Feb 072016

If Congress Wants to Reassert Its Constitutional Powers, It Needs to Start with the Dept. of Education Office for Civil Rights


February 7, 2016

Last Tuesday, Sen. Mike Lee of Utah and Rep. Jeb Hensarling of Texas admitted in a National Review editorial, “The federal government is broken. And while there is plenty of blame to go around, only Congress can fix it.”

At a Hillsdale College event the next day, Sen. Lee expounded on the priorities of the newly established Article 1 Project – “A1P” for short:

First, reclaiming Congress’ power of purse; second, reforming legislative cliffs; third, reasserting congressional authority over regulations and regulators; and finally, curbing executive discretion.

During the question-and-answer period that followed, discussion focused on the Department of Education’s Office for Civil Rights. In recent years, the OCR has issued a series of policy directives that dramatically expand the Supreme Court’s definition of campus sexual harassment (see Davis v. Monroe). These directives remove any requirement that the alleged incident be “objectively” offensive. As a result, basic principles of free speech and due process on campus have become upended.

Two OCR Dear Colleague Letters have attracted particular criticism: the 2010 DCL on bullying and the 2011 DCL on sexual assault. Even though these DCLs impose substantive new policy mandates on colleges, they did not comply with Administrative Procedure Act requirements for public review and comment. Hence, these DCLs were issued in an unlawful manner.

The policies required by these DCLs have drawn condemnation from law school professors, members of the United States Commission on Civil Rights, higher education organizations, and media representatives. Former ACLU president Nadine Strossen recently explained:

By threatening to pull federal funds, the OCR has forced schools, even well-endowed schools like Harvard, to adopt sexual misconduct policies that violate many civil liberties…OCR’s flawed sexual harassment concept reflects sexist stereotypes that are equally insulting to women and men.

These concerns were highlighted in a January 7, 2016 letter from the Senate Committee on Homeland Security and Governmental Affairs to Department of Education Secretary John King: http://www.lankford.senate.gov/imo/media/doc/Sen.%20Lankford%20letter%20to%20Dept.%20of%20Education%201.7.16.pdf

So what needs to be done to rein in the roguish behavior of the Office for Civil Rights?

  1. Require the OCR to comply with the Administrative Procedure Act and stop its illegal issuance of Dear Colleague Letters that lack proper statutory or regulatory authority.
  2. Require the OCR to bring previously issued policy directives into compliance with APA requirements.
  3. Hold oversight hearings to assure OCR accountability and transparency.
  4. Fund the OCR through regular order, i.e., by means of the annual HELP appropriations bill, not via an omnibus bill.
  5. Not pass proposed bills that represent tacit endorsements of unlawful OCR policies. For example, the Campus Safety Accountability and Safety Act (S. 590 and H.R. 1310) would serve to consolidate and expand upon the policies enumerated in OCR’s unlawful 2011 Dear Colleague Letter on sexual assault.

Additional recommendations on how to rein in the OCR are contained in the bi-partisan report commissioned by the Senate HELP Committee, “Recalibrating Regulation of Colleges and Universities.”

More information: www.saveservices.org/sexual-assault/ocr

Feb 012016

Sexual Assault: The Accused Speaks Out

Emily Shire
January 28, 2016

Matthew* adored his small liberal arts college—until he was charged with and, ultimately, issued a semester-long suspension for non-consensual sexual intercourse with another male student.

“One of the key phrases was ‘We found you guilty. Plan on not booking a flight back.’ That still punches me in the stomach,” Matthew told The Daily Beast. “The following day, I had an 8 a.m. flight, I was up till 3 a.m. I had to pack up all of my room.”

His love and trust in his college completely changed when he was notified that the school was “investigating two alleged incidents of nonconsensual sexual intercourse,” according to the letter Matthew received from the Office of Title IX Coordination, which he shared with The Daily Beast. (Title IX is a statute that prohibits sex-based discrimination in schools that receive federal funding, and it is often applied to enforce sexual assault reform.)

Matthew adamantly denied both charges, stating their first encounter was consensual and the second was not actually sexual.

He said at that second encounter, the accuser “led me into a room and started kissing me. I said, ‘I’m not comfortable,’ and he said he needed to go.”

Matthew thought nothing of their most recent encounter, until he was notified a few days later that he had been accused of two counts of sexual assault.
The next couple of months were a devastating time of being “branded a rapist,” he said, on his small campus and breaking into panic attacks every time he crossed paths with his accuser.
“During this process, I learned what it meant to be scared,” he said.
In addition to grappling with what, in his mind, was a false accusation, Matthew lived in fear of further retaliatory charges. He became frightened to be alone on campus, terrified of running into his accuser.

“I had class and tried to do homework and pretend it was all OK, but I was considered a threat. This is a small residential college, so how do you navigate the space where you don’t want to see this person and you can be accused of retaliating?

“What do you do if you go to class and you see this student? You have to turn away because even if you brush against them, you can be accused of retaliating.”
Matthew was disappointed with the investigatory process at his school and felt he had been “unfairly treated.” During our interview, he cited what he saw as many failings in the process, including the fact that the majority of the witnesses he submitted to the Title IX office were never called.

“I do want to recognize sexual assault is real and horrible. I’m happy to know there are procedures and things put in place to bring justice to those who are sexually assaulted. Their stories should be told.
“But in cases like mine, those who abuse the system and use it to hurt other students, whatever ulterior motive, with sexual assault… it is a horrible thing to happen.”

Magnifying the pain and stress of his situation is the fact that this suspension forced him to come out to his parents.

“Can you imagine coming out to your family under the pretenses you’re accused of sexual assault and you’re found guilty? During the investigation, I knew my family would be there to support me, but I could not imagine coming out to them twice: first, as an alleged rapist and second, as someone who is gay.

“I’m struggling with depression,” he said. “I’m struggling with insomnia. I’m struggling to figure out the rest of my life. I’m trying to pick up the pieces.”*
In January 2014, President Obama launched a special task force to investigate rape and sexyl assault on campuses.

On May 1, 2014, the Department of Education revealed 55 schools were under investigation for Title IX violations related to their mishandling of sexual assault cases. That list has since grown to well over 100.

During the past two years, the federal government has stressed how severe a problem sexual assault is on college campuses, often citing that one in five female students are sexually assaulted, with the Bureau of Justice Statistics releasing another study supporting that estimate this past month. This most recent study defined sexual assault as “forced kissing, touching, grabbing or fondling,” according to Inside Higher Ed.
That broad definition has raised concerns about the accuracy of the one-in-five and the even more alarming one-in-four statistic published in 2015 and whether these statistics misleading perpetuate a sense of panic on campuses.

Attorney Andrew Miltenberg estimated that around two years ago, he had only had five or six cases involving male students suing their schools for being wrongfully expelled or suspended for sexual assault or violence.

“There was not a daily flow of calls on this topic, and now there are. In the last 18 to 24 months, the complaints and how to represent and process these disciplinary matters have become an issue,”
Miltenberg told The Daily Beast, saying he has been approached by young men from over 100 different universities over that time seeking his legal counsel.

With the federal government’s efforts in the past two years bringing more attention to campus sexual assault, the media has more often reported the perspective and experiences of victims of sexual assault, understandably so because they had been ignored, stigmatized and, in some cases, actively silenced for so long.

Less frequently reported are the turmoil and hardships for the students accused of sexual assault, as well as the emotional (and financial) anguish suffered by their families during an investigative process that many—including the Harvard Law faculty—argue violate their due process rights.
Miltenberg believed the disciplinary process itself contributes to the emotional turmoil for the students accused of sexual assault.

“It almost feels like the process is part of the punishment,” said Miltenberg. “They [his clients] are suicidal. They are depressed. They are anxious. There is an overwhelming sense of despair because the weight of the institution and the weight of the process are bearing down on them. They are dropping out. They are in therapy.

“The counterpoint is, think of the trauma to the victim, and of course, I do. I have two daughters and a son,” Miltenberg said.

To him, the sexual assault disciplinary process on campuses is a disservice to both the victim and the accused. “There’s something about the way the process is evolving that doesn’t work for the accuser and the accused.”

For this article, I interviewed people I found through Families Advocating For Campus Equality, a group established to provide legal guidance for students who believe they were falsely accused of sexual assault. The students and their parents all described their encounters as completely consensual, even in one case, not in fact sexual in nature.

It goes without saying that this cohort has its own biases and, in some cases, anger.

Nevertheless, these students’ and their families’ stories paint a rarely told account of the emotional and financial hardships of going through the campus sexual assault disciplinary process as someone accused of one of the most heinous crimes possible.
“It’s a heavy burden to bear. The stench never leaves. The stigma attaches no matter how it resolves,” said Miltenberg.

While Matthew is grappling with whether to return to a school that, he believes, punished him for a false accusation, his option is enviable to someone like Alex*, a 23-year-old who asked to have his last name withheld. Alex was expelled from his college in fall of 2014 for sexual assault, six weeks before he was set to graduate.

Alex said officials from his school have refused to answer his or his father’s request for how the disciplinary panel decided to expel him or reject his appeal.

Instead, on the day the decision was reached, he said an administrator simply told him, “You have to pack up all your stuff and be moved off campus by 4 o’clock today.”

Alex, who had been on the school’s football team, described being in a state of shock while trying to quickly pack up his belongings and empty out his locker room before his teammates arrived to avoid the embarrassment of explaining he had been expelled—or why he had been expelled.

“We were all getting ready to go on a bus to go on an away game. I was supposed to go on a bus with them, and I was getting kicked out. I tried to get to the locker room to clean out my locker, but a few were there early. That was really embarrassing. I said goodbye to them. I wished them luck.”

His parents drove close to three hours to pick him up and take him home. After filing his appeal and having it “rubber stamped” with a rejection, as Alex called it, by the Title IX coordinator, his shock turned into depression.

“I was just in a rut. I moped around my house. I didn’t work. I gained weight. I didn’t want to go back to the gym and show my face because everyone thought I was supposed to be at school. I didn’t want to answer questions about why I was there [and not at school]. I thought about the situation and cried myself to sleep. I was borderline suicidal.”

Alex said he decided to start going to therapy this past April, around six months after he was expelled, because “I just knew I wasn’t mentally healthy,” he said. “The thoughts I was having about driving my car off the road into a tree were scaring me. I didn’t want to hurt anyone who loved me. I knew I needed help.”
While Alex said he takes antidepressants every day now (40mg of Celexa) and regularly sees a therapist, he has by no means recovered, financially or emotionally.

“It’s ruined my life. It’s too late to go back to school and pick a different career. I’m embarrassed. It’s put a hold on my life. I still have no degree, nothing to show for it. I feel like everything has just stopped, and I can’t go anywhere,” he said.

Charlotte*, whose son was expelled from a small liberal arts college in the Midwest, said her son struggled with suicidal thoughts from the moment the campus disciplinary process began.

She remembered getting the call that he had been accused of sexual assault—and had been rushed to a psych ward.

“I was at the grocery store with my husband. I get a call from my son and he says, ‘Mom, they’re taking me to the hospital. Carly [editor’s note: not the real name of the female student] is accusing me of rape and I freaked out, and I said what’s the point of living? They’re taking me to the psych ward and I’m scared,’” she told The Daily Beast.

“He said he had a plan for how he was going to carry out suicide,” Charlotte said.

Her son was initially suspended a year, but when his accuser wrote a letter appealing and begging for a harsher punishment, he was expelled, Charlotte said.
“I still have fears that the suicide thing might come back,” Charlotte said. “He’s assured me that he’s fine, but he’s not moving on. He’ll do chores around the house if I ask him. It has to be very specific direct requests. He doesn’t have a lot of internal motivation.
“I feel this whole thing has killed the son I had. This is not my son. He was so driven, so motivated. He had this whole plan, and now, it’s like he’s dead.”
Parents interviewed for this article echoed this description of the dramatic mental health toll of their sons’ experiences of being falsely accused of sexual assault on college campuses—even when they were ultimately found not guilty of the charges.

Abby* said her son was charged with sexual assault as a freshman at Southern Methodist University (SMU), even after a grand jury declined to indict him for the alleged incident.

Her son was found not guilty by the school by his sophomore year, according to Abby.

However, even though a college investigation at SMU exonerated her son, Abby said he has been irreparably emotionally changed by the disciplinary process. She said it was far worse that the criminal investigation and grand jury process.

