Coyote Blog

FIRE is looking for a client (University or aggrieved student) whom it can help sue the Department of Education over their sexual misconduct guidance

Five years ago today, the Department of Education’s Office for Civil Rights (OCR) announced sweeping new requirements for colleges and universities adjudicating allegations of sexual misconduct. By unilaterally issuing these binding mandates via a controversial “Dear Colleague” letter (DCL), OCR ignored its obligation under federal law to notify the public of the proposed changes and solicit feedback.

To correct this error, and to begin to fix a broken system of campus sexual assault adjudication that regularly fails all involved, the Foundation for Individual Rights in Education (FIRE) seeks a student or institution to challenge OCR’s abuse of power. FIRE has made arrangements to secure legal counsel for a student or institution harmed by OCR’s mandates and in a position to challenge the agency’s violation of the Administrative Procedure Act(APA). In keeping with FIRE’s charitable mission to advance the public interest, representation will be provided at no cost to the harmed party.

“In the five years since its issuance, OCR has acted as though the 2011 Dear Colleague letter is binding law—but it isn’t,” said FIRE Executive Director Robert Shibley. “By circumventing federal law, OCR ignored all stakeholders: victims, the accused, civil liberties advocates, administrators, colleges, law enforcement, and the general public. Real people’s lives are being irreparably harmed as a result. It’s time that OCR be held accountable.”

The DCL requires that schools use the low “preponderance of the evidence” standard of proof (i.e., that they find an accused student guilty with just 50.01 percent certainty) when adjudicating claims of sexual assault and sexual harassment. The DCL’s requirement that colleges use this standard—found nowhere in Title IX or its implementing regulations, and specified before 2011 only in letters between OCR and individual schools—effectively creates a new substantive rule for institutions to follow.

Here is what is amazing to me:  Not a single university has challenged this rule, even though trashes the due process rights of is male students.  These same universities had no problem defying the law on things like ROTC and army recruiting (which represent mostly voluntary enticements of their students) but have rolled over and played dead over this much more direct threat to their students' well-being.

The ACLU has always been an important but imperfect organization.  Historically, its biggest problem IMO has been its Stalinist origins and its resulting complete silence on, even at times hostility towards, property rights.   But it was always wonderfully absolutist in protecting free speech.  One of my first blog posts, which I can't seem to find, 10+ years ago was a post congratulating the ACLU to the distasteful but necesary task of defending the free speech rights of neo-Nazis.

Unfortunately, the rising opposition to free speech on the Left seems to be infecting the ACLU.  Via Ronald Collins:

Wendy Kaminer is an ardent free-speech advocate; she is currently a member of the advisory board of the Foundation for Individual Rights in Education (FIRE). Ms. Kaminer Kaminer was a member of the board of the ACLU of Massachusetts from the early 1990s until June 2009. She was also a national board member of the ACLU from 1999 until her term expired in June 2006. As to the omission of any reference to protecting First Amendment free-speech freedoms in the 2016 Workplan, she stated:

I’m not at all surprised that the ACLU’s 2016 work plan doesn’t include an explicit commitment to protecting freedom of speech. At the national level, ACLU has been exercising its right to remain silent on key free speech issues for years, in apparent deference to progressive support for restricting speech deemed racist, sexist, homophobic or otherwise exclusionary. Still, while it’s unsurprising, the ACLU’s withdrawal from free speech battles that could eventually lead the U.S. to adopt a Western European approach to regulating “hate speech” is indeed alarming. As threats to free speech intensify — on campus (thanks partly to arguably unconstitutional federal mandates) and in the remarkable tendency of some liberals to blame the victims of violence for giving offense to their murderers (remember Charlie Hebdo) — the ACLU’s timidity in protecting speech looks more and more like complicity in censoring it.

Here is how Harvey A. Silverglate, co-founder of FIRE and a former member of the Board President of the ACLU of Massachusetts, replied:

Sadly, it comes as no surprise that the national ACLU Board and Staff are nowhere to be seen in the increasingly difficult battle to protect First Amendment freedom of expression rights. This is especially so in areas where the ACLU, more and more, pursues a political or social agenda where the overriding importance of the goal transcends, in the eyes of ACLU’s leadership, the needed vitality of free speech principles neutrally and apolitically applied. Fortunately, some ACLU state affiliates still carry the free speech battle flag, but they are a diminishing army in a war that is getting more and more difficult, even though more and more important, to wage.

In a post earlier today on the mortgage market meltdown, I wrote:

And that is what the argument usually boils down to - someone smart should have been watching them.  But lots of smart people were watching all the time.  You can see one such person featured in Lewis's article.  Guys run all over Wall Street looking every day for some single digit basis point spread they can make money off of.  But untold wealth was just sitting there for someone who was willing to call bullshit on the whole CDO/CDS pyramid game.  These guys playing this game were searching for people to bet against them.

And despite this, despite untold wealth as an incentive, and companies looking for folks to take the other side of their transactions, only a handful saw the opportunity.  Thousands of people steeped in the industry with near-perfect incentives to identify these issues ... did not.  What, then, were our hopes of having some incremental government bureaucrats do so?  Usually, after this kind of crisis, there are lines of pundits and writers ready to suggest, with perfect hindsight, new regulations to avert the prior crisis.  But, tellingly, I have heard very few suggestions.

