Search Results for ‘college discipline’

After furor, feds walk back campus speech/discipline code a bit

Following a widespread outcry, the Education Department’s Office of Civil Rights appears to be backtracking a bit in its very ambitious “blueprint” which colleges and universities must follow in the name of combating sexual assault. In particular, it now says it does not intend to require universities to punish speech and other conduct that is not objectively offensive, or that is too trivial or transitory to create a “hostile environment” as defined by court precedent. However, it does continue to insist that such behavior is “harassment” and that schools must make it “reportable,” that is, be willing to open grievance and complaint processes to document it. This is really no more acceptable than its first position, for reasons outlined by the Foundation for Individual Rights in Education (FIRE), which has been following the issue. [FIRE, more, Robby Soave]

I’ve got an article on the controversy due to appear in a forthcoming issue of Commentary. Earlier here, here, and here.

More: Rob Jenkins in Chronicle of Higher Education on “Purging My Syllabus.”

Yes, feds need to rethink campus sexual misconduct policies

A series of tweets I did about Thursday’s major announcement on Title IX policy from Secretary of Education Betsy DeVos:

I went on to explain that it all starts with the Department of Education’s OCR (Office for Civil Rights) 2011 Dear Colleague letter, and the further guidance that followed, which I wrote up here.

That’s a quote by Yoffe from a California Law Review article by Jacob Gersen and Jeannie Suk Gersen previously noted in this space here and here.

The courageous Harvard Law professors who called for a rethink of the Obama-era policy — Janet Halley, Elizabeth Bartholet, Jeannie Suk Gersen and Nancy Gertner — were profiled in a recent issue of The Crimson and in earlier coverage in this space here and here.

More coverage of DeVos’s speech and initiative, in which she pledged to use appropriate notice-and-comment methods rather than Dear Colleague guidance to introduce changes (“The era of ‘rule by letter’ is over”): Christina Hoff Sommers/Chronicle of Higher Education, Benjamin Wermund/Politico, Jeannie Suk Gersen/New Yorker, KC Johnson and Stuart Taylor, Jr./WSJ and cases going against universities, Johnson/City Journal, Bret Stephens/NYT (“no campus administrator was going to risk his federal funds for the sake of holding dear the innocence of students accused of rape”), Foundation for Individual Rights in Education, Hans Bader/CEI, Scott Greenfield and more (no basis in law to begin with), Robby Soave/Reason and more.

Campus climate roundup

Higher education roundup

  • “If this becomes the new normal… the intellectual thugs will take over many campuses….A minority of faculty are cowing a majority in the same way that a minority of students are cowing the majority.” Why Charles Murray is pessimistic following the Middlebury attack [AEI] Frank Bruni on the Middlebury events and “the dangerous safety of college” [New York Times]
  • “Faculty and students need to be free to express ideas and viewpoints rather than be penalized for their politics.” [letter from group of Wellesley alumnae]
  • Finally! Federal government in January opened door for universities to relax some of their IRB (institutional review board) scrutiny of human-subjects research in low-risk areas not involving medical intervention [Richard Shweder and Richard Nisbett, Chronicle of Higher Education, related Institutional Review Blog] Update: some annotations/corrections from Michelle Meyer;
  • “Colorado student expelled for raping his girlfriend, even though both he and his girlfriend both deny the charge.” [Robby Soave/Reason on CSU-Pueblo case, via (and described by) Radley Balko] “End federal micromanagement of college discipline under Title IX” [Hans Bader/CEI, and related] “Maybe I’m drunk, but this doesn’t seem fair” [The Safest Space on “both were drunk, he got charged” poster]
  • What, no taxpayer dollars to pursue favored legal causes? North Carolina proposal would bar public universities from representing lawsuit clients [Caron/TaxProf]
  • I hadn’t followed the “New Civics” movement. It sounds pretty bad [George Leef, Martin Center]

Schools roundup

The ABA and “affirmative consent” in criminal law

Many colleges have adopted a principle known as “affirmative consent,” which makes it easier to infer misconduct (and thus impose expulsion or other discipline) when a record is lacking in verbal or physical evidence one way or the other as to whether a student’s sexual encounter with another student was consensual. It might seem unthinkable to apply such a standard in criminal law, where the consequences are not expulsion but imprisonment and the burdens of sex offender registration.

