Finally, One Major Campus Condemns Trigger Warnings, Safe Spaces

Now that the University of Chicago announced that it does not condone “trigger warnings” and “safe spaces”—apparently the first major American university to do so—it is time for other institutions of higher learning to get behind this basic and rather obvious educational idea and create a genuine trend.

For some 30 years now, the idea has grown on campus that feelings are more important than ideas and openness to learning, more specifically that hurt feelings are a trump card for student efforts to limit campus discussion. Sometimes “marginalized” students (chiefly non-Asian minorities) are identified as those needing protection from open discussion, but as the movement has gathered force, the notion has grown that almost anybody can rightfully quell open discussion and intimidate teachers from raising certain issues, with race and gender atop the list.

If everyone is entitled to a sensitive person’s veto, universities are reduced to grade schools. Colleges and universities have meekly accepted this diminished status. Now it is time for a grown-up response from the campuses.

Related: The New Age Of Orthodoxy Overtakes The Campus

Another potentially important initiative has appeared in this unlikely month of August: NYU professor Jonathan Haidt of Heterodox Academy has called on students to declare whether they are satisfied with what many of us call the current campus monoculture.

He writes: Calling all college students: Do you love the intellectual climate on your campus? Or do you sometimes wish that a broader range of viewpoints was represented in the classroom, and by invited speakers? Are some students reluctant to speak up in class because they are afraid they’ll be shunned if they question the dominant viewpoint?

American college campuses have been growing more politically purified since the 1990s. Professors and visiting speakers who are not on the left, politically, are becoming increasingly rare.”

Haidt and most of his colleagues at Heterodox Academy are not on the right. They are not seeking more conservatives on campus. They want viewpoint diversity and a university with open and vigorous debate, not the semi-official leftist seminaries taking shape now. As with the University of Chicago letter, this initiative deserves a response. What colleges and universities, and which students will stand up for openness and integrity in higher education?

Which Will Be America’s First Heterodox University?

Calling all college students: Do you love the intellectual climate on your campus? Or do you sometimes wish that a broader range of viewpoints was represented in the classroom, and by invited speakers? Are some students reluctant to speak up in class because they are afraid they’ll be shunned if they question the dominant viewpoint?

American college campuses have been growing more politically purified since the 1990s. Professors and visiting speakers who are not on the left, politically, are becoming increasingly rare. This should concern you—especially if you are on the left. Political orthodoxy impoverishes everyone’s education. Exposure to a diversity of viewpoints (i.e., heterodoxy) is the best way to expand your mind and improve your ability to deal with the politically diverse world you’ll find after graduation.

Heterodox Academy is, therefore, launching an initiative to empower students who want greater viewpoint diversity on campus. Working with students at several universities, we have drafted three short resolutions that you can use or modify as you please. Click here to see the resolutions, along with advice about how to get started.

As John Stuart Mill wrote, in On Liberty:

He who knows only his own side of the case knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side, if he does not so much as know what they are, he has no ground for preferring either opinion… Nor is it enough that he should hear the opinions of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. He must be able to hear them from persons who actually believe them…he must know them in their most plausible and persuasive form.

If you would like to reduce political orthodoxy at your school, then please consider introducing a resolution to your student government to declare your school a “Heterodox University.” The first school to do so will earn a great deal of positive media attention, attract a much larger number of applicants, and gain a national reputation for independent thinking. It will also have a much more open and exciting intellectual climate.

(This is the first of a suite of new tools and resources we’re releasing this fall to promote viewpoint diversity on college campuses and in academic disciplines).

Reprinted from Heterodox Academy

Harvard Allows a (sort of) Single-Sex Organization

Harvard, which announced severe penalties on members of single-sex student groups in May, may have almost lived up to the ban in principle for as much as a couple of days. The Harvard Crimson revealed on August 15 that the College had assured the all-female Seneca organization in May that it could “continue to operate as it always has” if it simply removed gender requirements from its charter and bylaws without necessarily admitting any males. So the Seneca can remain all female. No such exemption from the rules was granted to all-male groups.

Cambridge attorney Harvey A. Silverglate, a longtime critic of the Harvard administration and a reliable foe of hypocrisy and dishonesty in campus procedures, said he has been “retained to consult” with at least one group opposing the sanctions. He called the Seneca’s agreement “a very convenient carve-out” and “a bit of realpolitik” aimed at pacifying women’s groups, who have been among the most vocal opponents of the administration’s policy. Others argued that the Seneca exemption will allow the group to be both a single-sex and non-single-sex organization at the same time.

The Seneca will continue to invite only women to their first recruitment event of the semester, but men will be allowed to attend the event without an invitation and participate in the subsequent parts of the selection process should they wish, said undergraduate co-president president Avni Nahar ’17 in an interview with the Crimson.

Starting with Harvard’s Class of 2021, undergraduate members of unrecognized single-gender social organizations will be banned from holding athletic team captaincies and leadership positions in all recognized student groups. They will also be ineligible for College endorsement for top fellowships like the Rhodes and Marshall scholarships.

Notes on Teachers’ Union ‘Free Riding’

Although I am not a member of the faculty union at the City University of New York (CUNY) where I teach, I am required to pay its annual fee. The courts allow this arrangement called an “agency shop,” so that non-members like me don’t become free riders – getting benefits from union representation in contract negotiations, but not paying for that service.

In fact, my ride has been pretty expensive: I had to fight in court to prove that my union, the Professional Staff Congress (PSC), was abusing the First Amendment rights of nonmembers who objected to the union’s political and ideological expenditures.

My success in that litigation did restore some rights to objecting fee-payers. But I think my case also revealed a lesson of more general importance: unions in agency shops are not being held sufficiently accountable for their use of fee-payers’ money – and First Amendment rights suffer.

First Amendment Rights

The courts long ago recognized the need to protect the free-speech rights of agency fee-payers and, accordingly, they put restrictions on unions in agency shops. Those unions must share financial information with fee-payers and give them a chance to object to and receive rebates for that part of their fee that’s used for political or ideological purposes. To do otherwise would be to compel objecting fee-payers to support speech they disagree with, a violation of the First Amendment.

While fee-payers have the right to object to the union’s ideological expenditures, exercising that right has never been easy at CUNY. The procedures of our teachers’ union, the Professional Staff Congress (PSC) are filled with obstacles designed to discourage fee payers for doing so. Indeed, the court in my case ruled that two of the PSC’s procedural hurdles violated the speech rights of fee-payers. The union was ordered to stop requiring fee-payers 1) to file annual objections and 2) to specify which expenditures are in dispute as a condition for access to arbitration.

The remaining procedures, while deemed legally acceptable, still impose burdens on would-be objectors. For example, to be recognized as objectors, fee-payers must send a registered letter to the union president during a one-month objection period, and they are required to go to arbitration to resolve disputes over the money owed. Contrast the difficulty of those rebate procedures with how easily the fee is extracted from non-members: CUNY simply deducts agency fees (and union dues) from employee paychecks.

The Fox Guards the Henhouse

Let’s assume for the sake of argument that a fee payer has successfully jumped over those hurdles to become an objector who is owed a rebate. That objector now faces perhaps the most important problem with the agency shop model: the union decides for itself what charges are political or ideological and reports its breakdown to fee-payers each year. And if you doubt that this arrangement is open to abuse, here’s a stark example of my case against the PSC.

Before my court case, the PSC’s reports to fee-payers designated as non-political (and therefore not-rebatable) all of its expenses related to its “Contract Campaign,” an expense placed under the category “Office Supplies, Printing, and Publishing.”

It took some digging for me to discover that the “Contract Campaign” consists almost exclusively of public rallies, picket lines, concerts, and letter-writing campaigns. Mischaracterizing these blatantly political activities as “Office Supplies” is on its face an attempt to hide their true nature from fee-payers. Absent my litigation, that subterfuge would have remained hidden. A system that allows such deceptions to go undetected absent litigation is broken. Clearly, unions need to be subject to the independent oversight of their use of fee-payer money.

Who Are the Real Free Riders?

As deceitful as the PSC’s “Office Supplies” trick was, the most significant abuse lies elsewhere. Of the roughly $14.5 million that the PSC raises from CUNY workers annually, it transfers $6.6 million to public-school teachers unions –  $3.4 million to the American Federation of Teachers (AFT) and a net of $3.2 million to the New York State United Teachers (NYSUT). The AFT has no involvement with labor issues at CUNY. NYSUT’s involvement with CUNY labor issues is minor, in fact, trivial: it admitted in my court case that its only contribution to the PSC’s contract negotiations was “a few phone calls.”

Clearly, CUNY faculty receive no benefits from the millions transferred to the AFT and virtually none from the millions more transferred to NYSUT. Indeed, those transfers appear to defy court requirements that transfers of dues from a local union to an affiliate must ultimately inure to the benefit of the members of the local.

So, the evidence is plain: the most egregious free riders at CUNY are two public school teachers’ unions, the AFT and NYSUT. They collect millions in dues and fees from CUNY faculty and do nothing in return.

Are there any First Amendment lawyers out there willing to take on the AFT and NYSUT? I am tired of being overcharged for my ride on the union gravy train.

Pundit Wages War on Campus Correctness, 2001

The speech below was delivered on March 19, 2001, by then U.S. News & World Report columnist John Leo, who is the founder and editor of Minding the Campus. Leo has spent much of his career reporting on the vicissitudes of campus political correctness, many of them recorded in his latest book, “Incorrect Thoughts: Notes on Our Wayward Culture.”

The following excerpts are from the speech Leo gave  at the National Press Club at a gathering sponsored by the Independent Women’s Forum. They were reprinted in The Washington Times and are published here with permission.

I want to say a few words on how I got interested in political correctness. I’ll start off with the famous Goya nude that was molesting and harassing the women at Penn State. It had been hanging on the wall for 10 or 20 years before it decided to molest this teacher and she made a big fuss about it. So the painting was moved.

Then there were stories like the columnist for the Boston Globe who was having a private conversation with another male about basketball and he used a vulgar synonym for being henpecked and a woman was walking by who was of course affronted. He was fined $1,200 by the Globe and suspended for weeks. I said, “What’s going on here?”

My favorite was the Beethoven story when the feminists in charge of trashing music by white males announced that most Western music was pelvic pounding. And that Beethoven’s Fifth symphony was the murderous rage of an impotent rapist. I thought, “College has changed a bit since I was there.”

I know we’re all concerned about racism and sexism, but this list of “-isms” started to get longer and longer and attract my attention. One was “ableism,” maybe not having a ramp in your home. “Homeism,” which is not treating homeless people with the same respect as people with homes; “adultism,” which is when your parents tell you what to do; “majoritarianism,” when it comes to a vote and you lose; “borealcentrism,” this was on “West Wing” last week– that’s when you have white nations at the top of the globe instead of the bottom of the globe.

One of the campuses said you could not exclude anyone in conversation, so conversational exclusionism became a campus sin. At Smith College, they had an explicit warning against “looksism,” which is creating a standard that some things and some people are more attractive than others, which doesn’t fly at Smith.

And there’s “faddism” and “faceism.” I looked this up and not only is there such a thing as “faceism,” it is legally banned in Santa Cruz, California. You simply cannot hire a pretty receptionist in Santa Cruz if a homely one is available.

