In a few bright, shining moments FIRE has been the champion of those who both deserved and needed it, and that is not a bad thing. But the continued vilification of higher education as a collective is unwelcome, unfounded, and wholly unnecessary.
I wasn’t planning to have any one particular topic dominate this blog for any period of time, but it looks like the OCR Dear Colleague Letter (DCL) is doing just that, and for good reason. Although I don’t know anyone who works at OCR, I can only imagine that they would be thrilled to know that the conversation within the profession regarding the DCL is raging fast and furious on the profession’s leading listserv among student conduct practitioners. As a member of the Association for Student Conduct Administration (ASCA), I have been a member of this list for many years (even running the group for a significant stretch of time) and I have been closely following the conversations of my colleagues.
Background and initial reactions
My overall impression is that most practitioners that I have encountered understand that there is not a consistently level playing field for aggrieved parties (otherwise known as “victims”) in sexual misconduct cases, and therefore support the stance taken by OCR. But there are those who believe that OCR is advocating too strongly for these people, and that it is somehow a zero-sum game that means that the rights of accused students are being violated or abridged in order to create a responsive environment for the aggrieved party. My response has been very simple; we have at least fifty years of case law (dating back to Dixon v. Alabama, 1961) which has instructed colleges and universities on how to manage conduct processes and protect the rights of the accused student. But with the exception of a few forward-thinking programs, those same rights are rarely granted to the person bringing the complaint in sexual misconduct cases. While many institutions across the United States have done their best to accommodate aggrieved parties, other institutions have not, and a culture has been created for many aggrieved parties (the overwhelming majority of whom are women) where reporting, investigating, and bringing these cases through our conduct processes has not been a priority. In 2010 this culminated in the publication of an investigation by the Center for Public Integrity, where a review of many campus conduct processes entitled, “Sexual Assault on Campus: A frustrating search for justice” was very critical of numerous conduct systems who failed to adequately address these cases. According to the CPI website, “The Center interviewed 50 experts familiar with the college disciplinary process — student affairs administrators, conduct hearing officers, assault services directors, and victim advocates. The inquiry included a review of records in select cases, and examinations of 10 years’ worth of complaints filed against institutions with the Education Department under Title IX and the Clery Act, as well as a survey of 152 crisis services programs and clinics on or near college campuses. The Center also interviewed 33 women who reported being sexually assaulted by other students.”
While this topic has already been on OCR’s radar, and the agency has in the past made comments about campus conduct and grievance procedures, there is little doubt that the CPI study helped motivate both OCR and the White House to begin looking at this topic again in earnest. Just over a month ago OCR released the DCL and held fanfare with Vice President Biden and Secretary of Education Duncan to raise public attention to this matter and to spur administrators in higher education to improve campus processes. This was followed by revelations that OCR is actively investigating complaints regarding possible violations of Title IX at Yale University, Harvard University, Hofstra University and the University of Virginia. (Update: Schools cited are by virtue of the link, but I have also been informed that both Duke and Princeton are under investigation as well.)
The entrance of FIRE
All the while that a reasonably rational debate began to brew in our profession, there was another voice that insisted it would not be ignored. In a May 5, 2011 letter to OCR, the Foundation for Individual Rights in Education (FIRE) blasted OCR for the issuance of the DCL, arguing that acting on the letter may lead to a suppression of the freedom of expression and the potential of the violation of due process rights for accused students. Once again… as though this were a zero-sum game.
And it is this aspect of the month-long drama that brings me to the “one-trick pony” portion of this post. Frankly, this letter by FIRE represents what has become a sad and tired act from this organization. As I noted in a recent post to the ASCA listserv, FIRE has always been about overstating a fear that generally exists in their own minds, and it has always been that way. Dating all the way back to the 1998 publication of The Shadow University by Alan Charles Kors and Harvey Silverglate, they seize on a handful of cases, some entirely out of context, to paint with a broad brush and accuse universities of infringing upon free speech and trying to create a politically correct culture of automatons. And FIRE has been beating the same drum ever since. As a student affairs professional for more than twenty years who has always kept my perspective of being a student advocate, I take personal offense to using a handful of cases to project an inaccurate hypothesis, as well as to the constant challenging of every step taken to protect those that have historically been at a disadvantage.
