When I was growing up, it was widely believed that colleges and universities were the part of our society with the widest scope for free expression and free speech. In the conformist America of the 1950s, the thinking ran, few people dared to say anything that went beyond a broad consensus. But on campus, anyone could say anything he liked.
Today, we live in an America with enormous cultural variety in which very few things are considered universally verboten. But on campus it’s different. There, saying something considerably milder than some of the double entendres you heard in cable-news coverage of the Anthony Weiner scandal can get you into big trouble.
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These reflections are inspired by a seemingly innocuous 19-page letter sent on April 4 from the Department of Education’s Office of Civil Rights to colleges and universities. The letter was given prominence by Greg Lukianoff, president of the Foundation for Individual Rights in Education, which has done yeoman’s work opposing restrictive speech codes issued by colleges and universities.
OCR’s letter carries great weight, since there are few things a university president fears more than an OCR investigation, which can lead to losses of federal funds — which amount to billions in some cases.
The OCR letter includes a requirement that universities adopt a “preponderance of the evidence” standard of proof for deciding sexual harassment and sexual assault. In other words, in every case of alleged sexual harassment or sexual assault, a disciplinary board must decide on the basis of “more likely than not.”
That’s far short of the requirement in criminal law that charges must be proved beyond a reasonable doubt. And these disciplinary proceedings sometimes consider charges that could also be criminal, as in cases of alleged rape.
But more often they involve alleged offenses defined in vague terms and depending on subjective factors. Lukianoff notes that campus definitions of sexual harassment include “humor and jokes about sex in general that make someone feel uncomfortable” (University of California at Berkeley), “unwelcome sexual flirtations and inappropriate putdowns of individual persons or classes of people” (Iowa State University), and “elevator eyes” (Murray State University in Kentucky).
All of which means that just about any student can be hauled before a disciplinary committee. Jokes about sex will almost always make someone uncomfortable, after all, and usually you can’t be sure if flirting will be welcome except after the fact. And how do you define “elevator eyes”?
Given the prevailing attitudes among faculty and university administrators, it’s not hard to guess who will be the target of most such proceedings. You only have to remember how rapidly and readily top administrators and dozens of faculty members were ready to castigate as guilty of rape the Duke lacrosse players who, as North Carolina attorney general Roy Cooper concluded, were absolutely innocent.
What the seemingly misnamed Office of Civil Rights is doing here is demanding the setting up of kangaroo courts and the dispensing of what I would call Marsupial Justice against students who are disfavored by campus denizens because of their gender or race or political attitude. Alice in Wonderland’s Red Queen would approve.
As Lukianoff points out, OCR had other alternatives. The Supreme Court in a 1999 case defined sexual harassment as conduct “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” In other words, more than a couple of tasteless jokes or a moment of elevator eyes.
Lukianoff and FIRE have an admirable record of defending students’ and faculty members’ free speech regardless of their point of view, but anyone familiar with their work knows that the most frequent targets of campus disciplinary groups are male, conservative, religious, or some combination thereof.
I wonder whether there is some connection between this and the dwindling percentage of men who enroll in and graduate from college. Are we allowing — and encouraging — our university administrators to create an atmosphere so unwelcoming and hostile to males that we are missing out on the contributions they could make with a college or graduate degree?
Education secretary Arne Duncan has shown an admirable openness to argument and intellectual debate. Perhaps someone will ask him whether he wants his department to be encouraging kangaroo courts and Marsupial Justice on campuses across the country.
Elevator eyes: you meet somebody attractive, you look from head to toe and then back up again. A completely involuntary action, like breathing, it's frequently accompanied by the thought (sometimes expressed aloud) "Va va va voom!!"
My elevator eyes are usually followed by wolf howls, my heart jumping out of my chest, my eyes popping out of my head, and my tongue sort of unrolling onto the floor. Sometimes I also bang my head repeatedly against the nearest tree, wall, or lamp post. So far, though, no one's ever accused me of creating an intimidating work environment. Loony, yes, but not intimidating.