“As terrifying as going through the legal process—the potential was 22 years in the federal pen, which is a terrifying thought—knowing he didn’t do something wrong, we thought the truth would prevail,” Abby told The Daily Beast. “And it did. He got through that pretty well. He had his rights and his rights were upheld.”
But the mental health problems he now suffers are a result of the protracted school disciplinary process and “mind games on the part of administrators,” she said.

SMU is not one of the universities under federal investigation for violating Title IX in its handling of sexual assault.

“When we started down the path for the school disciplinary process, it blew out of control. You’re hearing no harm no foul. But it’s not fine. He’s not the same person he was. He will not be the same person he was,” Abby said.

She recalled how the formerly optimistic, cheerful boy her son was vanished after the school investigation.
“He was probably in middle school, and I said, ‘The glass is always half full for you,’ and he said, ‘Oh, no, for me the glass is always filled to the brim.’ That’s how he looked at life,” Abby said.

It’s a stark contrast to the life she said her son now leads, fearful of leaving his apartment and suffering from PTSD, depression, and anxiety.
Abby said multiple psychiatrists diagnosed these mental health disorders as direct results of the trauma caused by his former university’s disciplinary process. He has been unable to complete a semester at his new college.

When asked to comment on the allegation that the school’s sexual assault investigatory process directly resulted in an accused student’s development of depression, anxiety, and PTSD, SMU’s Office Of Public Affairs told The Daily Beast in an emailed statement: “SMU takes each report of sexual assault seriously and follows its procedures, in accordance with the federal law Title IX of the Education Amendments of 1972, state law and university policy. The university recognizes that these cases are complex and can have significant consequences for all involved.”
When Abby and I spoke, she said her son had officially withdrawn from his new school for a second time, five days into the semester.

“He can’t go out to a restaurant. It’s too stressful. Those [PTSD] victims seek a safe place. When they carve out that safe place, they don’t leave it. He doesn’t go out to the grocery store. He orders in,” she said.

“He called me the other day sobbing, ‘I’m so tired of this. I just want this to go away.’ That’s the norm now,” she said. The fact that her son was exonerated is of cold comfort.

“You see your kid destroyed through no fault of his own. The destruction this has caused is just unbelievable. In part, too, it’s frustrating because everyone says, ‘Oh, great. Everything worked out.’ Well actually, no. He may as well have been expelled because he hasn’t been able to finish a college semester since.”

Miltenberg made the same point, stressing that regardless of whether the judicial outcome for his clients were positive and negative, they did not fully recover from the process.

“I’ve talked to over 100 young men. Not one of them is OK after this experience,” Miltenberg said. “Whether we have settled or gotten the student reinstated, not one of them is OK, and the result [of his legal efforts] is not having that much of an impact on how traumatized they are from the process.”

Alex said he feels especially bad about the financial stress his sexual assault expulsion has placed on his family. Even with the help of his parents, he is struggling to pay student loans on a degree that never materialized and legal bills for hiring an outside attorney to advise him on battling a crime he said he didn’t commit.
“I still live with my family. I’ll only move out in my wildest dreams… I’m just wasting my time, wasting my life, and staying at my parents’ house. I can’t grow up and be an adult and start my life. That’s the most depressing and frustrating thing.”

Every person interviewed said their family had spent at least tens of thousands of dollars for legal and/or mental health counseling in response to the sexual assault allegation.

One mother said she and her husband had already incurred six-figures worth of debt.

Alex said his family has already accrued at least $30,000 in debt, but he’s determined to have justice—so much so that he worked three jobs this past summer.

“I did construction Monday through Friday. I coached Crossfit with private clients at the gym. I did security at casinos over the weekend. All the money has gone to student loans and the lawyers. My parents had to dip into their retirement to help pay for it. I feel guilty. I feel terrible. It’s just really depressing.”
Alex has filed a federal complaint against his school, and he said the school has filed a motion to dismiss. He is waiting, and hoping, he will get his day in court to fully clear his name.

“I’m embarrassed. I’m ashamed. A lot of people I went to school with are very supportive and said, ‘No one believes I did it.’ But you can’t help but wonder what certain people must think.”

*Names have been changed to protect interviewees’ privacy

Source: http://www.thedailybeast.com/articles/2016/01/28/sexual-assault-the-accused-speak-out.html

Jan 272016

Attempt to Quietly Redefine Sexual Assault in U.S. Law Draws Backlash from Lawyers

Greg Piper
January 26, 2016

The American Law Institute, an influential organization of law professionals that devises model revisions for various parts of the law, has trained its sights on sexual assault for the past few years.

Last summer The New York Times‘ Judith Shulevitz wrote about the controversy that its early draft provoked among some institute members, who saw its endorsement of “affirmative consent” and the criminalization of “touching” even clothed body parts (like a sudden romantic embrace) as a license for prosecutorial abuse, not just shenanigans by Title IX campus bureaucrats.

Another embarrassing problem: The draft appeared to say that physically disabled people cannot legally consent to sex at all.

The institute made some slight changes in response, but its members are raising such hell that the group has scheduled another meeting for March to consider further revisions, according to an email provided by the due-process advocacy group Stop Abusive and Violent Environments.


Law Prof. Kevin Cole of the University of San Diego is helping lead the opposition, and earlier this month he wrote the only known scholarly review of the institute’s drafts.

Cole’s review said that slight changes (such as replacing “affirmative consent” with “contextual consent”) don’t overcome the basic problem with the drafts – their use of a “tort negligence standard for criminal liability” rather than the “subjective liability” standard for criminal acts that is common in criminal law.

RELATED: Public university could punish neck rubs as sexual battery under new policy

“Moreover, changes since the April [2015] draft raise new questions about the special provision on sex with intoxicated partners,” Cole said in the abstract.

In a blog post Friday, Cole said that “multiple ALI members” gave him a memo to the ALI Council signed by more than 80 members that opens with this hypothetical scenario:

A 35 year old, Mid-level Manager (“MM”) has been taking Ritalin since junior high school because it aids focus and concentration. Every few months, MM goes to the prescribing physician for a review of the effectiveness of the dosage and for a prescription renewal. At each visit, the Physician’s Assistant (“PA”) takes MM’s pulse, blood pressure and other vital signs. Both MM and PA are fully competent adults. Over time, MM and PA develop a deep affection and commence a fully wanted, consensual sexual relationship. Under the definition of “consent” in newly proposed Section 213.0(3), PA is a per se felon.

The latest draft doesn’t just create “whole new categories of ‘statutory rape’” for “consenting, competent adults,” the memo said – by using the contractual word “agreement” instead of the broader term “willingness,” the draft implies that sex is a business relationship.

There’s only one conclusion to be drawn from the drafts of this proposed revision being so easy to caricature: Proponents of guilty-until-proven-innocent and vast prosecutorial discretion are leading the way, hoping that their mantra of “believe the survivor” is enough to guilt-silence those members of the legal community who care more about the core principles of the American justice system than academic fads.

Source: http://www.thecollegefix.com/post/25983/

Jan 262016

The Architecture of Intellectual Freedom

Peter Wood
January 26, 2016

Peter Wood is the president of the National Association of Scholars.

Recent campus protests and, more importantly, the often anemic responses to those protests by responsible campus officials, have once again put a spotlight on issues of intellectual and academic freedom. In the past, the National Association of Scholars has been quick to point out infringements of these freedoms and to join larger discussions about the underlying principles.
We decided in the episodes that began in September 2015 to take a step back. We did so because the circumstances seemed to have provoked as much confusion among defenders of academic freedom as among its would-be opponents. Responses in the form of vigorous declarations that the university should uphold academic freedom as a cardinal principle seemed to us inadequate in light of the radical denials of that principle in word and deed by the campus activists. Some of these activists claim the mantle of academic freedom even as they violate it in spirit and in substance. And clearly some college officials who purport to uphold the principle of academic freedom have proved feckless when put to the test.
A restatement of principles means little if it fails to engage the minds and imaginations of members of the community who must bring those principles to life. Have academic and intellectual freedom become merely stuffed eagles brought out on ceremonial occasions for display? We think that, though weakened, they are still alive, and that what may help them recover is some good counsel to the people whose job it is to help them thrive.
That counsel takes two parts. The first is this document, which attempts to restore the contexts of academic and intellectual freedom. The second is a separate document that builds on this one to explain how these principles should be applied to liberal arts education.
The argument in this first document is that intellectual freedom is a foundational principle of American higher education, but it is not the only foundational principle. To understand intellectual freedom accurately, it must be considered as part of a complex whole that sustains the university.
1915 Declaration of Principles
1974 Woodward Report
2015 Stone Report
Doctrine and Creed
Public Trust
Further Contexts
Integrity of the Individual
Pursuit of Truth

