October 18, 2013

by Andrew Davis

Some kids have two daddies. Welcome to the new face of the modern, all-American family. Today’s parents come in all shapes and sizes, and for most freedom-loving people, it is really not that big of a deal. What matters most is that parents raise their children to become well-adjusted, productive adults.

It is not an easy job. Sometimes it may feel like taking a ride through Willy Wonka’s psychedelic boat tunnel; a constant flux of pure joy, blinding anger, and every emotion in between. It is also utterly terrifying. Imagine the paralyzing fear of a mother handing the car keys to her 16-year-old son for his first solo trip around town, or the thoughts of a father watching his precious baby girl walk down the driveway, on her way to junior prom.

After spending years raising a child, sometimes it’s hard for parents to let go. This reluctance explains why a kid leaving for college is such an emotional experience for parents. On one hand, it’s a capstone to 18 years of raising a child. On the other hand, it’s the moment when parents are forced to accept that there is little more they can do to keep their child safe. The one remaining hope is that Little Johnny remembers everything taught to him while growing up.

Lately, however, incoming college freshman, such as those at Coastal Carolina University, seem to be trading one set of parents at home for another set at school. No, this isn’t the nosy Resident Assistant checking-up on students, or a part of Coastal’s new “House Call” initiative, or the network of nearly 500 security cameras constantly recording activity on campus.

This is something far much more intrusive.

The concept is referred to as ” in loco parentis,” which is Latin for “in the place of a parent.” The term is a legal concept originating centuries ago from English common law, but is commonly used in educational settings to describe the authority educational institutions have over their students in the absence of parents. Colleges and universities use the doctrine of in loco parentis to establish student affairs policies intended to promote a moral, safe and caring environment for students. The practice once was pervasive in higher education, but a 1961 Supreme Court decision granting greater due process rights to students tied the hands of university administrators in regulating student conduct.

As a result of the decision, colleges began taking a more hands-off approach to campus life, giving students greater freedom to live, learn, and ultimately make the mistakes that teach students those valuable life lessons. Now, it appears the pendulum is swinging back in the other direction.

Starting this year at CCU, all incoming freshmen aged 22 and younger are required to take an online alcohol education program intended to steer students away from high-risk drinking patterns. Students must complete this course even before they step foot on campus. Coastal’s Greek community students, in addition to student athletes, are also required to complete the course.

“It is generally accepted wisdom that colleges and universities stopped acting in loco parentis (in the place of parents) in the 1960s,” Catherine Sevcenko, an adjunct professor at George Mason School of Law, wrote in an August online article for The Foundation for Individual Rights in Education (FIRE). “But I’m beginning to wonder about that.”

Sevcenko is referring to Coastal Carolina University’s recent decision to bar Weekly Surge from being distributed on its Conway campus. The University’s stated reason (at least initially) pointed to the paper’s alcohol-related content (editorial and advertising), believing it would have a negative influence on CCU’s student body. “Several of the articles were about fixing cocktails and reviewing happy hours,” Debbie Conner, CCU’s Vice President of Student Affairs, told The Sun News following the ban. “That’s not something we want to promote to our students.”

It would be one thing if Coastal’s decision to ban the Surge was an isolated incident of administrative thick-headedness. After all, even Conner admits banning the Surge will not end underage drinking. Unfortunately, the ban is a warning sign that Coastal also may also suffer from this new strain of administrative paternalism sweeping through America’s higher education system. According to campus freedom watchdogs like Sevcenko, the use of heavy-handed tactics to regulate student affairs both on and off campus is on the rise. Not only is the doctrine of in loco parentis back, it’s taken a much more sinister form in turning America’s higher education institutions into KinderColleges.

Crossing guards, like the ones we remember helping elementary school children across the street, have even cropped up on University Drive, one of CCU’s main drags.

Dropping the Red Cup

The red Solo cup. It is iconic symbol of American life at college, used in drinking games from flip cup to beer pong to Civil War (all of which are prohibited on CCU’s campus, by the way). An entire subculture of Pinterest pages, Halloween costumes, and novelty accessories formed around this ubiquitous party item that arrived to market in the 1970s. “I love you red solo cup; I lift you up,” croons country music star Toby Keith in his anthem dedicated to this 16-ounce, plastic paragon of perfection. “Proceed to party; proceed to party.”

CCU administrators, however, see the red Solo cup quite differently. For CCU officials, it is the physical manifestation of high-risk drinking patterns for which Coastal has come to be known. In 2012, Coastal topped COED.com’s list of the 15 most underrated party schools in the nation.