So in this context, I found these comments by leftish Kevin Drum, certainly no knee-jerk advocate of free markets, quite interesting:

No argument on the greed and ideology front, but I'm curious: was there really anyone who made the right call on all this at a policy level? There were, of course, plenty of people who recognized the housing bubble for the idiocy that it was (Alan Greenspan notably not one of them), but were there any major voices making specific policy proposals to slow down the bubble? Or rein in the mortgage market? Or regulate the CDO/CDS market in a way that would have prevented some of
the damage? I'm talking specifics here, not just general observations that the FIRE sector was out of control. Arguments about interest rates being too low count, if they were made for the right reason, but I'm interested mainly in more detailed recommendations.

I don't have any big point to make here. I'm genuinely curious. There were many moments in the past few years when perhaps something could have been done, but what? And who was proposing serious measures that would have helped? Any major Dems? Economic pundits? Wall Street mucky mucks? Who were the unsung heroes? Help me out here.

Gene Nichol of William & Mary has resigned, pointing to the university's opposition of his First Amendment defense of a campus sex workers' show as a major reason for leaving.  Which is all well and good -- I for one compliment him on supporting the speech rights of controversial people and performers. 

However, before we go declaring Mr. Nichol a martyr for free speech, FIRE reminds us that less than six months ago Mr. Nichol spearheaded this far more comprehensive violation of free speech:

This fall, The College of William & Mary launched a Bias Incident Reporting System
"to assist members of the William and Mary community"”students, staff,
and faculty"”in bringing bias incidents to the College's attention." In
its initial incarnation, the system was fraught with constitutional
problems, from both free speech and due process standpoints. The system
initially allowed
for anonymous reporting, providing that "[a] person reporting online
may report anonymously by leaving the personal information fields
blank." The definition
of "bias" was overbroad and encompassed constitutionally protected
expression: "A bias incident consists of harassment, intimidation, or
other hostile behavior that is directed at a member of the William and
Mary community because of that person's race, sex (including
pregnancy), age, color, disability, national or ethnic origin,
political affiliation, religion, sexual orientation, or veteran
status." The homepage
for the system even contained an explicit misstatement about the First
Amendment, stating that the First Amendment did not protect
"expressions of bias or hate aimed at individuals that violate the
college's statement of rights and responsibilities."

...a group calling itself "Free America's Alma Mater" published an advertisement in William & Mary's student newspaper, The Flat Hat,
skewering the new program. "Welcome to the new William & Mary's
Bias Reporting System, where W&M now invites you to shred the
reputation of your neighbors"¦anonymously," the ad read. "Prof
gave you a bad grade? Upset at that fraternity brother who broke your
heart? Did a colleague vote against you for tenure? Now you can get even!!
Anonymously report anything that offends you to the William & Mary
Thought Police at http://www.wm.edu/diversity/reportbias/."

This earlier episode reveals that Mr. Nichol clearly does not believe that all speech is protected.  In this light, the episode with the sex workers becomes one of taste rather than first amendment privileges, a mere quibble over where the censorship line (that Mr. Nichol believes should exist) is going to be drawn.

Which reminds me of the old joke:  A man approaches a beautiful woman at a party, and says "Would you sleep with me for a million dollars?" and she says, "Yes."  He then asks "would you sleep with me for $10?" and she screams "what kind of girl do you think I am?"  He retorts "We already established that.  Now we are just haggling over price."

From FIRE, comes this really encouraging ruling:

Earlier this month, U.S. Magistrate Judge Wayne Brazil partially granted plaintiffs' motion for a preliminary injunction in the San Francisco State University (SFSU) speech codes litigation. Yesterday, Judge Brazil issued his written opinion on the motion, and in so doing struck a devastating blow against speech codes at universities in California and hopefully"”...

Judge Brazil enjoined the university from enforcing both the civility
requirement and a related provision allowing student organizations to
be punished collectively if any group members engage in behavior
"inconsistent with SF State goals, principles, and policies." Judge
Brazil did not enjoin the university from enforcing its prohibition on
"[c]onduct that threatens or endangers the health or safety of any
person within or related to the University community, including
physical abuse, threats, intimidation, harassment, or sexual
misconduct." However, he emphasized that the provision must be narrowly
construed to only prohibit that "intimidation" or "harassment" which actually endangers someone's health or safety,
and explicitly directed the university that the policy "may be invoked
only as it has been construed in this opinion." This limiting
construction prohibits the university from interpreting that provision
broadly to punish constitutionally protected speech (since the vast
majority of speech that actually endangers someone's health or safety
is not constitutionally protected).

Here are a few excepts from the Judge's decision:

It is important to emphasize here that it is controversial expression
that it is the First Amendment's highest duty to protect. By political
definition, popular views need no protection. It is unpopular notions
that are in the greatest peril "” and it was primarily to protect their
expression that the First Amendment was adopted. The Framers of our
Constitution believed that a democracy could remain healthy over time
only if its citizens felt free both to invent new ideas and to vent
thoughts and feelings that were thoroughly out of fashion. Fashion, it
was understood, is an agent of repression "” and repression is an agent
[of] democracy's death....