Some history on FIRE
After my reading of The Shadow University in 1999, I contacted Dr. Kors, knowing that he was at the forefront of this new group known as FIRE, and believing that there was room to engage in some dialogue that would challenge Mr. Kors’ perceptions and provide him some education about what our campus conduct processes are about. In my correspondence with him I indicated that while some of the cases appeared to be taken entirely out of context, it was also disheartening to see that there were cases in which institutions and/or individual administrators had in fact infringed on the right of free speech. However I cautioned him against the conclusions that he reached, making the case that student conduct administrators on the whole were very well versed in both free speech and due process, and reminding him that the many successful exercises that we engaged in on a daily basis would never be reported because we had done our jobs appropriately. His response was dismissive. I suspect this was primarily the case because I was challenging the basis of what would become his personal crusade for a conclusion that he had already reached. And where Dr. Kors left off, the rest of FIRE picked right up. Interestingly, shortly after our exchanges, the institution I was employed at showed up on FIRE’s list of institutions that were infringing upon the right of free speech. Did I ever see a case involving someone from FIRE filing an inquiry or opinion? No. Was I made aware of any such cases on my campus? No. Was it possible that such a case existed and I was simply unaware of it? Yes. Was it equally possible that FIRE was targeting me because I dared to confront one of their co-founders? Yes.
As recently as 2008, Kors wrote:
What has changed? In terms of the university in loco parentis, which has been restored and expanded with a vengeance, the revolution has been breathtaking. For students from “the ’60s” who moved into the world apart from the academy, there were adjustments to the reality principles and values of a free, dynamic and decent society. The activists of the 1960s who stayed on campus, however-in original bodies or in spirit imparted to new bodies-expected students to take them always as political and moral gurus. Students did not do so. They had the gall first to like disco, and then to like Reagan. Such students had to be saved from the false consciousness that America somehow had given them.
Thus, under the heirs of the academic ’60s, we moved on campus after campus from their Free Speech Movement to their politically correct speech codes; from their abolition of mandatory chapel to their imposition of Orwellian mandatory sensitivity and multicultural training; from their freedom to smoke pot unmolested to their war today against the kegs and spirits-literal and metaphorical-of today’s students; from their acquisition of young adult status to their infantilization of “kids” who lack their insight; from their self-proclaimed dreams of racial and sexual integration to their ever more balkanized campuses organized on principles of group characteristics and group responsibility; from their right to define themselves as individuals-a foundational right-to their official, imposed and politically orthodox notions of identity. American college students became the victims of a generational swindle of truly epic proportions. If that part of the faculty not complicit in this did not know that it was happening, it was by choice or willful blindness.
In two short paragraphs, Kors reveals that he is ignorant on the foundations of higher education law, and clueless to the legal issues that American colleges and universities face today. Worse, he seems to hint at the political motivation that taps into the worst fears on both fringes of the political divide. Where Kors sees “in loco parentis,” educators see a facilitative approach to higher education that recognizes the responsibilities of colleges and universities to educate their students on their own safety, after decades of a “bystander era” which saw an alarming rise in alcohol abuse, acts of hazing and violence, and other risky and/or criminal acts. Where Kors sees the imposition of an Orwellian-like conspiracy to brainwash students on issues of diversity, educators see a need to prepare students to be able to interact and compete within the context of a global economy and work force, and in an American population that is increasingly diverse. This is consistent with educational goals that are broader than an assembly line of students that we simply move through and pass degrees to… we instead see the value in educating the whole person. And where Kors sees faculty who are complicit in creating this allegedly “pc” culture, educators see faculty and staff who are as engaged as ever in discourse on all topics from all directions, challenging our students to make up their own minds and to support their conclusions with evidence.
My experience with Dr. Kors’ was a foreshadowing of where the organization that he helped create would lead. And thus, over the years since FIRE’s founding, we have seen them attack “speech codes,” codes of conduct, educational diversity initiatives, and alcohol awareness and education programs. Led by President Greg Lukianoff, FIRE recently celebrated it’s “200th victory” in advocating for free speech, but that very celebration raises an interesting question. FIRE was established in 1999, and thus has been around for about twelve years. By my math, that is approximately 16.7 “victories” a year, and I won’t get into what constitutes a victory, or how many of these cases are actually related to student free speech and conduct issues, since a large portion of FIRE’s advocacy has been on behalf of university faculty as well as students. But let’s look at that math. I know that in my own professional responsibilities I have averaged at least as many decisions annually (sometimes far more) that would be perceived as potential free speech issues, and I am not the only person on my campus who is in the position to make similar decisions. Now magnify that by more than four thousand institutions across the country. It gets very hard to believe that there is this Orwellian conspiracy that Kors, Silverglate, Lukianoff, and others would have us believe. Rather, the preponderance of a lack of more cases strongly suggests that on almost all campuses, decisions made by almost all administrators, are mostly right. In my own experience I have handled numerous cases that were overtly free speech issues, and I ruled in each case on the side of free speech, not for any reservations I may have had about FIRE and their ability to advocate, but because it was the right decision to make.