“Alcohol abuse is real on every college campus in this country,” Conner tells Surge. “We are not special by any means.” In response to this issue, Conner says the University re-launched its alcohol coalition. It is tasked with changing high-risk behavior through on-campus messaging campaigns that promote safe drinking habits. The coalition also works with other university departments to scrub the campus of third-party messaging that doesn’t fit into Coastal’s new anti-alcohol Zeitgeist. “[We are] working closely with our department of public safety to stop any unapproved solicitations on our campus, especially fliers and other materials advertising college night parties at local establishments,” says Conner.

Yet an early fall semester visit to CCU’s HTC Center, where Surge was formerly distributed, revealed a display of pamphlets from local businesses touting “sophisticated wines,” full bar service and Tiki bars, many images depicting beer, cocktails and wine, and establishment names such as Drunken Jack’s and Margaritaville that surely imply alcohol consumption.

Coastal isn’t just stopping at PR campaigns, either. Enforcement of alcohol violations is on the rise. According to data furnished by CCU’s Department of Public Safety, alcohol-related infractions referred for disciplinary action rose dramatically from 2011 to 2012, suggesting the University was cracking down on drinking offenses. Earlier this month, DPS Spokesperson Captain Tom Mezzapelle told campus student newspaper, The Chanticleer, that his department was stepping-up enforcement.

According to students, the focus on alcohol enforcement is also turning to off-campus locations, where the majority of Coastal’s students live. This, says students, is taking things too far.

“I think it is absolutely inappropriate that [plainclothes] police officers patrol my neighborhood every weekend,” says Chanticleer Editor Josh Fatzick. “[They] go from house to house asking people for IDs, and giving tickets for drinking in our driveways.”

Fatzick says the level of scrutiny on off-campus drinking rises to the level of “extortion,” noting that most students take a $150 alcohol safety class and accept community service hours to have violations dropped from their records. Fatzick says its no coincidence that most students do most of this community service on campus.

The University disagrees with Fatzick’s assessment of conditions off campus.

“The main goal of CCU’s Public Safety Department is keep[ing] the campus and the area immediately surrounding the campus safe,” says Martha Hunn, a spokesperson for the University. “[Coastal Carolina University] police don’t typically go to other communities outside of those areas to enforce underage drinking unless those jurisdictional law enforcement agencies request assistance.”

Hunn also denies the University is more aggressively pursuing alcohol violations, and suggests the dramatic spike in on-campus alcohol violations may be attributed, in part, to increased enrollment. “[Coastal] has always enforced the law regarding underage drinking and other illegal activities on and around campus,” says Hunn.

Though, a look at the numbers quickly cast dispersions on this theory. In the 2013 crime report compiled by DPS, the number of on-campus alcohol violations referred for disciplinary action shot-up from approximately 700 in 2011, to more than 1,000 in 2012 — a 42 percent increase. However, during this time, Coastal only saw a 3 percent increase in enrollment from Fall 2011 to Fall 2012; just 251 students.

Speech Isn’t Free, It Costs a Buck ‘o Five

“CCU, a public university bound by the First Amendment, is not allowing a newspaper to be distributed on its campus because it includes content-discussion of alcohol, a legal product-that it doesn’t like,” Sevcenko notes in her article for FIRE, just one of the scathing criticisms from across the country in response to Coastal’s decision to prohibit distribution of Surge from campus. “This decision betrays the principle of freedom of expression.”

“It doesn’t get more blatant than that,” Sevcenko continues.

But Coastal is not alone among South Carolina universities with a tarnished reputation for speech rights on campus. The University of South Carolina has a “Red Light” rating from FIRE, meaning the university has “at least one policy that both clearly and substantially restricts freedom of speech.” Clemson University also found itself head-to-head with FIRE numerous times over the last few years regarding speech rights on campus.

In 2006, pressure from FIRE and campus organizations prompted Clemson to eliminate “free speech zones” that restricted free speech activities, such as protests, to two small areas on campus. Then, in 2010, Clemson was forced to reverse a ban on faculty communication with public officials without prior consent from the administration. Later that year, FIRE’s resources were once again used to defend a student from university sanctions over constitutionally protected speech the university found offensive.

“If students are being discouraged from thinking for themselves, someone has to be doing it for them,” Sevcenko tells the Surge. “Too many college administrators are seemingly eager to take on that task.”

“FIRE has seen a spate of incidents recently at Dartmouth, MIT, and the University of Kansas where administrators have covered up or painted over murals,” Sevcenko continues, “so students won’t be exposed to ‘offensive materials,’ be it violent images or racial stereotypes.”

