Are Liberals Stifling Intellectual Diversity on Campus?

Earlier this year, Jonathan Chait, a liberal, caused a stir when he argued that “political correctness,” a “system of left-wing ideological repression” has made a comeback among students and intellectuals after a long lull. Among his cases in point was Omar Mahmoud, a University of Michigan student who was fired from the student newspaper, and whose apartment was vandalized, over a column he wrote mocking campus identity politics. Chait’s article had its champions, but it was also criticized for relying on a few anecdotes to spin a “wild fantasy” about the chilling of speech on campus. Last Tuesday, under the sponsorship of Intelligence Squared, panelists debated the resolution “Liberals are Stifling Intellectual Diversity on Campus.”

Affirming the resolution were Greg Lukianoff, President of the Foundation for Individual Rights in Education (FIRE), and Kirsten Powers, a columnist, Fox News contributor, and author of the forthcoming The Silencing: How the Left is Killing Free Speech. Opposing the resolution were Angus Johnston, a historian of student activism at the City University of New York, and Jeremy Mayer, a political scientist at George Mason University and co-author of Closed Minds? Politics and Ideology in American Universities. The debate is worth watching.

Lukianoff and Powers won handily. When polled before the debate, the audience favored the resolution, 31% to 21%. By the end of the debate many of the undecideds, and some of those who had started out in opposition, had come to favor the resolution; the final tally was 59% to 32%.

The opposition was not without powerful arguments, in particular that restrictions on speech on campus have much to do with hyper-cautious administrators, who seek to protect students from the danger of having their views vigorously challenged. Continue reading

Gillibrand Revised—Still No Due Process

The Chronicle quotes New York senator Kirsten Gillibrand celebrating the revised version of the Campus Safety and Accountability Act (CASA), introduced last week, on a an expanded bi-partisan basis (up from eight co-sponsors to twelve), to the Senate. Rejoiced Gillibrand, “”The bill actually has clarified rights for the accused,” since the current system “doesn’t serve the accused.”

The celebration of fairness for the accused seems a little out of place for Gillibrand. After all, this is a senator who in two official statements posted on her website referred to a resident of her state as a “rapist,” even though the affected student, Paul Nungesser, had been found not-culpable by Columbia and was not even charged by police. Clearly Gillibrand’s definition of due process differs from that of, say, a typical civil libertarian.

In any case, FIRE’s Joe Cohn took a look at the bill. In 51 pages, it contains a mere two references to due process for the accused. Here’s Cohn: the bill “provides both students with notice of the charges and sufficient time to ‘meaningfully exercise the due process rights afforded to them under institutional policy.’” The phrase meaningfully exercise isn’t defined. This is what Senator Gillibrand thinks is a good deal for the accused.

The bill also repeatedly refers to students who level allegations of sexual assault as “victim” or “victims”—even though, of course, at a pre-adjudication stage there’s only an accuser or an alleged victim, not a victim. For instance, here’s how the bill describes Continue reading

The Dissembling Protesters

My experience at Ohio University offered me a first-hand glimpse into the mindset of anti-due process activists, and the subsequent media coverage has indicated a troubling willingness for misdirection.

Austin Linfante, a reporter for the OU campus news site New Political, noted that the protesters furiously tweeted how the talk doubted that “the justice system favored white men accused of rape over African American men accused of rape.” Yet the only reference in the talk to the justice system was about the lacrosse case, an instance in which the accused people were white (and who clearly didn’t receive preferential treatment). And while I observed that colleges treat all students accused of sexual assault unfairly, regardless of race (as the Dez Wells case showed), the only reference in the Q&A to the justice system came in my positively citing Harvard Law professor Janet Halley’s recent point that, historically, weakening due process safeguards have disproportionately harmed minorities. It’s hard to imagine how an endorsement of Halley’s thesis could be labeled a denial of racial injustices in the criminal justice system.