This should not be taken as a defense of all administrators in all cases. I have been known to state that there are just enough people doing their jobs wrong and/or making poor choices to give the rest of us a bad name. I get that. And thus, as a matter of free speech, I will defend FIRE’s right to advocate on behalf of every student every single time an institution or administrator gets it wrong. But I have grown tired of the continual hyperbole, tired of the constant “the sky is falling” alarmist mentality that simply doesn’t ring true. As a proud, card carrying member of the American Civil Liberties Union, and as a seasoned administrator who has made numerous decisions on the side of free speech (and in cases where I may have been offended by said speech), I think I know a little about the need to protect individual rights. And as a card carrying member of the ACLU I will also tell you that I would never wish to be associated with an organization that is overstating its case to reach predetermined conclusions that are not supported by the facts. In a few bright, shining moments FIRE has been the champion of those who both deserved and needed it, and that is not a bad thing. But the continued vilification of higher education as a collective is unwelcome, unfounded, and wholly unnecessary.
FIRE v OCR and the student conduct profession
Going back to the “one trick pony,” FIRE is now puffing up its chest and staring down OCR in a public tantrum over how the DCL will now infringe upon free speech rights and violate due process rights for accused students. Once again, treating this as a zero-sum game. But as Brett Sokolow of NCHERM pointed out, all FIRE has done is to demonstrate that it could stand up for the rights of rapists everywhere. Not once does FIRE acknowledge the rights of aggrieved parties to participate equitably in processes that matter just as much to them as they do to the accused students. Not once did FIRE bother to acknowledge the systemic deficiencies found by the CPI study. As a second colleague (Dan Kast from Colorado State – Pueblo) noted, “FIRE completely glosses over any ‘legal or moral duty’ institutions have to provide timely protections for the complainant as ‘mere expediency’. Then again, perhaps victims are just ‘beyond the scope of FIRE’s mission’.” Kast went on to call out “the numerous accusations of nefarious motives and poor practices: such as the claim that judicial processes are governed by ‘little more than a hunch’, or that outcomes cannot be known to be “accurate, trustworthy, and fair’.”
And that latter point is revealing in that it demonstrates the overstatement of FIRE’s position… their entire stake in this argument is based on an inherent belief that all student conduct officers (and other administrators) are inclined to accept the word of any aggrieved party over that of an accused student, and willing to act in a manner that is arbitrary and capricious in order to secure an outcome that is in keeping with their own political agenda. And I’m sorry, but that is not a world of student conduct administration that I have ever seen or been aware of. As someone who has handled hundreds of cases personally, as someone who has mentored current and past professionals, as someone who has consulted with scores of institutions across the country, and as someone who has served as the spokesperson for our professional association, this is simply not a world that I think exists. Yes, individuals and institutions make occasional bad decisions, and yes as our CPI and OCR colleagues can tell you we sometimes have systemic blind spots appear on campuses and in the profession. But despite what FIRE would have anyone believe, there is no Orwellian conspiracy, no grand effort to oppress accused students or to infringe upon the free speech of all students in order to create some politically correct view of the world. But its the fear of these things that gives FIRE its flame, and more importantly keeps the money coming.
It was a third colleague in the listserv conversation, my wise friend and colleague Ed Stoner who uttered what I believe to be a commonality not only across student conduct, but across the student affairs profession as a whole. “Treat all students with equal care, concern, honor and dignity,” is what Stoner was taught, and the same thing that I was taught as well. It is the lesson I have endeavored to teach everyone that I work with as well. And frankly, the numbers of FIRE “victories” would seem to suggest that we are pretty good at it.
But I won’t tell FIRE to “sit down and shut up,” because I believe wholeheartedly in their right to speak out, and to speak out for others when it is deserved. I simply hope that they will begin to examine their hyperbole and realize there is another set of individuals who are not able to exercise their own voices, because we as a profession have not enabled these people to participate equitably in our proceedings. You would think that a group that alleges to protect free speech would think about the rights of the aggrieved parties as well.
You’d think that, wouldn’t you?