This year’s College Guide would not be complete without some recognition of the turmoil on a not insignificant number of campuses over the tangled issues of free speech and sexual misconduct. So we asked distinguished University of Michigan law professor (and former prosecutor and disability rights litigator) Samuel Bagenstos to untangle them for readers.
He’s produced a must-read for those (like me) who are decades removed from campus life, but have heard all the distant rumblings of controversy over students and faculty under the gun for alleged hurtful words, feeding right-wing conspiracy theories that “political correctness” is ruling the land.
Bagenstos traces the problem to three interlocking phenomena: a decision by the Obama administration Justice Department to take enforcement of Title IX protections against campus-based sexual violence and intimidation seriously for the first time ever; a failure to explain the new regulatory regime to the various stake-holders; and then the overreaction to federal rules by a new Title IX bureaucracy in the schools themselves.
A major, highly publicized government enforcement initiative on the high-profile topic of campus sexual violence was bound to empower those university bureaucrats who would pursue maximal risk aversion. Although the department [of Education] was right to adopt a forceful response to the festering problem of sexual assault on campus, officials apparently did not anticipate—and certainly did not take sufficient steps to forestall—the overzealous response by some administrators. That failure has tarnished the legitimacy and limited the effectiveness of what is otherwise a very worthy initiative.
What can be done, other than a cooling of tempers? Bagenstos offers as an instructive lesson for Title IX enforcers the strategy of careful outreach and training conducted by the Disability Rights Section of the Justice Department’s Civil Rights Division in implementing the Americans with Disabilities Act.
The [Office of Civil Rights in the Department of Education] needs to make clear, in its guidance documents, in the public statements of its leaders, and in ongoing technical assistance conversations with school administrators, that merely making students uncomfortable does not constitute unlawful harassment, that complaints such as the one filed against Laura Kipnis can be resolved quickly and without an “inquisition,” and that the “balanced and fair process” required by its sexual violence guidance demands that the respondent receive procedural protections as well as the complainant. Doing so will empower those university constituencies that fight risk aversion and defend the academic values of robust, often uncomfortable inquiry. And it will help to protect the viability and legitimacy of the important effort to promote safety and equal opportunity on campus.