Tag: speech codes

Kindly Inquisitors

This week Jonathan Rauch celebrates the new, expanded edition of his book Kindly Inquisitors: The New Attacks on Free ThoughtHe’s also guest-blogging at the Volokh Conspiracy, itself newly hosted at the Washington Post. In his first post, Rauch sums up a key point of his book and also why its reissue is so timely:

Over the past 20 years, the idea that minorities need protection from hateful or discriminatory speech has gained ground, both in American universities’ speech codes and in national laws abroad. In fact, I argue, minorities are much better off in a system that protects hateful or discriminatory speech than in a system that protects them from it.

Kindly Inquistors offers a moral defense of free inquiry, with a focus on how minorities fare under different approaches to controversial speech. Rauch concludes that when individuals disagree, the only proper approach is the “checking of each by each through public criticism.” 

He terms this approach liberal science, and he recommends it not just in science, but in public policy. One of the most interesting facets of Kindly Inquisitors is the way that Rauch links the free inquiry of science to the free inquiry found in liberal democratic societies; both, he argues, are also akin to the free inquiry found in capitalism.

In all these areas, free inquiry can nevertheless cause genuine harm. Why not restrict, just a bit, if it will prevent some suffering? In the book, Rauch answers:

The truth is that liberal science demands discipline as well as license… It does not give a damn about your feelings and happily tramples them in the name of finding truth. It allows and – here we should be honest – sometimes encourages offense. Self-esteem, sensitivity, respect for others’ beliefs, renunciation of prejudice are all good as far as they go. But as primary social goals they are incompatible with the peaceful and productive advancement of human knowledge. To advance knowledge, we must all sometimes suffer. Worse than that, we must inflict suffering on others.

For many, these words will not be welcome. And for a few truly loathsome people, they will be all too welcome. Undeniably, words a lot like these have been used as a pretext to hurt, which they should not be.

Yet we classical liberals have always welcomed the progress that comes from free minds, from the free exchange of ideas, and from the freedoms of travel and commerce, even if at times they bring disruption, embarrassment, or loss. In science, in public opinion, and in the marketplace, there will always be failures. And yet for a society to succeed, such failures cannot be avoided.

Our faith in mankind’s ability to find and act upon the truth is key: We trust that the process of inquiry, with its defeats as well as its victories, will bring a better and better life for us all. 

Due Process Stops at the Campus Gates?

People in the D.C. area maye be familiar with the tragic tale of Fairfax teacher Sean Lanigan, who was falsely accused of sexual molestation, resulting in termination and a destroyed reputation.  As pointed out by friend of Cato and Cato Supreme Court Review contributor Hans Bader, however, the Department of Education is pushing a policy that would allow for more Sean Lanigans, even in cases not involving anything close to rape or molestation:

If the U.S. Department of Education’s Office for Civil Rights has its way, more teachers like him will end up being fired even if they are acquitted by a jury of any wrongdoing.  It sent a letter to school officials on April 4 ordering them to lower the burden of proof they use when determining whether students or staff are guilty of sexual harassment or sexual assault.   According to the Department of Education’s demands, schools must find people guilty if there is a mere 51% chance that they are guilty – a so-called preponderance of the evidence standard.   So if an accused is found not guilty under a higher burden of proof – like the “beyond a reasonable doubt” standard that applies in criminal cases – the accused will still be subject to disciplinary action under the lower burden of proof dictated by the Education Department.

As Wendy Kaminer explains, the DoE would also like to strip the accused of their right to cross-examination:

Campus investigations and hearings involving harassment or rape charges are notoriously devoid of concern for the rights of students accused; “kangaroo courts” are common, and OCR ‘s letter seems unlikely to remedy them. Students accused of harassment should not be allowed to confront (or directly question) their accusers, according to OCR, because cross-examination of a complainant “may be traumatic or intimidating.” (Again, elevating the feelings of a complainant over the rights of an alleged perpetrator, who may have been falsely accused, reflects a presumption of guilt.) Students may be represented by counsel in disciplinary proceedings, at the discretion of the school, but counsel is not required, even when students risk being found guilty of sexual assaults (felonies pursuant to state penal laws) under permissive standards of proof used in civil cases, standards mandated by OCR.

