Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘colleges and universities’

CNN to air “The Hunting Ground” Sunday

This should be interesting: 19 Harvard Law School professors have denounced “The Hunting Ground,” an advocacy show on college sexual assault which CNN plans to air on Sunday, for bias and inaccuracy. “This purported documentary provides a seriously false picture both of the general sexual assault phenomenon at universities and of our student Brandon Winston,” the professors write in an open letter. Legal journalist Stuart Taylor, Jr. calls attention to emails indicating that those working on the documentary might not have embraced what you would call detached or skeptical methods: “We don’t operate the same way as journalists — this is a film project very much in the corner of advocacy for victims, so there would be no insensitive questions or the need to get the perpetrator’s side.” More: Robby Soave and Linda LeFauve, Reason; KC Johnson, Commentary, on Jon Krakauer’s book Missoula.

And: Emily Yoffe, Slate, back in June but not linked previously; and KC Johnson has questions about a UNC episode.

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Campus expression roundup

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Free speech roundup

  • Those who want to protect American university life from mob intimidation, speak now or forever hold your peace [Conor Friedersdorf on Yale and Missouri incidents, Greg Lukianoff on Yale, Thom Lambert on Missouri; more on Missouri; John Samples/Cato] “Sorry, kids, the First Amendment does protect ‘hate speech'” [Michael McGough, L.A. Times]
  • #ExxonKnew folks, please listen: “engaging in scientific research and public advocacy shouldn’t be crimes in a free country. Using the criminal law to shame and encumber companies that do so is a dangerous arrogation of power.” [Bloomberg View editorial, earlier here, etc.]
  • Judge orders Facebook post taken down as campaign contribution improper under Colorado law; while target of enforcement was public charter school, logic of ruling could extend to entirely private entities as well [Megan Geuss, ArsTechnica]
  • Did anyone really not see this coming? Hate speech laws give authorities powerful weapon with which to crack down on speech by critics and minorities [Elizabeth Nolan Brown, Reason, on Kenya]
  • Cato amicus brief, Kentucky Court of Appeals: printers shouldn’t be forced to print gay-pride messages they don’t agree with [Ilya Shapiro/Cato, Eugene Volokh]
  • “That’s not harassing, stalking, libeling or cyber bullying. That’s called reporting.” Florida Man offers to help with online reputation management but digs himself and client in further [Tim Cushing, TechDirt, background]
  • Feminist lawprof we’ve met before attacks Internet-protecting Section 230, confusion ensues [Mike Masnick, TechDirt]

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Schools roundup

  • “A legal challenge at Scotland’s top civil court failed earlier this year, but the No To Named Persons (NO2NP) campaign group has secured a hearing at the Supreme Court in London in March.” [Scotsman, earlier on named person scheme]
  • “The auditors found students in two schools who carried contraband salt shakers” [WSJ editorial on 4.5% drop in participation in school lunch program]
  • Teachers’ union AFT spends tens of millions a year on politics, policy, influence [RiShawn Biddle]
  • “A Short, Sad History of Zero-Tolerance School Policies” [Nick Gillespie, Reason]
  • Divergent Paths: The Academy and the Judiciary is a new Richard Posner book forthcoming from Harvard University Press [Paul Caron, TaxProf] Shouldn’t the program offerings at the Association of American Law Schools include at least as much range of diversity of thought as, for example, the panels at the Federalist Society convention? [John McGinnis, Liberty and Law] Heterodox Academy is a new website and project with its goal to “increase viewpoint diversity in the academy, with a special focus on the social sciences.” [Nicholas Quinn Rosenkranz] More: Jonathan Adler on a widely noted Arthur Brooks op-ed on ideological imbalance in the academy. And don’t forget my book;
  • “Judge Tosses Concussions Lawsuit Against Illinois Prep Group” [Insurance Journal]
  • In case you were wondering, yes, law school trade associations did support that “law school’s a bargain, there’s no real economic crisis for grads” research [Outside the Law School Scam]

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Free speech roundup

  • Understanding the liberal-conservative gap on what “free expression” means [Ronald K. L. Collins]
  • Foes of Yik Yak “want universities to ban the very app that gives marginalized students a voice on campus” [Amanda Hess, earlier] No-platforming: “It is an anti-Enlightenment movement.” [Claire Lehmann on Germaine Greer case] At UCLA, administrators and activists are attacking the core right to free speech [Conor Friedersdorf]
  • “If you know what you’re doing, you bring in the litigators before you start running your mouth.” [Popehat on game developer’s lawsuit threats, language]
  • “Climate change, Galileo, and our modern Inquisition” [Edward Dougherty, Public Discourse/MercatorNet on climate RICO] “Veteran campaigner Bill McKibben and Democratic presidential candidate Bernie Sanders demand the Obama administration launch a criminal investigation [over Exxon’s allegedly improper issue advocacy]… victory over deniers and climate criminals is always just around the corner” [Holman Jenkins, Jr., WSJ, paywall]
  • In Denmark, courage of cartoon editors belatedly recognized, yet fear governs press [Jacob Mchangama, Politico Europe]
  • Federal judge: First Amendment forbids Kentucky officials to shut down parenting column written by N.C. psychologist on grounds that it constitutes practice of psychology in Kentucky without a license [Caleb Trotter, Pacific Legal Foundation]
  • “To Tweet or Not to Tweet: How FDA Social Media Guidelines Violate the First Amendment” [Kirby Griffis and Tamara Fishman Barago, Washington Legal Foundation]