What are the legitimate purposes of higher education in the United States today? What specifically should we expect as a society from our colleges and universities?
We rightly expect higher education to address four things: vocation, culture, truth, and character. We of course have vigorous debates about the relative importance of these four goals, but America is large and we have room for engineering schools, conservatories, research universities, and religious colleges. Most institutions of higher education seek to weave these elements together. They seek some balance that will prepare each coming generation with the knowledge and skills to succeed in practical careers; endow each coming generation with a worthwhile knowledge of our own civilization and a lively understanding of the broader world; join each coming generation to the pursuit of truth; and shape the character of the individuals who make up that generation so that they become worthy and constructive citizens.
The last of these four may seem the least definite, but it is surely the foundation of the other three. We seek a form of education that teaches young men and women how to be free.
These days, that goal seems more and more elusive. Some in higher education dismiss freedom as an illusion and extol other goals as more worthy: social justice, “safety,” global citizenship, and group identity have emerged as ideals that should, in the arguments of their proponents, supplant the ideal of freedom. This gives urgency to the task of explicating what it means to put freedom at the center of higher education. Teaching young men and women how to be free entails making distinctions among different kinds of freedom and different contexts of freedom, and between freedoms and other foundational principles.
The aim of this statement is to assist faculty members, academic administrators, college trustees, and those members of the general public who are actively concerned about the state of intellectual freedom on college campuses. Specifically, it is intended to help those who apprehend that the current situation calls for something more than a simple reaffirmation of older statements or new enunciations of general principles. This document is not intended to take the place of a statement on academic freedom or a similar document, but to help those who might be engaged in drafting such statements to gain a more encompassing view of the terrain. To some extent it can serve as a checklist of considerations.
The literature on intellectual and academic freedom is vast and it can take years of systematic reading to gain even a partial grasp of it. This short document draws from that literature but it does not offer a tour of the major works. It does, however, present (Section III) a summary of three of the most influential statements on academic freedom of the last century. From there it turns (Section IV) to definitions of the relevant freedoms. Following the definitions is a ten-part section (Section V) on the social contexts in which these freedoms are either realized or limited. The essay concludes (Section VI) with observations of five organizing principles of higher education that constrain intellectual freedom in various ways.
Intellectual freedom is one of the foundational principles of higher education. Colleges and universities exist to further the pursuit of knowledge, through teaching old truths and discovering new ones. Both tasks depend crucially on freedom. Or, more exactly, on a combination of freedoms: the freedom to ask questions; the freedom to challenge assumptions and doctrines; the freedom to criticize; the freedom to speculate; the freedom to reexamine old evidence and to search for new evidence; the freedom to express what one has found; the freedom to hear others who seek to express what they have found; the freedom to engage in dialogue with informed peers; the freedom to read and consider the views of people who lived before one’s own time; the freedom to teach what one has, by diligent effort, learned; and even the freedom to refrain from speaking.
American higher education has never been silent on this subject. Books and articles about the freedom of college professors abound. In this myriad of statements, a few stand out, such as the 1915 Declaration of Principles, which is the founding document of the American Association of University Professors (AAUP); the 1974 Report of the Committee on Freedom of Expression at Yale, commonly referred to as the Woodward Report; and the 2015 Report of the Committee on Freedom of Expression at the University of Chicago, sometimes referred to as the Stone Report. Each of these, in our view, has distinctive merits.
1. 1915 Declaration of Principles
The 1915 Declaration of Principles rightly grounds the ideal of academic freedom in the professor’s commitment to pursuit of truth, good character, and commitment to scholarly discipline. Because “progress in scientific knowledge is essential to civilization,” the Declaration insists that scholars inhabit a place open to critique and criticism. But the statement puts academic freedom in a special and limiting context:
The liberty of the scholar within the university to set forth his conclusions, be they what they may, is conditioned by their being conclusions gained by a scholar’s method and held in a scholar’s spirit; that is to say, they must be the fruits of competent and patient and sincere inquiry, and they should be set forth with dignity, courtesy, and temperateness of language.
The AAUP in subsequent revisions of its principles abandoned these limiting conditions. The 1915 Declaration of Principles mentions the academic freedom of students only in passing. It does warn against faculty members taking advantage of students’ immaturity by attempting to indoctrinate them with “the teacher’s own opinions.”
2. 1974 Woodward Report
The Woodward Report forthrightly grounds academic freedom in “the primary function of a university,” which is “to discover and disseminate knowledge by means of research and teaching.” The report primarily addresses a circumstance that the authors of the 1915 Declaration did not foresee: What freedoms should be accorded a speaker from outside the university community who is invited to campus? The Woodward committee reviewed in detail six cases in which controversial outside speakers had been invited to speak at Yale. Several of these incidences—Governor George Wallace in 1963, General William Westmoreland in 1973, Secretary of State William Rogers in 1973, and Professor William Shockley in 1974—eventuated in the speaker not coming or, in the cases of Westmoreland and Shockley, being prevented by protesters from speaking. The Woodward Report emphatically condemned the dis-invitations, disruptions, and administrative temporizing in these cases as “a willingness to compromise standards.” It held that protesters had a right to protest a speaker, but:
In the room where the invited speaker is to talk, all members of the audience are under an obligation to comply with a general standard of civility.
The content of the speech, even parts deemed defamatory or insulting, [does not] entitle any member of the audience to engage in disruption. While untruthful and defamatory speech may give rise to civil liability it is neither a justification nor an excuse for disruption, and it may not be considered in any subsequent proceeding against offenders as a mitigating factor.
The Woodward committee also advised that:
Once an invitation is accepted and the event is publicly announced, there are high risks involved if a University official – especially the President – attempts by public or private persuasion to have the invitation rescinded.
These strictures followed from a larger affirmation near the beginning of the Woodward Report, in which the committee came down firmly on the side of intellectual freedom when its pursuit risked troubling the peace of the academic community. The passage is worth quoting in full:
For if a university is a place for knowledge, it is also a special kind of small society. Yet it is not primarily a fellowship, a club, a circle of friends, a replica of the civil society outside it. Without sacrificing its central purpose, it cannot make its primary and dominant value the fostering of friendship, solidarity, harmony, civility, or mutual respect. To be sure, these are important values; other institutions may properly assign them the highest, and not merely a subordinate priority; and a good university will seek and may in some significant measure attain these ends. But it will never let these values, important as they are, override its central purpose. We value freedom of expression precisely because it provides a forum for the new, the provocative, the disturbing, and the unorthodox. Free speech is a barrier to the tyranny of authoritarian or even majority opinion as to the rightness or wrongness of particular doctrines or thoughts.
The Woodward Report was prompted by the behavior of students who deliberately interfered with the ability of invited speakers to have their say. Student protest against outside speakers, of course, can itself be an exercise of academic freedom, depending on how the protest is conducted. The report acknowledges this freedom but makes it clear that it exists within a moral context:
One of Yale’s goals [is] to teach its students how to live responsibly in our modern society, how to deal with other people in a context of mutual respect and harmony; Yale strives to acculturate people to the larger society outside the university community, and this includes the promulgation of racial harmony, religious tolerance, non-sexist attitudes, etc.
The Woodward Report was accompanied by a strongly-worded dissent from a law student who held that, “free expression is outweighed by more pressing issues, including liberation of all oppressed people and equal opportunities for minority groups.”
3. 2015 Stone Report
The Stone Report is much briefer (two pages) than the 1915 AAUP Declaration or the 1974 Woodward Report, but it follows the Woodward Report in recounting a past instance of a controversial speaker invited to campus. The Chicago committee members cite the 1932 invitation to William Z. Foster, the Communist Party candidate for president; and they cite the remarks by several University of Chicago presidents over the decades who upheld, in Robert M. Hutchins’ words, the principle that “our students . . . should have freedom to discuss any problem that presents itself.” The Chicago committee, like the Yale committee, also affirms that concern for civility should not trump freedom of expression:
Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.
This leads to a conclusion that also echoes the Yale report:
Although members of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe.
The Stone Report was adopted with minor modification by the faculty at Princeton; other institutions, such as Purdue, American University, and Winston Salem State University, have been inspired to adopt their own statements drawing on the principles of the Stone Report. It has been extolled as a model by the Foundation for Individual Rights in Education and the American Council of Trustees and Alumni. It is noteworthy that a new declaration of the importance of “free expression” in 2015 should occasion widespread attention.
Apart from the quoted phrase of Hutchins, the Stone Report is silent on the academic freedom of students.
“Intellectual freedom” belongs to a cloud of terms with related meanings that are sometimes, incautiously, used interchangeably. There is, however, value in distinguishing them:
Academic freedom. A doctrine that pertains to the rights of faculty members within particular colleges and universities. Academic freedom has been mentioned in several Supreme Court decisions but it is not a legal right except to the degree that it is embodied in contracts that colleges and universities have made with faculty members. These contracts define the right in various ways, though many follow the 1940 AAUP revision of its statement on academic freedom and subsequent emendations. As a general definition, it suffices that academic freedom guarantees the independence of faculty members to pursue research, publication, public speaking, and teaching free from pressure by their institution’s administrators and trustees to conform to a particular doctrine. Academic freedom is, in fact, a more complicated idea than this, but this will serve for the moment.
Intellectual freedom. This is a broader concept than academic freedom. It refers to the human capacity to escape from received ideas. The term can be used in two quite different ways. It may refer to the existential condition of the individual who, even under duress and confinement, can enjoy the intellectual freedom of his own mind. Or it may refer to a community in which respect for free inquiry is a superintending value. Aleksandr Solzhenitsyn enjoyed intellectual freedom of the first kind even while in the Gulag. The Woodward Report and the Stone Report hold up the ideal of the second kind of intellectual freedom.
First Amendment Freedom. The First Amendment to the U.S. Constitution guarantees freedom of speech and freedom of the press, among other freedoms. Centuries of litigation have established a well-developed body of First Amendment law that protects Americans from government interference with their right to self-expression in most circumstances. First Amendment rights are much broader than the academic freedom doctrine. Academic freedom is a context-specific idea with limited legal basis outside contract law. The First Amendment is pervasive in situations where the individual deals with governmental authority. In public colleges and universities, which are operated by the state, college administrators are effectively government authorities, which means that First Amendment considerations can enter into situations where academic freedom is also at issue.
Other freedoms. Intellectual freedom in the context of higher education, as suggested above, entails a combination of more particular freedoms:
the freedom to ask questions; the freedom to challenge assumptions and doctrines; the freedom to criticize; the freedom to speculate; the freedom to reexamine old evidence and to search for new evidence; the freedom to express what one has found; the freedom to hear others who seek to express what they have found; the freedom to engage in dialogue with informed peers; the freedom to read and consider the views of people who lived before one’s own time; the freedom to teach what one has, by diligent effort, learned; and even the freedom to refrain from speaking.
It is important to add that all of these are heavily dependent on context. There is a time to ask questions aloud and a time to note them quietly to ask later, and so on. A major object of this report, in contrast to those we’ve cited, is to clarify some of these contextual matters.
1. Doctrine and Creed
The 1915 Declaration of Principles flatly excluded religious-based colleges and universities from the category of institutions in which academic freedom is possible. Later versions of the AAUP’s statement on academic freedom relaxed this ban. Outside of the areas governed by creedal orthodoxy, the AAUP said, academic freedom is possible at religious colleges, and even within areas of orthodoxy there is usually space for some freedom of thought and expression.
These matters are no longer usually controversial as they pertain to colleges that maintain some faith-based orthodoxy, but they flare up from time to time as when Wheaton College in Illinois, a Christian College with a faith-based mission, announced in January 2016 that it was taking steps to terminate a tenured professor who it said had violated the college’s Statement of Faith.[1] The announcement of this step, though it was fully in accord with the college’s explicit policies, occasioned considerable distemper in the secular press, as well as discussion of the AAUP’S 1940 Statement of Principles on Academic Freedom and Tenure, its 1970 policy note on church-related institutions, and its 1999 report, “Academic Freedom at Religiously Affiliated Institutions.”
Thus even in the context of institutions founded with the avowed purpose of propagating a community of belief in an explicit religious doctrine, there remains an element of suspicion that such orthodoxies are inconsistent with the intellectual freedoms that should obtain in higher education. The root issue is whether intellectual freedom must be conceived as indivisible or whether it can be compartmentalized. Is freedom of thought irreparably damaged if people voluntarily pledge to uphold certain premises? Or can people who make those sorts of pledges enjoy academic and intellectual freedom within the scope of their pledges?
The answer surely depends both on the content of the pledge and the topics to which it is applied. Some doctrines are consistent with a broad liberty of intellectual inquiry; others not. And some subjects appear especially vulnerable to intellectual infringement. Defenders of academic and intellectual freedom who ought to be ready to draw these distinctions, often fail to and instead proceed with all-purpose declarations.
The issues of doctrine and creed have also become salient again in another context: the rise of popular movements on campus demanding “safe spaces,” “trigger warnings,” “academic justice,” and—more generally—the prioritizing of “social justice” over intellectual freedom. Together these demands amount to a new creedal assault on the concepts of both academic freedom and intellectual freedom.
It is, to begin with, important to distinguish between faith-based colleges and universities that explicitly frame their mission as rooted in a creedal orthodoxy, and colleges and universities that purport to be secular, open to all views and persuasions, and committed to intellectual freedom in the broadest sense. These latter institutions compromise their stated purposes when they, in effect, embrace a “social justice” agenda that is, in every practical way, a creed.
Sometimes these social justice claims echo the words of the Woodward Report which referred to those who granted “dominant value [to] the fostering of friendship, solidarity, harmony, civility, or mutual respect,” over free expression. But these claims can go beyond weighing “civility” as a higher social good than free expression, by moving all the way to declaring that free expression is not a good at all but a social evil that ought to be suppressed. Those who argue in this vein typically say that free expression is itself a mask of oppression worn by privileged elites intent on subjugating others. Those who extol free expression, in this view, are those who are best positioned to make use of it to their social, economic, political, and rhetorical advantage. The articulate know how to confound the inarticulate, and because of that intellectual freedom needs to be curtailed or eliminated.
Social justice demands that the right to speak be rationed according to a logic of compensatory privilege. Those who feel they have been without voices will gain a platform to be heard and affirmed. Those who have held this power in the past must learn to “check their privilege.”
“Social justice” as it is currently constructed in much of American higher education is a doctrine antithetical to intellectual freedom, which returns us to the 1915 AAUP Statement. Where such a doctrine is admitted to authority, there can be no academic freedom, nor any intellectual freedom. Moreover, it would seem there could be no liberal arts college or university either.
2. Dogmatism
Doctrines that privilege “social justice” over academic freedom are not the only threats to free expression on campus. The human mind often finds certainty where there is none, and this readiness to find and then cling to a “theory” of how the world must be can trap even people of keen perception and high intelligence. Higher education has never been proof against systematic illusions, especially when these have an air of moral urgency. Colleges and universities face a formidable obstacle in human nature itself when they try to create a special kind of community that judges each and every issue on the evidence, the merits of the arguments and probabilities, and the dictates of reason. Dogmatism is always waiting by the door to come inside.
The institution that seeks to uphold intellectual freedom must expect this and be ready to mount appropriate resistance. It is, of course, within the jurisdiction of independent colleges and universities to decide to embrace a dogma. They may decide, for example, to uphold the doctrine of “Animal rights,” and disallow any criticism of or dissent from this doctrine. But an institution that makes such a choice should state forthrightly that it preaches dogma, so as to allow the public to know that its practice places limits on academic and intellectual freedom. Whether such compromises are wise is another matter, one that depends on the nature of the dogma. One question is whether the dogma subordinates the whole of what the college teaches or applies only to a particular domain such as sacred theology.
3. Science
