- Hundreds of colleges now have bias response teams, with many deeply involved in regulating speech [Adam Steinbaugh, FIRE survey]
- Trump’s tweet made old idea new: in 1991, Rep. Henry Hyde filed unsuccessful bill to cut off federal funding of colleges that punished students for speech otherwise protected by First Amendment [The American Interest, earlier] A new cadre of federally mandated administrators, modeled on Title IX coordinators and backed by the threat of funding cutoffs, to ride herd within universities? Uh-oh [Michael Rappaport, ambivalent]
- Arizona lawmakers quickly kill bill to cut state support from classes and activities that “promote division, resentment or social justice toward a race, gender, religion, political affiliation, social class or other class,” which would have extended earlier curb on Mexican and other ethnic studies [Tucson Star, Arizona Republic, Christian Science Monitor; background Melinda Anderson, Atlantic]
- 47 Boston College faculty members ask “zero-tolerance” policy on hate speech. That’s different from the speech that Arizona was looking at that “promote[s] division, resentment” along ethnic lines, right? [Washington Times]
- At the University of Minnesota, you might lose a student-advisor job for not demonstrating “a commitment to social justice growth and promotion to residents.” [David Blondin, Minnesota Republic/Campus Reform]
- View that speech is violence, and thus properly countered by violence in response, is popular at UC Berkeley student paper [screencap by Ashley Rae on Twitter] More: The new religious establishment: Berkeley’s Division of Equity and Inclusion has $20 million a year, 150 staff [Heather Mac Donald]
Posts Tagged ‘colleges and universities’
February 8 roundup
- Freedom of association is at risk from California’s effort to crack open donor names of advocacy nonprofits [Ilya Shapiro on Cato Ninth Circuit amicus]
- “Center for Class Action Fairness wins big in Southwest Airlines coupons case, triples relief for class members” [CEI, earlier here, here]
- Campus kangaroo courts: KC Johnson and Stuart Taylor Jr. have spent a week guestblogging at Volokh on their new book (first, second, third, fourth, fifth, earlier links; plus Christina Hoff Sommers and WSJ video interviews with Stuart Taylor, Jr.]
- Despite his I’m-no-libertarian talk, two 2015 cases show Judge Neil Gorsuch alert to rights of Drug War defendants [Jacob Sullum]
- Drug pricing, estate/inheritance double tax whammy, shaken baby case, mini-OIRA in my new Maryland policy roundup [Free State Notes]
- And the legal fees flowed like water: dispute with Georgia over water rights has clocked $72 million in legal bills for Florida [Orlando Sentinel]
President Trump: “No federal funds” for Berkeley?
A President might not find it simple or straightforward to use direct executive orders to cut off funds to universities that tolerate disruption of speech or exclude speakers based on the content of their speech. But the power that the Department of Education and allied agencies have gathered to themselves over university life has steadily mounted, often against little resistance from the universities themselves, as in the Title IX instance. That gives an administration plenty of handles to make its will known, a process previewed in October, as to Trump, in a Chronicle of Higher Education piece. It quotes Alexander Holt, an education-policy analyst at New America, saying: “I could see a Trump administration going crazy on these ‘Dear Colleague’ letters.”
Two years ago I cited several examples of rule by Dear Colleague letter, as I called it, in this area. (More here.) And I noted one big problem with invoking judicial oversight to check the federal government’s power:
It may be difficult to persuade a college to serve as a test case, given the annihilating possibility of a federal funds cutoff as the penalty of its presumption.
More: cross-posted, slightly expanded, at Cato at Liberty. And FIRE (Foundation for Individual Rights in Education) has now weighed in on last night’s events at Berkeley surrounding an invited speech by Milo Yiannopoulos. On the federal funding issue, FIRE states its view as follows:
It is true that, under current law, public universities that enforce blatantly unconstitutional speech codes and private universities that violate their own promises of free speech do not face the same potential loss of federal funding for censoring campus speech that they do for violating other federal civil rights laws and regulations. However, FIRE has so far seen no evidence that Berkeley as an institution made any effort to silence Yiannopoulos.
Those who engage in violent and/or destructive protests are ultimately responsible for their unlawful behavior and may be subject to arrest and prosecution by law enforcement. To punish an educational institution for the criminal behavior of those not under its control and in contravention of its policies, whether through the loss of federal funds or through any other means, would be deeply inappropriate and most likely unlawful.
Higher education roundup
- Student claims public college required him to mouth correct views regarding social justice as part of class. Not since Barnette v. West Virginia you don’t [Ilya Shapiro and Devin Watkins on Cato amicus brief in Felkner v. Rhode Island College (“The First Amendment prohibits government actors from compelling private citizens to express views with which they disagree.”)]