And yet that’s the gist of a resolution urged on the American Bar Association by its Commission on Domestic and Sexual Violence. Read my account at Cato, and then for additional insight check out the letter from Bay Area employment lawyer Mark Schickman, who chairs that sponsoring commission, especially the portions characterizing “The Principle Behind the Opposition.” Emily Yoffe’s investigation into the oddly influential “freeze” theory is here.

It was a close-fought thing, but Monday afternoon the assembled ABA House of Delegates voted to table the resolution 256-165, killing it for this conference at least.

Battles continue over lawyer speech codes, in both U.S. and Canada

As I noted last year, the American Bar Association in 2016 adopted as a recommendation its Model Rule 8.4 (g),

which makes it “professional misconduct” for an attorney to engage in “conduct,” including verbal “conduct,” that “the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” …

UCLA law professor Eugene Volokh has argued that the ABA rule’s scope “is broad and vague enough to potentially apply to a wide range of political speech, and thus violate the First Amendment.”

The rule would invite charges of professional misconduct against lawyers who express or circulate opinions, jokes, or graphics that they should have known would make a listener uncomfortable based on one or another protected class membership. It would apply in an extremely wide range of contexts “related to the practice of law”, as listed in these April comments:

Activities that seem to fall within the extremely broad scope of proposed Rule of Professional Conduct 8.4(g) include:

* presenting CLE courses;
* participating in panel discussions that touch on controversial political, religious, and social viewpoints;
* teaching law school classes as faculty, adjunct faculty, or guest lecturers;
* writing law review articles, op-eds, blogposts, or tweets;
* giving media interviews;
* serving on the board of one’s religious congregation, K-12 school, or college;
* providing pro bono legal advice to nonprofits;
* serving at legal aid clinics;
* lobbying on various legal issues;
* testifying before a legislative body;
* writing comment letters to government agencies;
* sitting on the board of a fraternity or sorority;
* volunteering for political parties; and
* advocating through social justice organizations.

While some state codes of lawyer conduct already ban bias and harassment, these have generally been drafted much more narrowly. In Maine, for example, up to now the missteps have to have been committed “knowingly,” in the course of representing a client, and in a manner “prejudicial to the administration of justice” — all three important safeguards against overbreadth.

Model Rule 8.4 (g) has faced rough sledding around the states since it was proposed. According to these comments in October, “seven states have rejected the rule: Arizona, Illinois, Minnesota, Montana, Nevada, South Carolina, and Tennessee have rejected the proposal. The Attorneys General of four states have concluded that adopting the rule would violate the First Amendment: Louisiana, South Carolina, Tennessee, and Texas. Only Vermont has adopted the model rule in its entirety.”

As Vermont goes, so goes Maine: the Pine Tree State’s highest court has now adopted a version of the rule, although narrowed in several respects. In particular, the Maine version defines “the practice of law” in a less broad (though still quite broad) way that covers fewer purely social activities; it removes socioeconomic status and marital status from the list of protected classes; and it tries at least to define what sorts of speech it will deem to be bias or harassment. Its definition is still quite unclear in its contours, however, and far broader than the standard approved by the U.S. Supreme Court as to harassment law and speech liability in workplace and university settings.

Let’s hope other states don’t follow Maine’s example: even as narrowed, the rules curtail important rights.

In the mean time, however, there is heartening news from Ontario, Canada, where (as I reported last year) the Law Society had gone all in on rules that go much further than the ABA’s, requiring all lawyers on eventual pain of discipline to draft a personal Statement of Principles (SOP) avowing a dedication to principles of diversity, equality, and inclusion. The Society rejected a proposal “to create an exemption to the new mandatory Statement of Principles for persons who believe the requirement violates their freedom of conscience.”

But its membership revolted. Attorney Lisa Bildy and other SOP objectors led a campaign that, in a seeming miracle, elected 22 of its supporters to the 40 lawyer seats among the benchers (governors) at the Law Society. While the newly elected are not a majority because of the other seats on the body reserved for lay benchers and paralegals, the message was unmistakable (more on the campaign from Bruce PardyMurray KlippensteinTeng Rong, and Dylan McGuinty). Now, in the face of a determined campaign of abuse directed at the incoming benchers (sidelight), the Law Society of Ontario’s governing Convocation will meet June 27 to begin considering whether to repeal, render optional, otherwise change, or retain the Statement of Principles requirements.

