NOTE: The article excerpted on this page is from an outside publication and is posted on FIRE's website because it references FIRE's work. The viewpoints expressed in this article do not necessarily represent FIRE's positions.
This week, college students are moving into dorms, purchasing textbooks and signing up for classes.
While they’re at it, they also should consider lawyering up.
Why? Because, unbeknownst to many students and their parents, college campuses today are increasingly run by petty bureaucrats who police all matters of student behavior — from alcohol infractions and relations between the sexes to controversial political speech and even personal conversations.
Assisted by members of the professional diversity-training industry, these mid-level administrators promulgate and enforce overbroad “civility codes” that seek to sanitize campus life in the name of political correctness.
Some striking local examples:
UMass-Amherst defines sexual harassment as, among other things, “repeated unwanted sexual flirtations” and “prolonged staring or leering.” (Doubt I could have met my husband under such a regime.)
Northeastern University prohibits online posting of “intolerant” material deemed by the university to be “offensive,” “annoying” or “harassing.” (Don’t bother posting this column online. It’s bound to offend someone!)
Holy Cross prohibits “degrading” statements that “cause emotional injury.” (A stunning example of what another columnist has called the “tyranny of hurt feelings.”)
Tufts University prohibits the expression of opinions that are “calculated to annoy, embarrass or distress.” (This one would forbid my teenage daughter’s every word.)
And this is just the tip of the iceberg. The Foundation for Individual Rights in Education (“FIRE”) has identified at least two dozen Massachusetts colleges and universities with policies that muzzle free expression.
What’s more, procedures used to enforce such rules often deny students basic due process.
Proceedings are almost always closed to the public. The identity of the witnesses is frequently kept secret until the time of testimony. Findings of fact are often based on hearsay testimony and other unreliable evidence. Often, students who are found guilty are not permitted to appeal.
No wonder, then, that renowned Boston civil liberties lawyer Harvey Silverglate refers to the modern college disciplinary hearing as a “kangaroo court.” Silverglate, a co-founder of FIRE, says that such hearings (particularly those that pit accusations by women or minorities against white males) are “like trials in the old Soviet Union — you know how they are going to turn out.”
Remarkably, despite the Kafkaesque nature of modern college discipline, Obama administration officials last spring issued a harshly worded letter demanding (under the threat of federal investigation and loss of funding) that colleges and universities do more to prosecute allegations of sexual harassment on campus. The letter cautioned schools against allowing accused students to confront or cross-examine witnesses and insisted that disciplinary panels adopt a “preponderance of the evidence” standard for adjudicating even charges of sexual assault.
“Preponderance of the evidence” is legal-speak for “more likely than not.” Unlike “beyond a reasonable doubt” (the standard used in criminal prosecutions), the “preponderance” standard allows administrators to render a guilty verdict if they believe that the accused is only slightly more likely than not to have committed the alleged violation.
Shockingly, under the “preponderance” standard, colleges have “convicted” students of assault even where local police have decided not to file charges because the allegations lacked credibility!
And so, on the basis of flimsy evidence, students can be suspended, expelled, and forever labeled “rapist.”
What, I wonder, will happen to students at Holy Cross (and Princeton, Stanford and other places), where policies define all intoxicated sex as “nonconsensual”? The potential for Salem-like witch hunts is real, indeed.
So, this year, as you pack up your kids for college, make sure you send them with the business card of a trusted attorney. Unfortunately, it just might come in handy.
Jennifer C. Braceras is an attorney and political commentator.