- In the mail: KC Johnson and Stuart Taylor, Jr.’s “The Campus Rape Panic: The Attack on Due Process at American Universities” [Encounter Books; review, Robert VerBruggen; plus excerpt; interview with Taylor] “The Title IX Mess: Will It Be Reformed?” [KC Johnson, Minding the Campus]
- Departing Obama administration revises Common Rule on IRB/institutional review board human subjects protection [NEJM, Verrill Dana redline via Michelle Meyer, Zachary Schrag first, second, third posts on implications for social science research]
- Notwithstanding early reports, PEN America report on campus expression mounts “unflinching defense of free speech” [Anthony Fisher, Vox; related, José Cabranes/Washington Post and Orin Kerr]
- U.K.: graduate sues Oxford for negligent teaching, wants £1 million [Lowering the Bar, more links at Paul Caron/TaxProf]
- When should you report classmates to the Syracuse University administration? Suspect behavior includes “avoiding or excluding others,” “telling jokes based on a stereotype,” “posting or commenting on social media related to someone’s identity in a bias matter,” “imitating someone’s cultural norm or practice” [guidelines (from mission statement: “never privatize any wrongful act, no matter how small”) via Robby Soave]
Higher education roundup
- Colleagues demand Oregon law prof resign over Hallowe’en costume [Paul Caron/TaxProf; Eugene Volokh (“We have reached a bad and dangerous place in American life, and in American university life in particular.”)] Title IX and expression: “What the feds have done to colleges and schools” [Hans Bader, Minding the Campus]
- Institutional review boards (IRBs) “as a rule are incredibly difficult to study…. There is no public record of their decision or deliberations, they don’t, as a rule, invite scrutiny or allow themselves to be observed.” [Dr. Steven Joffe quoted by Tyler Cowen]
- “An emphasis on intersectionality”: mandatory diversity course for first-years at AU now has course description [earlier] “U-M’s New ‘Chief Diversity Officer’ Will Collect $385,000 per Year” [Derek Draplin, Michigan Capitol Confidential]
- “Plaintiffs’ Bar Steps Up Profitable False Claims Act Assault on Higher Education” [U.S. Chamber Institute for Legal Reform]
- Notwithstanding initial wave of critical coverage, Will Creeley says PEN report on campus speech is actually pretty good [FIRE] “Student group at Cal State Northridge boasts of ‘shutting down’ speech by award-winning scholar” [Volokh; Armenian students vs. Ataturk lecture]
- On question whether universities must treat student athletes as employees, NLRB “may be battling for field position” with future ruling in mind [Brennan Bolt, McGuire Woods]
Could a president “end” political correctness on campus?
Republican presidential nominee Donald Trump spoke recently of his intent if elected to “end” political correctness on university campuses, and Steve Kolowich at Chronicle of Higher Education asks a number of observers, including some who have been critical of that phenomenon, to describe what practical changes in federal higher education policy that might entail. I’m quoted on how Trump’s intent is “not something that you could easily reduce to the four corners of a policy proposal.”
Higher education and Title IX roundup
- “Free Speech on Campus: A Challenge of Our Times,” recent speech by University of Chicago law professor Geoffrey Stone;
- University of Virginia puts professor on leave of absence after comments critical of Black Lives Matter [Hans Bader] “Yes, Brooklyn College really has a Director of Diversity Investigations.” One prof’s experience [David Seidemann/Minding the Campus]
- “Lawyer: Why the lower standard of evidence in college sexual-assault cases is dangerous” [Robert Shibley] It’s rare for the Education Department’s Office for Civil Rights to stick up in favor of due process rights for accused students, but that just happened in Wesley College case [Jake New/Inside Higher Ed, Tyler Kingkade/BuzzFeed, ED press release]
- “Northern Michigan University had — and perhaps still has — a policy subjecting students to discipline if they share suicidal thoughts with their peers.” So how bad an idea is that? [Ken White, Popehat]
- “Historically Black Colleges and Universities struggle with Title IX compliance” [American Sports Council on reporting by David Squires/The Undefeated]
- “University Of Michigan Gets Lost In The Tall SJW Weeds” [Amy Alkon] Georgetown offers legacy status to applicants descended from university-owned slaves; showy gesture, but anything more? [Scott Greenfield] “American University Student Government Launches Campaign for Mandatory Trigger Warnings” [Robby Soave]
Suit: college football players employees under California law
A class action suit against the National Collegiate Athletic Association (NCAA) cites California law, as well as the federal Fair Labor Standards Act, to argue that college football players should be deemed employees subject to minimum wage and overtime law. I find it a stretch for reasons quoted in the report [Robert Teachout, SHRM]
“He was sent on to a case manager in the Gender-Based Misconduct Office…”
…where he was at length told, “Even if I were to agree with you, you know I can’t say anything.” [Ann Althouse] Relatedly, “The Sex Bureaucracy” is the title of the widely noted new article by Jacob Gersen and Jeannie Suk in California Law Review (via Hans Bader):
…we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated domain comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. The federal bureaucracy required nongovernmental institutions to create mini-bureaucracies, and to develop policies and procedures that are subject to federal oversight. That oversight is not merely, as currently assumed, of sexual harassment and sexual violence, but also of sex itself.
And: “Judge reinstates Brown Univ. student accused of sexual misconduct, blasts ‘organized’ pressure to get him not to” [Fred Barbash, Washington Post]
“The Pyrrhic Victory For The Disabled”
As noted in posts here and at Cato, the University of California, Berkeley is considering taking down free online course content rather than expose itself to liability and litigation over its possible lack of accessibility for some disabled users. One irony: even if the welfare of disabled persons is treated as the only important outcome, the application of the ADA is probably going to do harm, because online alternatives to classroom instruction are particularly valuable to disabled persons, notably those with impaired mobility. [Alex Tabarrok, FEE (“The ADA Attack on Online Courses Hurts the Disabled Too”) Scott Greenfield (from whom title is taken); The Suburbanist (“So if your disability keeps you homebound, then the ADA will prevent you from viewing online courses.”); Preston Cooper, Forbes.