The epistemology of modern science was central to the 1915 AAUP definition of academic freedom. At that point, the AAUP’s founders upheld the idea that the model of knowledge-making in higher education was the natural science method of trial-and-error, experiment, and discovery validated by the ability of other competent investigators to reach the same results by the same methods. This approach did not lend itself well to the kinds of knowledge to be attained by studies in the arts and humanities, and only to a limited extent in the social sciences. Wherever the object of study is human experience in its transience and multitudinousness, the experimental method is limited. Wherever the object of study is subjective experience, the tools of science are even more limited. Moreover, the science of 1915 differed in key ways from the science of today, from statistics to quantum dynamics. Realms of uncertainty have been annexed to the enterprise. Science remains by far the strongest claimant to intellectual authority within the university, but the naïve scientism of the Progressive Era has been replaced by a mature knowledge that the epistemological limits of scientific knowledge mean that it can no longer be used as a paradigm for academic freedom.
The removal of science as a model for academic freedom has left a vacuum. Truth-seeking remains essential to academic freedom, but how is truth to be determined? One popular answer (endorsed by the AAUP in 2007; critiqued here) is that each academic discipline ought to be arbiter of truth claims within its borders. This view treats the university as no more than a collection of disparate epistemologies that need not have any consistency with each other. The “truth” of one discipline may be an illusion, a deliberate falsehood, or mere wordplay to another. The larger truth, it is trusted, will emerge over time as these disparate views jostle and compete with one another for credibility.
Another approach, of course, is simply to jettison truth-seeking as a meaningful guide to academic freedom. Those who espouse this view allow that there may be many little “truths”—statements that hold within a limited range—but that it is futile to go in search of some larger, encompassing truth. This approach, which sometimes calls itself pragmatism and sometimes postmodernism, reduces academic and intellectual freedom to the free play of free minds. [See Section VI.5, “Pursuit of Truth,” below.] It disallows the legitimacy of saying the university exists for any purpose beyond providing a designated space for academics to indulge their interests.
Given these two options—the one a form of extreme relativism, the other a kind of nihilism—the appeal of science as a model for truth-seeking has a durable attraction. But even the more chastened and sophisticated forms of contemporary scientific epistemology leave much to be desired. How should we judge the merit of work in the humanities, social sciences, and other areas in which the basic forms of inquiry can never conform to the model of the natural sciences?
It is best to pose it as an open question, for it is not amenable to an easy answer.
4. Students
The 1915 AAUP Declaration alludes at one point to the German concept of Lernfreiheit—the freedom of students to learn—as a dimension of academic freedom. The Declaration touches on the concept (but not the word) in several other places where it emphasizes that the teacher must speak with “candor and courage,” shun “intemperate partisanship,” speak with “discretion,” and avoid “indoctrinating” students with his own opinions.
The AAUP in later years occasionally glanced at the academic freedom of students but it has never made this a topic of major concern. The Foundation for Individual Rights in Education (FIRE) by contrast has taken student academic freedom as one of its chief concerns. FIRE has successfully challenged dozens of campus speech codes and litigated attempts by academic administrators to suppress students’ freedom of speech. Its approach, however, builds less on the tradition of Lernfreiheit than on the First Amendment, and FIRE does not spend much time on the distinction between constitutionally protected free speech and the considerations that make up academic freedom for students.
For students, academic freedom is a combination of freedom from indoctrination and freedom to engage in disciplined inquiry, which includes the freedom to read, hear, and consider views that differ from those of their instructors. The academic freedom of students is not the same as the academic freedom of faculty members. It exists for a different purpose—learning rather than research and teaching—and it has a different dynamic. Students are vulnerable to pressures that differ in important ways from the pressures experienced by faculty members. They are vulnerable to abuses of authority by their teachers, not only in the teachers’ control over their grades and letters of recommendation, but also in the subordination of the classroom, where a student can be shamed or humiliated by a hostile teacher. Students are even more vulnerable to the abuse of authority that consists of professors who withhold important information or present biased views of a topic. Indeed, the bias of faculty members is one of the greatest threats to students’ academic freedom because it is often invisible to the students themselves. Students may receive a partial account of a topic and mistake it as impartial; or they may be misled into accepting as authoritative what is only a glib dismissal of an opposing view. The counterpart of the teacher’s duty to give fair and full account of the range of opinions on a topic is the student’s right to receive that fair and full account.
Students’ academic freedom suffers from a widespread attitude among faculty members that such a freedom, to the extent it exists, is merely a second-order version of faculty academic freedom. This view reduces the students’ academic freedom to a right to speak out on controversial issues. But that is a misconception. Students do indeed have a First Amendment right to speak out on controversial issues, but their academic freedom consists of something else: the freedom to pursue an education.
What exactly this means depends, as any form of academic freedom does, on context. The freedom of the student to learn can be impinged upon by other students who party too loudly or too often; who mount disruptive protests in the library or the classroom; or who hijack class discussions to focus on some favored issue or perspective to the detriment of more balanced coverage of a topic. The freedom of the student to learn can also be impinged upon by administrators who inappropriately declare an official position for the institution that rightly should be open for the kind of discussion and debate that would include fair representation of other views.
But the academic freedom of students is also conditioned on the willingness of students to accept that college-level study also requires civil behavior inside and outside the classroom, and willingness to accept some things on authority, at least provisionally. The vulnerability of students to biased teaching arises in large part because students must necessarily take some forms of instruction on trust. Colleges may favor a system of instruction that emphasizes small groups or the Socratic Method, but even these approaches assign a degree of authority to the instructor that students must respect for learning to proceed. Hence the academic freedom of students depends on the willingness of students, individually and collectively, to balance the claims of free expression with both civil deference to the authority of a teacher and to other students’ freedom to learn.
The obstreperous attacks on academic freedom we see from some students on campus today are rooted in no small part in the abuses of academic freedom that the students see around them. The students cannot be expected to respect a core value from which they are excluded. Lernfreiheit must be restored.
5. Administrators
Do academic administrators have academic freedom? It would seem strange that a tenured professor promoted to dean, provost, or president would suddenly lose his academic freedom. But the topic of how much, if any, academic freedom should be extended to academic administrators has seldom received much attention. The AAUP and other voices of authority on the general topic of academic freedom tend to treat academic administrators as the primary locus of infringements on faculty academic freedom, and they disregard the importance of embedding the administrators in the same web of rights and responsibilities.
The central problem is that when an administrator enunciates a view on a controversial subject, the academic community he serves has to distinguish among several possibilities. Is the administrator venturing a scholarly opinion that is open for criticism and debate? Is he stating a conclusion that will bear on institutional policy? Is he announcing a doctrine that will, effectively, become institutional policy? Or is he simply uttering a personal view? In principle, these can be distinguished; in practice many administrators are ambiguous about their intent, and some are disingenuous. An administrator may say, for example, that he is stating a personal opinion that is not university policy, but then proceed to act as though the opinion in fact governs policy. This indeed leads to infringements on both faculty and student academic freedom.
On the other hand, academic administrators are appointed in large part because of their seasoned judgment on academic issues. To appoint them to high positions and then expect them to be silent on the important matters at hand can hardly be right. The academic freedom of academic administrators can be compromised in several ways. First is the danger of self-sabotage that comes from the administrator’s failure to maintain a hard distinction between his views and his institutional authority. Second is the danger of excessive self-censorship. The administrator who falls mute during a crisis, especially in failing to enunciate guiding principles, has become a distressingly common figure in American higher education. Third is the danger of the administrator who does speak in a crisis but who temporizes about guiding principles out of fear of criticism or the threat of public disturbance. This figure also has become distressingly common in American higher education.
What we have learned in the last few years is that academic administrators are more likely to misstep through timidity than they are through excessive confidence, though it is easy to find examples of both. The doctrine of academic freedom applied to administrators insists that administrators do have the freedom to state their views publicly, but that they must do so with scrupulous attention to how those views are to be constructed. Administrators must exercise that freedom to foster rather than to inhibit the academic freedom of other members of their institution. Moreover, with this freedom to speak comes the correlative obligation to speak on matters of foundational importance to the college or university.
6. Institutions
To raise the issue of the academic freedom of administrators is to raise the closely related issue of the academic freedom of the college or university itself. This is another topic that is typically neglected in broader discussions of academic freedom, but it is central to American higher education’s tradition of allowing great latitude among colleges and universities to determine their own missions, curricula, faculty appointments, and admission standards. These zones of relative autonomy are not often spoken of as “academic freedoms” but that is exactly what they are: the freedoms of academic institutions to chart their own educational paths.
No freedom is absolute, and this set of freedoms is constrained in several ways. Nearly all colleges seek accreditation from regional accreditors which impose various rules. And many colleges and universities also seek and receive additional accreditation from specialized accreditors, such as the American Bar Association for law schools. Colleges and universities must also receive certification from the U.S. Department of Education to be eligible to receive funds from Title IV student loans. And there are myriad further stipulations from public and private funders that bear on what colleges can and cannot do. Most colleges receive gifts from individuals and some of these gifts are “restricted” so that they can be expended only for particular purposes. Organizations such as the National Collegiate Athletic Association (NCAA) impose still further conditions that affect the freedom of colleges and universities to chart their own paths. Public colleges and universities come under yet another layer of oversight from state authorities.
Colleges that wish to minimize these constraints can, of course, desist from taking federal student loan money, decline federal grants, forego specialized accreditation, decline to participate in NCAA-organized sports, and so on. But even the most robustly independent college falls under some forms of external control that bear on the integrity of its academic enterprise. The Americans with Disabilities Act, for example, has been interpreted by the courts to require colleges and universities to “accommodate” students who have learning disabilities, often to the point of compromising academic standards.
Perhaps the greatest threat to institutional academic freedom has arisen from the Office for Civil Rights in the U.S. Department of Education, which issued a series of “Dear Colleague” letters from 2011 to 2015 imposing on colleges and universities a regime of strenuous new regulation. These regulations aim at expanding the definition of “discrimination” to include sexual assault, on the grounds that sexual assault creates a hostile learning environment for women. The regulations include provisions that effectively require colleges and universities to appoint administrators with extensive powers, some of which vitiate the academic freedom of both faculty members and students.
Other threats to institutional academic freedom have arisen within the culture of American higher education. The homogenization of higher education by the spread of academic dogmas is one such threat. The more colleges and universities cluster around a few curricular models and a few salient ideas, the less we have institutional academic freedom. These homogenizing curricular models are roughly of two types: one consists of ideological herding (diversity, sustainability, social justice, etc.); the other of bureaucratic groupthink (“learning outcomes,” “student-centered education,” “high-impact practices,” etc.).
The social forces that favor this homogenization include the American model of graduate education, the politicization of higher education, and the overemphasis on credentialing (as opposed to educating) students. These are larger problems than we can address here, but they bear noting as significant obstacles to restoring institutional academic freedom.
7. Teaching
Academic freedom is most often discussed in the contexts of faculty research and publication, but as the 1915 AAUP Declaration made clear, the freedom of faculty members to teach the subjects they have mastered is an indispensable part of academic freedom. We have dealt already with the obligation of faculty members to avoid indoctrination and bias, but to this should be added that academic freedom entails the freedom of the faculty member to present to his students not only material that is well-established within the considered scholarship of his discipline, but also his possible reservations about established views, and his work-in-progress.
The academic freedom to teach, however, is everywhere fraught with perils similar to those that surround the academic freedom of administrators. Students can easily confuse well-established knowledge in a field with what is not-yet-established or speculative. Students are likewise in a poor position to detect certain kinds of bias on the part of their instructors, especially bias by omission. And teachers, because they operate for the most part outside the direct observation of their faculty colleagues, are left to be their own judges of how well they avoid these dangers.
For these reasons, abuse of academic freedom in teaching is all too common. In recent years, the prevalence of cell-phone videos and other recording devices has allowed numerous instances in which faculty members are caught engaging in egregious abuse of their freedom as teachers. These cases are worth bearing in mind, although the less visible forms of systematic bias may be the source of greater harm.
Some faculty members regard it as their responsibility not to mention in the classroom their own views on contentious political matters, as a safeguard against inadvertently swaying students. This is a sound principle but one that is not ordinarily understood as obligatory. Faculty members in the social sciences and humanities who uphold this stricter version of their duty to their students serve as a model of scrupulousness.
8. Scholarship
We value academic freedom to a large extent because we value scholarship. But the concept of scholarship itself is open to abuse. Calling something scholarship does not necessarily make it scholarship, but in the last decade this shallow nominalism has become widespread. It has especially flourished in “studies” departments such as women’s studies and advocacy-oriented ethnic studies departments. In these cases, the ideal of a body of learning gained by strenuous examination and re-examination of premises has disappeared. Instead of a search for disconfirming evidence, these fields engage in selective gathering of anecdote and supportive data, and instead of developing methods meant to forestall and thwart bias, they have developed methods intended to cordon off bias from skeptical review.
Such flaws are not unique to the advocacy fields, nor are they new. Researchers have always faced the danger of favoring their own ideas too much, and fraud of various sorts infects every scholarly discipline. But the rise of the advocacy fields has meant for the first time an unembarrassed embrace by many universities of pseudo-scholarship under the privileged banner of academic freedom. In 2007, the AAUP released a report, “Freedom in the Classroom,” that made clear that the AAUP’s new standard for scholarship was whatever is “accepted as true within a relevant discipline.” And it allowed “disciplines” to be self-defining. Peer review, in this framework, is hollowed out by allowing faculty members to designate as their peers a small collection of the likeminded. In other words, mere assertion with no meaningful checks and balances would pass the AAUP’s definition of scholarship.
This definition is fatal to the ideal of disinterested scholarship, without which the notion of “academic freedom” vanishes into a rhetorical gesture. Why should anyone enjoy a special freedom to engage in unsupported assertion? The First Amendment allows such assertion as free speech, but “academic freedom” is a doctrine that pertains to the special conditions of higher education, where mere assertion has no privileged status.
9. Public Trust
The reason that mere assertion has no privileged status in scholarship or teaching is that academic freedom is a public trust. Academic freedom is sometimes treated as an appurtenance of the faculty, but it does not in fact belong to faculty members. Rather it belongs to the general public, who confer it on college and university faculties through boards of trustees and legislative acts. It is not a natural right or something that comes under the Constitution, although there are those who would like to see it vested there.
The public trust view of academic freedom is another way of saying that academic freedom doesn’t exist for its own good but to serve a larger purpose. The purpose—the public good—is divisible into several parts: the same four parts declared at the opening of this statement: preparing students for worthy careers, opening the doors of civilization, pursuing truth, and shaping students into good citizens. We can and do disagree about how these goals are best realized in higher education, but academic freedom is a key part of all four, and especially the last two.
10. Further Contexts
In many of these points we have emphasized how much depends on context. Colleges and universities present many contrasting environments for working out the details of academic freedom. While we have tried to frame some general statements that apply to all, we realize that individual institutions have academic and intellectual priorities that require their own fine-tuning of how to apply these principles.
Does academic freedom apply to whatever a faculty member says, public or private, on campus or off, in his discipline or outside his discipline? The AAUP today, as we have noted, takes a latitudinarian approach: once you are a tenured faculty member, you can claim academic freedom for pretty much anything you do or say for the rest of your life. The National Association of Scholars, by contrast, gravitates to the AAUP’s 1915 Declaration, which limits the doctrine of academic freedom to the realms of disinterested inquiry and prudential teaching.