I got this up to 75 “isms” and I wondered if there was such a thing as “breastism,” you know, the unwanted male gaze at a female upper torso. And sure enough, I checked Lexis and there was “breastism.” The total rose to 78 isms. So now I’m deep into PC.

My next step was to notice what happened to Linda Chavez. Now this was 10 years ago. Linda Chavez was canceled out of a speech at the University of Northern Colorado. Now why was she canceled? She was the wrong kind of Hispanic. How did they know? She had worked for a Republican president.

This was 1990. It proved for the first time that a small number of agitators could make the president of a university grovel and impose identity politics, and it’s become a pattern in the culture, at least the campus division. They said she wasn’t a real Hispanic because she didn’t speak Spanish. My father told me he was Irish, but he must have lied because he doesn’t speak Gaelic.

Then there was the Egypt business. The story was pervading the campuses that the pyramids weren’t built by Egyptians; they were built by sub-Saharan blacks. So, believing in the journalistic method, I thought it was a good idea to call seven Egyptologists and ask them who built the pyramids. And they all said, “Well, the Egyptians, of course.”

So I wrote that down. And then they all said, “Well, don’t use my name.” So here are these specialists in Egyptology who are afraid to say the Egyptians built the Egyptian pyramids. I thought that was pretty telling. It was the beginning of double bookkeeping in the academic world, where you have one reality you think is true and one you tell people because it is “correct.”

I was at Time Inc. before I came here and I noticed Time Inc. put out a poster to celebrate Black History Month and on the border [of the poster] were real achievements by blacks and in the center of the poster were the pyramids. I knew the guy who had put this out, so I called him up and said, “Michael, you just sent out a million posters saying the blacks built the pyramids?” And he said, “Yeah, I know.”

“Isn’t that wrong?” “Yeah, I know, but they felt so strongly about it.” So this means that if you feel strongly about it, you too can get credit for building the pyramids.

Next, I started to notice the itch to censor on college campuses. I started collecting these speech codes. At Colby College, any speech that caused a “loss of self-esteem or even a vague sense of danger” was illegal. At North Dakota State, it was “intentionally producing discomfort.” At Minnesota, “insensitivity to the experiences of women”; at West Virginia, “feelings about gays, which evolve into attitudes.” At Connecticut, it was “inconsiderate jokes.”

At Sarah Lawrence, it was “inappropriate laughter.” Someone called an ex-roommate, who was gay, a nasty word for gay. And this fellow snorted, whether out of nervousness or laughter, and he was brought up on snorting charges. And I think he got 100 hours of community service and he had to write an essay on homophobia.

The [American Civil Liberties Union], which has not been good on these cases, woke up and defended him and he got off.

At Michigan State, “eye contact or the lack of it.” That pretty much throws a damper on what you can do with your eyes at Michigan State. At the University of Maryland, it’s “licking lips or teeth; holding or eating food provocatively.”

This is the public face of a movement that pretends to be elevating us to the next stage of truth and justice. What’s behind PC is a therapeutic ethic. It wasn’t just about equality, women and minorities, it’s about feelings and how important those feelings are. When you criticize women or minorities, you do a great disservice, because their self-esteem is threatened. It’s very important to have mandatory niceness on campus.

A lot of this came from the beginning of sexual-harassment theory. Catharine McKinnon says rape is when a woman has sex and feels violated. As soon as you put it into the “feeling” category, you take it from sex that is an actual violation to sex that didn’t turn out well and you feel bad about the next day. The “feeling” of being violated is more important. Negative feeling creates and defines the offense. You abandon all communal standards and everything becomes subjective.

Sexual-harassment theory became the jackpot for the PC movement. It was a decisive turn away from anything objective. When [society] created the “hostile-work-environment climate” argument, it sprang loose from the traditional American approach in law that you had to prove something harmful; that something had happened. But once you talk about environmental things, you erode all common standards and the only standard becomes the subjective feeling of being hurt by the person attacking. So, on college campuses, the indictment became the conviction.

We are in the heyday of censorship. The PC culture says: We are right; our opponents are wrong. Why should we let them speak? Oppressors should have no rights, anyway. This is our college, these people are backward, so let’s just get rid of them. So there is no give and take in argument or debate. The PC job isn’t education. It’s simply to root out villains.

Words You Just Can’t Say in Houston

Rohini Sethi has beaten the rap at the University of Houston.  As vice president of the student government at the University of Houston, she has escaped sanctions and a forced resignation from office. But she had to apologize profusely, take an unpaid leave of absence and serve some time in a diversity workshop to make up for the grossly offensive words she wrote on Facebook last month.

Since we are pretty sure those words are protected by the Constitution, we will risk writing them here, no matter how many maddened Houston students come after us. The words—brace yourselves–were “All lives matter,” or to be complete about it,  “Forget #Black Lives Matter, more like # All Lives Matter.”

Under the procedures of the Houston Government Association, the president,  Shane A. Smith, was allowed to punish Ms. Sethi. Not to worry, though, Smith is aware of the First Amendment.

Clearing up that point, Smith said, “For those who were upset due to what they considered a violation of the First Amendment, that was never my intention and I apologize for that impression. I have tremendous respect for freedom of speech as a core American value. For those that are disappointed by the change, this is a compromise based in the reality of the situation. My stance on racial injustice has always been clear. For all involved, this is truly the best outcome.”

Ms. Sethi regrets her offense and said “My words at the time didn’t accurately convey my feelings and caused many students to lose their faith in me to advocate for them. I take my responsibility seriously and want to re-earn their trust.” Now, if she doesn’t say anything crazy, like “Cops lives matter too” or “Let’s all vote for Trump” she ought to be all right.

Why Colleges Don’t Have Fair Hearings on Sexual Assault

Some politicians and media outlets seem to believe that college and university campuses are beset by a culture that is indifferent to rape and that the procedures for investigating and adjudicating claims of sexual assault are so one-sided as to constitute gender discrimination against female accusers. In reality, schools for decades have denied meaningful due process to students accused of sexual assault, and mandates from the U.S. Department of Education have only made the problem worse.

Far from condoning criminal activity, American college administrations are so concerned with ideology, federal funding, and public perceptions that they punish innocent students. Examples from four elite institutions—Yale, Amherst, the University of North Carolina, and Occidental College—reveal unfair procedures that come close to presuming guilt and severely restrict the opportunity for accused students not only to defend themselves, but even to prove their innocence. The problem continues to grow worse, and there is as yet no sign of a return to due process in campus tribunals.

Related: Another Unbalanced View of Campus Sex Hearings

KEY POINTS

  1. An April 4, 2011, U.S. Department of Education Office for Civil Rights document dramatically reinterpreted the sexual assault case procedures required for colleges to comply with Title IX.
  2. Threatening the withholding of federal funds, the OCR ordered all colleges to adjudicate sexual assault complaints utilizing the preponderance-of-evidence (50.01 percent) standard rather than the stricter beyond-a-reasonable-doubt standard.
  3. When coupled with the preexisting denial of due process in most institutions’ disciplinary proceedings, the new standard makes it too easy to “convict” the accused.
  4. The OCR also ruled that colleges that allowed appeals in the disciplinary process must allow accusers to appeal a not-guilty finding, something that would not happen in the criminal system because of prohibitions on double jeopardy.
  5. Even before issuance of the new OCR document, many schools denied meaningful due process to students accused of sexual assault, and so-called reforms since 2011 have only made the problem worse.

Related: What The Rolling Stone Affidavits Show

On April 4, 2011, the U.S. Department of Education’s Office for Civil Rights (OCR) released a document dramatically reinterpreting Title IX, the federal law that prohibits gender discrimination in colleges and universities that receive federal funds. The document issued by the OCR was a “Dear Colleague” letter, an allegedly informal agency guidance that Department of Education officials claimed did not need to follow notice-and-comment rulemaking pursuant to the Administrative Procedure Act.

The “Dear Colleague” letter specified the procedures that the OCR believed colleges and universities should follow in sexual assault cases in order to comply with Title IX. Although two Department of Education officials have publicly noted that the letter does not have the force of law, this concession does not change its practical effect, which is to coerce universities into compliance. Moreover, each change in Title IX requirements found in the letter increases the likelihood of a guilty finding in a campus sexual assault case.

The Myth: Institutional Negligence

Since 2011, efforts by the Administration to bring universities into compliance with the new mandates have attracted widespread support from politicians and the media. President Barack Obama convened a White House summit on the topic, Vice President Joseph Biden oversaw a task force, and the OCR issued further “guidance” in the form of a 45-page question-and-answer document that also acted as an informal set of rules. In the Senate, Kirsten Gillibrand (D–NY) and Claire McCaskill (D–MO) have been the most outspoken supporters of this policy.

Both The New York Times and The Washington Post have published news articles portraying campuses as hotbeds of violent crime, with female students allegedly facing the risk of extremely high rates of sexual assault. The Times alone has run more than 20 articles on the topic since 2012, and the Post featured a multi-part series in 2015 based on a poll contending that one in five college women are sexually assaulted—a total it reached in part by redefining sexual assault to include such things as sex “coerced…through verbal…promises.”

Related: Georgetown’s Survey Stokes the Rape Panic

At the heart of this campaign is a belief—sincerely held in some instances—that college and university campuses are beset by a “rape culture,” in which the procedures for investigating and adjudicating sexual assault claims are so one-sided as to constitute gender discrimination against female accusers. Only unprecedented federal intervention, according to this theory, can promote justice.

The Reality: American Colleges Railroad the Innocent

For those who have spent any time on campus in the past two decades, this argument seems counterintuitive. The contemporary academy is extraordinarily sensitive to real and perceived discrimination on issues of gender (as well as race and ethnicity). Faculties are increasingly dominated by race/class/gender pedagogy in the humanities and some of the social sciences, and there has been an explosion in the number of administrators responsible for dealing with student life and diversity issues.

Given these facts, it is difficult to see how the academy’s environment could be considered so indifferent to rape as to necessitate unprecedented federal intervention. The on-campus responses to the two highest-profile university rape claims of the past decade—the Duke University lacrosse case of 2006 and the University of Virginia allegations outlined in Rolling Stone in 2014—suggest that, far from being indifferent to rape, the campus environment tends to presume guilt even when faced with non-credible rape allegations.

Nevertheless, the Obama Administration issued new guidelines in 2011 directing colleges and universities to change the procedures they use to evaluate sexual assault allegations. These changes have the effect of dramatically increasing the likelihood that an accused student will be found guilty. Threatening the possible withholding of federal funds, the “Dear Colleague” letter:

Related: Problems in the Stanford Sexual Assault Case

  • Considered it a violation of Title IX to do anything but adjudicate sexual assault complaints utilizing the preponderance-of-evidence (50.01 percent) standard, in effect ordering colleges to change their procedures. When coupled with the preexisting denial of due process in most institutions’ disciplinary proceedings—a denial of meaningful legal representation, the lack of mandatory discovery of evidence uncovered by the college, and the inability of colleges to require testimony under oath—the new standard makes it much easier to “convict” an accused student.
  • Stated that colleges that allowed appeals in the disciplinary process (which means virtually all of them) must allow accusers to appeal a not-guilty finding, imposing a type of double-jeopardy principle for students accused of sexual assault.
  • Chastised colleges for taking too long to investigate and adjudicate complaints, with the Obama Administration suggesting a 60-day cap on the entire process.
  • Discouraged colleges from allowing accused students to cross-examine their accusers even in cases in which the accuser is the only witness in a disciplinary hearing that could end with the accused being found responsible for committing sexual assault.

