive regulations ever imposed, causing electric rates for consumers to go up and threatening the reliability of the electric grid.

“We hope that in its court filing the EPA will propose to rescind the so-called Clean Power Plan in its entirety. Whether it should be replaced by a more modest regulation is something that can be discussed, and it is our understanding that this is what the EPA plans to do with an Advance Notice of Proposed Rulemaking.

“The Supreme Court blocked implementation of the rule in February 2016. There is little doubt that the court would have eventually decided that the rule is illegal. Thus the EPA under Administrator Scott Pruitt is not only doing the right thing for the economy, but is also simply following the laws that govern regulatory activity.

“Scrapping the ‘Clean Power’ Plan is a key part of President Trump’s de-regulatory agenda, which is designed to get the economy moving again. This rule and other greenhouse gas emissions rules are depressing investment and job growth in resource and manufacturing industries.”

See more from CEI on the Clean Power Plan here.

Hypersensitivity in Title IX Enforcement

Source: Competitive Enterprise Institute

Los Angeles, CA - September 22, 2017  (The Ponder News) -- Los Angeles lawyer Ken White notes that a professor is being “investigated for writing about being investigated for writing about being investigated.” This Title IX investigation has apparently been going on since last May, making it longer than some other investigations that courts have ruled unconstitutional due to their speech-chilling nature.

Previously, Northwestern University investigated Professor Laura Kipnis after she wrote an essay for The Chronicle of Higher Education titled “Sexual Paranoia Strikes Academe,” which hypersensitive students claimed offended them and constituted sexual harassment in violation of Title IX, the federal statute against sex discrimination in educational institutions. After Kipnis defended herself against the harassment charges on Twitter, students then accused her of “retaliation” in violation of Title IX.  After an outcry from free speech advocates, charges were shelved months later.

These charges against Kipnis over an off-campus essay were made possible by the Obama administration. It changed the Education Department’s interpretation of Title IX to require colleges to investigate even off-campus student or faculty conduct alleged to constitute sexual harassment or assault. The Obama administration’s position was at odds with federal court rulings saying that Title IX does not apply off campus, such as Roe v. St. Louis University (2014).

One of Kipnis’s accusers then filed a defamation suit against Kipnis for her book Unwanted Advances: Sexual Paranoia Comes to Campus, which cast aspersions on a student’s sexual harassment claims against a former professor.

In May 2016, several Northwestern students—including the one who is suing Kipnis—then filed a Title IX complaint against the professor over her book. The University then launched an investigation, which has yet to reach a conclusion.

A lengthy investigation of a person’s speech can violate the First Amendment through its chilling effect, even if the person is never found guilty. For example, a federal appeals court found that an eight month-long civil rights investigation of citizens for their speech opposing a minority housing project protected by the Fair Housing Act was a clear violation of First Amendment rights, in White v. Lee, 227 F.3d 1214 (9th Cir. 2000).

However, Northwestern University is a private university, and thus is not bound by the First Amendment. So Kipnis would have to show that federal pressure or policies caused the investigation of her before she could sue under the First Amendment.

These endless complaints against Kipnis are facilitated by other actions taken by the Obama administration, which left the misimpression that even unreasonable and false allegations of harassment and retaliation are protected by Title IX. According to the courts, sexual harassment allegations made to campus officials are not protected against retaliation if they are either (a) factually false, or (b) based on an unreasonable misinterpretation of what constitutes sexual harassment. [See Vasconcelos v. Meese, 907 F.2d 11 (9th Cir. 1990) (false allegations not protected); Clark County School District v. Breeden, 532 U.S. 268 (2001) (unreasonable allegation not protected, such as complaint about fleeting exposure to sexual material that no reasonable person could have viewed as “severe” or “pervasive”)].

But in its publicly available letters of findings in Title IX investigations, the Education Department’s Office for Civil Rights fails to acknowledge that false allegations are not protected, and in 2016, one OCR staff attorney took the position that “reasonableness” should not be used in assessing harassment allegations. In 2015, an OCR regional office found that a student who made false allegations was entitled to Title IX “remedies” against a college. In its investigation of Michigan State University, it required college officials to offer “remedies” such as academic adjustments to “Student A,” whom both it and the University found had made a false allegation of sexual assault against two students. The Education Department’s strange logic was that the university did not begin proceedings against the accused students fast enough—even though it immediately kicked them out of their dorm and ordered them to stay away from the accuser. Such “interim remedies” against accused students who are never found guilty raise serious due-process issues. [See, e.g., Tyree v. Evans, 728 A.2d 101 (D.C. 1999) (due process required opportunity to cross-examine accuser before imposition of one-year no-contact order); Alberti v. Cruise, 383 F.2d 268 (4th Cir. 1967) (overly broad no-contact order violated First Amendment)].