But we supplement that narrow field of applicability with the recognition that academic freedom is not a stand-alone principle. Students, faculty members, and others also have intellectual freedom and First Amendment rights. The Woodward Report and the Stone Report rightly draw attention to the need to let outside speakers come to campus to present controversial views, and to give these speakers a zone of freedom to be heard respectfully and without interruption. Fostering such expression of controversial views is important to higher education, but might be better framed as a matter of intellectual freedom than as one of academic freedom. And to bring that point into sharper focus, we turn to the topic of intellectual diversity in higher education.
1. Diversity
Intellectual and academic freedom point to a foundational principle of higher education, the freedom to choose your own views. But that is not the only foundational principle. Academic freedom cannot stand on its own. As a principle it is dependent on a handful of other principles that must also be upheld if academic freedom is to be anything more than a hollow phrase.
The first of these other principles is intellectual diversity.
The word “diversity” today is typically deployed as a euphemism for racial and ethnic preferences. In higher education, it refers to lower admissions standards applied to black, Hispanic, and Native American students, and lower hiring standards applied to faculty members from these groups. The term arrived at this meaning though a series of U.S. Supreme Court decisions that drew on and later ratified the admissions policies of several public universities.[2]
In 1978, the Supreme Court singled out “diversity” as a rationale for racial preferences on the suppositious grounds that racial diversity provides a path to an enlivening and challenging variety of perspectives in the classroom. This was the substance of Justice Powell’s opinion in the 1978 case of the University of California v. Bakke, in which he took for granted that a student’s race was a reliable proxy for his point of view, and further assumed that a classroom in which a variety of viewpoints is represented is more educationally vibrant than one in which such a variety is absent.
The evidence in favor of race as a proxy for viewpoint is weak. The evidence that students benefit from a genuine diversity of viewpoints is stronger. But the evidence that students benefit from confronting a genuine diversity of ideas is overwhelming. “Viewpoint diversity” may be a faint approximation of diversity of ideas. But “viewpoints” have no claim to particular regard in the university. They consist of assumptions and attitudes untested by critical examination. The most that can be said for “viewpoints” in education is that they can be called into question and disrupted. One task of a college education is to make students aware of their assumptions and, beginning with this awareness, prompt them to look deeper. Sometimes that results in finding merit in the original assumption; sometimes it results in having to supplant it.
Education requires the student to move towards the work of evaluating ideas on their merits. This is true across all disciplines in the sciences, humanities, and social sciences. Mere “perspective” is not an argument or evidence. When a student encounters a variety of “perspectives” in a classroom, it is an experience not much removed from encountering a variety of different forms of ignorance. Students move beyond ignorance only at the point in which they cease to assert “this is my perspective,” and assert instead, “Here is a reason, open for all to judge or to rebut, for thinking that this idea is valid.”
When students encounter such claims for ideas that conflict with one another, education proper can begin. The task is set: how do we determine which of two conflicting ideas is truer? If they each reveal the other to be deficient, how do we find a third idea that gets beyond their faults?
Education that embodies this examination of conflicting ideas has the virtue of intellectual diversity. Achieving such intellectual diversity in the college classroom has proved surprisingly difficult. Filling chairs with people who have particular racial, ethnic, cultural, or socio-economic backgrounds does not do it. Nor does declaring the university to be dedicated to “critical thinking,” “global citizenship,” or “intellectual exploration.” The only secure path to intellectual diversity in the classroom is intellectual diversity in the faculty. And this is a condition seldom met in today’s university, where the actual spectrum of ideas present and available for debate is extremely limited.
Can there be meaningful intellectual and academic freedom where there is very little disagreement on key ideas? No. A community of the like-minded can make much of small differences of opinion, and even raise up these small differences into the cause of extended dispute. But wars between adjacent molehills do not acquaint students with the idea of mountains. Genuine intellectual freedom comes from encountering ideas which contrast on the larger scale, presented by people who are capable of marshalling the best arguments and evidence for their positions, while also remaining committed to the fairest possible exposition of other views.
2. Hierarchy
Every college and university decides to teach some subjects and not others. Almost every college decides that there is at least a rough order in which courses should be taught. Students must achieve proficiency in First-Year French before they can take Second-Year French, and so on. Knowledge is hierarchical. Some ideas must be mastered before others.
In that sense, intellectual and academic freedom fall far short of describing the basic condition of the university, where such freedom is inherently limited by the need to make distinctions that cut against the freedom to express any idea in any context. The university has an internal order, a way of privileging some subjects and dis-privileging others. Every college and university has procedures to accomplish this. “Academic freedom” may exist as part of such a process in that faculty members and administrators may have to argue through conflicting views about what should be required, what should be offered, and what should be set aside. But at some point, those arguments end; courses are approved; syllabi are printed; and instruction begins.
These are hierarchical processes, and the hierarchy continues during actual instruction. Even the most digressive of teachers has only so much time, and only so much can be covered. Choices are made. Some subjects lose out. Others win.
Without this tacit hierarchy, the freedom to pursue scholarship and teaching would be meaningless.
3. Integrity of the Individual
Intellectual freedom is the freedom of an individual to make up his own mind. That seems simple only to the simple-minded. All of us are subject to influences, some overt, some subtle, and many part of the cultural surrounding, that influence our thinking. Often we conform to these influences; sometimes we parry or defy them. But to be free to make up our minds requires that we gain a degree of inner independence from the suasions of others sufficient to weigh ideas on their merits. It is doubtful that anyone achieves this in the most radical sense, or that doing so would be good. We live, after all, in society, and to thrive must learn to live well with others. Independence of mind does not mean alienation from humanity, or hostility to the company of others. The integrity of the individual consists of gaining enough perspective to resist intellectual conformity for its own sake, while maintaining due respect for the people around us, including their intellectual freedom. As we hope not to have others impose their opinions on us, we should refrain from imposing ours on them.
Higher education, however, presents a special situation. Students are often in the midst of forming, dissolving, and reforming their views on basic matters. Teachers are often also in the position of demanding—appropriately—that students take or argue a particular position, at least as an academic exercise. Ideally, the fluidity of the students and the rigidity of the teacher are understood on both sides as circumstances that do not compromise the integrity of the individual. But it is in the nature of higher education that there are risks for students who may be overwhelmed by the intellectual dynamics of higher learning. Students can come to believe their intellectual freedom has been infringed when in reality they have only been challenged. And teachers can sometimes press too far.
The general answer to these concerns is for the college to keep this main principle in focus: the college should foster the freedom of the individual to make up his own mind. That freedom cannot be compromised by the student deciding he wants to inhabit a “safe space,” in the sense of a special environment at the college where he will not be challenged by ideas that he finds unwelcome or uncomfortable. Nor can the student decide that the best expression of his intellectual freedom is the choice of sacrificing his freedom for a blind allegiance to a doctrine. The college has a responsibility, within limits, to discourage students from taking such refuge as a “safe space” for an ideology may provide.
4. Civility
The limits of the college in encouraging some and discouraging other forms of self-determination on the part of students are part of the invisible web of restraints that make up civility. Students learn civility from being part of a community that values it. Some aspects of civility can, of course, be turned into hard and fast rules. Speakers should not be disrupted or interrupted. Protests should not turn into illegal trespass or vandalism. Replies to people should be kept free of personal insults, gratuitous vulgarity, and so on.
Such rules have proven necessary, and it is necessary too that they be backed by real sanctions against those who break them. The Woodward Report correctly said this, and the Stone Report incorrectly omitted it.
But civility in the truest sense cannot be reduced to a set of prohibitions. It is, rather, a positive attitude that infuses a community with an eagerness to listen, hear, and consider, and respond in temperate ways. This is no easy thing for a community to achieve. Some advocates of social change deliberately cultivate tactics of provocation and attempt to outrage people. College campuses are a favorite target for such activists, in part because young students are so easily provoked and so easily stirred to join in the defiance of the seemingly dull norms of everyday expression.
We have seen in the last few years numerous instances of college officials caught flatfooted by activists who are willing to disregard both the spirit of civility and the basic rules of behavior. The administrators in these cases attempt to uphold the standards of courtesy to those who refuse to abide by them. This is rightly understood by the activists as weakness and the inability of a community to uphold its own norms.
Civility proceeds from strength, not weakness. For intellectual freedom to exist with a community, civility must be maintained by authority if and when necessary. Dissent can and should be tolerated but dissent that descends into incivility is unacceptable and must be met with sanctions.
The formation of character is one of the four essential desiderata of higher education—along with developing a sense of vocation, entrusting the legacy of culture and civilization, and pursuing truth. Instilling in students a spirit of civility is surely not the whole of character formation, but it may well be the indispensable preliminary to any deeper development. We want college to prepare students for active citizenship. Again, character formation, citizenship, and civility are not exactly the same things, but they are closely allied. And achieving basic civility would seem to be the prerequisite to an education that opens the door to the other two.
Civility is, to be sure, only a threshold virtue. A person who learns to act with civility may well be hypocritical in the sense of inwardly regarding with disdain views to which he outwardly shows respect. No college would want to present itself as instilling hypocrisy in its students, and in an age that elevates “authenticity” over kindness and respect, few students would be amenable to a form of education that insisted on pretending to listen to and respect the free expression of others. In this sense, acquiring true civility requires learning more than mere outward forms. Higher education has as one of its roots the hope that students will prove open to inner growth as well. The university always produces its share of graduates who excel at the conveying the mere appearance of good character, citizenship, and civility, while really devoted to selfish ambition. There is no foolproof form of education that can forestall this, but that is no reason to preemptively surrender in the effort to instill the real spirit of good character, as all too many of our colleges and universities have.
5. Pursuit of Truth
Intellectual freedom uncoupled from the pursuit of truth is mere drift. It is a raft afloat in the ocean of knowledge, speculation, and imagination. The pursuit of truth gives intellectual freedom its rudder, keel, and compass, at least within the context of higher education.
Opposition to the pursuit of truth within the university currently takes several forms: preference for power over truth; postmodernism; and pragmatism. Though the three have important connections with one another, they can be treated separately. The first, the preference for power over truth, generally proceeds from the argument that “truth” is merely a label that those who already hold power use to protect the views they favor against criticism. On the grounds that power must be met with power and masks should be ripped away, these revolutionary cynics proclaim that they intend to pursue openly what their opponents do from camouflage. This power-is real-and-truth-is-an-illusion premise has achieved wide acceptance in the humanities and social sciences, to the point where even faculty members who do not believe it have to address it respectfully in their classes. If they don’t defer to it, students will insistently bring it up. But this framework in fact meets little opposition and is on its way to becoming the normative view, a charter for the domination of the university by those who reject the classically liberal view of the university as a place devoted to the pursuit of truth.
The second form of rejection of truth-seeking is postmodernism, which designates a congeries of ideas that allow that there may be many particular truths that the human mind can apprehend, but that there is no compelling reason to see these small truths as part of a larger coherent whole. The postmodern world is one that rejects overarching structures and welcomes discontinuities and contradictions as characteristic of the way things really are. Postmodernism might be thought of as the softer expression of the power-is-everything framework. It is wide open to the power thesis but has a different political tone. The power-is-everything advocates are interested in gaining actual political power. The postmodernists are more interested in the university as a sanctuary for their own pursuits, freed from any concern with overarching goals and obligations.
The third form of rejection of truth-seeking, pragmatism, refers to the philosophical school that like postmodernism distances itself from the pursuit of larger abstract truth in favor of the idea that we should content ourselves with the knowledge of “what works” within specific contexts. The distinction between postmodernism and contemporary pragmatism is weak, but some self-described pragmatists insist on it by arguing that pragmatism presents a more philosophically coherent worldview.
The idolization of power over truth is by far the most popular of these three rejections. It has roots in the Frankfurt School of Marxism and has become the favored view of many campus political activists. Postmodernism is no longer as fashionable as it was a generation ago on campus but it lingers as a background assumption for many faculty members and is filtered into numerous courses in the humanities and social sciences. Pragmatism, the oldest of three rejections, has a following in some law faculties, and is extolled by the literary critic Stanley Fish, but it might be said to have its strongest hold on faculty members in some of the specialized sciences, where it serves as a convenient way to avoid questions that might complicate the strictly drawn lines of specialized inquiry.
To recognize these rejections of the pursuit of truth as factors within contemporary higher education is not to refute them—a task larger than this statement of principles can accommodate. This much, however, is clear: all three positions are parasitical on the idea of the university as an institution rooted in the pursuit of truth. If “truth” is an illusion employed by the powerful to subordinate the weak, will the weak be better off if the powerful were to accept that proposition and proceed to subordinate the weak by direct exercise of power? The university in that circumstance would cease to exist as a place where knowledge is pursued for any purpose other than domination, and those who now advocate a preference for power over truth would be summarily excluded. The postmodernists inhabit small sub-disciplinary worlds that are wholly subsidiary to the university as a sheltering and protective environment. If their preference for fragmentation were to prevail against the university, their islands of imaginary defiance would be swept away. The pragmatists likewise enjoy a pax Romana maintained by their opponents—the legions of those who believe that the universe is knowable and entire. Shorn of that premise, the institution that permits pragmatists to indulge in playful heuristic dissents would dissolve into the rough and tumble of each having to prove its immediate worth to a doubting world.
These observations, once again, do not suffice to establish that these forms of anti-truth are mistaken. But none of them offers a foundation for the university. Indeed, sometimes all three arguments are referred to as “anti-foundationalism.” No one yet has conjured a vision of an anti-foundationalist form of higher education that suits the larger purposes of the institution. We have no Anti-Idea of the University to set beside John Henry Newman’s classic.
Intellectual freedom is a foundational principle of higher education, but only one of several. Even taken by itself, it is an idea that is hedged in, governed, and ordered by the various and complicated contexts in which it must be applied. The classroom, the quad, the student newspaper, the advisor’s office, and the soccer field are different places that demand different applications. Faculty members, students, administrators, staff, and invited speakers all carry different privileges and different responsibilities. The sciences and the humanities differ too in key ways, and teaching, research, and extramural speech all involve distinctive interpretations of what intellectual freedom can and should mean for higher education. Different kinds of institutions rightly emphasize different aspects of intellectual freedom.
None of this is news. At some level nearly everyone who has written seriously about academic freedom has surveyed this terrain—and there are literally hundreds of books on the topic. Nonetheless, in the current rush to comment on, commend, or condemn recent developments, these distinctions have been brushed aside. We thought it useful to refresh the public memory.
Beyond that we are concerned over the recent emergence of versions of academic freedom that conflate it with intellectual freedom—and sometimes conflate both academic and intellectual freedom with First Amendment freedoms. This blurring of key distinctions puts all three at risk. Universities are not places where anything can be said anywhere and at any time. They are places where the truth is pursued by disciplined means; where a hierarchy of knowledge prevails; and where intellectual authority is maintained. These matters are sometimes rhetorically downplayed but in practice they are rigorously upheld.
A university must also embrace intellectual diversity; it must find ways to distinguish worthy from unworthy intellectual pursuits, and important from trivial topics; it must strike a balance between teaching matters of substance and teaching skills; it must establish for students and faculty alike some locus of authority for determining which matters must be taken as settled and which are open to examination—and must also make provision for shifting these categories.
Intellectual freedom and its highly contextualized embodiment, academic freedom, exist in a final sense to make students into free men and women, capable of wise and responsible stewardship of a free society. That’s an educational enterprise of dauntingly large scope and on the evidence of our campuses today, we are not doing a very good job of achieving it. We offer these words as a step towards improving the prospects.

