May 132011
 

Introduction

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.

Conclusion

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?

  9 Responses to “OCR versus the One-Trick Pony”

  1. Well spoken, Rick. Student rights are neither “zero sum” nor a “game”, although FIRE treats them as both.

  2. i recently had a student ask whether advocacy by a complainant’s mother meant that my findings would be forgone conclusions.

    i actually had to point out that everyone has a mother.

    FIRE has always realized that conservatives in academe (faculty and students) *have mothers* so to speak. So much so that i’ve often feared that FIRE may be a thinly veiled political operation. Apparently they now realize that people accused of sexual assault have mothers.

    But failing to see that everyone else does too… could be nefarious or sophomoric.

  3. Interesting thoughts, David. I tend to concur, and am not sure that it is even “thinly veiled” any longer. I think it is becoming more and more apparent with each passing day.

    Today FIRE released yet another uninformed, apocalyptic statement about the loss of due process through the use of a preponderance test. At least FIRE won’t let fifty years of facts get in the way of a good predetermined conclusion.

  4. Rick:

    Thank you for your thoughts here. I’ve responded over on FIRE’s blog, The Torch: http://thefire.org/article/13262.html

    Best,

    Will Creeley
    Director of Legal and Public Advocacy, FIRE

  5. Rick, this ISU alum is quite ashamed to see a representative of my alma mater taking the position that a reduction of the burden of proof in such cases to a level of “well, it seems more likely than not” that an offense occurred is at all acceptable.Given the limited procedural and due process rights that the accused have in campus proceedings, it makes a wrongful finding of guilt not merely more likely, but quite likely. The OCR letter is well-intentioned, but is likely to result in young men having their lives and educations disrupted when they are falsely accused of offenses that can carry with them both civil and criminal consequences.

  6. Greg,

    You are more than welcome to your opinion. But let’s be clear that this is not a reduction in burden of proof. The only place that is coming from is FIRE itself. The preponderance test is one that has historically been utilized in student conduct processes, INCLUDING sexual misconduct cases, since the advent of modern disciplinary due process in 1961. As a seasoned student conduct administrator and a past president of the Association for Student Conduct Administration (ASCA), I will state very clearly my opinion that FIRE is being alarmist in suggesting that accused students are somehow now going to be abridged of their rights. While I respect your right to your opinion, that does not mean that I consider your opinion informed by higher education law or practice. “More likely than not” works very well in all types of student conduct practices on a daily basis, and OCR was simply stating that complainants should not have to face a heightened burden. You also err in suggesting that accused students will face some type of civil and criminal consequences from campus accusations; campus processes do not replace criminal processes, which require burden beyond a reasonable doubt, and our outcomes do not substitute for civil decisions either. Your assertion simply is not borne out by any facts or by any real cases.

    Finally, as far as students having “limited rights” in campus disciplinary proceedings, I am not sure what you mean, as students have the rights that they are entitled do, whether on the basis of contractual or Constitutional law. Campus conduct processes are not modeled on criminal courts, and it is in fact the courts that have encouraged us to have practices that reflect the educational nature of our institutions. There are numerous due process decisions that have been handed down since 1961 that firmly establish what due process should look like in both public and private institutions. Nothing has changed in this regard with the issuance of the OCR DCL; in fact, the DCL seems to simply confirm the practices of many institutions across the country, based on 50 years of due process law since the end of in loco parentis.

    It is very clear to me that critics who believe that this is a “reduction” in due process do not understand how most institutions handle student conduct, and are also not aware of best practices in our field that were well established before the DCL. I point people specifically to the Model Code of Student Conduct by Stoner & Lowery in terms of understanding the foundations of due process for student conduct matters.

    I don’t expect everyone to become experts in campus conduct processes if they in fact do not work in them. But I will caution people to not grab onto FIRE’s “the sky is falling” claim based solely on the fact that they think it is true.

    Best wishes,

    Rick Olshak

  7. Having spent 1999-2008 on staff of a major US state university, I applaud FIRE for bringing some needed exposure to campus practices that are training our young people to accept the overbearing power of authority if it is done in the name of some noble sounding cause.

    I did not see any “Orwellian conspiracy” during my time on staff. But I did witness many instances of GroupThink where administrators just assumed the accused was guilty and found any due process procedures to be mere formalities. As in the Duke case, those students with decent legal representation could get the university to quickly retreat from untenable ground. Those without financial means were drummed off campus or forced into ReEdcuation.

    Limited victories may not impress Mr Olshak, but that does not mean there are limited injustices. While we care deeply about sexual assault victims, creating additional victims via the coercive power of authority should be of equal concern.

  8. Michael,

    I appreciate the comment, and agree that administrators make mistakes and/or sometime act in a misguided way. I have never questioned that, nor the need for accountability when we discover those mistakes. However, we are not creating additional victims by attending to the needs of aggrieved parties (complainants), whom it has found are at a disadvantage in utilizing our processes. Once again, this is not a zero-sum game. Accused students don’t lose rights just because we are paying long-overdue attention to the rights of complainants.

    This is not an either/or discussion. I have long been involved in practices that work to protect the interests of all parties involved, and believe wholeheartedly that the vast majority of student affairs administrators seek to do the same.

    Thanks for your comment!

    Rick

  9. Actually, Rick, it IS a zero-sum game. When you set a low burden of proof for the accuser, that disadvantages the accused by making it more difficult for him/her to prevail. Even your language (“aggrieved parties”) contains in it a presumption of guilt — why not just come out and label those parties as “victims” and do away with all presumption of innocence? Coupled with the sort of training that is often given regarding claims of sexual harassment and assault, this lower standard makes it highly likely that those who make the decision will be likely to decide that the mere existence of the complaint itself constitutes a situation in which the accused is more likely than not guilty as charged. If that is what constitutes “best practices”, I respectfully suggest that “best” is woefully inadequate if one is interested in justice.