Related: How the Feds Use Orwell to Apply Title IX

The “Dear Colleague” letter imposed a nationwide set of standards, and then-OCR head Russlynn Ali also made clear that the office would welcome the filing of gender discrimination claims by students against their own schools. On May 1, 2014, in a highly unusual move, the OCR revealed the identities of the colleges and universities under investigation (currently more than 200) but refused to “disclose any case-specific facts or details about the institutions under investigation.” The OCR’s inconsistent approach to transparency has left the public with the impression of widespread problems justifying a panicked federal response without the opportunity to evaluate the credibility of these complaints.

In response to the OCR’s guidance, several new campus groups addressing the issue of rape have encouraged self-described “survivors” to file Title IX complaints. The two most prominent, SurvJustice and Know Your IX, have opposed anything approximating fair procedures for college students accused of offenses—while effectively downplaying the idea of requiring colleges to turn sexual assault adjudications over to the courts. Know Your IX co-founder Dana Bolger explained why to The New York Times. The “college disciplinary system,” she argued, is superior to a “criminal justice system [that] notoriously fails rape survivors,” since “police disbelieve victims, prosecutors refuse to take on the majority of cases because they lack witnesses, the standard of proof is impossibly high and juries buy into the rape myths that saturate our society and acquit perpetrators.”

Although sexual assault obviously should not be tolerated and accusations of rape should be treated seriously, it is simply not true that American colleges are systematically turning a blind eye to such violence. The proliferation of activist groups on the side of “victims” suggests, if anything, an extreme desire to use the threat of severe sanctions to change cultural norms.

Related: Campus Surveys Inflate Rape Statistics

Case Study #1: Yale University

The first major Obama-era Title IX complaint came from Yale University. In October 2010, pledges to the Delta Kappa Epsilon fraternity shouted something crude, albeit not illegal. The resulting public backlash led to apologies from the fraternity members, suspension by the national fraternity of the local chapter’s ability to secure pledges, and abandonment of the university’s traditional free-speech absolutism to punish some of the students. The Yale Executive Committee declared that the statements “had threatened and intimidated others, in violation of the Undergraduate Regulations of Yale College as they pertain to ‘harassment, coercion or intimidation’ and ‘imperiling the integrity and values of the University community.’”

The fraternity’s spectacle was crass and violated norms of basic decency, but The Atlantic’s Caitlin Flanagan observed that it also could be seen as an “obvious reaction” to the oppressive atmosphere of political correctness on campus. In Flanagan’s opinion, referencing the leader of the 1964 Free Speech Movement at the University of California:

[The] closest you’re going to get to Mario Savio—sick at heart about the operation of the machine and willing to throw himself upon its gears and levers—is less the campus president of Human Rights Watch than the moron over at Phi Sigma Kappa who plans the Colonial Bros and Nava-Hos mixer.

Despite apologies from the fraternity members and condemnation from the Yale administration, campus activists addressing the issue of rape seized on the incident to file a Title IX complaint against Yale. The administration quickly settled. In a voluntary resolution agreement with the OCR, the university agreed to hire various Title IX bureaucrats and to rework its campus sexual assault policy. That policy “encompass[es] broad ranges of behavior,” since the definition of sexual assault employed by Yale is “more expansive” than the one that is used by the federal government or local law enforcement. The university has never explained why it chose to redefine a term—sexual assault—commonly understood in both the law and culture, but in a 2013 document, it did provide examples of the sort of behavior that could lead the school to brand a student guilty of engaging in “nonconsensual sex.”

Related: Suing the Office for Civil Rights

Yale then set up a two-tier system to handle rape allegations. Formal claims would be handled by a newly created University-Wide Committee on Sexual Assault (UWC). The UWC process begins with an allegedly “impartial fact-finder” (whose employment comes through the university Title IX office, which has a repeat relationship with and is often attuned to the views of the regulators) who gathers “documents and conduct[s] interviews as necessary to reach a thorough understanding of the facts and circumstances surrounding the allegations of the complaint.” The investigator’s report serves as the evidentiary basis for the five-person committee that decides the fate of the accused student.

The accused student cannot call relevant witnesses unless he can prove to the panel in advance that he “can offer potentially relevant information that was not conveyed to the fact-finder.” In the rare cases in which a campus accuser also goes to the police, Yale’s disciplinary panel may—but is not required to—consider the evidence from an actual law enforcement investigation.

Finding the truth is all but incidental to Yale’s procedure. Lest the accuser be retraumatized (regarding an event that, at the time of the hearing, Yale has not established to have occurred), the accused student not only cannot cross-examine the accuser, but also has no right to be in the same room as she gives her testimony. The most input Yale allows the accused student is the submission of written questions for the panel to ask the accuser—if the panel chooses to do so. In essence, the accused student is found responsible for committing sexual assault if three of the five committee members find it more likely than not that a violation has been shown (usually, that the accuser’s version of events is more credible than the accused’s).

Related: Yale’s Case against Montague Looks Shaky

These “formal” hearings are a paragon of due process when compared to the second avenue for Yale accusers to present their complaints. Under an “informal” process, which Yale used in about a dozen cases in 2011–2012, the accused student has no right to present evidence of his innocence; indeed, in at least one case, the accused student was not even informed about the specifics of the allegations against him.

Yale Deputy Provost Stephanie Spangler justified this procedure by explaining that the university’s “goal is to achieve a resolution that is desired by the [accuser] and acceptable to the [accused].” Further, one goal of the university process is to help accusers “regain their sense of well-being.”

It is impossible to know what goes on behind closed doors, and perhaps the only real protection for a student accused through the informal process is a promise that the process will remain confidential. But in at least one high-profile case—that of former Yale quarterback Patrick Witt—an unknown party leaked the existence of a complaint first to the Rhodes Trust (Witt was under consideration for a Rhodes Scholarship) and then to The New York Times, which produced a front-page story that failed to describe the guilt-presuming procedures under which he was charged. There was no indication that Yale ever investigated, much less punished, the person or persons who broke the university’s rules and shared the information about Witt’s case. When he wrote about the experience several years later, Witt recounted that Yale’s policy “almost ruined my life.”

Witt was the first of many accused students victimized by Yale’s new policies. For at least a year, the university’s definition of sexual misconduct was so broad as to include “emotional or economic abuse” by “roommates.” In one instance, a student was found not guilty but was nonetheless punished by the university, which ordered him to take “sexual consent training,” and on several occasions, Yale undertook investigations based on anonymous complaints, raising concerns that the new Title IX process could be used for revenge or ideological targeting.

Related: Accused, Expelled, and Smeared as a Rapist—at Yale

Among the faculty, an unknown male professor was subjected to a sexual harassment complaint from a female colleague. Yale investigated by speaking to the accusing professor and to the department chairman—but never informing the accused professor that charges had been filed against him, thereby robbing him of an opportunity to defend himself. The inquiry ended with the department chairman formally monitoring the male professor for an indefinite period. This incident produced scant public dissent among the faculty.

Case Study #2: Amherst College

As occurred with the fraternity pledge incident at Yale, a single event triggered Amherst’s explosion of Title IX activism. In October 2012, a former student named Angie Epifano penned a lengthy recollection of her experience as a self-described survivor of sexual assault. In May 2011, she wrote, a student acquaintance raped her. She did not report the incident to police, nor did she want the case adjudicated by a campus tribunal: “No thank you, I could barely handle seeing him from the opposite end of campus; I knew I couldn’t handle that level of negativity.”

Epifano alleged shocking treatment from Amherst administrators. She claimed that the college’s sexual assault counselor, Gretchen Krull, told her not to report the crime and instead advised her to “forgive and forget.” Soon thereafter, an Amherst dean, concerned about the student’s mental health, denied her request to study abroad in Africa. The dean allegedly informed her that “Africa is quite traumatizing, what with those horrible third-world conditions: disease…huts…lions!”

A campus administration committed to the truth might have asked some hard questions about Epifano’s veracity. On a campus already known for its political correctness, for an unidentified dean to have made disparaging remarks about Africa seems extraordinarily unlikely.

Related: Railroading the Innocent in Cincinnati

On October 18, 2012, Amherst President Carolyn “Biddy” Martin uncritically accepted Epifano’s presentation of events as “horrifying” and promised “consequences,” either with “procedures or [with] personnel.” Within a few days, Gretchen Krull had resigned, with some speculating that she had been made a scapegoat. Martin then appointed an eight-person committee to develop a new sexual assault adjudication procedure. A professor of women’s and gender studies chaired the panel, whose only other faculty member specialized in African–American literary and cultural studies; a campus activist addressing the issue of rape, Liya Richtman, represented student views.

Future Know Your IX co-founder Dana Bolger, an Amherst student, hoped that the policy change would create a new culture on campus, since “we have all, at some time, in some way—through our jokes, our questions, our arguments—silenced a survivor” and “at some time, in some way, exerted our respective privileges—male, white, heterosexual, disgendered, able-bodied—to silence our peers.” The idea that 21st century Amherst College is dominated by white, heterosexual, male privilege suggests an unusual interpretation of reality. The type of guidelines developed in this ideological mess was unlikely to treat any accused student fairly, but it remained unclear whether Amherst’s new policy was so one-sided as to prevent even an innocent student from defending himself.

For several months, despite the claims of activists that Amherst was a campus awash in sexual assaults, no cases were filed to test the new system’s scope. Then, in late 2013, Amherst got its first post-Epifano claim.

In a column published in June 2015, Washington Post blogger Radley Balko wondered why so many high-profile campus rape allegations have proved to be unfounded. He offered several reasons, including the following:

It may be that activists deliberately seek out and champion the ambiguous cases to demonstrate their commitment to the cause. This is pretty common among ideologues. (I see it often among my fellow libertarians.) You show your bona fides by taking a hard line even on those issues, incidents and scenarios that scream out for subtlety. You see this in some of the reform proposals put forth by anti-campus rape activists, such as laws requiring explicit consent before each progression of sexual activity or in staking out absurd positions such as “drunk sex is always rape.”

Balko could have been describing the Amherst case, which arose out of an incident in February 2012. Following an apparently consensual sexual encounter with another student, the female accuser apparently had a change of heart. She also eventually fell in with a new group of friends: many of the campus activists addressing the issue of rape who were energized by the Epifano essay. By fall 2012—inspired, she wrote, by Epifano’s article—she published an essay at AC Voice, a webzine for which several in the group wrote. The female accuser now reinterpreted the incident of the previous semester as a sexual assault in spite of the fact that most of the accuser’s anger appeared to be directed not at her alleged assaulter, but instead at a “former friend” who had treated her contemptuously after discovering who the accused man was.