[1] The Wheaton College mission is, “Wheaton College serves Jesus Christ and advances His Kingdom through excellence in liberal arts and graduate programs that educate the whole person to build the church and benefit society worldwide.” Wheaton’s Statement of Faith, composed in 1924, is a 12-part confession of commitment to the tenets of evangelical Christianity, to which all candidates for faculty appointment must commit.
[2] Peter W. Wood. Diversity: The Invention of a Concept. Encounter Books. 2003.

Source: https://www.nas.org/articles/the_architecture_of_intellectual_freedom

Jan 262016

Due Process Advocates Starting 2016 Off Strong

Ashe Schow
January 25, 2016
Advocates for due process on college campuses have come out in full force in the first months of 2016. Law professors, legislators, editorial boards and even a presidential candidate have stepped up to defend the constitutional rights of those accused of sexual assault on college campuses.

Stop Abusive and Violent Environments, an organization working to protect all students (both victims and the falsely accused), has detailed the advocacy in a press release sent Monday morning.

The year of due process advocacy kicked off on Jan. 8, during a panel at the American Association of Law Schools’ annual conference in New York. Twelve law professors and advocates discussed campus sexual assault, and many on the panel spoke up for due process rights for accused students.

“‘Rights’ is a generous description of what these schools gave the accused,” University of Miami law professor Tamra Rice Lave said.

More from the Washington Examiner
Sanders tamps down Obama-like turnout expectations
By Ariel Cohen • 01/26/16 5:47 PM

On Jan. 11, Democratic presidential candidate Bernie Sanders told an audience that campus rape accusations should be handled by law enforcement, because “Rape and assault is rape or assault whether it takes place on a campus or a dark street.” This statement prompted several articles about Sanders’ views on the matter versus Republican presidential candidate Marco Rubio’s, including a column by me. Shortly after, Rubio’s staff put out a news release reaffirming his commitment to due process rights and said as president he would “swiftly move to stop the Department of Education’s Office of Civil Rights’ assault against” those rights.

Also in January, more than 80 members of the American Law Institute signed a letter against a renewed draft of a sexual assault model penal code. The draft is still too similar to one the Washington Examiner had written about previously, and would criminalize nearly all sexual encounters.

The Independent Women’s Forum, a right-leaning organization dedicated to women’s issues, released a policy paper on how the anti-discrimination statute known as Title IX has been turned into a weapon on college campuses.

“While Title IX’s language speaks to the need for equal opportunities for women and men in educational facilities, initially those enforcing the law turned the focus to creating equal outcomes, such as by requiring institutions’ sports participation rates to mirror the gender breakdown of the student body,” wrote Heather Madden, the groups advocacy projects manager.

Last week, a federal court in Kentucky ruled that campus hearings are “quasi-criminal” in nature, which should make a good argument going forward that students deserve due process rights. Also last week, the Oklahoman posted an editorial about the need for reform in campus sexual assault policies, calling the current model a “constitutionally dubious regime.”

Also from the Washington Examiner
States ask Supreme Court to stay Obama climate rules
By John Siciliano • 01/26/16 5:35 PM

And Monday afternoon, Georgia State Rep. Earl Ehrhart, a Republican, will hold a hearing in his state about due process rights on college campuses, following a string of incidents at Georgia Tech. Ehrhart is presently up-in-arms over the suspension of a Georgia Tech fraternity that was accused of hurling racial slurs at an African-American woman, even though security footage show her walking in front of the building without reacting to anything. Also, the windows from which the slurs were said to be yelled from had been sealed shut for years.

Ehrhart is also angered over the treatment of several Georgia Tech students accused of sexual assault. One student had his request for a preliminary injunction dismissed, though the judge wrote that the adjudication process that led to his expulsion was “very far from an ideal representation of due process.”

Another student was reinstated to the school after a back-and-forth appeals process left him in limbo. In each case, the evidence against the accused student consisted of an accusation and little else, yet these students were deemed rapists.

Due process advocates have a long year ahead of them, and will no doubt have to defend against wild claims of an epidemic of rape on college campuses. This year will most likely see the issue become even more toxic, as more students file lawsuits against their universities for denying them due process.

Ashe Schow is a commentary writer for the Washington Examiner.

Source: http://www.washingtonexaminer.com/due-process-advocates-starting-2016-off-strong/article/2581358

Jan 252016

How the Feds Use Title IX to Bully Universities

Jacob Gersen
January 24, 2016

In the past several years politicians have lined up to condemn an epidemic of sexual assault on college campuses. But there is a genuine question of whether the Education Department has exceeded its legal authority in the way it has used Title IX to dictate colleges’ response to the serious problem of sexual assault.

When an administrative agency makes rules and regulations—which are a form of law every bit as binding as those passed by Congress—it must follow the requirements of the Administrative Procedure Act, the bible of the bureaucracy. The process most often used involves “notice and comment”: The agency must publish the proposed regulation and respond to comments before issuing the final rule. This can take months or years, and at the end of the process parties affected by the new rule can challenge it in court.

There’s a point to making the government jump through these hoops: By demanding transparency and facilitating public participation and judicial review, we can be more confident that the bureaucracy is up to good rather than ill.

The trick is that the Administrative Procedure Act contains an exception for nonbinding “general statements of policy.” If the agency isn’t announcing new requirements, but merely offering general guidelines or clarifying what the law already requires, then no procedures are needed. The government can simply post the new policy statement. But it really must be nonbinding; if an agency announces a policy it claims is nonbinding, but treats it as binding in the real world, courts will not allow its enforcement.

Which brings us back to colleges. In 2011 the Education Department’s Office for Civil Rights issued a “Dear Colleague” letter to explain what schools must do to comply with Title IX. On its own terms, this letter was one of those nonbinding documents. Yet it contains obligations that exist nowhere else in federal law. For example, in 2014 the office found that Harvard Law School violated Title IX because, among other things, it did not use a “preponderance of the evidence” standard in its disciplinary proceedings for allegations of sexual assault. Instead, it used a higher standard of “clear and convincing evidence.”

But the requirement that such proceedings follow the “preponderance” standard does not exist in the law. It was announced for the first time in the “Dear Colleague” letter. Regardless, in the end Harvard agreed to adopt the new standard and overhaul the way it handles sexual misconduct—as has every university facing investigation under Title IX. Although the letter is allegedly nonbinding, the Education Department has used it as leverage. College presidents, faced with an announcement that their school is being investigated, a potential loss of federal funds, and a public-relations nightmare of being seen as soft on sexual assault, have declined even to challenge the overreach, much less to sue the government for acting unlawfully.

With this method, the agency has achieved complete adherence to its desired policy, without that pesky and time-consuming public input and litigation. The regulated schools are not so insulated. Many now face lawsuits from students disciplined under the new procedures. Courts are taking these claims seriously. Not our fault, the Education Department might say. After all, that letter wasn’t legally binding.