One of the protesters, Katie Conlon, subsequently penned a letter to the Athens Postjustifying the failed efforts at a heckler’s veto, on grounds I had committed a worse offense: “calling victims of sexual assault ‘comically unbelievable.’” First, Continue reading

A Troubling Report on Campus Anti-Semitism

I recently reported on a clear incident of discrimination against a Jewish UCLA student for her ties to Jewish organizations on campus. Readers who follow this issue will be familiar with other recent cases in which the allegedly progressive movement to boycott Israel has flirted with anti-Semitism.

Until now, though, we haven’t had much data on anti-Semitism on American college campuses. This week, Barry A. Kosmin and Ariela Keysar, both professors at Trinity College, attempted to fill that gap with a new report. Their headline finding: in the academic year 2013-14, 54% of Jewish students surveyed “reported having been subject to or witnessing anti-Semitism on their campuses”. The survey covered a period prior to this summer’s Gaza offensive.

Here are some of the survey’s other findings. First, being an Israel critic does not shield you from anti-Semitism. Almost half of the respondents who identified themselves as members of J Street—a group that takes critical stances on Israeli policies—reported directly experiencing or witnessing anti-Semitism on campus. Moreover, students’ experiences of anti-Semitism did not vary by their level of Jewish affiliation. Students involved with the Orthodox Chabad group were no more likely to report anti-Semitism than students involved with the non-denominational Hillel group or students involved with Jewish fraternities.

Second, the incidents most often involve interpersonal, as opposed to institutional discrimination. However, the researchers also argue that “anti-Semitism appears to go under the radar” and is “largely ignored by the official cognitive system,” in spite of administrators’ invocations of diversity and inclusiveness.  Third, in spite of Great Britain’s reputation for anti-Semitism and the United States’ reputation for tolerance, American students reported anti-Semitism at the same rate as British students had in 2011. Fourth, women (59%) are more likely to report anti-Semitism than men (51%).

These troubling results, as the authors note, reinforces a 2013 Pew Research Center study in which young Jews reported being called offensive names at higher rates than older Jews. This is a shocking finding given the widespread notion that young people are less prejudiced than older people.

One caveat, which the authors make themselves, is necessary. For a variety of reasons, the survey sample “cannot claim to be a fully representative national sample,” and its response rate, at 10-12%, was relatively low. On the other hand, the authors argues that the students surveyed “seem to mirror the overall national sample” reached in the 2013 National College Student survey.  Admittedly, it seems unlikely that a group, 40% of which reported having “visited a Holocaust memorial museum in the past year,” is representative of the Jewish campus population. However, as the researchers themselves concede, the “climate surveys” used to demonstrate bias against other groups on campus are often bedeviled by small sample sizes and concerns about selection bias. To dismiss this survey’s findings on that basis would deny one of the respondents’ poignant and reasonable demand: “to know that our University stands by us.”

Obama Ed. Dept. Throws its Weight Around

CEI

A task force of college presidents has chronicled massive regulatory overreaching by the U.S. Department of Education, which, on a daily basis, floods the nation’s schools with new, uncodified agency requirements that have never even been vetted through the formal rule-making process. “The Report of the Task Force on Federal Regulation of Higher Education: Recalibrating Regulation of Colleges and Universities,” correctly notes that:

“According to the basic tenets of administrative law, Congress passes laws, and it is up to the agencies to implement them. However, in recent years, the Department has increasingly used the regulatory process not in response to any specific legislative change enacted by Congress, but rather as a means to achieve its own policy objectives.” (Pg. 35)

“The compliance problem is exacerbated by the sheer volume of mandates—approximately 2,000 pages of text—and the reality that the Department of Education issues official guidance to amend or clarify its rules at a rate of more than one document per work day. As a result, colleges and universities find themselves enmeshed in a jungle of red tape, facing rules that are often confusing and difficult to comply with.”

(Executive Summary, pg. 2).

