NAS Blog

That’s how it went in the newest addition to the ever-growing caselog of sexual harassment follies, described in this release from our friends at FIRE. Professor Arthur Gilbert, a long-time, highly regarded faculty member in the University of Denver’s Joseph Korbel School of International Studies is still seeking vindication, following his outrageous treatment by senior DU administrators. The whole incident, described in FIRE’s document, was generated by two anonymous and completely unsubstantiated complaints about the content of Gilbert’s course. No matter, that was more than enough for Academic Dean Christopher Hill to remove Gilbert from class without so much as an interview. And despite Gilbert’s subsequent vindication by an investigating panel at DU, Hill nevertheless declared that he had committed “sexual harassment” and would be required to undergo mandatory “sensitivy training.” We’re happy to note that, in addition to FIRE, the AAUP has also intervened on Gilbert’s behalf, appropriately complaining that his academic freedom had been grievously violated. As of today, the Dean hasn’t budged, although Gilbert has declared his intention to offer the offending course again in the spring semester. We’ll be watching.

This open letter at Inside Higher Ed by an anonymous student affairs administrator is the most powerful piece of evidence I’ve seen so far showing why the mandates in the Office of Civil Rights’ “Dear Colleague” letter go too far. The author complains that Russlynn Ali doesn’t understand the job of an administrator who has to handle real cases as complex and contentious as sexual assault charges:

It is unlikely that Ms. Ali has ever sat at desk like mine, on the phone with a parent who cannot believe I allowed his daughter to drink, much less allowed (or not allowed — always a difficult point to discuss) a “boy” to do the things her account reports. Or a parent who wants to know why I have sent her son home without so much as a hearing, an action we call “interim removal,” while we investigate these claims.

“Because the alleged victim is afraid of seeing him, and the Office for Civil Rights has made it clear that our process must support the alleged victim in this way” is not an answer that satisfies an angry mother who believes that her son (1) has been unjustly accused, (2) has not been given a chance to defend himself (yet), and 3) may find his ability to succeed academically compromised by his absence from classes during this investigation.  Has Ms. Ali ever had a parent, in a rageful voice, point out the inequity of all of this? Because I’ve experienced that on several occasions as I have tried to do what OCR expects from a “victim-friendly” policy.

The author writes that experienced human judgment is a better approach to getting to the bottom of sexual assault charges than this “victim-friendly” rule: “I do not appreciate having my hands tied by the presumption of guilt the Dear Colleague Letter portrays.”

The OCR regulations thus harm not only students and their families but also the campus administrators trying to sort out these painful situations.

Cross-examine witnesses and accuser? That is so 20th century. The Office of Civil Rights (Department of Education) “discourages” it. Colleges have already thrown out old-fashioned notions of civil liberties, so they are all too happy to presume guilt. The Wall Street Journal has a followup on this topic, which I blogged about Friday.

The Office of Civil Rights for the Department of Education has retreated from its firm stance in favor of due process and put forth a new standard for enforcing campus sexual harassment codes based on “the preponderance of evidence” (rather than “clear and convincing” evidence). AAUP and FIRE are concerned that this lower bar deprives faculty, staff and students accused of the due process they need and deserve.

Keep in mind that “sexual harassment” codes extend to a wide range of behavior that is not sexual: namely, creating a “hostile environment.” The “hostile environment” category embraces speech and makes this an academic freedom concern, according to both AAUP and FIRE.

How low does this bar go? Pretty darn low. Consider a case from North Dakota where a male student (Caleb Warner) was suspended for three years after a female student accused him of rape. The police later found evidence that this woman had made a false accusation (they never happen, right?) and “lodged criminal charges [against her] . . . for filing a false police report.”

So the male student was let back on campus, right? No. Based on the “preponderance of evidence” letter just issued by OCR, North Dakota State still refused to re-consider the case. In the administration’s opinion, there was no “substantial new information” (bold for emphasis) and “Warner’s three-year suspension ‘was not a legal process but an educational one.’”

It’s a bad turn of events because in 2003 the same Office of Civil Rights was concerned with the “convict first and fast” attitude of harassment officers in areas of speech. In 2003, the Office of Civil Rights issued a statement clarifying that enforcement did not require campuses to abandon the First Amendment. Today’s OCR seems to think its lower standard is just fine, thank you. It will apply not only in cases of alleged rape but also “expressive activities” (speech).

This gutting of due process will leave administrations with the power to blur the difference between rape (a crime that must be proved, except on campuses) and innocent speech, however controversial. In either case, due process is there to prevent Star Chambers from walling themselves off from the rest of the world and declaring their authority Supreme on campus. So now places like North Dakota will stonewall and say: we don’t deal with legal processes, only educational ones.

AAUP and FIRE have fought so many of these cases that they have lost their shock value.  Indifference breeds the arrogance of power. Fortunately, faculty/staff/students can organize or speak out. In some cases, they can bring in the AAUP and FIREs of the world and “sue the bastards.” Perhaps that is the only thing that Power understands.