This kind of policy-making process—or, rather, policy-making without process—is unlawful and wrong. The country ought to be embarrassed when officials who make law exempt themselves from legal requirements, as they too often do. The Fifth Circuit Court of Appeals concluded that President Obama’s immigration policies were likely issued without the right administrative process. Now that the Supreme Court has taken up the case, we will find out if the justices agree.

Americans often disagree about what policy is best, but they have long agreed on the legitimate procedures for making law. In education, immigration or any other field, administration in the shadows is no way to lead—and surely no way to be led.

Mr. Gersen is a professor at Harvard Law School.

Source: http://www.wsj.com/articles/how-the-feds-use-title-ix-to-bully-universities-

Jan 252016


Contact:          Gina Lauterio

Telephone:     301-801-0608

Law Professors, Lawmakers, and Others Strengthen Calls for Due Process in Campus Sex Cases

WASHINGTON / January 25, 2016 – In recent weeks, numerous law professors, lawmakers, and others have issued statements calling for colleges to restore due process in the adjudication of sexual assault cases. These statements reveal a dramatic shift in the focus of the ongoing debate on campus sexual assault.

During a January 8 panel on “Grappling with Campus Rape” held at the American Association of Law Schools annual conference, several panelists were sharply critical of the current state of affairs. “’Rights’ is a generous description of what these schools gave the accused,” charged University of Miami law professor Tamara Rice Lave. http://reason.com/blog/2016/01/14/law-professors-against-title-ix-faculty

Two weeks later, over 80 members of the American Law Institute signed a letter deploring a proposed model penal code because the draft law would engender “expansive criminalization” of sexual assault. http://lawprofessors.typepad.com/crimprof_blog/2016/01/more-concerns-expressed-about-alis-affirmative-consent-project-by-ali-members.html

Presidential candidates have expressed reservations about the proper handling of campus sex cases, as well.

On January 11, Democratic candidate Bernie Sanders called for the referral of campus sexual assault cases to the criminal justice system, which embodies an array of due process protections. http://reason.com/blog/2016/01/13/bernie-sanders-said-something-sane-about

Republican candidate Marco Rubio recently issued a statement noting that false allegations of sexual assault “can destroy lives….Certainly, we should make additional efforts to protect due process on campus.” https://marcorubio.com/news/marco-rubio-campus-sexual-assault-bill-due-process/

State lawmakers are calling for a renewed focus on due process, as well.

In California, governor Jerry Brown vetoed a bill last fall that would have established a mandatory minimum punishment for students found responsible of rape or sexual assault. “College campuses must deal with sexual assault fairly and with clear standards of process,” Brown announced. http://www.huffingtonpost.com/entry/california-college-sexual-assault-punishment_561b184de4b0dbb8000f020f

Referring to a series of alleged due process abuses at Georgia Tech, Rep. Earl Ehrhart recently declared, “I cannot in good conscience continue to fund Georgia Tech at the level that it requests without some assurance to parents that there will be due process for their children.” http://blog.simplejustice.us/2016/01/17/crazy-campus-consent-conundrum- collapses/

Last week a federal court in Kentucky ruled that a campus sexual assault hearing should be regarded as a “proceeding…akin to a criminal prosecution,” and held that states should ensure that adjudicatory procedures are fair. https://www.thefire.org/opinion-and-order-in-doe-v-hazard-no-515-cv-00300-e-d-ky/

The Independent Women’s Forum just released a policy paper, Title IX and Freedom of Speech on College Campuses, which deplores the fact that colleges that adhere to “basic concepts of due process and innocence until proven guilty” could be found to be in violation of the federal Title lX sex discrimination law. http://pdf.iwf.org/PolicyFocus16_Jan_p3.pdf

In January, over 60 editorials were published that enumerated broad concerns over the lack of due process on campus: http://www.saveservices.org/sexual-assault/editorials/2016-2/ On January 17, for example, the Editorial Board of the Oklahoman noted that the processes used to handle sex allegations on college campuses “increasingly resemble kangaroo courts.” http://newsok.com/article/5472807?utm_source=MobileNewsOK.com&utm_medium=Social&utm_campaign=ShareBar-Facebook

Jan 242016

Federal Court Orders Iowa State to Stop Censoring Student T-Shirts Advocating Marijuana Legalization

January 22, 2016

DES MOINES, Iowa, January 22, 2016—Today, the U.S. District Court for the Southern District of Iowa issued a permanent injunction barring Iowa State University (ISU) administrators from using a trademark policy to prevent the campus chapter of the National Organization for the Reform of Marijuana Laws (NORML ISU) from printing t-shirts depicting a marijuana leaf. Students Erin Furleigh and Paul Gerlich, both former presidents of the group, sued ISU in July 2014 as part of the Foundation for Individual Rights in Education’s (FIRE’s) Stand Up For Speech Litigation Project.

Because ISU had rejected the student group’s t-shirts “due to the messages they expressed” in an effort to “maintain favor with Iowa political figures,” the court found that ISU engaged in unconstitutional viewpoint discrimination in violation of the First Amendment.

The court also denied the defense of qualified immunity to the named defendants, including ISU President Steven Leath and Senior Vice President Warren Madden, meaning that they may be held personally liable for violating Furleigh and Gerlich’s First Amendment rights. In so ruling, the court found that “a reasonable person would understand that Defendants’ actions treaded on Plaintiffs’ First Amendment rights of political expression and association.”

Senior District Judge James Gritzner, who issued the ruling, observed that “[t]he development of First Amendment doctrine in the university context has repeatedly affirmed that student groups may not be denied benefits on the basis of their espoused views.” After reviewing the record, the court concluded that “Defendants took action specifically directed at NORML ISU based on their views and the political reaction to those views so that Defendants could maintain favor with Iowa political figures.”

In their original complaint, the students detailed how the university censored the group’s t-shirts based on their marijuana-related messaging and imagery, removed NORML ISU’s advisor, and implemented new guidelines for using ISU’s trademark in order to restrict NORML ISU’s speech. And in a January 2015 ruling, the court rejected every argument ISU made in its initial attempt to have the case dismissed.

Gerlich and Furleigh were represented by Robert Corn-Revere, Ronald London, and Lisa Zycherman of Davis Wright Tremaine in Washington, D.C.

“We are gratified that the court understood that ISU bowed to political pressure when it imposed special restrictions on NORML ISU,” said Corn-Revere. “This violated the most basic First Amendment requirement that the government cannot discriminate against a student group or its members because it disagrees with their viewpoints. This decision vindicates the right to freedom of expression not just for the courageous students who brought this case, but for the students of all public universities.”

While the court found that ISU’s actions and policies were “unconstitutionally discriminatory as applied to Plaintiffs,” it did not find ISU’s trademark policy to be facially unconstitutional because student groups are not punished for submitting t-shirt designs that are later rejected by ISU. As a result, the court did not find a sufficient chilling effect on other student groups to support invalidating the policy as written on First Amendment grounds.

“I’m very excited about this decision,” said student plaintiff Paul Gerlich. “It is extremely validating to have a federal judge agree that our First Amendment rights were violated. It’s also gratifying that this decision will help make sure that other students in Iowa, and maybe even nationally, won’t have to go through what we did.” Gerlich added, “And, of course, I can’t wait to see what new t-shirt designs we come up with.”

“NORML ISU is a student organization that faces judgment despite being involved in community service, political outreach, and organizing events centered on public education and policies,” said student plaintiff Erin Furleigh. “I hope this decision will remind our Iowa State community that college should be a welcoming place to absorb perspectives, share your own, and participate in productive, progressive dialogue.”

“This is a tremendous moment for Paul and Erin, whose courage in standing up for their rights has been vindicated,” said Catherine Sevcenko, FIRE’s Director of Litigation.

FIRE is a nonpartisan, nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, freedom of expression, academic freedom, due process, and freedom of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America can be viewed at thefire.org.


Katie Barrows, Communications Coordinator, FIRE: 215-717-3473; media@thefire.org

Schools: Iowa State University
Cases: Iowa State

Source: https://www.thefire.org/victory-federal-court-orders-iowa-state-stop-censoring-student-tshirts/

Jan 242016

Watch What You Say

Frederik deBoar
January 22, 2016

The negotiated settlement between Steven Salaita and the University of Illinois at Urbana-Champaign has brought that sad episode to a close. Salaita, a scholar of indigenous studies, gave up a tenured position at Virginia Tech for the Illinois job, but following a series of tweets critical of Israel’s assault on Gaza in the summer of 2014, he was fired before he ever taught a class. This was a clear-cut attack on academic and political freedom, and the situation became a major embarrassment for the university, resulting in formal censure by the AAUP and a lawsuit from Salaita. After months of protracted legal maneuvering, including discovery filings that revealed the extent of donor influence on the decision to fire Salaita, a settlement was reached in November.

We can respect Salaita’s decisions, and his take on the settlement, while still being clear about the overall effect of the entire affair. Few within the American university system could avoid recognizing UIUC’s actions as a further erosion of faculty independence. Nor could the faculty fail to recognize that, in terminating the nascent employment of a tenured professor, the university deepened the notion of a Palestinian exception to academic freedom. These conditions are notable, and disturbing, on their own. But I further believe that they demonstrate one of the most profound and disturbing evolutions in the contemporary university: a pervasive culture of fear. As someone who has spent his life in the academy, having grown up on a college campus, spent five years as an undergraduate student and six as a graduate student, and who now works at a university, I am struck again and again by the fear that attends so much of academic life.

I’ve witnessed this fear myself on the job market. Like most who pursue an academic job, I’ve consumed a great deal of advice in a variety of forums — books, websites, social media, conferences, conversations with peers and mentors. Amid all the details about CV formatting, whom to ask for letters of recommendation, and similar logistics, a single strident piece of advice emerges repeatedly: Watch what you say. This advice is voiced in a variety of ways, sometimes as an explicit directive against speaking out about specific issues, sometimes as counsel against engaging politically at all, sometimes as a vague admonition that “people are always watching.”

Regardless of its particular form, advice of this nature tells early-career academics that a key aspect of securing a job is to present oneself as entirely unobjectionable, to sand away the aspects of one’s self-presentation that might offend, well, anyone. This advice, undoubtedly, is well-intentioned. Indeed, if your only concern is building a career in the academy, it’s probably correct advice: Refusing to engage in any behavior or speech that suggests controversy probably does help to secure a job. But if we take a broader view of the traditional role of the academy as an incubator of provocative and dangerous ideas, this situation is a slowly unfolding disaster.

Note that this advice to carefully watch one’s words comes at precisely the same time that more and more people, both within and outside academe, are calling for more public engagement by professors. Many have counseled that we must define our value to the broader public, particularly at institutions that are funded partially through public money. I agree with all of these calls for more public expression, but consider the deep unfairness of asking for it at the same time that young scholars are being told to watch what they say. Graduate students, tenure-track faculty, adjuncts, and instructors —­ all are being asked to participate in the public conversation, yet do so under fear of profound consequences for saying the wrong thing. The Salaita affair was an extreme case. But that case sent a clear message to administrators at universities that would prefer to avoid political controversy: It’s easier to stop controversial hires, like Steven Salaita’s, before they are made. In a brutally competitive employment landscape, it’s best to deny entry to potential headaches than to remove them.

And for administrators, social media is an obvious place to start. Many observers of the academic labor market argue that Twitter and Facebook are becoming essential to developing a professional reputation and can mean the difference between a hiring committee recognizing your name or simply seeing you as another faceless CV on a pile.

If you think the academy should be an incubator of provocative and dangerous ideas, this situation is a slowly unfolding disaster.
It can be easy for graduate students and other pre-tenure academics to feel like they can’t afford not to engage on social media. Then, the problems reveal themselves. Set aside the specific question of Israel and the passionate engagement of someone like Salaita. The cultures of Twitter and Facebook are quite different from those of academe. Social media is often insouciant, off-the-cuff, and subtle in its vocabulary and signals. It can also often be vulgar, in a way that makes sense within these cultures but that can be off-putting to those outside of them. That’s the fundamental fear: that the pressure to be on social media compels people to interact in a forum where it is very easy to be misunderstood.

The Atlantic’s Robinson Meyer put this danger brilliantly, writing that “on Twitter, people say things that they think of as ephemeral and chatty. Their utterances are then treated as unequivocal political statements by people outside the conversation. … [W]hen you write (or make a video or a podcast) online, what you’re saying can go anywhere, get read by anyone, and suddenly your words are finding audiences you never imagined you were speaking to.” This is precisely the fear that I’ve heard many times from graduate students: that their engagement on social media will be picked over by members of job committees who will misinterpret what they’ve said and hold it against them. Damned if you do, damned if you don’t.