Related: How Title IX Became a Policy Bully

The female student waited for another year before filing a sexual assault claim at Amherst, and the investigation and adjudication of the case showcased the unfairness of the college’s new policy—which, to be clear, is typical of how most schools now handle the issue. A hired investigator spent a day on campus interviewing witnesses; when asked whether she had any text messages or e-mails about the incident, the accuser said that she had none. During the hearing, the accuser admitted that she had texted after the incident, but none of the panelists asked her to explain why she had told the investigator otherwise. To corroborate her assault claim, the accuser said that she had invited someone over to her room after the incident to talk and comfort her. None of the panelists asked the identity of this mystery witness, who had not been interviewed by Amherst’s investigator.

Moreover, the accused student could not raise these questions effectively: Prohibited from having a lawyer by his side in the hearing, he was required under Amherst’s new rules to submit written questions for the accuser before the hearing. As legal blogger Scott Greenfield has noted:

Submitting questions isn’t a particularly effective way to confront an accusation. Questions beget answers, and answers beget more questions. Putting aside whether [the accused student] is adept at formulating incisive questions, no one can effectively confront an accuser without hearing her answers and following up.

The accuser said that she had consented but in the middle of the process had revoked that consent; the accused student said that he was too drunk to recall anything that happened. This portrayal of events was enough for the panel to find the accused student responsible. Amherst promptly expelled him.

Related: Why ‘Yes Means Yes’ Rules Can’t Work

The accused student hired a lawyer who subsequently uncovered considerable evidence undercutting the accuser’s credibility, including post-incident text messages (which the accuser had implied to Amherst’s investigator did not exist). Any fair investigation, of course, would have discovered this at the time. Amherst’s response? The accused student had failed to uncover this information within seven days of the disciplinary hearing, so he was now out of luck.

The student filed a federal lawsuit, which remains pending. In that lawsuit, Amherst has contended that the process worked as the college intended in this case.

Case Study #3: University of North Carolina at Chapel Hill

While Amherst was finding an innocent student responsible for rape, another incident occurred at the University of North Carolina at Chapel Hill (UNC). Inspired by the activities at Amherst and Yale and in constant contact with the accusers there, she later told The New York Times, a student named Andrea Pino stepped forward.

Pino claimed that in March 2012, another UNC student raped her at an off-campus party. (Because she has admitted that she had never seen the man before that evening and never saw him again, she left it unclear as to how she concluded that her attacker attended UNC.) Pino elected not to report the alleged assault to police, nor did she file a complaint through the university because, she later said, unnamed other students doubted that it would do any good. Instead, Pino went to a UNC academic employee about her plight, and this person allegedly told her she was lazy.

The identity of the unnamed figure who made the “lazy” remark has shifted depending on the reporter interviewing Pino. According to Inside Higher Ed’s Allie Grasgreen, Pino said that “an academic adviser told her she was lazy when her experience impacted her performance in the classroom.” ESPNW’s Allison Glock, on the other hand, quoted Pino as saying that “when I explained to a professor what was happening and how it was affecting my grades, I was told I was lazy, and it was suggested that maybe I couldn’t handle Carolina.”

Related: Ten Campus Rapes—Or Were They?

Neither Grasgreen, who identified the “lazy” comment as coming from an academic adviser, nor Glock, who quoted Pino as attributing the remark to a professor in one of her courses, appears to have reached out to the unnamed academic adviser/professor for comment on whether Pino’s story was actually true. Nor did the documentary filmmakers responsible for The Hunting Ground, which presented Pino’s tale uncritically. Again, it is very unlikely that a UNC professor or academic adviser, having been informed by a student that someone had raped her, would respond by calling the student lazy.

As Pino was portraying herself as victimized by a gender-hostile administration, UNC was actually revising its policies to make it easier for students like Pino to see their alleged attackers found guilty. In 2012, the university removed sexual assault cases from the jurisdiction of its Student Honor Court and turned them over to a special new panel that handled only allegations of sexual assault, claiming that students could not be sufficiently trained to handle such cases fairly. Given the timing, however, this decision appears more likely to have been motivated by a desire to accommodate the OCR’s “Dear Colleague” letter, since the move allowed UNC to shift its burden of proof in sexual assault cases (and only in sexual assault cases) from the Honor Court’s standard of beyond a reasonable doubt to a preponderance of the evidence, something required by the letter.

Melinda Manning, an assistant dean of students, rejoiced at the abandonment of a policy that discouraged “victims” from coming forward. Summarizing the dean’s views after an interview,Inside Higher Ed’s Allie Grasgreen reported Manning’s view that the earlier system discouraged reporting by “requiring victims to be judged by a roomful of peers.” Of course, a university disciplinary system judges the accused students, not the accusers, and administrators should know better. Manning resigned the following year, claiming that unnamed UNC administrators had pressured her to underreport rape claims; the university fired back with a document claiming that Manning had underreported filings. The ex-dean joined several accusers in filing a Title IX complaint against UNC. As with all such documents, the OCR declined to make the filing public, and contemporaneous press reports suggested alternatively that it was damning or frivolous.

In any event, UNC spent nearly $200,000 on a consultant to rework its Title IX mechanisms and hired seven new staff employees to deal with the matter at an annual cost of around $500,000 before unveiling yet another new sexual assault procedure, this one even less friendly to the rights of the accused than the preceding one. By this point, North Carolina had passed a law requiring colleges to permit students accused of disciplinary offenses to have access to a lawyer. (North Dakota is the only other state to have such a law.) An investigator, hired and overseen by the Title IX office, is not compelled to share his or her evidence with the accused; he or she must only produce a draft of his or her report, effectively precluding the accused from offering exculpatory material during the process. Only under limited circumstances can the accused student introduce new evidence at the hearing.

The accused student’s attorney can examine a draft of the investigator’s report, but only by coming to UNC and promising not to photograph or copy the report. Once the hearing begins, the accused student’s lawyer, as dictated by state law, may attend it but may not cross-examine the accuser; he or she may only submit questions to the hearing chairman, who can ask the questions, modify them, or simply move on. The hearing procedures guarantee neither that the lawyer can even see the accuser as she gives her answers nor that he or she can cross-examine other witnesses.

The new procedures maintained the lower preponderance-of-evidence standard, but even though the OCR is silent on the issue of unanimous findings, UNC now allows a student to be, in essence, found responsible for committing sexual assault based on a two-to-one vote of the disciplinary panel. The guidelines do not explain why the university followed this course.

Even after a student graduates, he can still be sanctioned by UNC. The school allows the filing of anonymous reports of sexual assault to “help give university administrators a better picture of the number of assaults that are occurring within the university student community.” The policy’s wording suggests that the university simply assumes that the assault has occurred, based solely on the anonymous filing. UNC’s policy also has no equivalent of a statute of limitations, a deficiency that allows for the filing of complaints years after the alleged event even when both the accuser and the accused are no longer students at the school. Among elite universities, only Harvard has such an open-ended policy, which raises the question of whether a university could use a years-after-the-fact sexual assault claim to revoke a degree.

Case Study #4: Occidental College

On the West Coast, the most aggressive Title IX activism has been at Occidental College. As at UNC, Yale, and Amherst, Occidental appeared to have a disciplinary structure that denied meaningful due process to the accused. Well before “affirmative consent” laws were enacted in California, Occidental policy maintained that a student who obtained such consent could nonetheless be deemed a rapist. Many have criticized so-called affirmative consent policies as unrealistic and damaging. The college’s sexual assault policy denied the accused student a right to counsel in the proceedings while informing him that terms like “innocence” and “burdens of proof” were “not applicable.” A healthy majority of the undergraduates—currently 56 percent, with 57 percent in the most recently admitted class—are women, and 50 percent of the college’s professors are women.

Nonetheless, according to a small group of campus activists, the school turned a blind eye to sexual assault on campus. In 2013, a handful of self-described survivors, joined by faculty members Danielle Dirks and Caroline Heldman, formed a group called the Oxy Sexual Assault Coalition, or OSAC, which denounced the “yes-might-not-mean-yes” policy as insufficiently protective of accusers. The group adopted a tagline of “because rape is a crime”—even as Dirks (speaking, she said, “as a criminologist”) announced that she had “given up on the criminal justice system.”

OSAC had a preference for adjudicating sexual assaults through college tribunals, even though these assaults would usually be felony offenses in the criminal courts. As explained by Dirks, “College campuses, which are supposed to be the bastions of cutting-edge knowledge and a chance to shape the rest of the country, actually can do right.” Celebrity attorney Gloria Allred involved herself, representing several Occidental students who filed Title IX complaints against the college, which quickly settled.

The college attracted national attention after expelling a student for rape—despite a police report concluding that no rape had occurred and despite text messages from the accuser checking on whether the accused student had a condom and telling a friend, “I’m going to have sex now.”]Occidental reached this decision by contending that while both students were intoxicated, the female student’s drunkenness rendered her unable to consent to intercourse that her own text messages showed she had initiated.

By comparison, even Yale’s “expansive definition of sexual assault” appears to exclude the kind of behavior that Occidental deemed rape. Yale’s guidelines cite an instance of the parties’ “send[ing] a few texts” discussing their plans for intercourse and then confirming those plans once they arrived in the bedroom as an example of “consensual sex.”

In an essay for the Harvard Law Review, Harvard Law professor Janet Halley criticized the “pressure on schools to hold students responsible for serious harm even when—precisely when—there can be no certainty about who is to blame for it. Such calls are core to every witch hunt.” In 2013, the number of reported sexual assaults at Occidental increased from 10 (in 2012) to 60. This figure meant that Occidental alone, with a female enrollment of just over 1,100, accounted for 40 percent of the total increase in reported sexual assaults at all of California’s four-year public and private colleges and universities. As attorney Mark Hathaway has noted, Occidental’s rate of reported sexual assaults in 2013 was 16 times higher than that of the next 10 California colleges and universities combined. It could be, of course, that this Los Angeles liberal arts campus is a statistical anomaly and that it really is very dangerous, but such an interpretation seems very unlikely.

Conclusion

Campus activists addressing the issue of rape have assiduously conveyed the impression that such institutions as Yale University, Amherst College, the University of North Carolina, and Occidental College are led by administrators who ignore widespread criminality. Sexual assaults on college campuses do occur and are a serious issue, but justice requires procedures that afford due process both to accusers and to the accused. Yet even before the OCR’s “Dear Colleague” letter, many schools denied meaningful due process to students accused of sexual assault, and so-called reforms since 2011 have only made the problem worse.

(Reprinted with permission from the Heritage Foundation)

Gunning for Religious Colleges in California

By Chance Layton

In April, when the U.S. Department of Education released its list of religious colleges with

exemptions from certain Title IX regulations, it unleashed a torrent of outrage and criticism directed against “bigoted and “intolerant” institutions of religious instruction. Two hundred thirty-two colleges had requested waivers from the Department’s gender identity non-discrimination policy, which would have required the universities to open their dorms, locker rooms, and otherwise sex-segregated facilities to transgender students. These policies would have violated the colleges’ religious creeds and statements of faith.