For more, read this FIRE FAQ on the new OCR mandates

HT: Adam Kissel

Former student “Lamar” transferred to a University of California campus this semester and was surprised to find himself ordered to attend two mandatory “workshops,” one on alcohol abuse and the other on sexual assault.  “Lamar,” an adult in his 30s, Iraq War veteran, and parent, bridled at the paternalism/maternalism.  “State law,” explained the school, referring him to AB 1088 (a compilation of cooked data, murky definitions, and propaganda which does not mandate “workshops”).

What next?” asked “Lamar.”  “An anti-tobacco workshop, a recycling workshop, an obesity workshop, a vegetarianism workshop?  Already PETA made the college dining halls start a `Meatless Monday.’”

It may come to that.  One neighboring community college just took an institutional position condemning the immigration law in another state.  Apparently, embedding the progressive agenda in textbooks and curriculum is not enough in our postmodern world.  Walter Truett Anderson says, “In education, postmodernism rejects the notion that the purpose of education is primarily to train a child’s cognitive capacity for reason . . . .  [Instead, postmodern education] is to take an essentially indeterminate being and give it a social identity.”  Mandatory workshops, it seems, are intended to bring that “indeterminate being” into conformance with “the campus culture” and “principles of community.”  The sign on this clubhouse reads “No Unprogressives Allowed.”

Just yesterday, “Jennifer” came to me desperate to get out of her Women’s History class.  “I admit, I thought it would be an easy A,” she said, “but I also wanted to learn about the Enlightenment, and all I heard was how the Enlightenment  oppressed women.  Help!”

Sorry, “Lamar” and “Jennifer;” you might have thought it died with the millennium but the baleful Political Correctness Zombie still stalks the halls of academe.

If you’re feeling confused about the boundaries of sexual conduct on campus these days, that’s more than understandable. In February, you’ll recall, we noted here the observance of Yale’s freewheeling, everything goes Sex Week festival. Let it all out, the message seemed to be, no holds barred. You’d better be careful about that and a lot less if you happen to attend Duke, however. Now, from the same folks who gave us the lacrosse team fiasco four years ago, predicated on false allegations of rape, we have a new sexual misconduct policy which seems intended to convert that entire farce into a comprehensive and repressive new regime which aims at enforcing some bewilderingly vague notions of what exactly constitutes rape. No one has to convince me that rape is a horrific crime which merits severe punishment; I wonder, though, what it takes to convince some other people that false allegaions of rape also occur, carrying lasting consequences of their own. Two long-time friends of NAS, journalists Cathy Young and John Leo, provide some helpful perspective.

Duke University, according to FIRE, has adopted a new “sexual misconduct” policy that can find a student guilty of non-consensual sex merely because he or she is considered “powerful” on campus.

The policy — which FIRE describes as “vastly overbroad, illogical, impractical, but also insane” –

• claims that “perceived power differentials may create an unintentional atmosphere of coercion”
• transforms students of both sexes into unwitting rapists simply because of the “atmosphere” or because one or more students are “intoxicated,” no matter the degree, and
• establishes unfair rules for judging sexual misconduct accusations.

Rape and sexual misconduct are grave offenses. But what’s wrong with Duke that it can’t rationally address them? As FIRE’s Robert Shibley sensibly concludes, “students deserve a policy under which true offenders will be punished but the innocent have nothing to fear.”

The title may be a bit misleading, since we’ve never suggested that genuine harrassment isn’t something that needs to be dealt with swiftly and forcefully. But we’ve also had major problems with the kind of sexual harrassment codes which treat simple accusation as an indication of guilt and invite malicious, vindictive or frivolous charges of harassment from disgruntled students, antagonistic colleagues or cynical, calculating administrators. Today’ s Inside Higher Education issue carries a lengthy story indicating that the more troublesome type of harassment code may be an issue at the Southern Illinois University, Carbondale, which has certainly had its share of controversy regarding free speech, academic due process and related issues over the last decade. We’ll be watching, since we certainly don’t want a reprise of the harassment hysteria which dogged many campuses during the 1990s. Our Illinois affiliate head Jon Bean, who was quoted in the IHE article, is a professor at SIU and will be able to provide first-hand information.

Foolish mandates, says David Little at ChicoER.

See also the memo notifying employees that they must document all mileage traveled for university business, in order to “help the campus to achieve its goal of being a national leader in sustainability.”

The Foundation for Individual Rights in Education (FIRE) has published a guide to help administrators craft school policies in such a way as to protect First Amendment rights on campus. “Correcting Common Mistakes in Campus Speech Policies” (download PDF) details the problems – bias reporting sites, free speech zones, undefined terminology in harassment policies, mandatory university values – that FIRE frequently encounters among institutional policies.

NAS of course has also dealt with these problems. Our statement Sexual Harassment and Academic Freedom showed how the rights of individuals can be violated by misguided efforts to combat sexual harassment. In Tolerance, Diversity, Respect, OR ELSE, Williams Chokes Up, and Snitch Studies at Cal Poly, we highlighted freedom-threatening bias reporting systems at William & Mary, Williams College, and Cal Poly, respectively. And this spring, in a series of articles (beginning with Free to Agree), NAS exposed Virginia Tech’s faculty promotion and tenure policy that included a commitment-to-diversity litmus test.

We are welcome FIRE’s new guide for protecting individual rights on campus, and we hope to see more and more college administrators heeding the counsel therein.