The June 27 Law Society meeting, and what follows, deserve a close watch by all of us concerned about the rise of speech codes and forced expression in the professions.

[cross-posted from Cato at Liberty; earlier]

February 27 roundup

  • In move to protect itself against patent trolls, Apple plans to close retail stores in the troll-favored Eastern District of Texas [Joe Rossignol, MacRumors; Sarah Perez, TechCrunch]
  • Don’t: “Civil Rights Lawyer Faked Cancer to Delay Cases, Illinois Bar Authorities Say” [Scott Flaherty, American Lawyer]
  • Don’t: “* lies about joint stipulation for extension * FABRICATES OPPOSITION BRIEF * constructs false chain of emails, forwards to partner. Dude, just doing the work would have been WAY less effort.” [Keith Lee thread on Twitter, with punch line being what the New York courts did by way of discipline; Jason Grant, New York Law Journal]
  • I’m quoted disagreeing (cordially) with Sen. Mike Lee on whether criticism of judicial nominees at hearings based on their religious views oversteps Constitution’s Religious Test Clause [Mark Tapscott, Epoch Times; my 2017 post at Secular Right]
  • Colorado may become 13th state to enact National Popular Vote interstate compact, an attempted workaround of the Electoral College. This critique of the idea is from 2008 [John Samples, Cato; Emily Tillett, CBS]
  • New York law imposes strict liability on simple possession of a gravity knife, leaves enforcement to official whim, and lacks a mens rea (guilty mind) requirement. The Constitution demands better [Ilya Shapiro on Cato Institute cert amicus brief in Copeland v. Vance, earlier and more on such laws]

Title IX campus regs: the new proposal

The Education Department has published for public comment proposed changes in regulations to Title IX on campus discipline and sexual misconduct; its Obama administration predecessors had decreed major changes in the same law through a “Dear Colleague” letter without public notice or comment. The new proposals differ on some points from draft versions circulated earlier. Cathy Young and Robby Soave provide overviews, and Soave writes on how response from the ACLU left much to be desired. FIRE (Foundation for Individual Rights in Education) has an initial statement (Samantha Harris), a more detailed analysis (Susan Kruth), and a letter to Senate Democrats correcting some misconceptions. And John McGinnis says both sides are getting it wrong: the feds shouldn’t be regulating college misconduct codes in the first place [Law and Liberty]

Campus climate roundup

  • In separate incidents, public universities (Rutgers and the University of New Mexico, respectively) discipline a professor and a med student over vulgar and inflammatory political postings on their personal Facebook pages. First Amendment trouble [FIRE on Rutgers case; Eugene Volokh: Rutgers, UNM cases]
  • Defend someone who’s facing Title IX charges, and you just might yourself find yourself facing Title IX charges too along with the withholding of your degree [ABA Journal on Yogesh Patil case; Drew Musto, Cornell Sun (19 Cornell law profs write to president to criticize withholding of Ph.D.); Scott Greenfield]
  • Social justice bureaucracy within University of Texas might be bigger than some whole universities [Mark Pulliam] “Ohio State employs 88 diversity-related staffers at a cost of $7.3M annually” [Derek Draplin, The College Fix]
  • “Male, pale and stale university professors are to be given ‘reverse mentors’ to teach them about unconscious bias, under a new [U.K.] Government funded scheme” [Camilla Turner, Telegraph]
  • “Wow, this is truly astounding. A *published* paper [on gender differences in trait variability] was deleted and an imposter paper of same length and page numbers substituted to appease a mob.” [Theodore P. Hill, Quillette, as summarized by Alex Tabarrok] Reception of James Damore episode on campus: “[T]hose of us working in tech have been trying to figure out what we can and cannot say on the subject of diversity. You might imagine that a university would be more open to discussing his ideas, but my experience suggests otherwise.” [Stuart Reges, Quillette]
  • Speak not of oaths: Cal Poly San Luis Obispo is latest public institution to require diversity statements of all faculty, staff applicants [Rita Loffredo, The College Fix] Harvard students “will be required to complete a Title IX training module to enroll in fall 2018 classes” [Jamie D. Halper, Harvard Crimson]