Apart from the Steven Salaita affair (best analyzed by Northwestern law professor Steven Lubet) and the occasional, if typical, borderline anti-Semitic comment from a member of Columbia’s Middle Eastern studies department, the summer has been surprisingly quiet, given events in the region, in academic denunciations of Israel. Until now. A group of 45 historians prepared a statement—subsequently co-signed by hundreds of other historians and people calling themselves historians—on events in Israel and Gaza.
Speaking as historians, the scholars’ letter raised three central points. First, it deplored the “ongoing attacks against civilians in Gaza and Israel.” Second, it condemned Israel for using disproportionate force, thereby “killing and wounding so many Palestinian children.” And third, it demanded that the United States suspend military aid to Israel, while Israel end any blockade of Gaza.
In the fourth consecutive court ruling of its type (following Xavier, St. Joe’s, and Duke), a federal judge in Vermont has sided with an accused student in a due process lawsuit. In a previously below-the-radar filing, a student named Luke Benning sued Marlboro College after the school suspended him for three semesters for sexual assault. Last week, Judge William Sessions (a Clinton appointee) rejected the school’s motion to dismiss. (You can read the judge’s opinion here.)
Benning’s lawsuit noted that he had been a student in good standing (which Marlboro didn’t challenge), and that in the 2011-2012 academic year, he began a relationship with another student. They had sex in August 2012, and discussed the episode via private Facebook messages afterwards. (The accuser said it was “nice,” and encouraged another liaison.) The relationship shortly thereafter deteriorated; Benning’s filing, based on private Facebook exchanges, suggest that the accuser was more interested in pursuing the relationship than he was, but that she described the affair as a “positive experience” and Benning as a “really great guy.” A few months later, however, Benning started dating a friend of the woman who would accuse him. The accuser, it is alleged, took poorly to this development. She first made her objections known publicly. Then, at the end of the spring 2013 semester, she filed an informal complaint against Benning, which she escalated to a formal complaint in fall 2013.
To the surprise of many, three Republican U.S. senators have joined the Democrats in supporting the weakening of due process rights of students accused of rape and sexual assault in campus hearings.
Along with earlier answers from Marco Rubio, the offices of two additional Republican senators, Kelly Ayotte of New Hampshire and Chuck Grassley of Iowa, have now responded to questions submitted by the Washington Examiner’s Ashe Schow. (To date, none of the four Democratic co-sponsors have responded to Schow, including Connecticut’s Richard Blumenthal, who oddly implied that 19 percent of college women have filed sexual assault complaints.) So it appears that a broad, bipartisan consensus exists to weaken due process on campus.
The “Room for Debate” section at the New York Times recentlyexamined the issue of campus claims of sexual assault. But the “debate” more accurately an imbalanced exchange—perhaps unsurprising given the Times’ almost wholly one-sided coverage of this issue in its news pages.
FIRE’s Samantha Harris made a typically compelling case for the importance of due process. Three major takeaways from her essay: (1) university procedures deprive accused students of anything resembling due process; (2) these tilted procedures undercut the integrity of the entire university disciplinary process; and (3) since expulsion is the worst penalty universities can give, anyone who really believes colleges are facing an unprecedented wave of violent crime should want more involvement from law enforcement, which can properly punish these violent criminals.
The University of Florida (UF) recently eliminated its last remaining speech code, removing all restrictions on constitutionally protected expression from its student policies. This does more than earn UF the Foundation for Individual Rights in Education’s (FIRE) highest, “green light” rating for free speech; it allows students at the university to comfortably express themselves and engage in robust dialogue and debate, about matters big and small, without fearing official censorship or the prospect of disciplinary action.
But UF’s policy revision is also part of a larger trend that we are happy to celebrate at FIRE, where I work. Within the past five years, we have seen ten colleges and universities across the country eliminate all of their speech codes and earn a green light rating, many working in collaboration with FIRE.
That number represents over half of the 19 total green light institutions out there. We hope that this trend reflects growing awareness and appreciation of free speech issues among campus administrators. While the majority of colleges and universities we survey for our annual speech code report still maintain clearly unconstitutional restrictions on student expression, FIRE is optimistic about our ability to work proactively with university leadership in order to avoid First Amendment violations.
Of course, universities should want to do this themselves. If the value of open discourse among the student body and faculty is not enough to move them to improve their policies, then certainly the fear of First Amendment litigation ought to be. Within the past year, FIRE has coordinated six federal lawsuits brought by students and professors to vindicate their free speech rights. These cases, like many of the speech codes we encounter daily, are not close calls, constitutionally speaking. Universities would be wise to change course and respect students’ and professors’ freedom of speech.
When they do, we at FIRE will be waiting to assist them with the necessary policy changes.