The issuance of the “Dear Colleague” letter in 2011 triggered a race to the bottom for due process in the Ivy League. The contest began with Yale, which adopted a new sexual assault policy that prevented accused students from presenting evidence of innocence in “informal” complaints and redefined the concept beyond recognition in formal complaints. The race then moved to Cornell, whose policy was so unfriendly to due process that it aroused intense (but ignored) public opposition from the university’s law faculty. Brown was next, with administrators boasting about their desire to keep lawyers out. The latest entrant is Harvard, where students will be greeted by a new policy when they return to school this fall.
Harvard’s plan—which is disturbingly opaque in several key respects—contains many of the due process-unfriendly procedures that have come to dominate the post-“Dear Colleague” letter landscape. Students will be branded rapists based on a “preponderance-of-evidence” (50.01 percent) threshold, even as the accused student will receive virtually none of the protections available in civil litigation, which uses the same standard. In the college version of double jeopardy, accusers can appeal a not-guilty finding. And undergraduate students accused of sexual assault can’t use an attorney in the disciplinary hearing. But the Harvard policy goes beyond OCR’s requirements in multiple respects.
Does the University of Wisconsin-Madison have a plan to introduce diversity in grading—making sure that African Americans, Hispanics and other non-Asian minorities get the same proportion of good marks as whites and Asians? No. “Nothing could be further from the truth,’ said Professor Patrick Sims, UW Chief Diversity Officer and interim Vice Provost for Diversity and Climate. “Regrettably, Hansen’s assertion that the campus’s most recent strategic diversity framework embraces a quota system for apportioning grades by race, is a gross misrepresentation of our current efforts.”
That comment was in response to an article by emeritus Professor W. Lee Hansen, pointing to this definition of “Representational Equity” in the “Inclusive Excellence” diversity framework: “Proportional participation of historically underrepresented racial-ethnic groups at all levels of an institution, including high status special programs, high demand majors, and in the distribution of grades.” Hansen did not say that the controversial definition was in the new diversity plan. He wrote that “unbeknownst to faculty senators” voting on the plan, five goals and recommendations were based on the old plan–the UW System Inclusive Excellence framework, which contained the definition of “representational equity.” It seems clear that UW is broadly supporting “Inclusive Excellence.” Here is a webpage of the UW System, containing the grading-quota definition and carrying the copyright of the UW Regents. In a message to colleagues and campus officials, Professor Donald Downs, who differed with Hansen in an essay here, wrote that the definition has not been endorsed by the university, “but the wording is lurking out there in the system, and the diversity chair has pointed to it. So we are right that it has not been formalized, adopted, or even encouraged. But it has some presence in the system, and this must not be.”
Earlier this week, Huffington Post’s Tyler Kingkade published an article strongly critical of FIRE’s efforts to shine light on Occidental College’s troubling approach to due process. The article implied—without saying so directly—that FIRE was responsible for alleged harassment towards anti-due process activists on the campus. The underlying skepticism about the free exchange of information might seem unusual, but actually is a hardly uncommon tactic among opponents of campus due process.
The basics: FIRE posted court documents from one of the many campus due process lawsuits, this one filed by a student who claimed he was falsely convicted by a disciplinary panel at Occidental College. Kingkade claims that, in the aftermath, several witnesses to the case received harassing e-mails, “presumably” as a result of the FIRE post. Kingkade’s article gives no indication that he attempted to contact the authors of the allegedly harassing e-mails.
Kingkade’s article was odd in two important respects. First, it implied that FIRE had somehow breached decorum or court guidelines by inappropriately publishing confidential material. In fact, FIRE had posted publicly available court documents. It’s not clear why Kingkade believed these documents were confidential, or why he didn’t check with the court before making writing his article. (A subsequent correction to the article alleged an “editing error” but only obfuscated the issue, still implying that FIRE had inappropriately posted confidential items rather than publicly available court documents.)
How would you feel if everyone could see your college GPA? Students generally don’t need to worry thanks to the Family Educational Rights and Privacy Act (FERPA), which prohibits schools from releasing a student’s information without their or their parents’ explicit permission. However, an exception to these regulations threatens student privacy.
Consider Emory University, for instance. Emory’s campus at Oxford College reveals the names of students whose GPAs range between 3.0 and 3.5 and is above 3.5. The former is for students who qualify for the Merit list, and the latter is for students who qualify for the Honors list. With the names publicly available online, anyone can effectively search for a name and find where they fall on the GPA spectrum. Worse yet, the list signals that all other students not on the list performed poorly over the course of the semester. This essentially grants the public the opportunity to attain records of what a student might want to remain private. But doesn’t this violate FERPA?
Sadly, it doesn’t. FERPA allows schools to disclose “directory information” of individuals who qualify for recognition lists, honor rolls or awards. FERPA defines “directory information” as
information contained in an education record of a student which would not generally be considered harmful or an invasion of privacy if disclosed. It includes, but is not limited to, the student’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended.
Emory can technically get away with revealing this information but it shouldn’t. Emory must recognize that protecting its students’ grades means protecting their reputations. Students’ grades are their own business.
MTC contributor KC Johnson first made waves with his stunning work on the Duke lacrosse case of 2006. His reporting, which revealed how the accused students were repeatedly denied their due process rights, first appeared on his blog and later in Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, the definitive account of the case that he co-authored with Stuart Taylor, Jr . He’s now closing his blog, and offers his reflections on the meaning of the case:
Higher education is perhaps the only product in which Americans spend tens or even hundreds of thousands of dollars without having any clear sense of what they are purchasing. Few parents, alumni, legislators, or prospective students spend much (if any) time exploring the scholarship or syllabi offered by professors at the school of their choice; they devote even less effort to understanding hiring patterns or pedagogical changes that have driven the contemporary academy to an ideological extreme on issues of race, class, and gender. At most, there seems to be a general—incorrect—impression that while colleges have the occasional “tenured radical” who lacks real influence on campus, most professors fall well within the ideological mainstream.
Read the whole thing here.