University of Chicago Student Makes Clear the Threats to Student Rights Presented by OCR, Bias Incident Policies

By May 8, 2012

In the pages of The Chicago Maroon, University of Chicago (UC) student Bryant Jackson-Green takes on the myriad threats to student free speech and due process rights presented by new mandates from the Department of Education’s Office for Civil Rights (OCR), as well as by UC’s own policies regarding campus bias incidents. 

Jackson-Green, who is also a member of FIRE’s Campus Freedom Network (CFN), writes at length about the fact that OCR’s April 4, 2011, "Dear Colleague" letter leaves those students across the country accused of sexual harassment or sexual assault with diminished due process rights, in particular by mandating universities incorporate the low "preponderance of the evidence" (i.e., more likely than not) standard of proof into their sexual harassment and sexual assault policies. Jackson-Green has an excellent grasp of the impact that this new requirement has had, and will continue to have, on accused students, writing:

It’s worth considering the consequences for sexual harassment proceedings. The accused face, at the very least, permanent marks on their academic record and ruined reputations; at worst, blacklisting from future employment, expulsion, and criminal charges. According to a survey conducted by the Foundation for Individual Rights in Education, 39 of the top 100 schools—including the University of Chicago—have already lowered their evidentiary standards in accordance with these new guidelines. 

There is no doubt that sexual assault and harassment are vicious offenses that should be duly investigated and punished by colleges and universities everywhere. But procedure shouldn’t function in a way that almost begs the question the investigation is meant to answer. It tends to be that the most despicable offenses provoke passionate feelings of contempt, facilitating a demagogic outcry for justice that in turn fuels a hasty jump to conclusions. For this reason, the more serious an allegation is, the more critical high evidentiary standards are to ensuring an equitable outcome. 

Jackson-Green’s piece contains further observations regarding these due process concerns, so those who have been following our work on the OCR mandate (including our coalition letter sent yesterday to OCR) will want to read it all the way through. 

Additionally, Jackson-Green writes, OCR’s April 4, 2011, letter fails to adequately protect students’ free speech rights when they intersect with university policies addressing discriminatory harassment. As he observes, OCR’s letter "foster[s] the ambiguity between genuine harassment and protected speech by not clearly emphasizing the difference between genuine harassment, and language that might cause offense but that would not meet the threshold for harassment." Jackson-Green points out that the problem with such lack of clarity is visible in UC’s own policies:

At our own university, the clarity problem can be seen in the guidelines of our bias response team. They define a bias incident as "an action in which a person is made aware that her status is offensive to another," but the behavior does "not rise to the level of a crime." It’s unclear from this language precisely what makes otherwise lawful behavior so severely offensive that it merits disciplinary action, and where that line is drawn. Yet even when reviewing offenses not subject to legal response, there is no reason not to give notice of how "bias" is identified and what sorts of punishments those who express "bias" would be subject to. This sort of vagueness—especially when it fails to clearly accommodate protected speech and expression—might silence legitimate debate on controversial topics of public concern among students with unpopular convictions. And even if we consider comments outside the realm of serious debate—such as with crude, immature joking among friends—I believe that there is no particular obligation not to offend. 

Indeed, UC maintains two separate "red light" policies related to campus bias incidents, and each is a serious threat to students’ expressive rights. At an institution that has had its share of FIRE cases, revising these two policies should be priority number one for strengthening free speech. Hopefully, efforts such as Jackson-Green’s piece in the Maroon will go a long way toward convincing others on campus of the problem, and ultimately achieving that goal. 

Schools: University of Chicago