I guess only in DC could a 19 page letter be innocuous. When legislation runs thousands of pages, this would appear to be more akin to a text message. Glad I got out of college 30 years ago. I would be in a lot of trouble.
The Red Queen was in "Through the Looking Glass", not "Alice in Wonderland". Mr. Barone is probably thinking of the Queen of Hearts ("Sentence first - verdict afterwards").
'The OCR letter includes a requirement that universities adopt a “preponderance of the evidence” standard of proof for deciding sexual harassment and sexual assault. In other words, in every case of alleged sexual harassment or sexual assault, a disciplinary board must decide on the basis of “more likely than not.”'
Preponderance of the evidence is the burden proof needed in civil cases, I do not see why in university hearings the burden of proof should be higher. These are not criminal proceedings that will lead to incarceration.The fact that the underlying charges might constitute a crime does not mean that the proceedings are criminal, nor should the burden of proof.
Having sat on university student disciplinary committees the problem is not one of burden proof but the ignoring of evidence counter to the pre-existing worldviews of the committee memebers. Much like the Southern courts in the pre-Civil Rights era it does not matter what the burden of proof is nor what evidence is presented if you know whether you are going to vote guilty or not guilty before the trial even starts.
No. Because the only target here is men. Women are free to behave however they feel like. No college girl will get tossed for bad language or sex(forced or otherwise). Like conservatives, who are always guilty, now young men will have to fear the disgruntled girlfriend, for they too are always guilty. So don't look for less sex and drugs, just more charges against men, and more men being expelled from college on sexual charges.
First - why does the Department of Education have an Office of Civil Rights? I thought civil rights fell under jurisdiction of the Justice Department.
Second - Why can the Dept of Ed investigate and punish colleges on non- educational matters?
Third - Beyond criminal activity and cheating what right does a college disciplinary board have to convene on student behavior?
Fourth - Government is dictating how universities run with 19 page letters likely requiring schools acquire armies of lawyers to interpret and legions of administrates to activate said government policy. How much does this cost universities?
Fifth - continuing on #4’s theme, so government forces universities to waste money in order to receive government funding. We citizen Joes pay taxes to the government to pay the school, we pay taxes to pay the Department of Ed, and we pay taxes to provide student aid, so the student can pay the school. Then we send our kids to school and pay them some more.
Sixth – with all this government involvement in university life, can someone please tell me how Columbia, Harvard and the like can get away with not allowing ROTC on campus?
Do we need any more proof that the Department of Education is unnecessary, harmful, and should be immediately eliminated?
Once government gets out of education, tuition will go down and educational quality will go up.
By the way...Prince Harry better not go to college in the US. His elevator eyes were checking out his future sister-in-law as she stood on the altar.
I dare say that employing this standard, in and of itself, is “so severe, pervasive, and objectively offensive, and... so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”
In the long run this will be a good thing; it will decisively break the idiotic expectation that everyone must go to college.
Normal males have already figured out that they're Not Welcome. Normal females are starting to realize that college is no fun without normal males. (How can you get your MRS degree?)
Soon colleges will be inhabited solely by Protected Classes who are exempt from prosecution under speech codes. This won't be enough to maintain financial support.
To RobL: Oh, not only does Arne's Department have an OCR, they have shotguns! And our brave Republican congress is valiantly standing up for freedom by cutting 38 billion from the budget ....., but not defunding DOE's OCR, or the shotgun-toting Arne Duncan's illegal made-up-law enforcement crusade. You college students had better get your minds right.
Something I don't understand: How can colleges have these sorts of regulations enforcing PC inter-sex behavior AND what's been described as a flourishing "hook-up culture?" If kids are casually bed-hopping, where are all the outraged females complaining about sexual objectification? If getting involved with the opposite sex is so fraught with legal perils, why are so many kids apparently doing it?
Overall, one can make a very strong case that federal involvement in education has been a disaster. I don't have time to list all of deleterious effects of federal involvement, but I'll note one that has had an enormous negative economic impact: the cost of post-secondary education. Without federal subsidization of post-secondary education (which is not 'free', though many have that mistaken notion), the average cost of a four-year college degree might actually be considered 'affordable'.