The report, issued by a task force set up by a bipartisan group of U.S. Senators, cites examples such as a needlessly expensive distance-education regulation imposed on colleges without the notice and comment required by the Administrative Procedure Act. It carries an enormous price tag for schools that provide online learning, discouraging cheap and innovative forms of learning:

“A public institution with a well-established online program estimated the costs at nearly $800,000. One private institution has estimated that it will cost $290,000 and take up to 2,000 hours annually to deal with the changes. . . . In 2012, a federal appellate court upheld the original decision to vacate the regulation due to the Department’s failure to properly give notice of this issue in its pending notice of proposed rulemaking and provide stakeholders with a meaningful opportunity to comment on the policy.” (Pg. 24)

But this problem is not limited to higher education. The clearest example of the Education Department creating burdensome new legal obligations without even bothering to publish a formal regulation in the Code of Federal Regulations, or give schools advance notice and opportunity to comment on the proposed obligations, is in the K-12 context. It radically expands the reach of Title VI of the Civil Rights Act, a statute that bans racial discrimination in schools or colleges that receive federal funds or whose students receive federal financial aid.

The Education Department’s Office for Civil Rights has interpreted the Title VI statute as banning racially disparate impact (unintended racial disparities resulting from colorblind school rules) in school discipline, when the Supreme Court has ruled that the Title VI statute only bans intentional racial discrimination, not racially disparate impact.

The Supreme Court ruled in Alexander v. Sandoval, 532 U.S. 275 (2001) that disparate impact doesn’t violate Title VI, only “intentional” discrimination does. The Education Department claimed in that case that even if the Title VI statute itself doesn’t reach disparate impact, regulations under it can and do (an idea that the Supreme Court decision described as “strange” in footnote 6 of its opinion, but did not definitively reject).

Even if the Education Department’s claim is right, if it wishes to ban disparate impact in some area, it still has to adopt a formal regulation (in the Code of Federal Regulations) doing that, after notice and comment. It can’t just pretend the Title VI statute itself bans it, because the Supreme Court has said it doesn’t.

But that is what its January 2014 guidance does, interpreting the Title VI statute contrary to the Supreme Court’s ruling 13 years earlier, without even bothering to codify a regulation extending its reach. See January 8, 2014 “Dear Colleague Letter: Nondiscriminatory Administration of School Discipline,” available at this link.

The Education Department claims that the Title VI statute itself demands that schools eliminate colorblind disciplinary rules just because they have a “disparate impact”–i.e., if a higher percentage of blacks than whites are suspended, and the school cannot prove to bureaucrats’ satisfaction that the disciplinary rule is essential to maintain order. The Education Department’s January 2014 guidance to the nation’s schools insists that a school can be guilty under Title VI of the Civil Rights Act (for disparate impact) solely due to “neutral,” “evenhanded” application of discipline rules, just because more minority students violate such rules (see pp. 11-12 of the January 8, 2014 “Dear Colleague” Letter). It does not cite to any regulation in the Code of Federal Regulations for this school-discipline requirement, but to the Title VI statute itself (The government has adopted a number of formal disparate impact regulations under Title VI in other areas prior to 2001, but nothing in the area of school discipline).

For example, the Education Department states in its January 2014 guidance that even if the only reason a school punishes more black students for unauthorized “use of electronic devices” is because blacks actually “are engaging in the use of electronic devices at a higher rate than students of other races,” it can still be liable for disparate impact — under the Title VI statute itself.

But even if the Education Department can adopt disparate impact regulations extending the Title VI statute’s reach – something the Supreme Court sounded skeptical about in footnote 6 of its Alexander v. Sandoval ruling – that can’t justify it doing so outside the Administrative Procedure Act regulatory process, under the fiction, already rejected by the Supreme Court that the regulatory requirement is already part of the statute itself. (For more background, see this link, discussing how the Education Department’s rule also raises serious constitutional problems under People Who Care v. Rockford Bd. of Education (1997).)