I teach a legal writing class on Wednesday nights, and I take attendance because my school requires it. While the school may have any number of uses for such records (proof for accreditation, for example), the idea of schools taking attendance is generally uncontroversial. After all, it’s not as if the federal government is demanding to know the names of people who don’t show up to my class. Alas, things are not so simple at the University of Montana. As FIRE has reported extensively, this past May the Departments of Education and Justice entered into a resolution agreement with the University of Montana to resolve a joint federal investigation into allegations that the university had mishandled cases of sexual harassment and assault. The agreement mandates extensive training for faculty and students. Buried in the agreement is a requirement that the university forward the sign-in sheets for each training session to the Department of Education. Last summer, we alluded to the logistical challenge of collecting and shipping sign-in sheets for the over 16,000 faculty and students at the university. But now the Missoulian reports that University of Montana faculty is alarmed about a more sinister aspect of the requirement. As explained on page 13 of the agreement, the resolution requires: By December 31, 2013, May 31, 2014, May 31, 2015, and December 31, 2015, the University will provide the United States with the sign-in sheets of each employee by name and job title for each training required by Sections V.A, V.B, and V.C. of this Agreement, and a list of any University employee who failed to participate in such training by name and title. [Emphasis added.] So not only is the government taking attendance, but the university is required to report the names and titles of anyone who did not participate, although there is no indication of what the government will do with that information. The training also includes a mandatory quiz. What about faculty who don’t score well? Will their names also go to the government? The faculty is understandably concerned. As Faculty Senate member Liz Putnam said in the Missoulian article, “I don’t think the point is there’s a list of people who have or haven’t completed it [the training], but rather, there’s a list of names being turned over to DOJ.” The distinction is an important one. That the university would keep track of who attended makes sense, if only for its own protection in the event of litigation. But reporting names to the federal government is different. Is there precedent for this? Well, the Soviet government kept track of the attendance of Communist Party members at meetings and used absenteeism as a pretext for purging someone. Our own government, as discussed recently by Marjorie Heins in her book Priests of Our Democracy (which I reviewed for Reason magazine), went to frightening lengths to uncover information about the private beliefs and associations of college faculty, and while some colleges bravely resisted their efforts, others all too willingly fell in line with their demands. The U.S. government currently has a “no-fly” list of suspected terrorists, which a federal court recently found deprives people incorrectly listed on it of constitutional protections. In this case, the explanation is probably just bureaucratic micro-management. (We hope.) But any time the government has a list of people who have not done its bidding, the risk of abuse is high.Image: University of Montana - Active Rain
Will the Court upend First Amendment protections for social media platforms in NetChoice v. Paxton? Let’s hope not.