Students Beware! A Thousand College Lawyers are Watching You

By July 14, 2006

I nearly choked on my doughnut this morning as I read this extremely disturbing article in the Wall Street Journal’s OpinionJournal.com (no subscription required) by Mark Oppenheimer. Oppenheimer reports on the goings-on at this year’s “annual conference of college and university lawyers,” which I can only assume was the National Association of College and University Attorneys’ (NACUA’s) June 25-28 Annual Conference in Chicago, featuring 1,040 attendees.
 
Oppenheimer’s article reads like a lament about the fact that colleges must employ so many lawyers these days to deal with lawsuits about suicide, Title IX, harassment, etc. But let me be among the first to tell you that this enormous number of lawyers appears to be very bad news for those who care about due process and free speech for students.
 
University “courts” are hardly known for their fairness and reliability. Time after time, FIRE gets reports of proceedings where the accused doesn’t have the right to face his or her accuser, has little or no opportunity to present evidence, and/or is put on trial for unconstitutional charges, while the ultimate decisions are made by officials with a vested interest in the outcome of the case. This is the last system you would want to have investigating or punishing serious criminal charges. But that may not stop colleges, as Oppenheimer explains:

At one panel I attended, San Francisco lawyer Zachary Hutton explained Williams v. Board of Regents, a recent case in which a University of Georgia student alleged having been raped by two student-athletes while a third student watched. The police charged the athletes with rape, and the university decided not to conduct its own investigation until the criminal case was resolved.
 
That turned out to be a mistake. The plaintiff then sued the university for sexual harassment, and the 11th Circuit held this year that the university could be liable because, by waiting to conduct an independent investigation until the criminal case was resolved, it had exhibited deliberate indifference to the alleged rape. “The court emphasized,” Mr. Hutton told the college lawyers, “that the pending criminal trial . . . did not affect the university’s ability to institute its own proceedings, and the criminal charges would not have prevented future attacks while the charges were pending.”

There are excellent reasons for the university not to conduct its own investigation. For one thing, instead of police detectives and professional prosecutors conducting the investigation, you are likely to get Campus Public Safety and the Associate Dean for Student Affairs. How having inexperienced college administrators and college safety officers conduct a rape investigation is likely to benefit either the victim or the accused is beyond me. The potential for violating the Fifth Amendment, damaging evidence, and coming to wildly inaccurate conclusions is immense, and if any of these things were to happen, the university would risk botching an important criminal case. Rape is a serious crime; victims and the accused deserve better than college justice. Oppenheimer remarks on this in an extremely understated way: “There’s a downside to this reality: Student courts and disciplinary committees are not necessarily qualified to pass judgment on accused criminals.” This “downside” is so deep that it’s impossible to see the bottom of it.
 
Equally disturbing, because of its potential to reach thousands upon thousands of students, is the apparent attitude among college lawyers regarding what to do about the “problem” of social networking sites like MySpace.com and Facebook.com.

The most entertaining discussion I heard at the lawyers’ convention centered on what to do about facebook.com and myspace.com–how to prevent slander, harassment and rumor-mongering on these online communities popular with undergrads.

What these attorneys were talking about is wholesale regulation of online speech. Slander is, of course, a tort, and engaging in slander or libel can get a person sued. It’s hard to see how or why a college should be involved in this, though. If I libel someone online, it’s the business of those affected, not the college. As for harassment, one of its main characteristics is that the person being harassed finds the harassing behavior hard to avoid. Unless the “harasser” is hacking into the victim’s MySpace page, it’s hard to see how going to a “harassing” website isn’t completely avoidable. As for “rumor-mongering,” horror of horrors! Regulating that on a college campus will mean tripling the number of administrators (and probably tuition), but I suppose no expense is too large to make sure that everyone stays comfortable.
 
Unbelievably, it continues on, getting even worse:

The room was evenly divided: Some lawyers recommended ignoring the students’ Web sites unless something offensive was brought to administrators’ attention, while others suggested taking aggressive action. “If you can’t beat them, join them,” said Debra Wood, a lawyer who is dean of students at Scripps College in California. “I’ve registered my name, so the students know that I’m there, watching, and I will call them in to discuss their conduct on facebook.”

By Debra Wood’s logic, there’s no problem with Big Brother as long as everyone knows he’s out there listening to their conversations. This is truly disturbing. By my calculations, if half the lawyers thought that “offensive” speech that is reported should be punished, and half the lawyers thought that administrators should spend their time cruising the websites and proactively stamping out “offensive” speech, that leaves ZERO lawyers who believed that perhaps merely “offensive” speech should be protected, as the First Amendment (at public schools), or respect for fundamental freedoms (at all schools), requires.
 
Wondering what you’ll have to say to get busted in this brave new world of college censorship? FIRE has already begun to take on social networking website cases, like that of Matt Walston at the University of Central Florida, who was set to be punished for the heinous crime of calling a fellow student “a Jerk and a Fool” on Facebook.com. With a thousand lawyers now on the case, hopefully the kind of horror that Walston represents will be removed from our campuses forever.