Liability Reigns Supreme at the Corporate University

April 22, 2011

If you had to pinpoint the single most important factor to decision-makers in American higher education, it would not be truth, it would not be justice, and it certainly would not be effective teaching and learning. Sad to say, it would be liability-more precisely, the avoidance thereof.

Campus leaders have become true believers in the mantra of "risk management," an approach that seeks to snuff out legal problems on campus-in particular, those that could end up costing the university money-before they arise. In eliminating every potential problem, however, lawyers and administrators are squeezing important elements of life and learning, as well as moral and educational principles, out of the collegiate experience.

Nowhere is this more evident than in the realm of "harassment." The Foundation for Individual Rights in Education (FIRE), a nonprofit campus watchdog group which I chair, has documented an alarming number of cases in which otherwise protected speech has been punished under vague anti-harassment codes. Posting flyers poking fun at women who use elevators; privately replying to a professor’s email promoting a film about a lesbian relationship; satirizing a student campus leader in an opinion journal-all of these expressive acts have resulted in charges of "sexual harassment."

This is worth keeping in mind when considering a far-reaching Department of Education directive sent earlier this month, which outlines how campuses should handle sexual harassment investigations.

The DOE’s Office of Civil Rights (OCR) "Dear Colleague" letter (PDF) informs all colleges and universities that accept federal funds (all public, and the overwhelming number of private schools) of their obligations to keep their educational environments free from discrimination. It may at first glance appear noncontroversial, even commonsensical. But make no mistake-the changes dictated by this letter will have consequences that reach far beyond preventing true sexual harassment.

The 18-page OCR letter is indeed substantive, much more than can be covered here. The thorny issues with regard to due process of law-schools must now adjudicate claims of sexual harassment with a "preponderance of the evidence" standard, rather than the higher threshold of "clear and convincing" evidence-have been discussed elsewhere, though the disturbing ease with which entirely innocent students can now be convicted of misconduct should not go without noting.

What I’m currently interested in, however, are the unforeseen consequences, the potential pitfalls when the administrative rubber hits the campus road.

In previous OCR letters, it has been acknowledged that a certain tension exists between punishing verbal sexual harassment and protecting free expression. For example, in a "Dear Colleague" letter issued by the OCR in 2003, administrators were reminded that "OCR’s regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment."

No such nod to free expression exists in the most recent OCR letter. Instead, while reminding colleges that harassment includes "verbal, nonverbal, or physical conduct of a sexual nature," the letter explains the threshold for what the OCR considers to be a "hostile environment"-that is, the standard by which colleges, if they choose not to respond to such harassment, risk becoming the targets of agency enforcement proceedings and losing federal funds.

Here’s where the letter gets somewhat convoluted. It refers readers to a 2001 OCR guidance document in which the definition of a "hostile environment" on campus closely tracks a landmark 1999 Supreme Court case (Davis v. Monroe Country Board of Education). In particular, OCR’s 2001 letter made clear that the severity, pervasiveness, and objective offensiveness of any conduct must be considered.

In the letter issued earlier this month, while referring readers to the 2001 guidance document, OCR articulates a significantly lower threshold for the designation of a hostile campus environment: "if the conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program." The letter goes on to state that "a single or isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe." (So much for considering whether a hostile "environment," or just a single incident, is found.)

Here’s where the unseemly focus on risk reduction comes into play. University leaders, concerned about both image and bottom line, will avert at all costs a federal investigation into whether their campus environment is "hostile" for those of a particular gender. So when a single instance of expression that may offend a student’s sensibilities arises, it’s far more likely that punishment will be doled out to the speaker.

In other words, administrators have all the more incentive to crackdown on expressive conduct that may offend a student’s sensibilities, lest they gain the OCR’s attention. This produces on campuses all over the country the following anomaly: Speech which would clearly be constitutionally protected outside the ivy walls is censored and punished on campus. Precisely the place that has historically been the most free for the utterance of controversial speech, becomes the least free.

And while there is no doubt that victims of actual sexual assault or truly debilitating harassment deserve the utmost protection, sweeping verbal expression into the same fold conflates two very different phenomena. When upsetting expression is at issue, the best response, in most instances, is to either ignore the speaker or respond in kind. Outside the ivy gates, in society at large, these are the only options. Simply put, it is not terribly good preparation for real life to teach students that they will be protected, by timid and risk-averse administrators, from hearing disturbing speech.

Nonetheless, in the wake of this new OCR directive, colleges and universities have wasted little time in changing their official policies. The University of Massachusetts, for one, recently proposed a number of alterations to its student code of conduct. First, UMass reiterated its long-standing and almost certainly unconstitutional prohibitions with regard to sexual harassment, including "display of pictures, posters or cartoons that a reasonable person would find offensive or sexually suggestive." UMass also proposed a provision against "bullying" that subjects students to punishment if they produce "written, verbal, or electronic expression," that may cause, among other feelings, "emotional harm." Suffice it to say, a standard this subjective is ripe for abuse (which is also why, at a public university subject to the First Amendment, it is also likely unlawful).

Stanford University has already amended its standard of proof in cases of sexual assault, lowering it, as directed by the OCR, from the "clear and convincing" threshold to the "preponderance of the evidence" standard. Writing in the Stanford Daily, one concerned alumnus pointed out that such a unilateral change to the disciplinary process "likely violates Stanford’s constitution."

And Yale University, which is currently under investigation for harboring a "hostile environment" after a group of students and alumnae complained to the OCR, has announced the formation of an external "Advisory Committee on Campus Climate." In a letter to the Yale community announcing the creation of this committee, University President Richard Levin opens by noting that "[w]e have not yet received a copy of the complaint, and the notification from the Office of Civil Rights does not provide details." Yet he closes, oddly enough, with the following: "The deepest values of our institution compel us to take very seriously the issues raised by the complaint brought to the Office of Civil Rights." A complaint which, by Levin’s own admission, he has not yet seen. The specter of the president of a major national university running in abject fear, and forming a blue ribbon committee that one suspects has as its mission to pre-emptively run up the white flag to the OCR investigators, is indeed very disturbing and does not augur well for the vibrancy and independence of higher education.

Which gets us to a central question: Who benefits from these developments? At least one answer came roughly a week after the OCR issued its guidance earlier this month. The National Center for Higher Education Risk Management announced a four-day seminar in August- $2,500 per registrant-on how to comply with the new OCR guidelines. And this group is hardly alone. A veritable industry has sprung up around the various laws that dictate student life-or, perhaps more accurately, how administrators should control their unruly undergrads and, in the process, avoid both criticism and exposure to risk.

Colleges and universities, once among the most forward-looking and border-challenging segments of our society, now risk become static backwaters of political correctness.  True education simply is not possible unless universities and their students are allowed-indeed, encouraged-to express thoughts that some people would prefer not to hear.

Instead of cultivation of the mind, the new OCR guidelines impose mindless conformity. Instead of fighting back, modern corporate universities, where truth, fairness, and liberty have taken a backseat to avoiding legal liability, rush to jump on the bandwagon.

Kyle Smeallie, a FIRE program associate, assisted in the preparation of this essay.