Harvard Law Professor Jeannie Suk Gerson provides disturbing details about the ongoing investigation of Kipnis at The New Yorker:

Kipnis… was surprised when Northwestern once again launched a formal Title IX investigation of her writing. … [I]nvestigators presented her with a spreadsheet laying out dozens of quotations from her book, along with at least eighty written questions, such as “What do you mean by this statement?,” “What is the source/are the sources for this information?,” and “How do you respond to the allegation that this detail is not necessary to your argument and that its inclusion is evidence of retaliatory intent on your part?” Kipnis chose not to answer any questions, following the standard advice of counsel defending the court case.

She did submit a statement saying that “these complaints seem like an attempt to bend the campus judicial system to punish someone whose work involves questioning the campus judicial system, just as bringing Title IX complaints over my first Chronicle essay attempted to do two years ago.” In other words, the process was the punishment. Possible evidence of retaliatory purpose, she learned, included statements in the book that aggressively staked out her refusal to keep quiet. …Her prior Title IX investigation, she writes, “has made me a little mad and possibly a little dangerous. ... I mean, having been hauled up on complaints once, what do I have to lose? ‘Confidentiality’? ‘Conduct befitting a professor’? Kiss my ass. In other words, thank you to my accusers: unwitting collaborators, accidental muses.” Also presented as possible evidence was her Facebook post quoting a book review—“Kipnis doesn’t seem like the sort of enemy you’d want to attract, let alone help create”—on which Kipnis had commented, “I love that.”

The Foundation for Individual Rights in Education says that in addition to trampling on academic freedom, the investigation of Kipnis also seems to contradict the logic of a Bush-era 2003 Education Department guidance document that was never withdrawn by the Obama administration.

As Reason’s Robby Soave notes:

It should be obvious that the text of Title IX does not empower university officials to investigate tenured professors for criticizing Title IX, nor was the law intended to weaponize students' grievances. Kipnis’s ongoing ordeal is a testament to the pressing need for the Education Department to rein in the Obama-era guidance that spawned this madness, and a reminder that Secretary Betsy DeVos is wholly justified in doing just that.

I earlier explained why Education Secretary Betsy DeVos was correct to criticize Obama-era Title IX interpretations at this link, since those interpretations undermine free speech and student and faculty rights on campus.

Response to Washington Post Account of CEI's Victory on Paris Climate Decision

Source: Competitive Enterprise Institute

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Washington, D.C. - September 7, 2017 (The Ponder News) -- Competitive Enterprise Institute President Kent Lassman released the following statement in response to Robert O’Harrow’s article in The Washington Post about CEI’s Myron Ebell, the Cooler Heads Coalition, and their work relevant to President Trump’s decision to withdraw the U.S. from the Paris Climate Agreement. The article also challenges the role and independence of think tanks in public policy debates.

"Although The Washington Post’s story about CEI, Myron Ebell, and the Cooler Heads Coalition correctly identifies the success that CEI and the Cooler Heads organizations have had debunking global warming alarmism and exposing the devastating, regulatory onslaught that comes along with it, the Post fails to show Americans how public policy groups like CEI help cut through the rhetoric and bring people together on the merits of policies rather than short-sighted politics. Thanks to Myron and Cooler Heads, millions of people continue to have access to reliable and affordable energy, a resource that has lifted people out of poverty around the globe.

“The Post spends a lot of space questioning CEI's nonprofit status and activities, while conveniently ignoring groups 10 times our size. These organizations advocate for radical changes in our national energy policies and rely upon the very same IRS provisions. We can, and should, debate what the climate science shows and the policies we should implement as a result. But, what we cannot stand for are ideologues who weaponize data, spread junk science, and stoke fears to force political decisions that will take away Americans’ freedoms, undermine the U.S. Constitution, and jeopardize our national interests.” ​