"... campus administrators have morphed into civility police. On some campuses, 'bias response teams' investigate professors’ online comments. Several universities, including Yale, may soon introduce a smartphone app that lets users anonymously report offensive remarks. These anonymous reports will allow university bureaucrats — and perhaps even the public — to compile a directory of 'subversive' professors in the spirit of dictatorial regimes. One can easily imagine dueling 'watchlists' compiled by liberal and conservative activists with the shared aim of chilling unwanted speech."
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Zooze NEWWZ before it goes to the glue factory.
Strange. I found myself largely agreeing with Judge Cabrenes' comments, in part because I have a law degree as well but no longer practice. We see enough cases of "uncomfortable" speech that antagonizes the majority but still must be protected--must be protected *because* it antagonizes. And the same is true with Bill of Rights protections in other areas, where we study reams of cases, say on the 4th amendment with defendants guilty of serious crime, but whose rights must be preserved for the sake of all.
ReplyDeleteBut the article keeps circling back to sexual misconduct. I haven't researched what has led to some of the changes in procedure that the judge references, but the idea that a "centralized bureaucracy" tracks reports of sexual misconduct seems not only motivated by simple desire to protect students and workers but necessitated by harassment policy. As for "deviationism" that he refers to, the focus is not on the kink but on the consent, though the judge spins it otherwise. In the words of Yale, "Sexual misconduct incorporates a range of behaviors including sexual assault, sexual harassment, intimate partner violence, stalking, voyeurism, and any other conduct of a sexual nature that is nonconsensual, or has the purpose or effect of threatening, intimidating, or coercing a person."
We're getting pretty far afield from academic freedom at this point and into behavior that gets you jailed. Or conduct that will result in a massive judgment against the university if it is not addressed.
Judge Cabranes then gets caught up in the standard of proof for sexual misconduct. To me, again without having researched the particulars of the Yale instance or the law surrounding it, moving to a preponderance of the evidence standard isn't a violation of due process. It's the same standard we use in civil trials.
But again, we're taking a diversion into sexual misconduct, muddying the issue when the judge promises us he's really talking about academic freedom. Can these lines cross or blur? Certainly. But given the clear boundaries of the main issue of academic freedom, wandering around in the margins creates a needless diversion. If he had perhaps cited numbers of cases where invented claims were used to stifle speech, where dossiers of unsubstantiated claims were maintained to harass, I could see the purpose. But even he admits in passing that the scary dossiers have been assembled on an "unknown" percentage of faculty.
So, yeah. I agree in large measure. But I'm finding the debate muddy, when there are so many instances that we could actually discuss and debate and that would raise the issue directly and clearly.
I agree that the judge tries to mix in two trends that really don't have much in common. I think he does this so that the article can appeal to people on the left and right. The reason that colleges recently started enforcing sexual misconduct rules is because of Title IX lawsuits and a strong encouragement, some would say intimidation, from the Justice Department.
DeleteI'm committing the cardinal sin of commenting without reading the article (because I really should be heading toward bed, not blog-commenting), but your comments, Perfesser S., remind me that we have (or should have) tracking systems for another offense that otherwise might be be shrugged off as a more or less innocent "mistake" -- plagiarism. In both cases, there may well be a real opportunity for learning associated with a first, not too egregious offense (and yes, I realize that sexual assault and plagiarism, especially student-level plagiarism, are not comparable in seriousness; the latter is usually a victimless crime, while even genuine sexual misunderstandings can lead to long-lasting pain and trauma). However, repeat offenses greatly reduce the plausibility of defenses based on misunderstanding of what constitutes appropriate conduct. So yes, tracking of complaints can be really valuable, even (perhaps especially if) the offense can't be proven to a degree that supports punishment.
DeleteThat said, I think both victims and perpetrators might be better off if more sexual assault cases were handled off-campus, by the regular judicial system, where standards of proof are stricter. But since those standards of proof might let off serial offenders on their first or second offenses, keeping on-campus records of complaints is also probably a good idea (and expelling or at least suspending someone who kept making the same not-quite-provable-in-a-court-of-law "mistake" is probably possible, precisely because colleges and universities don't have to use the same standards as criminal courts).
And all of *that* said, I'm a pretty strong advocate of countering objectionable speech with more speech, even though I recognize that hurtful speech *does* take a toll. I wish there were some way to suggest to those, especially students, who are spending a great deal of energy trying to police, or get those in authority to police, others' speech, that, while the saying popular in my parents' and grandparents' generation -- "sticks and stones may break my bones, but words will never hurt me" -- is not strictly true, it does embody an approach to life that puts you more in control of your own life than if you give too much power to other people's words. It's not a perfect solution -- words *do* hurt, sometimes to a debilitating and/or dangerous degree, and even coping with less-extreme effects takes energy that could be spent elsewhere -- and I'm far too privileged to feel comfortable suggesting, let alone imposing it, on/to someone more vulnerable, but, after 50+ years on this earth, I do think there's a lot to be said for concentrating on controlling what one can, to some degree, with some practice, control (one's own reactions), and saving activist energy for stuff that is physically dangerous (losing health insurance, getting deported to somewhere dangerous, being at increased risk of death or incarceration due to one's skin color -- which is an example where words/attitudes and actions *do* often intersect, so this kind of separation isn't simple -- and the like).