Julia Schmalz for The Chronicle Review This kind of Catch-22 has contributed to the pervasive sense of fear that is already endemic on many campuses. The labor issues really drive the problem. In a healthy job market, academics wouldn’t need to fear the consequences of political speech nearly as much. Scholars who were fired for voicing controversial opinions, or who felt that their ability to speak freely was being obstructed, would be able to obtain employment elsewhere. Meanwhile, institutions eager to hire the best people would find that a reputation for resistance to free expression would hamper those efforts. But in the contemporary academy, where openings for full-time faculty members are few and adjuncts fill the gaps, the leverage lies in the hands of institutions. With so many underemployed Ph.D.s, controversial faculty can be swiftly replaced. The difficulty of obtaining a new job, meanwhile, compels employees to keep their mouths shut. The academy is hardly alone in this condition. Since the Reagan/Thatcher era, the general drift of the working world is toward less- and less-empowered workers, who are correspondingly more and more subservient to the employers who dominate them. The university is a particularly intense example of this trend.
In order to chip away at the atmosphere of fear on campus, we’d need to rebuild a functioning academic labor market. Though many are fatalistic about this possibility, I maintain hope. The increasing focus on undergraduate teaching should be an opportunity to insist on the importance of faculty. Several pieces of large-scale research, such as the Gallup-Purdue Index, demonstrate that faculty are the key to effective undergraduate learning. This presents us with an opportunity to argue for the value of experienced and highly trained instructors. In the broader sense, the rise of the Fight for $15 minimum-wage protest movement, the presidential candidacy of the Democratic socialist Bernie Sanders, and the growing anger over inequality and flat wages make improvements to academic labor conditions more likely. The faculty must join a broad pro-worker movement that insists that too many are being left behind in a winner-take-all economy, and a movement that demands structural reform from our institutions.

In calling for a reinvigorated academic labor market, I am obviously not making an argument that many will find controversial. More vexed, and more sensitive, is the way in which deepening political battles on campus risk contributing to this culture of fear. The past months have seen the rise of a new campus protest movement. This has created a period of flux in the university, a moment of potential for both good and bad. If it unfolds as a movement for labor solidarity, it could help to restore the academy’s place as an incubator of provocation and challenge. If it unfolds as an appeal to administration and establishment power, it could deepen the conditions I’ve described.

I understand why so many who are invested in undergraduate teaching and believe in these protests are eager to stand with student activists in all cases. But this has led to a resistance toward the kind of skeptical analysis and critical discrimination that are essential to effective left-wing practice. Yes, there is indeed a large and growing national movement of campus protesters, and in many ways, the various groups that make it up share goals and tactics. But within that broad coalition are a vast number of groups and individuals with profound differences from campus to campus. The desire to support this movement has led to a strange embrace of neoliberal policies by many leftist academics. That’s a strange and unfortunate situation, and one that begs for deeper analysis.

Take, for example, student protesters at Wesleyan University. Wesleyan’s proud tradition of radical activism stretches back decades, making the university a natural site to take part in the nationwide protest movement. Yet the initial demands of student protesters were far from radical:

A statement of accountability by administration, essentially dictated by the protesters.
Hiring an “equity officer,” an administrative position housed in the Office of Student Life with the mandate to “engage with students regarding equity within the confines of race, ethnicity, class, gender, sexuality, age, religion, culture, gender-identity, and physical or mental disability.”
The establishment of a multicultural center.
A system through which students could anonymously inform on faculty members and staff whom they considered guilty of “microaggressions.”
These are not radical demands. In fact, they’re straightforwardly conservative demands, in that they increase rather than decrease administrative control of day-to-day campus life. If the students get their wish, it will ironically strengthen the hand of those in charge of the very institutions student activists seek to change. Accountability statements are precisely the type of solutions, if you can use the term, that administrators prefer: heavy on symbolism, light on material change. Hiring an equity officer and establishing a multicultural center might have a positive overall impact on university life, but both actions will continue to expand the administrative bloat that has done so much to define higher education in the past several decades. Worse, however independent these entities might strive to be, and whatever the integrity of the individuals who staff them, they will ultimately be part of the institution, and serve the needs of the institution, rather than the needs of students.

Julia Schmalz for The Chronicle Review The demand for a system of anonymous faculty surveillance, meanwhile, is positively Orwellian, a nightmare scenario for any instructor. It’s hard to imagine a system better designed to create an atmosphere of oppressive fear on campus. And such a system is directly contrary to one of the left’s most cherished, longstanding commitments: opposition to workplace tyranny. The burden of fear would fall hardest on instructors who do not enjoy the benefit of tenure, making those already precarious positions even riskier. The anonymity of the system would make it impossible for instructors to meaningfully respond to complaints. We’d be left with instructors living with constant, low-level fear that their classroom conduct would result in an unanswerable complaint, one surely handled by some bureaucrat with his or her own agenda and interests. How could this outcome be conducive to the left-wing philosophies that these protests spring from?
Contrast this with the kinds of demands Wesleyan students could have made instead. For decades, Wesleyan had need-blind admissions. At various times, higher administration attempted to do away with the policy, only to capitulate to vociferous student protest. But several years ago, the university finally abandoned the policy, with only muted disapproval from campus activists. Need-blind admissions strike at the very heart of the inequality that campus activists are protesting. How could the policy’s return not be on their list of initial demands? Similarly, Wesleyan employs a large number of low-wage staff members, as most universities do. Many of these employees are people of color. Why not focus student protest on their needs, given that these are among the most vulnerable members of the entire campus community? And yet the demands are silent on the welfare of these workers.

These protests are spreading out of a very deep and real concern with racial inequality and injustice on campus, and they represent the best tradition of students’ raising their voices. But there is a world of distance between radical intent and radical effect. Far too many of these protest movements seem to be falling into the trap of the Wesleyan students. For example, Brown University has pledged to spend millions on campus diversity, and to create new administrative positions to address student concerns. The attention to equality is admirable, but we should be clear: Cutting checks and hiring more administrators is not some radical alternative to business as usual. It is business as usual. This development may prove to be a boon to minority students at Brown, and if so, it’s worth celebrating. But the tendency for these organic, grass-roots protests to end up as just another vehicle to empower the administration should concern all of us who care for the university, even those of us who support the broad goals of the protesters. If we honor what they fight for, we have to maintain the right to identify when they’ve gone wrong. The academic community, in other words, needs to engage in both support and criticism of these movements, without fear of reprisals.

The campus protests are an opportunity for everyone to grapple with the central questions of the university’s future, questions that are far too often answered by unaccountable power holders. Protests like that at the University of Missouri mark an excellent development: a reminder that a college, ultimately, is made up of its students and its faculty. Those students demanded to be heard, and they did not give up until their demands were too loud to ignore. This is altogether good news. All of us can work to make our institutions more equitable, more just, and more free. But in a culture of ambient fear, with students and the faculty frequently represented as antagonistic toward each other, this moment could easily turn toxic. The only way forward is to engage in vigorous and open dialogue, taking both student complaints and faculty rights seriously.

We have examples to draw from. Look to the University of Missouri protesters, who deposed a campus president despite the risks involved, despite the temptation to just put their heads down and carry on. Look to Steven Salaita, who fought not only for his own job but for the academic freedom of all of us. Another campus culture is possible. We need courage in the face of fear to rebuild our institutions and the values they have stood for. It’s a worthwhile goal, and worth fighting for.

Fredrik deBoer is an academic and writer. He teaches at Purdue University.

Source: http://chronicle.com/article/Watch-What-You-Say/234983

Jan 242016

A Georgia Tech Fraternity Fight Spills into the State Capitol

Jim Galloway
January 23, 2016

“Double-secret probation” has been brought to an end at Georgia Tech.

The Phi Delta Theta fraternity is no “Animal House.” And Tech President Bud Peterson is no Dean Wormer. Nonetheless, it is safe to say that arguments over frat-house behavior and student justice rarely spill over into the holy confines of the state Capitol.

But that’s what’s happening. And the fraternity may be winning.


Last August, an African-American woman lodged a complaint against Phi Delta Theta, alleging that members of the fraternity shouted racial slurs at her from the windows of their campus house.

The fraternity denied that any such thing happened. It produced security video of the young woman walking by, unflinching. Windows from which the slurs were alleged to have been hurled had been sealed for years.

Even so, two months later, a Tech administrator in charge of student discipline placed the fraternity and its 100 or so members on “suspension in abeyance,” restricting its members to academic activities – no intramural sports, no socials — and requiring members to undergo sensitivity training as a condition for lifting the sanction.

No appeal was allowed, to either the Tech president or the state Board of Regents.

“Double-secret probation,” snarled Earl Ehrhart, a state representative from west Cobb County, who entered the picture shortly afterward.

Ehrhart is the same fellow who went after Delta Air Lines’ scalp last year when CEO Richard Anderson used some unfortunate language while encouraging the Legislature to pass a tax increase to rebuild the state’s roads and bridges. At Ehrhart’s urging, Delta lost a 10-year-old sales tax break on aviation fuel, worth more than $20 million a year.

Ehrhart is also chairman of the House Appropriations subcommittee that oversees university spending. The Cobb County lawmaker has previously expressed his doubts about the way Georgia’s public universities handle accusations of sexual assault – whether they might be better handled by law enforcement and qualified prosecutors.

(An Atlanta Journal-Constitution investigation this month found that Tech had recently been ordered to re-instate a student who had been unfairly accused of sexual assault.)

Likewise, the Tech fraternity’s suspension riled Ehrhart. “These young men have lost an entire half-year of their college experience. It’s a huge sanction. You spend a lot of time and effort and money to get into a fraternity,” the lawmaker said. “And they’re walking around campus with a scarlet letter on their foreheads, for ‘racists.’”

For the last three months, Ehrhart, Georgia Tech officials, the state Board of Regents, and attorneys for members of the aggrieved fraternity have argued and negotiated. Ehrhart has issued threats of reduced – or at least capped – funding for the engineering university.

In December, a special committee set up to examine student disciplinary policies issued its report to Peterson, the Tech president. Among its findings: While facts were undisputed in “95 percent” of all disciplinary investigations, in “one case,” punishment was meted out solely on the force a statement by the person who lodged the complaint. No other evidence was considered.

That case, Ehrhart said, targeted the Phi Delta Theta fraternity.

On Monday, Ehrhart will hold a two-hour hearing in the Capitol. He will announce that the Board of Regents are working on a system-wide policy to ensure due process for university students. In other words, tuition and other amenities, once paid for, are a property right that shouldn’t be ripped away lightly.

Likewise, Tech has been ordered to cease its practice of denying appeals in “suspension by abeyance” cases. A spokeswoman for the Board of Regents confirmed both developments.

Ehrhart also said the Tech administrator who had overseen student disciplinary issues had been transferred.

But the lawmaker won’t get one thing he wanted.

Ehrhart said he has demanded that the complaint against the fraternity be dropped. It hasn’t been. Instead Phi Delta Theta will be allowed to make an appeal to an appointed jurist, former state Supreme Court chief justice Leah Sears. Evidence will be allowed. Lawyers, too. Ehrhart wasn’t impressed.

“You want to talk about ‘safe space’? In the vernacular of campus discussion today, there’s no safe space for young men at Tech. You want to be safe? Go to class, then go run and hide in your dorm. That’s where we are at Tech right now,” said Ehrhart, who can be prone to operatic pronouncements.

The Tech student body is roughly 70 percent male. Incidents on the other side of the scale have been documented. For instance, the email that surfaced in 2013, in which the social chair of another Tech fraternity instructed his brothers on how to lure “rapebait” by getting female guests drunk.

Ehrhart said Monday’s hearing will include testimony from an attorney for Phi Delta Theta. University system officials have been invited, as have Tech officials. But the lawmaker offered a warning, with Wagnerian overtones.

”This is not a micro-aggression. This is a macro-aggressive environment when Earl Ehrhart is chairing the meeting. If you don’t like someone to disagree with you, little snowflake, and you’re going to melt in a fetal position on the floor of my committee room, you can go outside in the hall,” he said. “It’s a public building, but you can’t do it there when adults are having a conversation.”

Source: http://politics.blog.ajc.com/2016/01/23/a-georgia-tech-fraternity-fight-spills-into-the-state-capitol/