There also is an emotional dimension to the effectiveness of
communication. Speakers, especially speakers on significant or
controversial issues, often want their audience to understand how
passionately they feel about their subject or message. For many
speakers on religious or political subjects, for example, having their
audience perceive and understand their passion, their intensity of
feeling, can be the single most important aspect of an expressive act.
And for many people, what matters most about a particular instance of
communication is whether it inspires emotions in the audience, i.e.,
whether it has the emotional power to move the audience to action or to
a different level of interest in or commitment to an idea or cause. For
such people, the effectiveness of communication is measured by its
emotional impact, by the intensity of the resonance it creates.

How is all this relevant to our review of the University's
civility requirement? Civility connotes calmness, control, and
deference or responsiveness to the circumstances, ideas, and feelings
of others. ["¦] Given these common understandings, a regulation that
mandates civility easily could be understood as permitting only those
forms of interaction that produce as little friction as possible, forms
that are thoroughly lubricated by restraint, moderation, respect,
social convention, and reason. The First Amendment difficulty with this
kind of mandate should be obvious: the requirement "to be civil to one
another" and the directive to eschew behaviors that are not consistent
with "good citizenship" reasonably can be understood as prohibiting the
kind of communication that it is necessary to use to convey the full
emotional power with which a speaker embraces her ideas or the
intensity and richness of the feelings that attach her to her cause.
Similarly, mandating civility could deprive speakers of the tools they
most need to connect emotionally with their audience, to move their
audience to share their passion.

In sum, there is a substantial risk that the civility requirement
will inhibit or deter use of the forms and means of communication that,
to many speakers in circumstances of the greatest First Amendment
sensitivity, will be the most valued and the most effective.

Wow!  This is fantastic, and aimed right at University speech codes that try to ban any speech that offends someone [a standard that tends to be enforced unevenly, typically entailing prosecuting only those students who offend people who are like-minded with the school's faculty and administration.

 

Of late, it certainly appears that many colleges have invented a new right:  The right not be be offended.  Many college speech codes still are alive and well, and the broadest of them ban any speech that any particular listener "finds offensive"  (this example at Brandeis University carries especially sweet irony).  As I have written a zillion times, bans on hate speech are usually the leading edge of attempts to apply fairly comprehensive speech controls.

So Kudos to MIddlebury's President Ronald D. Liebowitz, as quoted at FIRE, who makes what should be an obvious point, that there is no crime in speech that makes you uncomfortable.  Speech one disagrees with needs to be answered with more speech.

But greater diversity means change, and change on college campuses
is almost always difficult. Few 18 to 22 year olds are skilled in
inviting or tolerating perspectives that are vastly different from than
their own. Frankly, the same goes for 30-, 40-, and
50-something-year-old academics. Even though a campus may become more
diverse in terms of the numbers of underrepresented groups present, the
level of engagement can still be inconsequential if those representing
different viewpoints are not encouraged and supported to express them.
If an institution is not prepared to make space, figuratively speaking,
for previously excluded groups, and support their presence on campus,
its diversity efforts cannot succeed. And if the wariness about
discomfort is stronger than the desire to hear different viewpoints
because engaging difference is uncomfortable, then the quest for
diversity is hollow no matter what the demographic statistics on a
campus reflect.

 

In order for the pursuit of diversity to be intellectually
defensible and valuable to those seeking a first-rate education at
places like Middlebury, it needs to result in deliberation. It cannot
simply facilitate the exchange of one orthodoxy or point of view for
another. The best liberal arts education requires all voices, those of
the old order as much as those of the new, and even those in between,
to be subjected to the critical analysis that is supposed to make the
academy a distinctive institution in society.

Lots more good stuff in the speech.

FIRE points out yet another university that is attempting to restrict speech it does not agree with, in the name of, uh, freedom or something.  The university's Student Union proposed to close down the campus humor magazine that made a joke about race relations.  The reason?

Specifically, in response to the "overtly racist, sexist, and generally
offensive articles, statements, and images published in the Spring
Issue of Gravity Magazine," and because the publication of this joke
had caused "members of our community to feel "˜unsafe,' "˜powerless,'
"˜unsupported,' "˜harassed,' and "˜threatened;'"

Now, this university is private, so I suppose as a private body they can define acceptable speech in their private confines any way they want (just as my kids dropping F bombs is legal by the first amendment, but banned in my household).  However, I fear that the folks involved do not understand that they need to leave these attitudes behind when they leave their private little cocoon university, because speech that hurts your feelings is not illegal, thank goodness, in the rest of the country. 

Unfortunately, it is almost too much to ask nowadays that universities understand that, as Louis Brandeis wrote, the best response to speech you don't like is more speech.  The rich irony comes from the fact that this occurred at ... Brandeis University.  The freaking place was named after the man who wrote:

Those who won our independence believed"¦ that freedom to think as
you will and to speak as you think are means indispensable to the
discovery and spread of political truth; that without free speech and
assembly discussion would be futile; that with them, discussion affords
ordinarily adequate protection against the dissemination of noxious
doctrine"¦

They recognized the risks to which all human institutions are
subject. But they knew that order cannot be secured merely through fear
of punishment for its infraction; that it is hazardous to discourage
thought, hope and imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable government; that the
path of safety lies in the opportunity to discuss freely supposed
grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.