California Assemblyman Evan Low has doubled down on the exempted colleges, calling them “the worst of the worst in terms of institutions that discriminate.” Low and California State Senator Ricardo Lara are the major forces behind a new California bill that would target these institutions and strip them of their eligibility for CalGrants, the state’s version of Pell Grants to in-state students.

Related: What Faculty Thinks about Religion

Senator Lara’s bill, SB 1146, represents the latest legislative attack on religious and intellectual freedom. For one, it reduces religion to a professional trade and narrows the boundaries of religious freedom. Unlike the Department of Education, which offers religious exemptions to institutions that are directly “controlled by a religious institution,” SB 1146 requires that the school is training future clergy to qualify for an exemption. It assumes that doctrine matters only to the future pastor or missionary and that creeds are unimportant to the religious liberal arts student.

SB 1146’s supporters fail to grasp that a religious worldview permeates every sphere of life. It is not a profession to be done only under the title “Pastor” or “Father,” but a way of living as a husband, wife, friend, or teacher. But to Low and Lara, respect for religious doctrine amounts to Title IX “privilege.” The protection afforded to these universities gives them “license to discriminate” because they “have been used to getting their way for years,” according to Lara. He does not mention that these institutions provide a public service by educating students and strengthening civil society.

SB 1146 treats religious affiliation as a mark of shame. Under its provisions, institutions granted exemptions by the federal government must notify prospective students and hires, make note of it on campus tours, ensure every current student and member of the faculty knows of the exemption and post it in a public location for all to see. However, even following these regulations does not protect universities from presupposed discrimination. In court, a student who sues a university for discrimination can use that school’s Title IX exemption as evidence of its discrimination.

Under SB 1146, legislative fiat trumps religious belief. Wherever the two conflict, religion must move aside. SB 1146 allows institutions to “enforce rules of moral conduct and establish housing policies in accordance with these rules of moral conduct” and “enforce religious practices,” so long as they are “uniformly applicable to all students regardless of the student’s sexual orientation or gender identity.” Such lip service to institutions’ autonomy is misleading. Many religious universities and colleges require students, employees, and faculty to sign statements of faith or “rules of moral conduct.”

These range from requiring chapel attendance to banning alcohol in dorms. Many ban cohabitation, and therefore require single-sex dorms. For LGBTQIA students, many religious colleges provide single-person housing. To Low and Lara, this counts as discrimination by sexual identity and orientation. The only discernable means of complying with SB 1146 is for religious schools to mutilate or discard their statements of faith on these issues.

Moreover, would SB 1146 require colleges to disregard their statements of faith when hiring? This is the concern of Kurt Krueger, president of Concordia University Irvine, a Lutheran institution. Dr. Krueger said that “SB 1146 denies the exercise of our religious freedoms, freedoms guaranteed in the constitutions of the State of California and the United States.” He explained that “the bill could be used to require us to hire faculty and staff who do not hold to our Christian beliefs,” an arrangement he considers “certainly not acceptable.”

Campus activists have long marked religion as the mask of intolerance. In 2014, Vanderbilt University derecognized the school’s Intervarsity Christian Fellowship chapter because it required its leaders to profess the Christian faith. Later that year, Bowdoin College kicked out the Bowdoin Christian Fellowship because its statement of faith “discriminated” against those who did not agree with it.

Low and Lara imply that religious colleges are breeding grounds of intolerance and incite hostility toward gay, lesbian, bisexual, and transgender students. They overlook that most religious colleges welcome all students and treat them with respect, as long as they honor the college’s religious beliefs. The equitable treatment of students is already required by law, indicating that SB 1146 is more about targeting religious colleges than alleged discrimination. The California Equity in Higher Education Act encompasses both public and private universities, including those with Title IX exemptions, and requires that they do not discriminate.

Related: Why Universities Can’t Grant Religious Liberty

Defenders of SB 1146 counter that the bill doesn’t target religious colleges, but only withholds state funding. However, many students rely on CalGrants to pay tuition. According to Biola and Azusa Pacific University, SB 1146 threatens the financial security of at least fifty faith-based institutions across California. Supporters of the bill conclude that the government “shall make no law respecting the establishment of religion.” But CalGrants are already awarded on a religion-blind basis. California students who receive the grants use them at the college of their choice. SB 1146 only prevents students from having the opportunity to attend the university that best fits their needs.

If Low and Lara want to promote diversity, nothing would be better than to continue giving students the choice to attend religious or public universities with their CalGrants. The California Student Aid Commission’s vision to “invest in educational opportunity, foster an active, effective citizenry, and provide a higher quality of social and economic life for its citizens” aligns with the mission statements of religious universities that stress service and scholarship. For decades, these universities have been providing quality education and training to students. This bill is a sign of our culture’s mistaken perception that religious freedom and intolerance are one and the same.

Chance Layton is an intern at the National Association of Scholars office in New York. This article is reprinted with permission from the National Association of Scholars.

Thumbs on the Racial Scale at UCLA, Berkeley

It appears as though the University of California succumbed to the  relentless pressure from the California legislature to discriminate more effectively against Asians and whites, i.e., to admit more Hispanics and blacks.

The headline of a Los Angeles Times article announces that “UCLA, UC Berkeley boost admissions of Californians, including blacks and Latinos.”  The article reveals, however, that its head should have read especially blacks and Latinos. “The Westwood campus offered seats to 624 African Americans, or 6% of all California freshmen, representing a 37.7% increase over last year.” According to the most recent census figures blacks make up 6.2% of California’s population.

Unless one assumes whites are disproportionately dumb, UCLA’s discrimination against them this year seems to have been quite effective. 38% of California’s population (2015) is “White alone, not Hispanic or Latino,” but only 24.6% of the California students offered admission are white.

As usual, however, Asians are the big losers when numbers of blacks and Hispanics go up. This year “their share of the campus’ admitted freshmen class shrunk from 42.3% to 39.5%.”

Here are two possible explanations of these results. We report; you decide.

  1. Over the past year, the proportion of bright, qualified black applicants has dramatically increased while the corresponding proportion of whites and Asians has declined.
  1. Admissions officials have placed their thumbs not so gingerly on the racial and ethnic scales.

Youlonda Copeland-Morgan, UCLA’s vice provost for enrollment management, stated that “I’m really pleased we’re making progress and we’re showing we can make a difference.” It shows we can do this if we have the will.” She added that UCLA ”does not raise the entry bar for Asian Americans,” since “considering race and gender in admissions decisions at public universities has been banned since passage of Prop. 209 in 1996.”

But where there’s a will there’s a way. In that regard, see “Prof Charges UCLA Admissions Cheating, Resigns From Committee” and “UCLA: Lying Scofflaw.

Faculty Unions and the Problem of Adjuncts

With the demise of the Friedrichs case, with the post-Scalia Supreme Court giving a 4-4 victory to organized labor, it seems likely that the faculty unions that currently exist at public universities will survive. At the same time, the increasing number of adjuncts creates a potentially awkward situation: should faculty unions equally seek to represent the interests of adjuncts and full-time faculty, even though full-time faculty have expectations of research and service, and are hired after national searches? Or should separate bargaining units represent part-time and full-time faculty?

Frozen in Time?

Recent developments at CUNY, highlighted in a Chronicle article, strongly suggest that separate bargaining units are the way to go. The CUNY faculty union, the Professional Staff Congress (PSC), is almost a caricature; the union’s leadership appears intellectually frozen in time in 1968 or 1969, desperate to storm the barricades one last time for the revolution. In the last year, the union gleefully threatened an illegal strike, as it organized screaming protests outside the CUNY chancellor’s residence. DC 37, which engaged in neither tactic, secured the same financial deal from CUNY.

(At CUNY, faculty and adjuncts are members of the same union. Faculty who don’t wish to join the union must pay an agency fee, which Bowen’s leadership team improperly sought to inflate. DC 37 represents some of the maintenance and custodial staff.)

Adjuncts over Full-Timers

PSC leader Barbara Bowen, whose “New Caucus” seized control of the PSC in 2000, provides a case study in how a union leadership consolidated its power by prioritizing the interests of adjuncts over full-time faculty. Shortly after coming to power, the new union leaders changed the dues structure from a flat fee to a percentage of salary—thus increasing the dues paid by associates and full professors, who now subsidized adjuncts’ dues. The stated purpose: getting more adjuncts to sign up as full union members, where their votes would be critical to Bowen’s first two (quite narrow) re-elections.

Bowen’s PSC then secured funding for extending health insurance to adjuncts—after telling her elected delegates that the program’s cost was figured into a subsequent final salary agreement, replacing what would have been a one percent salary hike. So, yet again, full-time faculty effectively subsidized benefits for adjuncts.

In the two most recent contract negotiations, Bowen’s PSC showed scant interest in meaningfully addressing the issue of faculty workload—even after a recent Brooklyn survey showed that full-time faculty considered this issue, not salary, their top priority. The new contract flipped the union dues issue on its head: a “signing bonus” was included as flat amount rather than as a percentage of salary. (Having a flat amount, in this instance, favored adjuncts over full-time faculty.) And, troublingly, the new contract also included a provision in which five-year adjuncts—who aren’t hired after a national search, and have no requirement of research—will receive three-year contracts during which they’re guaranteed six or more credit hours for each semester.

Eager for a Strike?

Despite this record, and almost incredibly, the Chronicle revealed that various adjunct leaders were complaining that the new contract contained insufficient concessions for them. “I just want to tell CUNY ‘No,’” proclaimed Ruth Wangerin, described as an activist in “CUNY Struggle.” (Wangerin seemed especially eager for an illegal strike.)

Another “CUNY Struggle” adjunct advocated rejecting the contract and aligning with “working-class” New Yorkers. And Sandor John, of a group called “CUNY Contingents Unite,” denounced the dangerous three-year adjunct as something that “helps management divide and conquer.” (John appears to see the CUNY administration as “management,” even though funding for CUNY comes from tuition and the state legislature.) Unlike the Board of Trustees, and despite the union leadership’s constant claims to be “democratic,” the PSC does not allow its delegate assembly meetings to be recorded. But rumors exist that complaints from adjunct activists dominated the last meeting.

Workload Not a Shared Interest

In the end, adjuncts and full-time faculty have fundamentally irreconcilable interests. For the full-time faculty, an ideal university would be one in which the only non-tenure track instructors would be visiting professors and graduate students getting teaching experience for when they go on the job market. But such a university—with positions filled after a national search—many current adjuncts (especially at institutions with desirable locations) could be left unemployed. And, as the CUNY experience shows, adjuncts (for understandable reasons) have little interest in such issues as faculty workload or faculty health insurance.

If a leadership like Bowen’s fails to appease adjunct activists, it’s hard to imagine any union leadership that would do so. The best approach would be avoiding faculty unions altogether. But given New York law, which allows the PSC to deduct compulsory dues from all CUNY instructors, two organizations—one to represent full-time faculty, the other to represent part-timers—would produce better outcomes.

Rare Court Ruling for an Accused Campus Male

Friday morning brought important news from the Second Circuit, which vacated a decision from Judge Jesse Furman in the Doe v. Columbia U. case, giving the accused student a rare new chance to prove his university denied him a fair proceeding. It was the first decision by an Appeals Court to deal with campus sexual assault since the Obama administration’s “Dear Colleague” letter raised strong pressure against accused students in campus sex hearings. (I had previously written about the Columbia case, and Judge Furman’s decision.) You can read the unanimous opinion here. The decision also will apply to pending lawsuits throughout the Second Circuit, including at Cornell, Colgate, and (perhaps most importantly) Yale.

