Campus Censorship is The Feds’ Fault

June 6, 2015

By Robby Soave at The Daily Beast

How obscure federal bureaucrats are squashing free expression on college campuses.
A candid admission from an anonymous academic in Vox—“I’m a liberal professor, and my liberal students terrify me”—has higher ed spectators on all sides of the ideological spectrum concerned that students’ increasing aversion to offended-ness is forcing academics to dumb down their courses.

But while just about everybody agrees there’s a problem, sheer outrage is incapable of solving it. That’s because federal bureaucrats have declared war on campus free speech and universities would be crazy to defy them, short of a Congressional mandate to do so.

Watch what you say didn’t become the unofficial motto of American campuses by accident, and hyper-offended students don’t strike fear into the hearts of the professoriate because they are physically imposing. Rather, it’s the explicit threat of formal, government-backed sanction that gives a minority of easily-agitated agitators veto power over all aspects of campus life, from the classroom to the dorm room to the rec room. (Not even movie night is safe.)

Vox’s fearful professor has a lot of company these days—many of his colleagues also feel the pressure to self-censor. “we’ve seen bad things happen to too many good teachers—adjuncts getting axed because their evaluations dipped below a 3.0, grad students being removed from classes after a single student complaint, and so on,” he wrote.

Since students have tremendous authority to make life hell for professors, academics are increasingly unwilling to risk irritating them. This can mean ejecting Mark Twain (racially problematic), Greek literature (sexually problematic), and even Shakespeare (racially and sexually problematic) from the lesson plan, just to be on the safe side.

And the self-censorship is not limited to the liberal arts; law professors, according to The New Yorker’s Jeannie Suk, are disinclined to talk to their classes about aspects of the law relating to sexual assault. What if a student was triggered by the topic, and complained?

Bad things happen to professors who provoke complaints, as Northwestern University Professor Laura Kipnis recently discovered. She wrote a column about campus harassment investigations and then immediately found herself the subject of one.

Only when administrators are specifically instructed to maintain harassment policies that comport with the First Amendment will they actually leave professors alone.
Students complained that she had presented inaccurate information; the dispute obligated the university to hire an outside law firm to investigate whether Kipnis’s essay had somehow violated the offended students’ civil rights. When meeting with the lawyers, Kipnis was not allowed to bring her own representation, only a silent “support person.” She had to replace this person midway through the investigation—his advocacy on her behalf drew additional complaints prompting separate investigations.

Kipnis was recently cleared of any wrongdoing; the fact that she had drawn sympathetic media coverage after publicly criticizing the nature of her inquisition likely played out in her favor. City University of New York Professor Angus Johnston, who is generally skeptical that liberal students are limiting the speech rights of liberal professors, tweeted, “I have an opinion on the campus disciplinary process Laura Kipnis is facing: It sucks.” Jezebel’s Natasha Vargas-Cooper called it “feminism devouring itself.”

But even though Kipnis survived, it’s easy to see why hauling her before a team of lawyers that get to play judge, jury, and executioner with her career sends a message to other professors that they should keep their mouths shut.

Indeed, the lawyers investigating Kipnis asked her whether she wanted to file her own complaint against a student who discussed her case in an article for The Huffinton Post. This cycle of retaliatory snitching is like something out of an Orwell novel, and the clear result is a chilling effect on open discussion.

Kipnis is not the first academic to face such an inquisition. In fact, dubious harassment investigations have become commonplace at American colleges. At the moment, they seem to be drawing a great deal of (deserved) outrage. But they aren’t going away simply because everyone is upset about them. Indeed, they are likely to keep increasing in frequency.
We have the federal government to thank for that.

Specifically, the Education Department’s Office for Civil Rights—a massive, bureaucratic agency staffed with 650 lawyers. They have one job: punish universities that don’t sufficiently police campuses for harassment and discrimination.

Ostensibly, they do this under the charge of Title IX, a 1972 amendment to the Higher Education Act that prohibits gender discrimination at universities that received federal funding. Initially intended to make sure that female student-athletes received as much institutional support as male athletes, Title IX has been reinterpreted by OCR to apply to virtually all human activity that takes place on campus.

Harassment, according to OCR’s confusing and ever-mutating guidance, is ill-defined and largely subjective. And since universities risk losing millions of dollars in funds if OCR deems them out of sync with Title IX, administrators have understandably decided they are better off airing on the side of censorship.

For an example of this thinking, consider CUNY. In January, Provost Louise Lennihan instructed university staff members to eliminate gendered salutations like “Mr. and Ms” from their emails to students. When asked about the policy, which staff members were encouraged to apply “as broadly as possible,” Lennihan explained that she was merely bringing CUNY’s policies in line with Title IX.

The idea that Title IX requires the university community to eschew pronouns wouldn’t stand up under legal scrutiny. Indeed, the Supreme Court has generally taken a staunchly pro-speech view of student and faculty rights. For speech to count as unprotected harassment, it has to cross some very serious lines—at a minimum, it must be targeted, discriminatory, and objectively offensive, according to the Court’s decision in Davis v. Monroe County Board of Education.

But OCR isn’t operating off of a consistent, Court-approved definition of harassment. It’s operating off the dictates of its assistant secretary, Catherine Lhamon, an Obama appointee who has greatly expanded the scope of OCR’s investigations since joining the agency in 2013.

“One thing you quickly learn is universities are terrified of Title IX investigations and lawsuits,” said Greg Lukianoff, president of the Foundation for Individual Rights in Education, a free speech organization, in an interview with The Daily Beast. “The investigations themselves are really onerous, the lawsuits are expensive, and given the climate on campus, they are really afraid just to be accused of discrimination.”

Lukianoff testified before the U.S. House of Representatives judiciary committee earlier this week about threats to academic freedom on campus. His solution is for Congress to require universities to police harassment in accordance with the strict Davis standard, rather than the broad and confusing standard that OCR has instructed universities to abide by.

“We need cultural pushback,” said Lukianoff, “but we also need to understand that there is a structural governmental reason for why this stuff is so out of control.”

Only when administrators are specifically instructed to maintain harassment policies that comport with the First Amendment will they actually leave professors alone. Until that happens, no number of thinkpieces about PC fascism taking over college campuses will convince administrators that ending a wave of professorial self-censorship is worth provoking the ire of the federal government.

Schools: Northwestern University