Fear of serious injury cannot alone justify suppression of free
speech and assembly"¦ To justify suppression of free speech there must
be reasonable ground to fear that serious evil will result if free
speech is practiced"¦ [N]o danger flowing from speech can be deemed
clear and present unless the incidence of the evil apprehended is so
imminent that it may befall before there is opportunity for full
discussion. If there be time to expose through discussion the
falsehoods and fallacies, to avert the evil by the process of
education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.   (Emphasis added.)

Check out the FIRE article to learn much more about the events in question, including what the original joke was.

I am not sure this even needs an introduction.  Comparisons to "1984" are invoked in political discourse almost as much as those to Nazi Germany, and most are overblown, but the George Orwell novel is all I can think of when I see this:

It may be almost 2007, but it feels more like "1984" at Michigan
State University. The university's Student Accountability in Community
Seminar (SAC) forces students whose speech or behavior is deemed
unacceptable to undergo ideological reeducation at their own expense.
The Foundation for Individual Rights in Education (FIRE) is challenging
Michigan State to dismantle this unconstitutional program, which
presents a profound threat to both freedom of speech and freedom of
conscience.

 

"Michigan State's SAC program is simply one of the most invasive
attempts at reeducation that FIRE has ever seen, yet it has been
allowed to exist at the university for years," FIRE President Greg
Lukianoff said. "As bad as it is to tell citizens in a free society
what they can't say, it is even worse to tell them what they must
say. Michigan State's program is an immoral and unconstitutional
program of compelled speech, blatant thought reform, and
pseudo-psychology."

 

According to the program's materials,
SAC is an "early intervention" for students who use such
"power-and-control tactics" as "male/white privilege" and
"obfuscation," which the university cryptically defines as "any action
of obscuring, concealing, or changing people's perceptions that result
in your advantage and/or another's disadvantage." Students can be
required to attend SAC if they demonstrate what a judicial
administrator arbitrarily deems aggressive behavior, past examples of
which have included slamming a door during an argument or playing a
practical joke. Students can also be required to attend SAC for
engaging in various types of constitutionally protected speech,
including "insulting instructors" or "making sexist, homophobic, or
racist remarks at a meeting." When participation in SAC is required,
"non-compliance typically results in a hold being placed on the
student's account," an action that leaves the student unable to
register for classes and thus effectively expelled from the university.
Students are required to pay the cost of the SAC sessions.

 

Once in the program, students are instructed to answer a series of
written questionnaires. In their answers, students must specifically
describe how they are taking "full responsibility" for their offensive
behavior and must do so using language that the director of the session
deems acceptable. Most students will be asked to fill out this
questionnaire multiple times, slowly inching closer to what
administrators deem to be "correct" responses.

PC indoctrination at our nation's universities is alive and well.  It just astounds me that a group of adults thought this was acceptable.

One of the main salients in the war against free speech is the notion that people somehow have the right not to be offended;  in other words, that authorities may legitimately limit speech that gives offense to anyone.

I could site a zillion examples, particularly on campuses, but this one is at the top of my inbox (emphasis added):

Sparks flew during question period at a Nov. 21 Carleton University
Students' Association (CUSA) council meeting after a motion that would
prevent pro-life groups from assembling on CUSA space was tabled.

The motion -"” moved by Katy McIntyre, CUSA vice-president (student
services), on behalf of the Womyn's Centre -"” would amend the campus
discrimination policy to state that "no CUSA resources, space,
recognition or funding be allocated for anti-choice purposes." ...

According to McIntyre, anti-choice groups are gender-discriminatory and violate CUSA's safe space practices.

The motion focuses on anti-choice groups because they aim to abolish
freedom of choice by criminalizing abortion. McIntyre said this
discriminates against women, and that it violates the Canadian
Constitution by removing a woman's right to "life, liberty and
security" of person....

McIntyre said she received complaints after Lifeline organized an
academic debate on whether or not elective abortion should be made
illegal.

"[These women] were upset the debate was happening on campus in a
space that they thought they were safe and protected, and that
respected their rights and freedoms," said McIntyre....

Julien de Bellefeuille, Student Federation of the University of
Ottawa vice-president (university affairs), said that although his
student association does not currently have any policies regulating
anti-choice groups, he said the motion is a good idea and something
that his school should adopt as well.

Note that the debate is not over whether abortion should be illegal, but whether advocates of abortion bans can even discuss their position publicly.  Ms. McIntyre is arguing straight out, with no possibility of confusion of motives, that she thinks that women who believe as she does should be protected from being anywhere in the vicinity of an opponent of her position (presumably she could protect herself without this motion simply by not listening to such speech, so the purpose most be to eliminate opposing speech altogether.

I have a couple of thoughts.  First, there is no right not to be offended.  Trying to define any such right will be the end of free speech.  Second, its funny how the offense is only treated as one-way.  While I am OK with abortion, I have many friends who vociferously oppose it.  I am positive they are in turn offended by supporters of abortion, but I don't see any motion here to protect them from offense or provide them a "safe zone" free of opposing views.  Third, it strikes me that a better word for the "safe zone" she wants is "echo chamber,"  where like-minded people as her can be free from having to hear any opposing opinion.