A note on what wasn’t decided. This decision only overturned Judge Furman’s dismissal of the case; it only allows the claim to move forward. It does not resolve the merits of the case or (even) allow the accused student to survive a summary judgment motion. A spokesperson for Columbia said that the university doesn’t comment on pending litigation.

No Title IX Disparate Impact

The basic background: with only a handful of exceptions, accused students making Title IX claims have lost in motions to dismiss. While the Obama administration invoked Title IX even though only most (but not all) sexual assault victims are female, courts mostly have argued that argued that accused students can’t sue under Title IX, because only most—around 99 percent, according to one study—but not all accused students are males, and disparate impact lawsuits under Title IX aren’t allowed.

The Second Circuit articulated a more forgiving standard for how accused students can survive a motion to dismiss. It suggested that district courts evaluate these claims through the case law of Title VII (employment discrimination, which allows some disparate impact claims). The opinion also outlines the type of facts that could give rise to the possibility of gender discrimination:

The Complaint alleges that during the period preceding the disciplinary hearing, there was substantial criticism of the University, both in the student body and in the public media, accusing the University of not taking seriously complaints of female students alleging sexual assault by male students. It alleges further that the University’s administration was cognizant of, and sensitive to, these criticisms, to the point that the President called a University-wide open meeting with the Dean to discuss the issue. Against this factual background, it is entirely plausible that the University’s decision-makers and its investigator were motivated to favor the accusing female over the accused male, so as to protect themselves and the University from accusations that they had failed to protect female students from sexual assault.

Judge Furman’s decision had similarly acknowledged the existence of these protests—but had used them to opposite effect. He had contended that even if Columbia’s procedures were biased against accused students on grounds of gender, the university might have had a legally acceptable reason—avoiding the bad publicity that can come from having an insufficient number of guilty findings.

Repudiating Furman

In what Scott Greenfield termed an otherwise linguistically “tepid” opinion, the Second Circuit repudiated Furman’s rationale: “A defendant is not excused from liability for discrimination because the discriminatory motivation does not result from a discriminatory heart, but rather from a desire to avoid practical disadvantages that might result from unbiased action. A covered university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.”

The Impact of the Decision

Beyond allowing the Columbia student’s case to move forward, the decision has at least three immediate impacts:

  • The standard laid out by the Appeals Court for surviving a motion to dismiss on Title IX grounds—that the complaint suggests the university set up biased procedures in response to public pressure from the media, or from accusers’ rights groups—would seem to apply to virtually any elite school in the current environment. For instance, if the district court judge in Jack Montague’s case at Yale applies this decision faithfully, it’s virtually inconceivable that Yale will win a motion to dismiss.
  • There hasn’t been much consistency regarding political affiliation and decisions; there have been good and bad decisions written by judges of both parties. But it nonetheless was striking that this decision came from an all-Democratic panel—written by Clinton nominee Pierre Laval and joined by Obama nominee Christopher Droney and District Court judge John Koeltl, a Clinton nominee.
  • Although it technically was only one district court decision among many, Judge Furman’s decision was unusually influential, as FIRE’s Samantha Harris noted on Friday. That decision is now gone from the book

The case now returns to the courtroom of Judge Furman, who seems to have an unusual number of personal connections to the parties. His wife, Ariela Dubler, served as a professor at Columbia Law School from 2002 through 2014. (Dubler’s research specializes in “the legal regulation of sex and the family.”) And as he considers a new a complaint that strongly condemns the Obama administration’s policies, Furman’s brother, Jason, chairs Obama’s Council of Economic Advisors.

Why Do Our High Schools Teach Grievance and Oppression?

Political orthodoxy and lack of viewpoint diversity in the academy is now a well-known problem, thanks in large part to Heterodox Academy and the many scholars who contribute to the site. Yet even Jonathan Haidt–one of the more productive combatants of this growing trend–will admit that intolerance to opposing ideas and the spread of victimhood culture “has its roots in high school” (see Haidt’s The Yale Problem Begins in High School).

While Haidt discusses experiences he had with faculty and students at elite schools, as an English teacher at a public high school, I can personally attest that the problem has also been exacerbated by public education policy and the implementation of the Common Core State Standards (CCSS).

Related: Pushing American History as a Long Tale of Oppression

First, a bit of background. In 2009, Race to the Top, a $4.35 billion competitive grant funded by the Education Recovery Act, incentivized states to adopt the CCSS. Opting-in would allow states to earn points toward much-needed education funding and waivers from federal regulations required by No Child Left Behind. Since funding is tied to Common Core assessment measures, when the standards for English language arts (ELA) and mathematics were first released in June 2010, many states scrambled to find Common Core aligned curricular materials.

One such state was New York, whose Education Department (NYSED) developed the EngageNY Common Core Modules, a fully-articulated Pre-K to 12 curriculum program designed to “assist schools and districts with the implementation of the Common Core.” Although local districts, the NYSED, and then-Secretary of Education Arne Duncan were explicit that the CCSS was not to be a curriculum, but merely a set of standards, New York State had suddenly made it a curriculum. Across the state, rather than training teachers to align their curriculum and classroom content with the standards, numerous districts began ordering teachers to use the EngageNY modules and, in many cases, to teach them verbatim.

Related: How Your Tax Money Promotes Grievances

Originally introduced as an optional resource for teachers to “imagine how classroom instruction could look,” EngageNY quickly became a curriculum program that teachers, depending on their district and its reliance on state aid, were forced to adopt wholesale. My own district informed me early on that I had to teach “all modules in their entirety.” This meant not only that I had to teach the texts assigned by EngageNY, but I had to teach them how EngageNY thought they should be taught. At the grade 12 level, for instance, this involved cutting Catcher in the RyeFrankenstein, and Much Ado About Nothing, to instead teach The Autobiography of Malcolm XThe Namesake; Guns, Germs, and Steel; and The New Jim Crow: Mass Incarceration in the Age of Colorblindness.

Though loyal to the CCSS mandate to increase student exposure to nonfiction “informational texts,” the texts and lessons used in the ELA modules tend to slant left and focus largely on themes like social injustice, racial and gender oppression, immigration, and cultural identity. One grade 11 module, case in point, focuses on W.E.B Dubois’ The Souls of Black Folk, and includes other texts that represent “voices, experiences, and perspectives… united by their shared exploration of the effects of prejudice and oppression on identity construction.” Students then “broaden their exploration of struggles against oppression in America to include issues of gender and sexism,” and so on.

In an ELA classroom, these topics are certainly valuable and worthy of discussion, but not to the exclusion of introducing students to imaginative literature, aesthetic analysis, and themes that are universal to the human condition. Instead of immersing students in an in-depth survey of classic and contemporary literature; instead of guiding students through the great conversation of history; instead of helping students to discover how words and ideas can reveal our common humanity–the EngageNY modules focus on topical social or political issues and often limit students’ exposure to one side of the story.

Consider this module, for example, in which 9th graders read How Sugar Changed the World, by Aronson and Budhos, and examine America’s role in exploiting slave labor in third-world countries. In the module, students “learn to think of the products they use and consume everyday as part of a complex web of global production.” They then go on to study “the working conditions for garment workers in Bangladesh” and “consider arguments against the exploitation of sweatshop labor,” the goal being to understand “what it means to be an ethical participant in the global economy.” Just remember that these are 14-year-old kids, many of whom are still learning their parts of speech.

What happens when literature and critical thinking become, as Camille Paglia would say, “subordinate to a prefab political agenda”? Over time, one possible result is that a state-approved victimhood narrative begins to emerge and students begin to draw dividing lines. Rigorously molding high school students into aggrieved leftist cultural critics is not the job of public education, nor does the practice bode well for the public’s perception of teachers.

To be clear, my purpose in writing this essay has not been to call the CCSS into question.

Along with most teachers I know, I am of the opinion that the standards themselves are well-written and emphasize important grade-level skills. What troubles me is that, in many cases, states and local districts are using a top-down “one size fits all” approach to education that sucks the joy out of learning and does not adequately prepare students to engage with opposing perspectives. The EngageNY modules–which have now been downloaded close to 50 million times and are being used by at least 36 states, as well as Washington D.C.–represent just one example of how public schools are creating an echo chamber and planting the seeds of victimhood culture.

Reprinted from Heterodox Academy

Another Unbalanced View of Campus Sex Hearings

Monday’s Chronicle of Higher Education featured an article by Sarah Brown, a very one-sided article,  on a gathering dealing with campus efforts to cope with sexual assault. It reviewed

a federally-funded program, the National Center for Campus Public Safety, to better train colleges in adjudicating allegations of sexual assault. “I want to get this right,” Brown quoted one investigator, articulating her strategy for interrogating accused students.

But the article, in fact, portrayed a gathering in which there seemed to be little interest in getting it right.  It shows no interest in fairness to the accused.

Related: Campus Surveys Inflate Rape Statistics

The piece doesn’t list any defense lawyers as speakers. It doesn’t appear as if anyone from FIRE or any other group devoted to academic civil liberties was invited to speak. Of course, a meeting of (say) the National District Attorneys Association might not feature such speakers, either. But the college process—supposedly—isn’t prosecutorial (one reason why colleges claim it’s OK to exclude lawyers from meaningful participation, and not to have discovery). It’s a neutral search for the truth. So why would a federally-funded organization, amidst a conference that wanted to “get this right,” hear only from those involved on one side of the process?

The dangers of one-sidedness appeared in Brown’s discussion of a panel entitled, “Interviewing the Respondent.” Brown paraphrased the advice given: “Ask about the (accusing) student’s background — where they’re from, what they do outside of class, and where they spend time on the campus. Ask about witnesses. Seek evidence, like text messages and social-media accounts.” She then quoted from one of the presenters, waiving a smartphone: “These are little miracles for corroboration.”

What’s missing from this is that the burden of proof is on the accuser, not the accused. (The article contained no mention that Margolis Healy, a campus safety firm, and its solicited presenters urged that investigators force accusers to provide electronic evidence that corroborates their claims—or recommended asking accusers how they spent their time on campus, or what they did outside class. Indeed, such questions almost certainly would yield a strong attack from groups like Know Your IX.) Moreover, one of the greatest shortcomings of the college process is that it lacks the legal power to obtain such evidence. An accuser making a false allegation, or a guilty accused student, will simply refuse to provide evidence that contradicts their version of events. And the school can do nothing.

More striking was the information Brown’s article didn’t contain. She mentioned that Margolis Healy coordinated the National Center for Campus Public Safety through a federal grant, but (oddly) didn’t reveal the amount of the grant. According to USAspending.gov, through the end of 2015, Margolis Healy has received $5,854,732 in taxpayer funds, with the grant scheduled to continue until April 2017. The total grant thus seems to exceed $8 million.

