Colleges Forced to Redefine Speech and Assault Codes, Destroy Civil Liberties

Published September 5, 2011

As parents send their children to college this fall, they have reason to worry where their tuition dollars are going. Increasingly, those dollars pay the large salaries of administrators who develop and enforce unconstitutional speech regulations that destroy the marketplace of ideas and deprive students of legal protections against unproven accusations.

The growing campus bureaucracy, together with an ideology that treats adult college students like children, makes administrators morality police. They tell students which ideas they can express and which are forbidden. The Foundation for Individual Rights in Education (FIRE, where I work) has documented that two-thirds of colleges surveyed have blatantly unconstitutional speech codes, policies clearly and substantially violating freedom of speech.

For example, Chicago State University bans “teasing” and “insulting,” as well as being “inconsiderate” or “insensitive.” This bans thoughtful satire, and means everyone must conform to the sensibilities of the most oversensitive person on campus or stand in danger of punishment.

More Power to Administrators
Such policies inevitably employ double standards and selective enforcement. If everyone is guilty at one point or another, campus administrators can choose whom to punish. In fact, FIRE has found all 10 of Illinois’ leading public universities have unconstitutional speech codes. And they hire expensive campus bureaucracies to enforce them.

The University of Illinois at Chicago counts, as sexual harassment in the classroom, “gender-related … remarks that are … just plain distracting.” That disqualifies a lot of sincere talk about sex, such as a student criticizing what he may see as the prevailing licentious sex culture on his campus.. 

The problem will soon worsen. If certain federal legislators get their way, the Campus SaVE Act, introduced this spring, will force colleges to indoctrinate students about “the elements of healthy relationships,” whatever that means.

Standards of Evidence Debased
If that’s not enough, the Campus SaVE Act and the Department of Education’s Office for Civil Rights (OCR) have both pushed colleges to lower due process protections for students accused of heinous crimes such as sexual assault. Although the SaVE Act is still in committee, in April OCR sent a new mandate to every college and university in America that accepts federal funds—which is almost all of them—requiring them to use our nation’s lowest standard of proof, “preponderance of the evidence.”

This means that if your son is accused of rape (and doesn’t attend Hillsdale College, which refuses government money), his college must use a 50.01 percent standard of proof to decide whether to label him a rapist, expel him, and possibly ruin his life. Before this, most of the nation’s top schools used the “clear and convincing evidence” standard, including Stanford University, Harvard Law School, Princeton University, Columbia University, Yale University, the University of Pennsylvania, Duke University, and Cornell University. 

That made sense because fairness and justice, recognizing the potential for error, require we be very sure before taking away someone’s liberty or property. Due process is becoming harder and harder to get on campus, where students already have few of the protections our nation offers the accused in criminal cases off campus. Few colleges offer a right to remain silent, for instance, and OCR strongly discourages colleges from letting the accused cross-examine their accusers.

OCR claims it can do this because federal law bans sex discrimination at any school that takes federal money. If the school doesn’t comply, it can lose all of its federal funding. Now, by counting sexual assault as one form of sexual harassment and thus an instance of sex discrimination, OCR reaches into almost every college judiciary system in America.

Government Siding with Accusers 
Take, for example, Stanford University. Once Stanford got OCR’s letter, it changed the standard of evidence during a student’s case from “beyond a reasonable doubt” (say, 98-99 percent certainty) to the “preponderance” standard. 

You might not be surprised to learn that the student was found guilty. You might be surprised, though, about the training materials provided to jurors in sexual assault cases at Stanford. These instruct jurors that being “persuasive and logical” is a sign of guilt, that they should be “very, very cautious in accepting a man’s claim that he has been wrongly accused of abuse or violence,” and that maintaining neutrality is equivalent to siding with the accused. 

So much for neutrality and the presumption of innocence. Too many schools, as Peter Berkowitz argued in the Wall Street Journal, presume “male guilt” according to the doctrine that “the American political order is designed to oppress the weak; that racial minorities and women, whether they realize it or not, are victims; and that the truth, except for the first two propositions, is infinitely malleable.”

When you put an army of campus administrators with an agenda in charge of speech codes and infantilizing conduct codes, then take away due process protections, you’ve created a perfect storm. As Jennifer Braceras recently suggested in the Boston Herald, these days students don’t just need to remember their toothbrushes when arriving on campus—they also should bring a lawyer.

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Image by Taber Andrew Bain.