Kevin Drum's Sensible Thoughts on Ray Rice: Why Doesn't The Same Logic Apply to Universities?

Kevin Drum has some sensible thoughts on Ray Rice, discipline and the NFL -- "Sensible" defined in this case as largely mirroring my own:

Ray Rice committed a crime. We have a system for dealing with crimes: the criminal justice system. Employers are not good candidates to be extrajudicial arms for punishing criminal offenders, and I would be very, very careful about thinking that they should be.

Now, I'll grant up front that the NFL is a special case. It operates on a far, far more public level than most employers. It's a testosterone-filled institution, and stricter rules are often appropriate in environments like that. Kids take cues from what they see their favorite players doing. TV networks and sponsors understandably demand a higher level of good behavior than they do from most employers.

Nevertheless, do we really want employers—even the NFL—reacting in a panic to transient public outrage by essentially barring someone for life from ever practicing their craft? Should FedEx do that? Should IBM do that? Google? Mother Jones? Perhaps for the most serious offenses they should, and it's certainly common to refuse to hire job candidates with felony records of any kind. (Though I'll note that a good many liberals think this is a misguided and unfair policy.) But for what Ray Rice did?

I just don't know about that. Generally speaking, I think we're better off handling crimes through the criminal justice system, not through the capricious judgments of employers—most of whom don't have unions to worry about and can fire employees at a whim. I might be overreacting, but that seems like it could become a dangerous precedent that hurts a lot more people than it helps.

I agree 100%.  The NFL  was simply insane to venture into the role as a shadow legal system to apply punishments based on their investigation and judgement in parallel with those of the legal system.  They would have been much better off simply establishing a schedule of internal penalties that were based on the outcomes of the legal system.

That being said, I wish other writers on the Left would read Drum's column and ask themselves why this same logic wouldn't apply to colleges as well. It is unbelievable to me that Liberals of all people -- who have largely defended due process rights in the legal system for years against Conservative attempts to trim them -- would suddenly wage a campaign to substitute kangaroo courts run by university administrators in the place of normal police and judicial procedures for crimes as serious as rape.  I am historically skeptical of the legal system and the people in it, but all of these problems would only be worse trying to have a bunch of amateurs at universities setting up a parallel system.

There is certainly a problem to be solved -- though the 1 in 5 statistic is completely bogus and exaggerated -- but the diagnosis of the problem has been all wrong.  The problem is that Universities have historically created internal police forces and disciplinary processes for the express purpose of protecting their students from the normal legal system.  This is a practice and tradition that goes all the way back to the Middle Ages.  And it worked fine, at least as far as I am concerned, when the University was protecting students from marijuana or underage drinking busts by town police.

But institutions develop a culture, and the culture of university disciplinary processes has been to 1.  keep the student out of the legal system and 2.  get the student to graduation.  I have friends who have been kicked out of top universities a few times, but the University in the end bent over backwards to take them back and get them over the finish line.

So it is disappointing, but not surprising, that universities approached more heinous crimes with this same culture and mindset.  And some egregious sexual assaults got swept under the rug.  Again, I think some folks are exaggerating these numbers by assuming there are tens or hundreds of these cases for every one we hear about.  But we can agree on the core fact, I think, that the typical college disciplinary culture of protecting students from the legal system has failed some victims of sexual assault.

But this is where everyone seems to be going off track.  The Obama Administration solution for this problem is to demand that universities develop more robust fact-finding and disciplinary processes for such felonies, and remove procedural protections for the accused as a way to offset the historic university culture to go to far in protecting wrongdoers.

This is nuts.  Seriously.  Given the set of facts, a far simpler solution, fairer to both accused and victims, would have been for the Obama Administration simply to demand that Universities hand over evidence of crimes to police and prosecutors trained to know what to do with it.  If the University wants to take special steps to get victims help coping with their recovery using University resources, or help victims and the accused who are University students cope with the rough edges of the legal process, great.

Postscript:  Another problem is that punishments meted out by universities are going to always be wrong, by definition.  Let's say a student is accused of rape and kicked out.  Two possibilities.  If he is innocent of the charge, then he was punished way too much.  If he was guilty, if he really raped someone, he was punished way too little -- and by the University screwing around with it and messing up the chain of evidence and taking statements without following the correct process, they may have killed any chance of a conviction in the legal system.    The current process the Obama Administration is forcing punishes the innocent and protects the truly guilty.