Update:  The next item in my inbox happened to be on the same topic, and is from FIRE:

A professor at the University of Idaho has asked students to sign a
"statement of understanding" acknowledging that some of the films he
shows may have content that is offensive to some students. Inside Higher Ed brings us the story.

In a university culture where the avoidance of offense is considered a
sacred principle on many campuses, it's not surprising that Professor
Dennis West would hit on a method already commonly used when engaging
in nearly any activity that comes with even a minimal amount of risk.
It's sad that showing films to students can now be considered a risky
activity, but it's not surprising. Episodes like the University of New
Hampshire's reaction to a joking flyer, or Gonzaga's classification of
a flyer as hate speech simply because the flyer contained the word
"hate," make it clear that film professors"”who sometimes show graphic,
violent, or even merely political films"”do indeed have something to
worry about. This is a sad commentary on today's academic culture.

Both based on outside pressure (mostly from torts) and internal desire, universities are rapidly modeling themselves into mini-governments, really mini-super-nanny-states.  FIRE, the Foundation for Individual Rights in Education, observes of a recent gathering of University attorneys:

At one panel I attended, San Francisco lawyer Zachary Hutton explained
Williams v. Board of Regents, a recent case in which a University of
Georgia student alleged having been raped by two student-athletes while a third
student watched. The police charged the athletes with rape, and the university
decided not to conduct its own investigation until the criminal case was
resolved.

That turned out to be a mistake. The plaintiff then sued the university for
sexual harassment, and the 11th Circuit held this year that the university could
be liable because, by waiting to conduct an independent investigation until the
criminal case was resolved, it had exhibited deliberate indifference to the
alleged rape. "The court emphasized," Mr. Hutton told the college lawyers, "that
the pending criminal trial . . . did not affect the university's ability to
institute its own proceedings, and the criminal charges would not have prevented
future attacks while the charges were pending."

There are excellent reasons for the university not to conduct its own
investigation. For one thing, instead of police detectives and professional
prosecutors conducting the investigation, you are likely to get Campus Public
Safety and the Associate Dean for Student Affairs. How having inexperienced
college administrators and college safety officers conduct a rape investigation
is likely to benefit either the victim or the accused is beyond me. The
potential for violating the Fifth Amendment, damaging evidence, and coming to
wildly inaccurate conclusions is immense, and if any of these things were to
happen, the university would risk botching an important criminal case. Rape is a
serious crime; victims and the accused deserve better than college justice.

In some ways, this was even more illuminating of the drive to mini-nanny-statehood:

The most entertaining discussion I heard at the lawyers' convention
centered on what to do about facebook.com and myspace.com--how to prevent
slander, harassment and rumor-mongering on these online communities popular with
undergrads.

What these attorneys were talking about is wholesale regulation of online
speech. Slander is, of course, a tort, and engaging in slander or libel can get
a person sued. It's hard to see how or why a college should be involved in this,
though. If I libel someone online, it's the business of those affected, not the
college. As for harassment, one of its main characteristics is that the person
being harassed finds the harassing behavior hard to avoid. Unless the "harasser"
is hacking into the victim's MySpace page, it's hard to see how going to a
"harassing" website isn't completely avoidable. As for "rumor-mongering," horror
of horrors! Regulating that on a college campus will mean tripling the number of
administrators (and probably tuition), but I suppose no expense is too large to
make sure that everyone stays comfortable.

College campuses were probably among the first and most vociferous critics of GWB's various domestic surveillance programs.  Its interesting to see that while opposing such programs at the national level, they are crafting far more far-reaching speech monitoring and restriction programs on their own campuses:

The room was evenly divided: Some lawyers recommended ignoring the students' Web
sites unless something offensive was brought to administrators' attention, while
others suggested taking aggressive action....

By my calculations, if half the lawyers thought that "offensive" speech that is
reported should be punished, and half the lawyers thought that administrators
should spend their time cruising the websites and proactively stamping out
"offensive" speech, that leaves ZERO lawyers who believed that perhaps merely
"offensive" speech should be protected, as the First Amendment (at public
schools), or respect for fundamental freedoms (at all schools), requires.

I think that that FIRE, the Foundation for Individual Rights in Education, does a really nice job defending speech across the political spectrum on campuses.  I was struck in particular by this post on their blog, about Worcester Polytechnic Institute, a private university in Massachusetts.   Speech rights at private institutions (such as on the job) are often an area where "civil rights" groups trip over themselves.

I thought FIRE did a nice job with its WPI analysis:

as a private institution, WPI is not bound by the U.S. Constitution, and WPI
takes full advantage of that by stripping its students of their First Amendment
rights. WPI doesn't try to hide this fact, either. Unlike many private
universities, its website makes no promises that students will have the
constitutional rights that they enjoy in society at large. Moreover, it prominently
advertises that "[s]tudents enter WPI voluntarily"¦If they do not like some
of the rules, regulations, traditions, and policies of WPI, they do not have to
enter," and
that "membership in this particular academic community is freely sought and
freely granted by and to its members, and"¦within this membership group certain
specific behaviors that may be accepted by society in general cannot be accepted
within an academic community without hindering the explicit goals of that
academic community." 

 

As a private institution, Worcester is acting within its rights: it
advertises its repression and censorship right up front.  WPI doesn't promise
you free speech, and you won't get it. That's why FIRE doesn't rate WPI a "red
light""” when a private university states clearly and consistently that it holds
a certain set of values above a commitment to freedom of speech, FIRE does not
rate that university. But we still think you should know what to expect when you
get there.