Now, it is undoubtedly extraordinarily difficult for a rape victim to face her attacker, but lowering the standards under which someone is judged for that crime and not allowing the accused to question his accuser opens the door to using accusation as a weapon, just as in Lanigan’s case or that of the Duke lacrosse team.  Justice (what lawyers call “due process”) demands, among other things, that both accuser and accused have their day in court, and that there be a presumption of innocence.  It is no more just for an innocent person to be smeared and forever tarnished – if not convicted and imprisoned – than it is to let a guilty man go free.  Indeed, as Blackstone famously said, “Better that ten guilty persons escape than that one innocent suffer.” 

What’s more, as Foundation for Individual Rights in Education president Greg Lukianoff details, it’s not just accused rapists whose rights are prejudiced under the new OCR policy, but those who make bad jokes:

California State University–Monterey policies state that sexual harassment “may range from sexual innuendoes made at inappropriate times, perhaps in the guise of humor, to coerced sexual relations.” UC Berkeley lists “humor and jokes about sex in general that make someone feel uncomfortable” as harassment. Alabama State University lists “behavior that causes discomfort, embarrassment or emotional distress” in its harassment codes. Iowa State University states that harassment “can range from unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people to serious physical abuses such as sexual assault.”

This disconnect between basic principles of free speech and due process creates what Lukianoff calls “a perfect storm for rights violations”:

By making it clear that OCR would be aggressively pursuing harassment claims, by mandating extensive changes to many universities’ due process protections, but not requiring universities to adopt a uniform standard for harassment, OCR has supercharged the power of existing campus speech codes. OCR could have done our nation’s colleges a favor if it required universities to adopt a uniform definition of harassment in the same breath as it required them to aggressively police it.

FIRE has done heroic work in protecting student rights, so you should really read all of Lukianoff’s indictment of the new policy. 

The Department of Education needs to rescind/clarify this mess.  Speech is not a crime, but even the rights of those accused of crimes should not be subordinated to misplaced compassion or political correctness.

University Speech Codes, Reborn As “Anti-Bullying” Rules?

The Foundation for Individual Rights in Education (FIRE) is out with this timely warning about the “Tyler Clementi Higher Education Anti-Harassment Act,” a bill introduced in Congress by Sen. Frank Lautenberg and Rep. Rush Holt, both New Jersey Democrats:

…the bill redefines [campus-based] harassment in a manner that is at odds with the Supreme Court’s exacting definition of student-on-student harassment, which successfully balances the need to respond to extreme behavior with the importance of free speech on campus. In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Court defined student-on-student harassment as conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” This definition has been relied upon by courts for more than a decade and has been adopted by many institutions across the country, including the entire University of California system.

Flouting the Supreme Court’s carefully crafted balance, the bill removes the requirement that the behavior in question be objectively offensive. The loss of this crucial “reasonable person” standard means that those most interested in silencing viewpoints they don’t like will effectively determine what speech should be banned from campus. Unconstitutional definitions of “harassment” have already provided the most commonly abused rationale justifying censorship, having been applied to a student magazine at Tufts University that published true if unflattering facts about Islam, a Brandeis professor who used an epithet in order to explain its origins and condemn its use as a slur, and even a student at an Indiana college simply for publicly reading a book.

Because this bill has the potential to be a powerful tool for censorship, it would likely be ruled unconstitutional were it to become law. Indeed, since 1989 there have been at least sixteen successful challenges to campus codes that included similarly broad and vague harassment provisions. Every one of those lawsuits has resulted in the challenged policy either being declared unconstitutional or revised as part of an out-of-court settlement. If passed, the bill is likely to violate students’ rights while leading colleges into expensive, embarrassing, and unsuccessful litigation.

As FIRE President Greg Lukianoff points out, existing law gives universities (and civil authorities) ample authority to punish the serious breach of student privacy alleged in the Clementi case. Daniel Luzer of the Washington Monthly notes that Rutgers already had in place an anti-bullying policy of the sort envisioned by the bill.

Also of concern is the Lautenberg-Holt bill’s requirement that administrators move against off-campus or online student behavior. This provision, says FIRE, in practice “is likely to compel universities to monitor student behavior in unprecedented ways – including close and comprehensive monitoring of social networking sites like Facebook and Twitter – in order to ward off potential lawsuits.”