Such ridiculous levels of censorship are hard to imagine in adult settings like college campuses, but on Coastal’s campus, communication and expression face content standards usually reserved for children. “When a request comes in, we review the information and determine if it is important information, or relevant to our community,” Conner tells the Surge. “We have to keep in mind we not only have our students here but also a high school that operates on our campus Monday – Friday.”

CCU officials apparently believe students are not capable of making that determination for themselves.

Administrators will justify censorship with appeals to campus safety, but there are other reasons at play, as well. The control of information is a powerful tool in influencing behavior. Collegiate officials are well aware of this. It’s why anti-bullying programs, sexual harassment policies, diversity training, and outright censorship are all strategies employed by schools to manipulate behavior defined by university administrators as unacceptable.

What students can’t see can’t hurt them, essentially.

Think of the Children

“There is little doubt that colleges and universities are becoming more open about regulating the lives of their students,” says Sevcenko. However, according to Conner, this collegiate paternalism is necessary, and even appreciated.

“College is about what happens to students in and out of the classroom, or we wouldn’t exist,” says Conner, justifying Coastal’s effort to play a larger role in the affairs of students. “As I talk to alumni of CCU, they share the key skills they learned that are helping them be successful in their jobs; [they are] lessons they learned as leaders of organizations, or working in campus jobs, or even living in the residence halls.”

Conner has a point. An academic education is only a small fraction of the development of college students during their educational journey. In many ways, the lasting impact of college often occurs during hours outside the classroom, when students are (at least at one time) left to their own devices. But, if students are expected to adhere to behavioral standards developed as meticulously as an academic curriculum, then can it really be considered “outside the classroom”? After all, a zoo exhibit could hardly be described as adequate preparation for life in the wild.

This fear of collegiate paternalism is not a new sentiment. In 1957, the Supreme Court of the United States wrote in Sweezy v. New Hampshire that “to impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.” The Court then warns, “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”

So maybe “animals raised in captivity” is the best example for universities taking an outdated authoritative philosophy, and using it to coddle students through their academic career. Rather than providing an environment where students are challenged with new ideas, higher education now attempts to manufacture the “ideal” college experience, as interpreted by university administrators. And, in this intellectually sterile environment, students never fully develop the ability to adjust to life in “the wild.”

But, for the sake of argument, suppose Conner is right: University paternalism has a significant, positive impact on the social development of its students. What, then, does this say about the state of today’s college student? Have so-called helicopter parents rendered rising college freshman so inept at self-preservation they’re forced to rely on the carefully crafted public information campaigns of university taskforces to stay safe?

Such a suggestion may not be too far off, says one recent study.

“Turbo-charged parents still running their university-aged children’s schedules, laundry and vacations could be doing more harm than good,” the Huffington Post reported earlier this year. “Researcher Holly Schiffrin from the University of Mary Washington in Virginia found so-called helicopter parenting negatively affected college students by undermining their need to feel autonomous and competent.”

Then again, the same thing could be said for universities themselves. “If the students at CCU don’t have the critical thinking skills to distinguish between a review of a local bar and an invitation to abuse alcohol, then the school has failed to fulfill its fundamental mission,” writes Sevcenko in her article.

Lessons from a Founder

“As a liberal arts institution, [Coastal] should accept the fact that people have their own lifestyles, and [these people] should feel comfortable living the way they want without the college trying to force them into thinking they are doing wrong,” says Robert Hampton, 21, a junior at Coastal.

Hampton’s concern raises a difficult issue for college administrators. Public university campuses can be incredibly diverse, and Coastal’s high out-of-state student population makes its campus a melting pot of students from all walks of life. Diversity can be a great benefit to universities because of the variety of perspectives and values that force students to learn critical social skills. This crowded marketplace of ideas also challenges students to question and explore new ideas, allowing them to grow into well-rounded adults.

Diversity can also be a challenge, as that it makes a one-size-fits-all approach to student affairs virtually impossible. So, it would be foolish to trivialize the challenges of keeping a university both safe and free, especially one with a diverse student body of all ages, values, backgrounds, and academic goals. It is also no surprise that sometimes honest mistakes will be made in trying to balance all of these variables. This is what makes open and honest communication among administrators, students, and community members so important.

If colleges and universities like believe that alcohol is a major problem on campus, and feels it is deserving of aggressive action that may, at times, encroach upon the autonomy of students both on and off campus, then that’s the message they should communicate clearly, consistently, and directly to students. Mixed messages only invite skepticism at the true motivations for such campaigns.