Good for FIRE.  It achnowleges that WPI as a private institution has the right to set its own rules and terms and conditions, as long as those are clear up front.  FIRE doesn't like these rules (I don't particularly either) but it limits itself to speaking out against them, rather than filing legal actions as it might in the case of public universities which, by law and by court precedent, can't place artifical limits on first ammendment rights.

Racially segregated classes at ASU may or may not still exist, and the University may or may not have ended them.  How's that for a follow-up.  FIRE does some more research here, and find:

In fact, there's no reason to believe that the racial restriction on that class
hasn't existed for at least eight years. And unless ASU is a university at which
students sign up for a class directly with the professor (which would be truly
unusual), ASU's administration had to be part of the effort to enforce the
racial restriction.

So why didn't ASU tell the truth in its letter to FIRE, especially if it
was planning to abandon the racial restriction anyway (once it got caught, of
course)? Probably because its administration didn't believe that anyone would
really do the research and find out that legal segregation has flourished on its
campus for at least the last eight years. This brazenness is shocking,
especially considering that a 2002
letter from FIRE got ASU to drop
racial restrictions on a Navajo history class. Are there other classes with
similar restrictions just waiting to be discovered?

I am a big supporter of the work FIRE does to support openness and individual rights in universities.  Today, FIRE turns its attention on Phoenix's own Arizona State University:

State-sponsored racial segregation has found a home at Arizona State University
(ASU).  ASU's ironically named 'Rainbow Sections' of English 101 and 102 have
been advertised on flyers and on the university's website as being open to
'Native Americans only.'

The Foundation for Individual Rights in Education (FIRE) has written to the
university to demand that the classes be opened to all students. Shockingly,
this marks the second time in less than four years that FIRE has been forced to
protest a racially segregated course at ASU.

It is appalling that ASU would resurrect segregated classes five decades
after Brown v. Board of Education," stated David French, president of
FIRE.  "The idea that a class can be 'separate but equal' was discredited long
ago.

The 'Rainbow Sections' of English 101 and 102, ASU's freshman composition
courses, were advertised as "restricted to Native Americans only" on the faculty
webpage of Professor G. Lynn Nelson, the course instructor.  A flyer
addressed to 'Native American Students' states that they 'are invited to enroll
in special Native American sections of ENG 101 and 102.'  It also discusses some
of the differences between the special sections and the 'standard First Year
Composition classes,' making it clear that the special sections offer a
different educational experience.

Anyone heard of Brown vs. Board of Education here?  I wouldn't have a particular problem with private groups offering such education with these restrictions, after all I have said many times that the right of free association implies a right not to associate with whoever you want.  But public institutions have different obligations in this regard.  Its actually not that hard to deal with, and even ASU knows what the solution is:

FIRE last wrote
to ASU in April 2002 to protest a segregated Navajo history class that
limited enrollment to Native American students. At that time, ASU simply dropped
the racial restriction in response to FIRE's letter.

Its OK to have different versions of the same coursework, and probably OK to advertise one version as specially targeted at a particular group, as long as you let individual students make the final decision on which of the University-sanctioned versions are right for them.

Apparently FIRE has won another victory, this time against Double Secret Probation at Brooklyn College.

The NCAA has effectively banned the use of "hostile and abusive racial/ethnic/national origin mascots, nicknames or imagery" at NCAA events.  Apparently, despite the broad language, the rules are aimed narrowly at teams named using Native American imagery, since "Fighting Irish" is not on the hitlist, despite the fact that Notre Dame has no formal approval from Ireland to use the name, while "Seminoles" is on the hitlist, despite the fact that Florida State has the Seminole tribe's blessing to use the name.  The "Dutch" and the "Dutchmen" are apparently OK, as are other teams named after non-Indian peoples such as the "Gauchos", the "Highlanders", the "Quakers", the "Norse", the "Scots", the "Swedes", the "Trojans", the "Vandals", the "Vikings", and of course, the "Nads" (Go Nads, go).  Complete mascot list here.  As a resident of Phoenix, can I sue the University of Wisconsin - Green Bay for denigrating me?

So I started to think about the University of Utah Utes, who are also on the hitlist.  Apparently, using a name derived from the Ute Indian tribe is no longer Kosher in the NCAA.  Which leads to the obvious question - can the University of Utah even use the name Utah any more at NCAA events, since it is derived from the Ute tribe?  Instead of "Utah" on their uniforms, will they have to have something like "that state between Nevada and Colorado"?  Same with Missouri, Illinois, and both the Dakotas, all state names derived from local Indian tribe names.  And don't even get me started on the 40 or so state names (including my own Arizona) derived from Indian words.  How about Indiana, which means "land of Indians"?  Or Oklahoma, which is Choctow for "red people".  If we can't put "redskin" on a NCAA jersey, how can we put "Oklahoma"?  Coming soon: The Nebraska Cornhuskers vs. The Far North Texas Sooners.

The FIRE website has more, noting the irony of university presidents suddenly chafing under the same type of vague and arbitrarily enforced speech code that they have blithely imposed on their own students for years.

