Universities Becoming Their Own Country (and a repressive one at that)

Both based on outside pressure (mostly from torts) and internal desire, universities are rapidly modeling themselves into mini-governments, really mini-super-nanny-states.  FIRE, the Foundation for Individual Rights in Education, observes of a recent gathering of University attorneys:

At one panel I attended, San Francisco lawyer Zachary Hutton explained
Williams v. Board of Regents, a recent case in which a University of
Georgia student alleged having been raped by two student-athletes while a third
student watched. The police charged the athletes with rape, and the university
decided not to conduct its own investigation until the criminal case was
resolved.
That turned out to be a mistake. The plaintiff then sued the university for
sexual harassment, and the 11th Circuit held this year that the university could
be liable because, by waiting to conduct an independent investigation until the
criminal case was resolved, it had exhibited deliberate indifference to the
alleged rape. "The court emphasized," Mr. Hutton told the college lawyers, "that
the pending criminal trial . . . did not affect the university's ability to
institute its own proceedings, and the criminal charges would not have prevented
future attacks while the charges were pending."
There are excellent reasons for the university not to conduct its own
investigation. For one thing, instead of police detectives and professional
prosecutors conducting the investigation, you are likely to get Campus Public
Safety and the Associate Dean for Student Affairs. How having inexperienced
college administrators and college safety officers conduct a rape investigation
is likely to benefit either the victim or the accused is beyond me. The
potential for violating the Fifth Amendment, damaging evidence, and coming to
wildly inaccurate conclusions is immense, and if any of these things were to
happen, the university would risk botching an important criminal case. Rape is a
serious crime; victims and the accused deserve better than college justice.

In some ways, this was even more illuminating of the drive to mini-nanny-statehood:

The most entertaining discussion I heard at the lawyers' convention
centered on what to do about facebook.com and myspace.com--how to prevent
slander, harassment and rumor-mongering on these online communities popular with
undergrads.
What these attorneys were talking about is wholesale regulation of online
speech. Slander is, of course, a tort, and engaging in slander or libel can get
a person sued. It's hard to see how or why a college should be involved in this,
though. If I libel someone online, it's the business of those affected, not the
college. As for harassment, one of its main characteristics is that the person
being harassed finds the harassing behavior hard to avoid. Unless the "harasser"
is hacking into the victim's MySpace page, it's hard to see how going to a
"harassing" website isn't completely avoidable. As for "rumor-mongering," horror
of horrors! Regulating that on a college campus will mean tripling the number of
administrators (and probably tuition), but I suppose no expense is too large to
make sure that everyone stays comfortable.

College campuses were probably among the first and most vociferous critics of GWB's various domestic surveillance programs.  Its interesting to see that while opposing such programs at the national level, they are crafting far more far-reaching speech monitoring and restriction programs on their own campuses:

The room was evenly divided: Some lawyers recommended ignoring the students' Web
sites unless something offensive was brought to administrators' attention, while
others suggested taking aggressive action....

By my calculations, if half the lawyers thought that "offensive" speech that is
reported should be punished, and half the lawyers thought that administrators
should spend their time cruising the websites and proactively stamping out
"offensive" speech, that leaves ZERO lawyers who believed that perhaps merely
"offensive" speech should be protected, as the First Amendment (at public
schools), or respect for fundamental freedoms (at all schools), requires.

  • Matthew Brown

    In fact, having the university's own investigation running parallel to the criminal one could quite possibly compromise the criminal investigation - but it seems that doesn't matter.

  • http://politics.lel-hosting.com/ Matt

    I'd cast more of the blame at the plaintiff's bar than he does. One student suing another student for (for example) libel isn't likely to be the source of the kind of mega-damages that pay the lawyers' Mercedes leases. But a student suing the _university_ for the (alleged) libel committed by another student using university-provided computer network access is just what a contingency lawyer who wants to make the same kind of tens-of-thousands-of-dollars-per-hour that class action lawyers get is going to want to pursue.

    Hence, anything a student does that might possibly have had some (however remote) involvement of equipment, resources, or time passively provided by the university in the routine course of providing education and housing, which any court anywhere might possibly, in the nightmares of the administration and their own lawyers, find to be a tort of any sort, is converted into "if this happens, the university will lose millions". Or at least, it is in the minds of those administrators and those lawyers.

    Of course, they HAVE demonstrated on many occasions that even when there isn't money involved, "free speech for me but none for thee" is their natural mantra. I simply wish to point out that, in this sort of context, there's a powerful economic incentive operating as well, in addition to the ideology.

  • dtes

    I'd encourage you to read this: http://poorandstupid.com/2006_07_09_chronArchive.asp#115291632826618087, Miron's fourth principle, if you haven't already, from the esteemed Don Luskin. It relates to the current thread and it also relates to the principle topic of your blog.

    all the best. dtes

  • dtes
  • Josh

    ---"The plaintiff then sued the university for sexual harassment, and the 11th Circuit held this year that the university could be liable because, by waiting to conduct an independent investigation until the criminal case was resolved, it had exhibited deliberate indifference to the alleged rape."

    ---"Its interesting to see that while opposing such programs at the national level, they are crafting far more far-reaching speech monitoring and restriction programs on their own campuses."

    It looks like the courts are forcing them to take on more and more of these "nanny" responsibilities. What would you have them do?

  • Max Lybbert

    / * By my calculations, if half the lawyers thought that “offensive” speech that is reported should be punished, and half the lawyers thought that administrators should spend their time cruising the websites and proactively stamping out “offensive” speech
    */

    It sounds like half of those lawyers usually work for plaintiffs, and half for defendants.

  • Kurt

    Along these lines, the University of Pennsylvania (and I assume many others) requires all grad students to have fairly expensive health insurance. You are forced to buy the university's group plan unless you can prove that you already have a "gold-plated" plan (my old provider, BCBS, did not offer any plans at any price which met UPenn's requirements for waiving mandatory enrollment in UPenn's plan). Thus low-risk students are basically forced into subsidizing high risk students within the university's group plan pool, a la the Massachusets program. Heaven forbid we let students make independent decisions about their spending and health care. Apparently the people that create recruiting materials showing the students as indepent critical thinkers haven't talked to the people making health care policy in the next building over.