Today’s universities could also take a lesson from Thomas Jefferson, who not only was a Founding Father of the United States, but also founded the University of Virginia. “I would rather be exposed to the inconveniences attending too much liberty, than those attending too small a degree of it,” said Jefferson. His point is that there will always be unknowable risks in a free society; however, those risks are far preferable to the certainties of oppression.

Yes. Creating a safe and welcoming environment on campus is something institutions of higher education must do. The problem is when such actions begin to undermine the highest responsibility of colleges and universities: Provide a classical education where ideas are freely exchanged and challenged without boundaries or restraint. Punishing bad behavior, or attempting to keep material off campus that may offend some students, should never undermine intellectual freedom.

It should also be noted that as a public university, Coastal is bound by the same constitutional restraints as any other government institution. Court rulings do afford public universities some degree of authority in managing campus activities to ensure an environment conducive to their academic missions; however, public universities still must respect student civil liberties.

Colleges are not Constitution-free zones.

For example, the U.S. Court of Appeals for the Fourth Circuit ruled in September that Virginia’s ban on alcohol ads in collegiate student newspapers was unconstitutional. Similarly, public universities are legally prohibited from censoring free expression based on viewpoint discrimination, even if such expression can be considered “hate speech.”

However, the role of a university in student affairs is largely a philosophical debate. Should students be treated as adults, or do they still require administrative guardians who protect them from potential harm” Some college students make it easy to argue in favor of greater university involvement in student affairs. High-risk drinking patterns that lead to crime and victimization are certainly not traits of maturity. On the other hand, if you treat college students as children, then they likely enter the working world as children. Opponents of KinderColleges also worry about the precedent this mindset will have on academic freedom.

The best chance at reversing the KinderCollege trend is for students to take a more active role in student affairs. While universities frequently consult with members of the community to craft better policies, administrators care most about the thoughts of students. If students such as Hampton and Fatzick feel they are deserving of more autonomy, they must lead the fight for it by working directly with campus coalitions and academic administrators. Most of all, students must prove they’re responsible enough to handle the responsibility of greater freedom on campus.Do you think you’re guilty of harassment? No? ResLife may disagree.

The first section of the Washington University in St. Louis Judicial Code states that “freedom of thought and expression is essential to the University’s academic mission.” It continues to state that “nothing in this Code should be construed to limit the free and open exchange of ideas and viewpoints, even if that exchange proves to be offensive, distasteful, disturbing, or denigrating to some.” These bold statements describe the ideal college environment: open to discussions of any kind through which people can confront new ideas and learn more about their own viewpoints. I am proud to go to a university that has this grand mission, and I often find myself involved in just that type of deep conversation. Yet those of us who live in university housing face a severe threat to this freedom: the Office of Residential Life’s definition of harassment.

ResLife defines harassment as “any behavior or conduct that is injurious, or potentially injurious, to a person’s physical, emotional, or psychological well-being, as determined at the sole discretion of the University.” This policy is inconsistent with the declaration of free speech in the Judicial Code. Though Washington University is a private institution and thus is not legally bound by the First Amendment, the statements in the Code represent a clear commitment to free expression that the university is obligated to fulfill. When universities promise certain rights to students in their official policies and materials, they must deliver those rights.

The ResLife definition poses two major problems. Not only does the policy give administrators immense power by allowing them “sole discretion” to decide whether there has been a violation, but it is also substantially broad and vague. To get a grasp on where ResLife has gone wrong, we must turn to Supreme Court precedent.

In 1999, the Supreme Court created the standard for student-on-student harassment in the educational setting, in Davis v. Monroe County Board of Education. In determining when a school may be held liable for ignoring harassment, the court provided a definition of harassment: unwelcome, discriminatory conduct “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”

Based on the ruling in this case, a student must be more than just rude or offensive for his behavior to be harassment. The Davis standard permits punishment for a pattern of behavior that involves speech or conduct so awful, persistent, and focused on someone’s status as a member of a protected class that the law can no longer treat it simply as speech but as discriminatory behavior that constitutes a civil rights violation. This standard leaves plenty of room for administrators to respond to speech that is truly harassing.

Furthermore, Davis is the controlling legal standard for peer harassment in the educational setting. This case is the only one of its kind deliberated on by the court, so its logic is what lower courts must use to decide cases with similar fact patterns. Indeed, federal courts have struck down many overbroad speech codes at public universities.

Through looking at the ways in which our policy differs from the standard set out by the Supreme Court, we can see how and why the Davis standard is the correct model for harassment and why we should revise the ResLife policy.