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UMW and Yik Yak: they call it Title IX retaliation

After the Feminist Majority Foundation promoted a Title IX complaint against the University of Mary Washington, primarily based on the public Virginia university’s failure to crack down harder on student use of the independent Yik Yak social media gossip platform, UMW President Richard Hurley in June wrote an unapologetic letter crisply refuting many of the group’s contentions. What do you think happened next? Sponsors amended their complaint to allege that Hurley’s letter itself constituted unlawful retaliation against persons invoking Title IX protection. “The [U.S. Department of Education’s] Office for Civil Rights announced its intent to investigate the university this month.” And now a group of 72 women’s and civil rights organizations, including the respectable American Association of University Women and Leadership Conference for Civil Rights, have “announced a campaign to enlist the federal government in pressuring colleges to protect students from harassment via anonymous social-media applications like Yik Yak.” [Eugene Volokh; Hans Bader; Chronicle of Higher Education; Fredericksburg, Va. Free Lance-Star (Hurley letter)] One thing’s for sure, someone is retaliating against something.

More: Eugene Volokh is out with a don’t-miss followup post analyzing the FMF complaints in much more depth, and noting that Hurley is being charged with retaliation for “engaging in normal public debate”:

Readers might recall the recent attempt to use Title IX to shut down critical speech as retaliation, in the Northwestern University / Prof. Laura Kipnis controversy…. This complaint is yet another such attempt.

The Feminist Majority Foundation, though a publisher of a magazine [Ms.], doesn’t seem to care much about the First Amendment rights of students, or of accused university officials. Its complaint goes far beyond constitutionally unprotected and rightly punishable speech, such as true threats of violence.

Instead, it faults the university for not stopping criticism of feminist arguments and feminist arguers, whether vulgar criticism or other criticism. It faults the university for speaking out, without vulgarities or epithets, in its own defense. And the premise of the complaint thus seems to be that one side of a debate has the right to speak — to condemn and to accuse — but the federal government should step in to stop the other side from responding.

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Claim: scandal author should pay for hurting value of U. of Louisville degrees

“A University of Louisville student has filed a lawsuit against Katina Powell and her publisher, claiming Powell’s book, ‘Breaking Cardinal Rules: Basketball and the Escort Queen,’ has damaged the value of a degree from the school…. The suit is seeking class action status on behalf of the student body at UofL.” [WDRB]

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“OCR’s distorted concept of sexual harassment does more harm than good”

Delivering the 2015 Richard S. Salant Lecture on Freedom of the Press, former ACLU president Nadine Strossen voiced concerns that universities, prodded by the federal government’s Department of Education and its Office for Civil Rights, are become hostile to ideas and expressions that could make students uncomfortable. “Strossen listed numerous examples of repression of academic freedom that have resulted from university sexual harassment policies, including: a sexual harassment investigation against a Northwestern University professor for writing an article that criticized such sexual harassment policies; a U.S. Naval War College professor who was placed on administrative leave for quoting a Machiavelli comment that included the mention of rape; and an Appalachian State University sociology professor who was suspended for showing a documentary that critically examined the adult film industry. At Harvard, Strossen said, a chilling effect is also in place.” She said OCR has threatened to yank federal funding from schools that fail to “enact sexual misconduct policies that violate many civil liberties.” [Shorenstein Center; my 2013 piece]

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How late the Auer

“Auer deference,” announced by the U.S. Supreme Court in Auer v. Robbins (1997), requires courts to accord deference to a federal agency’s interpretation of its own statute. The U.S. Department of Education, contradicting some earlier statements, has lately taken the view that “collection costs may not be assessed against [student loan] borrowers who sign rehabilitation agreements,” thus turning unlawful in retrospect thousands of instances in which lenders have done that. The Seventh Circuit has now denied en banc rehearing in the case of Bryana Bible v. United Student Aid Funds, which — invoking Auer deference — let a suit go forward on that theory. Judge Frank Easterbrook, concurring in that denial of rehearing en banc (h/t Ted Frank), noted that Supreme Court justices including Auer’s original author have lately expressed doubts about the doctrine’s ongoing viability. Easterbrook:

…deference has set the stage for a conclusion that conduct, in compliance with agency advice when undertaken (and consistent with the district judge’s view of the regulations’ text), is now a federal felony and the basis of severe penalties in light of the Department’s revised interpretation announced while the case was on appeal.

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Schools roundup

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