Update #1: I heard an interesting interview on this topic with an NCAA spokeman on the Dan Patrick Radio Show.  The host pressed the NCAA figure on why FSU can't use the "Seminole" name, when the Florida Seminole tribe had given their blessing.  The response from the NCAA official was typical of a lot of elitist thought nowadays.  It boiled down to "its for their own good, even if they don't agree".

Update #2: Being from Texas, I knew that calling Oklahoma "Far North Texas" would incite some response.  I have gotten several emails.  The conclusion to an email from reader Dale was typical:

So,
from one fellow libertarian to another, can you do me a favor?  Henceforth,
please refrain from associating my Sooners with anything texas-like.  Thank
you.

Several times on this blog I have found myself defending "hate speech".  Not because I agreed with it, but because I am deeply concerned that the effort to label certain speech "hate speech" is part of a general campaign to limit first amendment rights.  If speech limiters are successful in establishing the principal that certain speech is so bad that it is not protected by the first amendment, then we are suddenly at the mercy of whoever is in charge of defining "bad" for our speech rights.  Universities, ironically at the forefront of the "free speech" movement of the 60's, have been at the forefront of "hostile environment" limitations on speech in this decade.

There are many such examples.  The group FIRE, which fights speech limitations on campus, has a blog and a university rating system that is a great resource.  One recent example from their files is of Mr. J. Daniel at William Patterson University in New Jersey.  A couple of facts first, and then a fantastic letter in his defense from Rutgers professor Norman Levitt.  The background:

Mr. Daniel was one addressee of a mass mailing from Prof. Scala publicizing a
film she was about to show, a documentary that presented a positive view of
lesbian relationships. Mr. Daniel, who espouses religious doctrines deploring
homosexuality, responded with a request not to be sent similar notices in the
future, along with a few brief sentences summarizing his general views. It is
notable that he did not threaten Prof. Scala directly or by implication, nor did
he deny her right to show the film. He did not publicize the exchange. He did
not use the incident to launch a campaign of ridicule or vilification against
homosexuals or anyone else. He merely counterposed his ideas to those she was
presumably promoting, in a purely private way and in response to an unsolicited
message directed to him.

What Prof. Scala actually did was engage her university president in a joint effort to censor and punish Mr. Daniel.  I have read Mr. Daniel's comments, which I don't happen to agree with.  However, the response he got to his very reasonable actions is very scary.  Prof. Levitt describes the rest:

Prof. Scala, however, seems to regard disagreement with her position as a
punishable offense. In this respect, she has embraced peculiar dogmas that have
become all too prevalent on campuses throughout the nation. These hold that
there are certain groups who, by reason of a presumed history of oppression, are
to be safeguarded from opinions that they find distressing or uncomfortable. The
rights of others to hold, or at least to express, such dissonant views are
supposedly nullified by the new-minted "right" of the protected groups to be
shielded from discomfort and distress. Both the ethic of free speech and the
constitutional guarantees that bolster it are supposedly trumped by the duty to
shield the tender sensibilities of the officially recognized victim class. If,
by chance, someone utters a sentence or two, even in the context of private
discussion, that affronts these sensibilities, terms like "harassment" and
"hostile environment" are immediately trotted out to justify retribution against
the offending speaker. In short, the assumption is that colleges and
universities have both the right and the positive duty to require students,
faculty, and employees to uphold official doctrine on these matters, if only by
silencing themselves if they happen to disagree.

Wow, I wish I could write like that.  There is much more, all on point and very well written here.

The NJ Attorney General has chimed in and said... wait for it ... that Ms. Scala is entirely in the right and that Mr. Daniel is probably guilty of harassment and discrimination under NJ law as well for expressing his opinions.

By the way, if you think that Professor Levitt was exaggerating for saying that speech is condemned merely if it hurts the feelings of someone in a protected group, here is a very typical quote from a college speech code (I just grabbed the first one I found on the FIRE site):

The Albertson College
Student Handbook's harassment policy states that "[a]ny comments or conduct
relating to a person's race, gender, religion, disability, age or ethnic
background that fail to respect the dignity and feelings of the individual are
unacceptable." The Handbook also provides that "[a]ll inappropriate behaviors
may not be specifically covered in the misconduct definitions, and students will
be held accountable for behaviors considered inconsistent with the standards and
expectations described in this handbook."

Just to prove this is not an aberration, here is another:

The Rhodes College Policy on Discrimination and Harassment states
that "[f]reedom of expression does not include the right to intentionally and
maliciously aggravate, intimidate, ridicule or humiliate another person." Now,
we at FIRE know that all too many university administrators believe this
statement to be true; this is apparent from the way speech codes are enforced on
campuses across the country. However, few colleges and universities are bold
enough to make an explicit statement about free expression that directly
contradicts U.S. Supreme Court precedent. The administrators of Rhodes College
need to read the Supreme Court's decision in , in which the Court upheld
Hustler's right to publish a parody suggesting that Jerry Falwell's first sexual
experience was a drunken tryst in an outhouse with his own mother. Parody and
satire"”which often intentionally and maliciously ridicule and humiliate their
targets"”enjoy the strongest constitutional protection.

Update:  By the way, here is the whole text of the email in question.  Don't agree with him, but I have a hard time seeing anyone threatened and certainly can't fathom kicking the guy out of school and threatening him with prosecution for it.  More evidence that the promotors of diversity don't actually want diversity.

