- Hundreds of colleges now have bias response teams, with many deeply involved in regulating speech [Adam Steinbaugh, FIRE survey]
- Trump’s tweet made old idea new: in 1991, Rep. Henry Hyde filed unsuccessful bill to cut off federal funding of colleges that punished students for speech otherwise protected by First Amendment [The American Interest, earlier] A new cadre of federally mandated administrators, modeled on Title IX coordinators and backed by the threat of funding cutoffs, to ride herd within universities? Uh-oh [Michael Rappaport, ambivalent]
- Arizona lawmakers quickly kill bill to cut state support from classes and activities that “promote division, resentment or social justice toward a race, gender, religion, political affiliation, social class or other class,” which would have extended earlier curb on Mexican and other ethnic studies [Tucson Star, Arizona Republic, Christian Science Monitor; background Melinda Anderson, Atlantic]
- 47 Boston College faculty members ask “zero-tolerance” policy on hate speech. That’s different from the speech that Arizona was looking at that “promote[s] division, resentment” along ethnic lines, right? [Washington Times]
- At the University of Minnesota, you might lose a student-advisor job for not demonstrating “a commitment to social justice growth and promotion to residents.” [David Blondin, Minnesota Republic/Campus Reform]
- View that speech is violence, and thus properly countered by violence in response, is popular at UC Berkeley student paper [screencap by Ashley Rae on Twitter] More: The new religious establishment: Berkeley’s Division of Equity and Inclusion has $20 million a year, 150 staff [Heather Mac Donald]
At last month’s Federalist Society National Lawyers Convention, Eugene Volokh debated Deborah Rhode on whether hostile environment law on and off campus often violates the First Amendment. The discussion also got onto Model Rule 8.4 (g), adopted by the American Bar Association a few months ago, 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.” Can bar disciplinary committees be trusted not to apply this language to politically incorrect expression by lawyers, including in pedagogical settings such as law school and continuing legal education (CLE)? [Josh Blackman, Francis Pileggi]
- Colleagues demand Oregon law prof resign over Hallowe’en costume [Paul Caron/TaxProf; Eugene Volokh (“We have reached a bad and dangerous place in American life, and in American university life in particular.”)] Title IX and expression: “What the feds have done to colleges and schools” [Hans Bader, Minding the Campus]
- Institutional review boards (IRBs) “as a rule are incredibly difficult to study…. There is no public record of their decision or deliberations, they don’t, as a rule, invite scrutiny or allow themselves to be observed.” [Dr. Steven Joffe quoted by Tyler Cowen]
- “An emphasis on intersectionality”: mandatory diversity course for first-years at AU now has course description [earlier] “U-M’s New ‘Chief Diversity Officer’ Will Collect $385,000 per Year” [Derek Draplin, Michigan Capitol Confidential]
- “Plaintiffs’ Bar Steps Up Profitable False Claims Act Assault on Higher Education” [U.S. Chamber Institute for Legal Reform]
- Notwithstanding initial wave of critical coverage, Will Creeley says PEN report on campus speech is actually pretty good [FIRE] “Student group at Cal State Northridge boasts of ‘shutting down’ speech by award-winning scholar” [Volokh; Armenian students vs. Ataturk lecture]
- On question whether universities must treat student athletes as employees, NLRB “may be battling for field position” with future ruling in mind [Brennan Bolt, McGuire Woods]
The Obama administration has ambitiously asserted, as an application of Title IX, that schools nationwide must make available to transgender students the general bathroom facilities that correspond to their gender identity. To resolve a case now up for Supreme Court review, it is not necessary to reach the merits of this policy; the promulgation of the new policy by guidance letter, without advance notice, chance for public comment and other protections for regulated parties, is enough of a defect to strike it down. [Ilya Shapiro and David McDonald on Cato Institute amicus brief, with law professors Jonathan Adler, Richard Epstein, and Michael McConnell, supporting certiorari review in Gloucester County School Board v. G.G.]
[The Education Department] seeks to change federal law not through notice-and-comment rulemaking as required by the Administrative Procedure Act, but through an informal, unpublished letter written by a low-level bureaucrat. …We call on the Court to take this opportunity to overrule Auer and declare that the judiciary will no longer blindly accept self-serving agency interpretations, but make their own independent determinations based on a searching and reasoned reading of the regulations at issue. Should the Court choose not to overrule Auer, we suggest that—at minimum—it hold that only agency interpretations that have received the public scrutiny of notice-and-comment rulemaking merit judicial deference.
More on Auer deference here, etc.