  1. Jim Collins:

    In my opinion the main issue here is that the University cannot just turn over the evidence to law enforcement because many times no crime has been committed.

  2. Daublin:

    There's a general bias in public discourse that comes from people not knowing how existing systems work. The advocate for how things should be compared to complete laisse faire, and then they apply it as a delta to where we are now.

    In the case of crime, there is a tendency for people to vocally shout that some behavior is bad, and therefore should be punished more. The fallacy is in adding the word "more" onto the end of it. Maybe it's already punished plenty. Indeed, I can think of few things that are clearly crimes that really need *more* punishment in America. In quite a few cases, we have gotten really out of control.

    The same happens with gun control. People will say that guns should be controlled more now, without bothering to find out how guns are currently controlled. Basically they are arguing that guns should be controlled more than zero, which is a pretty trivial thing to say, isn't it?

    Another example is funding for science, space exploration, or any number of other feel-good topics. People love to argue that NASA is important, when the real question is whether it's more important than its current funding would suggest.

  3. jdgalt:

    I agree with you about the NFL, but in their defense, sports are part of the entertainment industry, which relies on widespread, continuous public support for its income. If they had not at least tried to kick Rice out, they might well lose a large part of their revenue for the rest of the year. The same goes for the NBA when they forced the owner of the Clippers to sell the team for telling his ex-girlfriend he didn't want her bringing black guys to games with her. Both of these are cases where the league, beholden to the public, is forced to act unfairly to avoid the public's anger.

    I would like to see a more general law that employers must butt out of their employees' personal lives, but of course there are going to be cases where it affects them too much. There's no reason a guy convicted of writing bad checks, for instance, shouldn't be allowed to keep his job as a teacher or a building trades worker, but an accounting firm that was forced to hire him would rightly lose reputation. Similarly, a guy with a history of drunk driving can do most jobs (though they might want to subject him to random testing), but he should not be hired to drive trucks.

    The University case, though, is really an entirely different problem -- the attempt to declare "guys being guys" as the mythical "rape culture" and put a stop to it, under threat of expulsion. The colleges can't get that result if they leave enforcement to the police, unless they first get the myth of "rape culture" enacted into law, as California has now done.

    I can only hope the next President will appoint some more sensible people to the Supreme Court before it gets a chance to rule on this policy. Of course, a Court that really followed the Constitution would simply remind the federal government that education is not one of its enumerated powers, and that would be the end of that.

  4. J_W_W:

    This is attempt by the left to see if they can install kangaroo court justice to destroy the lives of those they view as the oppressors. All straight men who do not bow down and grovel because of their "privilege" will be punished with the destruction of their future. Sure some innocents will be punished but as straight men, how innocent could they be really?

    Progressives have abandoned both "I disagree with what you say, but will defend to the death your right to say it" AND "It is better that 100 guilty go free than 1 innocent be wrongly punished". The new utopia cannot be built without crushing some eggs (I'm mean young men). And if they can get the kangaroo courts in the colleges to be successful in destroying the lives of their enemies, they will work very hard to bring them into our workplaces just like the NFL is doing, but on a large scale and with a broader scope of crimes to find people guilty of to allow them to engage in more life destroying.

    The real irony is that with regards to sex Progressives are working to create a world where no act can be deemed improper, yet no act can be allowed (or have its being allowed revoked at any later time).

  5. Vangel:

    You can chalk this problem to the folly of progressivism. The movement originated with pietists thought that they could legislate vices out of existence and use the power of government to spread good both domestically and abroad. In order to keep faith with their ideology they had to reject the notion of natural law and abandon reason. Instead of being true to natural rights principles and use a legal system that would compensate the victim the process degenerated into one where it is not the victim but the state that is one of the parties in court with the accused making up the other side. Such systems always end badly because victims do not seem to matter very much and justice is not done.

    It would have been far better to have Mr. Rice compensate his victim for the damage that he did to her as Common or Customs Law systems permit. Have some impartial arbitrator determine the damage done, examine the circumstances and verify the act, and finally rule on compensation. Once compensation is taken care of no further punishment is required and certainly not one where taxpayers have to spend money to finance activities that promote the activities of ambitious prosecutors, judges, and politicians.

    Mr. Drum does not go far enough because he cannot conceive of a system that is concerned about transactions between victim and aggressor that does not involve a state monopoly.