Related: Weaponizing Title IX at Middlebury

And what sort of training does Margolis Healy provide? Brown’s article doesn’t say. I’ve previously looked at Margolis Healy’s unusual approach to training, in the context of its training of Middlebury’s sexual assault investigators. The training heavily relied on the discredited David Lisak; instructed Middlebury officials that they must “start by believing” the accuser (they weren’t supposed to use terms like “accuser” in their reports); and held that the investigator’s report “should not include . . . consensual language” or note that the “victim has inconsistencies with her story.” But what if the accused student wasn’t guilty, and the inconsistencies of the “victim” would prove the accused student’s innocence? That outcome doesn’t appear to have crossed the minds of the Margolis Healy trainers.

After the Middlebury piece appeared at Minding the Campus, Margolis Healy removed its training slides from the web. It would seem that—for around $8 million in taxpayers’ funds—the public has a right to know how, specifically, this firm trains colleges to reach the “truth” in sexual assault claims.

A Big Campus Trend: Ignorance of U.S. History

This is an excerpt from the new ACTA report, No U.S. History? How College History Departments Leave the United States out of the Major. It reveals that fewer than 1/3 of the nation’s leading colleges and universities require students pursuing a degree in history to take a single course in American history. Read the full report is here.

Although it is reasonable to assume that at America’s top-ranked colleges and universities, education for meaningful citizenship would be a priority, that is a false assumption. The American Council of Trustees and Alumni (ACTA) has delved into the requirements and course offerings in history departments at 76 of the nation’s leading colleges and universities to see how U.S. history fits into their programs. Only 23 undergraduate history programs at the U.S. News & World Report’s top 25 national universities, top 25 public institutions, and top 25 liberal arts colleges require a single U.S. history class.

The overwhelming majority of America’s most prestigious institutions do not require even the students who major in history to take a single course on United States history or government. Disregard for the importance of United States history in the undergraduate history major is matched by the overall disappearance of United States history requirements from general education, the core curriculum that should be part of every student’s education. ACTA’s annual “What Will They Learn?” survey shows that only 18% of the over 1,100 four-year colleges and universities in the study, public and private, require a foundational course in United States history or United States government.

Related: What’s American about American History?

The consequences of these weak academic standards are clear. ACTA’s surveys of college graduates reveal year after year deep and widespread ignorance of United States history and government. In 2012, 2014, and 2015, ACTA commissioned the research firm GfK to survey college graduates’ knowledge of American history. ACTA sees the same dispiriting results each time:

  • Less than 20% could accurately identify—in a multiple-choice survey—the effect of the Emancipation Proclamation.
  • Less than half could identify George Washington as the American general at Yorktown.
  • Only 42% placed the Battle of the Bulge in the history of World War II.
  • One-third of college graduates were unaware that FDR introduced the New Deal.
  • Nearly half did not know that Teddy Roosevelt played a major role in constructing the Panama Canal

. • Over one-third of the college graduates surveyed could not place the American Civil War in its correct 20-year time frame.

  • Nearly half of the college graduates could not identify correctly the term lengths of U.S. senators and representatives. Reputation and high tuition are no guarantee that students will know the history of their nation.

When ACTA commissioned a Roper survey of seniors at the “Top 50” colleges and universities, those holding the most prestigious positions in the U.S. News & World Report rankings, it found that only 29% could identify—in a multiple-choice survey—the definition of “Reconstruction.” Little more than half could identify the purpose of the Federalist Papers. Only 23% could name James Madison as the Father of the Constitution. And only 22% could match the phrase “government of the people, by the people, for the people” with the Gettysburg Address.

Bottom line: No college or university can assume that students have even an elementary grasp of the important moments in United States history in the absence of a requirement for its study.

Related: “Big History’ Kicks U.S. History to the Back of the Class

Given what we know about the historical illiteracy of young Americans, it would seem irresponsible not to make the study of our history and government mandatory for all students. Not to require students majoring in history to take, at a minimum, a course with reasonable chronological and thematic breadth on the history of the United States would be a truly breathtaking abandonment of intellectual standards and professional judgment. We find in our study of the top 25 liberal arts colleges, the top 25 national universities, and the top 25 public institutions that only 23 programs out of 76 require a course on our nation’s history. That’s less than one-third.

Why top undergraduate departments behave this way is unclear. Perhaps it is from fear of seeming to endorse “American exceptionalism.” Or perhaps it comes from a naïve belief that American students already have a firm grasp of their nation’s history. Either way, the damage is real. Virtually all institutions offer comprehensive courses on America’s past, but the overwhelming majority do not take the vitally important next step of ensuring that all graduating majors have taken one of these courses.

Look at What Yale Does

This only-if-you-want-to approach will undoubtedly lead scores of history majors to graduate without ever taking a course on United States history beyond the high-school level. Yale University exemplifies this desire to maximize student choice at the cost of essential requirements.

It recently implemented a “specialist track” that allows history majors beginning with the class of 2017 to forgo a requirement in U.S. history whereas previous students were required to take at least two courses in the history of the United States or Canada. According to the department’s website, this new option was “created in response to students’ desire to focus in particular areas of interest earlier in the History major.” Likewise, Rice University required students who matriculated before fall 2014 to take one course in United States history, but their new set of requirements makes it merely optional.

It is not the case that history departments refuse to set any requirements for the major. Although a large majority of schools fail to require even a single course in U.S. history, as noted above, many do have geographical-distribution requirements excluding the United States.

Higher education leadership needs to face the problem squarely and take action. Our colleges and universities, whether in the name of “inclusion” or globalism or a debased hope that they will attract more students by eliminating requirements, have created a vicious circle of historical illiteracy and the civic illiteracy that accompanies it. This illiteracy extends to the troubling way that students view fundamental aspects of our nation’s structure of law and government.

A 2016 Gallup poll showed that 27% of college students supported “restricting the expression of political views that upset or offend certain groups.” Another 49% believed it is right to prevent reporters from covering protests held on college campuses if they believe the reporting will be “unfair.” Those who do not know the history of the nation are, of course, much more likely to view its constitutional freedoms with nonchalance.

What Students Need

If our colleges and universities seek to retain public support of their work, they must understand that a high-quality curriculum comes from informed choices, developed through the reason, professional training, and good sense of faculty and college leadership. Faculties have the right to pursue personal intellectual interests, but they also have an obligation to address what students need to learn.

Trustees and administrators should insist that departments articulate with far greater clarity what students should know. Until a college comes together as an academic institution and addresses the question of what it means to be a college-educated individual, the curriculum will continue its expensive, chaotic expansion to the detriment of students’ intellectual development. It is totally appropriate for trustees to insist upon a requirement for every undergraduate to study the history of the United States and its institutions.

In reviewing the history program, trustees and administrators should not hesitate to ask the provost and the chairman of the history department to explain the department’s rationale for what it does and does not require of history majors. While respecting academic freedom, good academic governance prioritizes the needs of students to have a meaningful and coherent curriculum. And that means ensuring that United States history is part of the history major’s program. If ever there were an educational imperative that should claim the interest of alumni and donors, it is ensuring that college graduates understand our nation.

Alumni outcry over deficiencies in the curricula of their institutions can be a powerful force for change. Donors, as individuals or as a consortium, can create initiatives with incentives to add core requirements. In other words, their funding can be used to build the capacity to add sections of essential courses in American history and government, with the institution’s agreement that the result would be a firm requirement for history majors to study the history of the United States, enhanced with new faculty resources. That requirement should quickly extend to every student pursuing a liberal arts degree. Such donations would be a contribution not only to the alma mater but also to the nation as a whole.

How Student Protesters Cheat Themselves

One common complaint of protesting students is the old multiculturalist argument that the curriculum is too white and male and Western.  The petition filed by students at Seattle University is a case in point.

Once again, we have outlandish allegations of racism and harassment leveled against one of the most progressive enclaves on Planet Earth, the liberal arts campus.  The students term it “a longstanding history of oppression,” and their “concerns are urgent and necessitate an immediate response” (another feature of the protests is the note of desperate need on the students’ part).  How else to respond to “being ridiculed, traumatized, othered, tokenized, and pathologized”?

In this case, the curriculum bears a big part of the blame.  The humanities departments at Seattle don’t induct students into the civilization of Sophocles, Augustine, Dante, Shakespeare, Rembrandt, Rousseau, and Mozart, the petition says.  They don’t raise the humanitas of the students who pass through it.  No, the curriculum does the opposite.  It “ignores and erases the humanity of its students and of peoples around the globe.”

And so they demand a “non-Eurocentric interdisciplinary curriculum.”  This new formation will “decentralize Whiteness,” which means that John Milton will enjoy no more prestige than do contemporary African writers.  The old themes of faith, courage, mortality, and love will give way to “a critical focus on the evolution of systems of oppression such as racism, capitalism, colonialism, etc.”

In accord with the personnel side of campus identity politics, the students insist that these new courses be taught by “prepared staff from marginalized backgrounds, especially professors of color and queer professors.”  (The students don’t explain how queerness advances the non-Eurocentric focus.)  The instructors are to follow, too, a “decolonizing and anti-racist pedagogy.”

The puffery is absurd, of course, but there’s a pedagogical point to make as well.  Any administrator and professor who accede to these demands is guilty of academic fraud.  The reason goes back to E. D. Hirsch’s argument about cultural literacy made three decades ago.

When his book Cultural Literacy: What Every American Needs to Know appeared in 1987, it was interpreted as a conservative brief against multiculturalism. Critics said that it reinforced Eurocentric and patriarchal values at a time when minority and women’s voices were on the rise.  That’s because Hirsch and his colleagues had compiled a list of facts, names, dates, and other items of information that an American needed to know in order to participate fully in civic and professional life.

Yes, the list was heavy on European-derived materials, but this was only because the culture of American civic and professional life was the same way.  Indeed, one of Hirsch’s reasons for including an item in his list was that such things commonly found their way into op-eds in the New York Times.  Hirsch, himself a lifelong Democrat, reasoned that if disadvantaged students were to rise in American society, they had to know such things.  If they didn’t they wouldn’t do well on SAT and GRE exams, would struggle in college classes, and would feel out of place in professional settings.  Teaching cultural literacy, then, Eurocentric and traditional in content, was a solid progressive project.

Hirsch’s arguments remain firm.  American mass culture has grown more diverse in the last three decades, but the deep references found in civic life and professional spheres, not to mention on standardized tests, are still predominantly Eurocentric.  I just picked up the Times op-ed page, went six paragraphs into Charles Blow’s contribution (“Trump’s Chance to Reboot”) and found the words “narcissism” and “protean.”  Does anyone doubt that a little knowledge of Narcissus and Proteus enriches a reader’s understanding of the opinion?

In demanding a non-Eurocentric curriculum that highlights racism et al, students not only implant an adversarial mindset of resentment, one that despises the only society in which they will find success and happiness.  The students also deprive themselves of the background knowledge they will need as they strive to improve their lives.  They are setting themselves up for estrangement and insecurity.  And, sad to say, instead of realizing that the inferior education they have received is one reason for their future dissatisfaction, they will use the anti-Eurocentrism position as an explanation for it.

