Phi Beta Cons

The Risk-Management Trap

Today’s Inside Higher Ed details two lawsuits brought by parents of students who committed suicide on campus, one at MIT and the other at Allegheny College in Pennsylvania.  At MIT, the parties settled on undisclosed terms while in the Allegheny case a jury ruled the college was not responsible for the student’s suicide.  The Allegheny jury verdict is welcome news.  An overlooked reason for sprawling college bureaucracies and expansive speech codes is simple risk management.  In a litigious society, aggrieved parents and students seek to hold colleges responsible for all kinds of tragedies and bad acts on campus (as if the college could adequately control the actions and even personal attitudes of the adult students in residence).  Expansive college nondiscrimination and anti-harassment rules are often written for the same reason they are written for large corporations — to act as a firewall against litigation.  The thinking is clear: If the college prohibits even actions that don’t violate federal or state laws, it is less likely to face liability.  
While this thinking has a certain logic, it has two major flaws.  First, it improperly compartmentalizes the law.  Anti-discrimination laws implicate free speech and religious liberty, and there is not much room for administrators to constitutionally expand the reach of Title VI, Title VII, and Title IX.  Second, this approach perfectly meshes with the ideological agenda of campus totalitarians, giving them cover to press their agenda under the cloak of legal advice and liability concerns.  So campus officials can crush conservative expression and — when called on it — plead that they are merely protecting the school against suit.  Similar liability concerns, however, rarely restrain liberal expression.
Those who seek to protect liberty on campus would do well to pay close attention to the ultimate outcome of cases like those at MIT and Allegheny.  The more colleges are held liable even for the psychological condition of their students, the more they will use their power and bureaucracy to exercise even greater control over campus conduct and expression.

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