Posting will be light to non-existent the next few days as I head back to Princeton for reunions (my 21st reunion, not an even year, but we Princeton grads can be goofy that way).

I will leave you with this good news about my alma mater, via FIRE:

PRINCETON, N.J. -- After being initially rebuffed by a Princeton University
official, a group of evangelical Christian students who wanted access to
facilities and the chance to apply for funds has won a victory.

After
the university's dean of religious life refused recognition for Princeton Faith
and Action, the group appealed to a campus rights group that successfully
lobbied the university to change its procedures.

"We found Princeton's quick and fair response very encouraging. We've found
other colleges who haven't been particularly fair to religious groups, sometimes
in an unconstitutional way," said Greg Lukianoff, an official with the
Philadelphia-based Foundation for Individual Rights in Education.

Princeton Faith and Action has now been recognized as a student group,
religious groups are being treated that same as secular groups, and the
university will conduct a review of procedures related to student organizations,
said Princeton Provost Christopher L. Eisgruber.

"We need to be
welcoming groups, even if their opinions are unorthodox, and that is the goal of
our review," Eisgruber said.

After sending this to several people, I got the odd response "gee Warren, I didn't think you were an evangelical".  I am not, nor am I a conservative, and the PFA would not be my cup of tea.  However, I think this response is endemic of a major problem we have in this country, that of "free speech for me but not for thee." 

Its great to see Princeton working to stay open to all points of view, which I think will make it a better university and give it an advantage over time vs. the Harvard's and Dartmouth's of the world that still resist freedom of inquiry outside the bounds of political correctness.  Someday soon I will have to write a post on how "freedom of association" absolutely requires the converse:  freedom not to associate with certain people.  Anyway, in the mean time, I will leave you with some reunions photos. 

I could easily have chosen nearly any university in the country as the example for this post, but I will choose my alma mater Princeton. 

Like many universities, Princeton has a speech code.  Like many universities, Princeton's speech code is an affront to the First Amendment and an open license to selectively apply administrative punishments based on political beliefs.

The Princeton speech code says, in part:

Abusive or harassing behavior, verbal or physical, which demeans, intimidates, threatens, or injures another because of his or her personal characteristics or beliefs, is subject to University disciplinary sanctions...

And further defines sexual harassment as:

verbal or physical conduct [that] has the effect of unreasonably interfering with an individual's work, academic performance, or living conditions by creating an intimidating, hostile, or offensive environment.

This is the worst kind of arbitrary legislation.  In no part of the guidelines are any of these terms defined.  In fact, both as written and as practiced, the definition of these terms is left entirely up to the victim, with outrageous consequences.  Basically we have gotten to the point where hurting someones feelings, or even disagreeing with them, is a crime. 

This would be bad enough if enforced even-handedly, but in practice, speech codes become a tool of the University faculty and administration to squelch speech they don't agree with.  One of my pet peeves is the term "hate speech", which is used frequently in political diatribes by both the left and the right.  While this term may have at one point had some utility in narrowly describing the most extreme racism, today in its common usage it has come to mean "speech I don't agree with".  In a similar manner, campus speech codes are effectively enforced as banning speech that the ruling orthodoxy of the university does not agree with.  If a gay rights activist and a conservative Christian get into an
argument on campus and use similar invective against each other, you
can bet only one is probably going to get sanctioned.  And, given the typical politics of universities today, you can guess what speech is protected and what is sanctioned. 

Here is my rule of thumb:  unless speech meets the (narrow) definition of libel, no legally or
administratively actionable harm can be claimed as a result of it.  Or, as we were taught as kids, sticks and stones will break my bones but names will never hurt me.  In the adult world, this should translate to:  Physical assaults are actionable, verbal assaults are not. 

The Princeton Tory has a nice article on these policies, as well as the really bad idea to extend this to a "social honor code".  And, the Foundation for Individual Rights in Education (FIRE) is the leading defender of free speech on campus and has a great web site.

Postscript:  Speech limitations are a very slippery slope.  So much so that I have never encountered speech or expression by adults aimed at other adults that I would limit.  Nazis, communists, birchers, pornographers, racists, revolutionaries, militia, muslims, atheists:  Have at it.  Even Congressmen.  And even this.

Update:  One other thought.  I have never understood why so many people think that the right approach to people who have stupid, awful ideas is to keep them from being heard.  This applies not only to speech codes but the increasingly frequent attempts to ban speakers from campus or, if that is unsuccessful, drown their speech out with chants and interruptions.  Why?  I have always thought that Sunlight is the Best Disinfectant not just for government proceedings but for bad ideas as well.  Let them be heard and ridiculed.  After all, Hitler "called his shots" more than a decade before he began his horrible reign.  The world would have been better off if he had been listened to carefully in those early years.

It has always been ironic to me that those who started the "free speech" movement of the 60's have been in the forefront of clamping down on campus speech via speech codes.  The answer to this paradox was that the free speech movement was never about free speech, but about advancing a mostly Marxist point of view to the exclusion of all others.

FIRE, the Foundation for Individual Rights in Education, has a nice roundup of work they have done to defend free speech on campuses in 2004.  Hat tip to Virginia Postrel.