ResLife defines harassment as “any behavior or conduct that is injurious, or potentially injurious, to a person’s physical, emotional, or psychological well-being, as determined at the sole discretion of the University.”

One of the most important sections of this ruling that is ignored by ResLife is the “objectively offensive” requirement. Rather than considering a certain behavior from the subjective experience of a particular person, who might be very easily offended, courts look at the experience of reasonable men and women and how they would interpret certain conduct. This standard is used in many areas of law, from criminal to contract to tort law. By relying on this standard, the law is not set by the sensibilities of the most hypersensitive person in society but rather by a more objective standard. Beyond the legal requirements of this standard in court, many people would also find it a matter of common sense to have their behavior judged by an objective standard.

ResLife does not even attempt to hide its removal of a reasonable person standard. It boldly states that harassment is “determined at the sole discretion of the University.” Not only is a mention of objectivity absent from the definition, but they give themselves complete authority to choose what behavior constitutes harassment. The university is bound by no principles, so individuals in ResLife are free to interpret statements however they want with no limits. One would hope that ResLife would use this power justly, but we cannot rely solely on administrators’ goodwill.

Equally importantly, the policy is exceptionally broad and disregards many of the requirements laid out in Davis. By defining harassment as “any behavior or conduct that is injurious, or potentially injurious…” ResLife has included a shocking amount of speech that is not harassment. By contrast, the Davis is much narrower and was carefully tailored to address only behavior that is truly harassing.

ResLife has written a definition that is broad enough to encompass the everyday behavior of students. Take a moment to think about how many conversations and comments are just potentially injurious to a peer. Imagine two students talking in Bear’s Den about how easy an exam was, how they didn’t study at all, and that they left early because they knew they had an A. This conversation would seem harmless to most people, and I doubt many people would consider this conduct to be harassment. Now imagine a student standing behind them in line who studied for weeks for the same exam, struggled during the test, and is expecting a C at best after working until the last minute. Overhearing this conversation is potentially injurious, if not actually injurious, to the student’s emotional well-being. The conversation certainly qualifies as harassment under the ResLife definition, yet it does not even come close to meeting the requirements of the Davis standard (or one of common sense). This conversation would also clearly be protected by the university’s promise of “free and open exchange of ideas and viewpoints.”

It is certainly possible that through exercising its sole discretion, the university would choose not to punish those students whose behavior would not be considered harassment by a reasonable person. Unfortunately, university administrators often abuse their power and punish students for speech that is completely protected, whether it by the First Amendment in public schools or by a declaration of free speech in private universities.

During my summer at FIRE, the Foundation for Individual Rights in Education, I encountered case after case in which students were punished for perfectly acceptable and constitutional conduct. In some cases even clearly constitutional remarks are vigorously pursued by the administration, and students find themselves in a great deal of trouble. Since FIRE’s founding in 1999, the organization has fought and won more than 250 cases across the United States. One case stands out as a perfect example of a situation in which a Washington University student might one day find himself.

In 2007, Keith John Sampson, a student and employee at Indiana University-Purdue University Indianapolis, was reading a book about the Ku Klux Klan during a break from work. The book, titled Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan, chronicles the admirable efforts of Notre Dame students who defended their campus against the KKK in a 1924 riot. The cover features a picture of the KKK rally, including burning crosses.

Unfortunately for Sampson, a co-worker was very upset by seeing this book, and she reported him to IUPUI’s Affirmative Action Office, which found him guilty of racial harassment without so much as a hearing, simply on the basis of the book’s cover.

It’s hard to picture a college campus where students are unable to learn about controversial topics. A college student should have the ability to pursue knowledge about our culture and history, despite the fact that some people might have emotional reactions to the material. There are surely descendants of Holocaust survivors who would be upset by a discussion of Nazis, but that should not preclude professors or students from talking about them.

We have come to Washington University to enrich our minds in the company of exceptional peers. The discussions we have in classrooms and in dorm rooms should push us to the boundaries of our beliefs, and we will emerge with a better understanding of the ideas we agree with and those we do not. Sometimes these conversations have the potential to upset or offend us, but in order to allow people freely to express their opinions so that we can learn from them, we must not hold the threat of punishment over their heads. If someone says something you think is offensive, tell them why you disagree. ResLife thinks that we need to be protected, even from things that are only “potentially injurious,” but we don’t need that. We are smarter and stronger than that.

Schools as prestigious as Penn and Dartmouth have eliminated their speech codes to open up their university to open dialogue and to facilitate learning. We should aspire to be like them and replace the harassment policy with one in line with the Davis standard.


View this article at Weekly Surge.

Schools: Washington University in St. Louis