- “Free Speech on Campus: A Challenge of Our Times,” recent speech by University of Chicago law professor Geoffrey Stone;
- University of Virginia puts professor on leave of absence after comments critical of Black Lives Matter [Hans Bader] “Yes, Brooklyn College really has a Director of Diversity Investigations.” One prof’s experience [David Seidemann/Minding the Campus]
- “Lawyer: Why the lower standard of evidence in college sexual-assault cases is dangerous” [Robert Shibley] It’s rare for the Education Department’s Office for Civil Rights to stick up in favor of due process rights for accused students, but that just happened in Wesley College case [Jake New/Inside Higher Ed, Tyler Kingkade/BuzzFeed, ED press release]
- “Northern Michigan University had — and perhaps still has — a policy subjecting students to discipline if they share suicidal thoughts with their peers.” So how bad an idea is that? [Ken White, Popehat]
- “Historically Black Colleges and Universities struggle with Title IX compliance” [American Sports Council on reporting by David Squires/The Undefeated]
- “University Of Michigan Gets Lost In The Tall SJW Weeds” [Amy Alkon] Georgetown offers legacy status to applicants descended from university-owned slaves; showy gesture, but anything more? [Scott Greenfield] “American University Student Government Launches Campaign for Mandatory Trigger Warnings” [Robby Soave]
…where he was at length told, “Even if I were to agree with you, you know I can’t say anything.” [Ann Althouse] Relatedly, “The Sex Bureaucracy” is the title of the widely noted new article by Jacob Gersen and Jeannie Suk in California Law Review (via Hans Bader):
…we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated domain comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. The federal bureaucracy required nongovernmental institutions to create mini-bureaucracies, and to develop policies and procedures that are subject to federal oversight. That oversight is not merely, as currently assumed, of sexual harassment and sexual violence, but also of sex itself.
And: “Judge reinstates Brown Univ. student accused of sexual misconduct, blasts ‘organized’ pressure to get him not to” [Fred Barbash, Washington Post]
- Will the University of Chicago’s new policy on free expression chill professors’ freedom to run their classes in their own way, as some claim? [Alex Morey/FIRE, Howard Wasserman/Prawfs] Jonathan Chait on how the safe spaces debate really isn’t about things like church groups or gay bars; and a judicious Ken White at Popehat on how safe space idea can make sense in private/chosen settings, but not as academic mandate.
- As federal Title IX enforcement percolates downward: e-mail from administrator at University of Alaska, Fairbanks, discusses expelling “perp” before investigation has begun [K.C. Johnson on Twitter] USC administrator: do they know who I am? [same] Wasn’t Columbia U. just serving up what its customers want? [Scott Greenfield] “OCR to Frostburg State University: Common Sense, ‘Reasonable Person’ Standard Violate Title IX” [Robby Soave]
- UW-Milwaukee poster campaign warns students against using terms like “lame,” “crazy,” and — inevitably? — “politically correct” [Jillian Kay Melchior/Heat Street, Robby Soave/Reason]
- The future of American higher education: fewer historians, more chief diversity officers [David Frum]
- “More on the sex panic at Yale” [KC Johnson, Minding the Campus]
- Capitol Hill Republicans keep shoveling cash at power-mad campus regulators, while tying hands of dissenters at the U.S. Commission on Civil Rights [John Fund, NR]
With help from FIRE (the Foundation for Individual Rights in Education), a former University of Virginia law student has sued the U.S. Department of Education Office for Civil Rights arguing that it violated the law in its notorious 2011 Dear Colleague letter requiring many campuses to roll back the procedural rights of students accused of sexual assault. The John Doe complainant argues that the department should at a minimum have put the policy shifts proclaimed in the letter through the notice-and-comment process prescribed for rulemaking, rather than in effect proclaiming them by decree through subregulatory guidance. The letter affected the student’s own case, he argues, because of comments from the retired judge deciding the case that she viewed the evidence as falling short of a clear and convincing threshold, the standard formerly in use, and ruled against him only because the university had complied with federal guidance by dropping its standard to preponderance of the evidence. [Susan Svrluga, Washington Post; Hans Bader, CEI]
“In a rebuke to a feminist idea that has migrated from college campuses to mainstream culture, an influential legal group overwhelmingly rejected Tuesday a provision that would have endorsed an ‘affirmative consent’ standard for the purpose of defining sexual assault.” [Bradford Richardson, Washington Times] The American Law Institute proposals, which would have significantly expanded the definition of criminal sexual assault, had drawn sustained criticism from some civil libertarians [Stuart Taylor, Jr., John Fund, Ashe Schow/Washington Examiner; more, Scott Greenfield first and second posts] The ALI project in general is supposed to be aimed at restating courts’ current consensus in applying and interpreting the law, but often becomes the scene of efforts to tug the law in one direction or another. “Affirmative consent” has made inroads as a standard in the college disciplinary setting.