Progressive Policing of Speech Moves Off Campus

“Hate speech is excluded from protection,” CNN anchor Chris Cuomo tweeted last year, echoing a dangerously common misconception. “Hate speech isn’t free speech,” people say, assuming they have a right not to hear whatever they consider hateful language and ideas. Government officials sometimes share this view: The Mayor of West Hollywood confirmed to Eugene Volokh that she would not issue a special events permit for a Donald Trump rally so long as he trafficked in hate, contrary to the “values and ideals” of the West Hollywood community

Related: A Champion of Free Speech Takes on the Muzzled Campus

But you don’t have to indulge in allegedly hateful speech to violate questionable local laws: In Washington D.C., an employer who fails to call a transgender employee by the employee’s preferred pronouns, including “ze,” “zir,” or “they,” may be liable for harassment, as Hans Bader explains. The New York City Commission on Human Rights has issued similar mandates, applying broadly to employers, landlords and businesses, meaning that customers and tenants, as well as employees, have a “human right” to regulate ordinary speech used in ordinary commercial transactions.

“(P)eople can basically force us — on pain of massive legal liability — to say what they want us to say, whether or not we want to endorse the political message associated with that term, and whether or not we think it’s a lie,” Volokh laments. “We have to use the person’s ‘preferred … pronoun and title,’ whatever those preferences might be. Some people could say they prefer ‘glugga’ just as well as saying ‘ze’.”

Progressive speech policing has moved off campus, in a trend as alarming as it is unsurprising. College and university speech codes conflating allegedly offensive speech and discriminatory conduct date back a quarter century. They partly reflect hostility toward unwelcome speech spawned by popular therapies of the 1980’s that equated verbal and physical abuse and by the feminist anti-porn movement, which equated pornography with rape and declared misogynist speech a civil rights violation.

Related: Title IX Tramples Free Speech and Fairness, So Now What?

By now, generations of students have been taught that unwelcome speech isn’t speech but discriminatory “verbal conduct;” these days, it’s even condemned as violence. (When I quoted the word “nigger” instead of referencing it by an initial during a panel on free speech while discussing Huck Finn, I was accused of committing an act of racial violence.) Who decides when speech is not speech but abusive or violent conduct? The offended listeners — if the listeners belong to disadvantaged groups. Their subjective reactions are the standard by which the right to speak is judged.

Again, this ideology dates back decades. So, the first wave of students to imbibe its lessons is entering middle age. Some have remained in academia, as faculty and administrators, partners in campus censorship. Others have assumed influential positions in the wider world, including the federal bureaucracy.

Under the direction of Catherine Llhamon, Amherst, ‘93, Yale Law, ‘96, the federal Education Department’s Office for Civil Rights has continued conflating sexual harassment (including speech) and sexual misconduct, while depriving accused students of due process rights in campus disciplinary proceedings.

Related: Feminist Censored from Censorship Panel

The Justice Department’s Civil Rights Division, led by Vanita Gutpa, Yale, ‘96, NYU Law, 2001, recently issued a remarkable order to the University of New Mexico (a public institution) requiring it to violate the First Amendment by investigating instances of “unwelcome conduct of a sexual nature,” including the proverbial, “verbal conduct,” as harassment whether or not they “cause a hostile environment or are quid pro quo.” As the Foundation for Individual Rights in Education (FIRE) observes, the university is required to investigate “all speech of a sexual nature that someone subjectively finds unwelcome, even if that speech is protected by the First Amendment.”

Censors Coming from ACLU Staff

It’s worth noting that both Llhamon and Gupta are former ACLU staff attorneys. (Gupta, who has an impressive record on criminal justice reform, was Deputy Legal Director in the national office.) Whatever values they absorbed at the ACLU did not, it seems, include a firm commitment to free speech (or, in Llhamon’s case, due process). Indeed, one measure of censorship’s embrace by progressives outside academia is the national ACLU’s relative silence in the face of the free speech crisis on and off campus.

Some state affiliates remain pockets of free speech advocacy, and (following early missteps) the national office has mounted strong challenges to security state abuses. But as Harvey Silverglate sadly observes, “The national ACLU Board and Staff are nowhere to be seen in the increasingly difficult battle to protect First Amendment freedom of expression rights. This is especially so in areas where the ACLU, more and more, pursues a political or social agenda.”

That agenda, and the equation of allegedly hateful speech — as defined by aggrieved listeners — with discriminatory conduct practically sanctifies the heckler’s veto. And it too is gaining acceptance off campus. In a thoughtful exchange at reason.com, Black Lives Matter organizer DeRay McKesson argues that the heckler’s veto is an exercise in free speech, worthy of protection. In this

view, the loudest voices win, I guess. “They always do,” hecklers might respond.

The Limits of Heckling

I don’t share this vision of free speech, although I understand it. If you believe the dominant discourse in your community systematically ignores your values and concerns, you may consider shouting it down your only option. But free speech can’t merely mean the right to say what people don’t mind hearing. And heckling doesn’t always, or often, stop at shouting, especially when metaphors about the “violence of the word” are taken literally, thus rationalizing violence in response to words.

Right-wing provocateur Milos Yiannopoulos was not just shouted down but assaulted during an appearance at DePaul University. As reason.com observed, students justified their violent actions by declaring that Yiannoloupos “spreads hate and violence.”

In its most extreme and virulent form, the heckler’s veto devolves into an assassin’s veto, and even that has evoked some measure of understanding from grown-up elites, who should surely know better. When PEN bestowed its 2015 Freedom of Expression Courage Award on the surviving staff at Charlie Hedbo, hundreds of PEN members protested. After issuing relatively perfunctory condemnations of murder, over 200 eminent writers sharply criticized Charlie Hedbo for satirizing disadvantaged, vulnerable groups of people.

“To the section of the French population that is already marginalized, embattled, and victimized, a population that is shaped by the legacy of France’s various colonial enterprises, and that contains a large percentage of devout Muslims, Charlie Hebdo’s cartoons of the Prophet must be seen as being intended to cause further humiliation and suffering.”

Cartoonist Gary Trudeau joined in this excoriation of Charlie Hedbo’s murdered satirists: “By punching downward, by attacking a powerless, disenfranchised minority with crude, vulgar drawings closer to graffiti than cartoons, Charlie wandered into the realm of hate speech, which in France is only illegal if it directly incites violence. Well, voila—the 7 million copies that were published following the killings did exactly that, triggering violent protests across the Muslim world, including one in Niger, in which ten people died.”

These statements accusing Charlie Hedbo of verbal abuse and blaming it for the violent acts of an offended audience, read like excerpts from a college newspaper column justifying shout downs or assaults on a presumptively hateful speaker. They make clear that outside academia, some accomplished adults will join undergraduates in framing free speech as a potential source of oppression — a privilege or weapon used by the powerful to “silence” the relatively powerless.

Not surprisingly, corporate speech rights, on the increase, generate increasing concern. The political speech and associational rights of non-profit as well as business corporations are primary targets of progressive wrath (despite the fact that incorporated advocacy groups give voice to millions of ordinary people.) So are the rights of corporate “climate deniers” and associates. But, as the Charlie Hedbo protests showed, any individual or publication that speaks “offensively” from a perceived position of power is suspect.

Words are weapons, progressive censors argue, and they’re right, however inadvertently. Words are weapons; that’s why we protect them. Speech is the ideal weapon of non-violent political combat, most essential to the relatively powerless. Virtually every movement for social change has relied on politically weaponized speech, including today’s student protest and civil rights movements. Progressives might agree, if only elites would engage in some unilateral disarmament. “Power and prestige are elements that must be recognized in considering almost any form of discourse, including satire,” PEN’s Charlie Hedbo protesters insisted. “The inequities between the person holding the pen and the subject fixed on paper by that pen cannot, and must not, be ignored.”

Of course, progressives are not alone in supporting censorship. It is a non-partisan vice, evident today in across the aisle support for security state speech surveillance. The nation has also endured authoritarian assaults on dissent emanating primarily from the right, notably during 20th century red scares, which had particularly chilling effects in academia. Current conservative governors in Wisconsin and North Carolina have mounted controversial political attacks on state university systems, while the emerging Republican platform condemns pornography (whatever that is) as a “public menace” and calls for theocratic alignment of law with “God-given, natural rights” (as defined, I suppose, by Republicans.) I’ve focused on contemporary left wing censorship partly because it’s increasingly influential and partly because censorship is now embedded in the progressive ethos, as an essential weapon against inequality.

PEN’s protesters called for self-censorship, but demonizing speakers who fail to censor themselves effectively excuses and encourages their censorship by the state. (Gary Trudeau, for one, apparently approves of French laws criminalizing whatever authorities deem hate speech.) Students who protest offensive or presumptively traumatizing “verbal conduct” are indeed exercising their own speech rights, as they claim.

But in insisting that those rights require administrators to censor other people’s speech, they’re not exercising rights so much as seeking anti-democratic power. Progressive policymakers pledge allegiance to constitutional values and rights, while defining harassment broadly, according to the unpredictable, subjective reactions of any listeners labeled disadvantaged.

Old-fashioned liberals and civil libertarians do strongly contest this view of censorship as a civil right, but they seem a dwindling, aging minority — unlikely architects of the future. In providing constitutional protection to allegedly hateful speech, the U.S. is an outlier among Western nations. You have to wonder how long it will remain one.

Hundreds of ‘Historians’ Make Vast Mistake

Every so often, a group of professionals signs a political letter claiming that their training uniquely qualifies them to announce that a particular candidate for president, traditionally a Republican, is totally unfit for office. In 1964 it was psychiatrists denouncing Barry Goldwater. “Fact,” a fly-by-night magazine, rounded up 2417 shrinks, half of whom were able to psychoanalyze Goldwater by long distance, finding him psychologically unfit without actually meeting him. (And incidentally, raising the question of why their clients should spend all that time and money for a lot of psychiatric sessions, when the psychiatrist can simply tell you what’s wrong by long distance.)

This year historians — some 763 of them with a few non-historians mixed in — were able to discern the unqualified nature of Donald Trump’s candidacy. They were able to do this because they are the keepers of the nation’s memory, or something like that. Their statement cannot be said to lack grandiosity.

Here’s our favorite line: “Donald Trump’s presidential campaign is a campaign of violence: violence against individuals and groups; against memory and accountability; against historical analysis and fact.” Whereas reporters who wanted to write this sort of thing would have to present some sort of evidence for all this alleged violence, historians, it seems, because of their training, can just say it’s true and leave it at that.

Stanley Fish got to shoot the fish in this particular barrel, writing in The New York Times that “by dressing up their obviously partisan views as ‘the lessons of history’ the signatories to the letter present themselves as the impersonal transmitters of a truth that just happens to flow through them. In fact, they are merely people with history degrees….” Still, we include the list of signers in case any readers or their children might carelessly take a course given by one of these historians under the mistaken impression that they know what they are talking about.

Read the historians’ letter here.

The Endless Muddle of Transgender Policy

(Part II)

The incoherence of the new Office for Civil Rights transgender policy becomes even clearer when one looks beyond bathrooms to locker rooms, and the athletic teams they serve. The “Dear Colleague” letter states that “Title IX regulations permit a school to operate or sponsor sex-segregated athletics teams when selection for such teams is based upon competitive skill or when the activity involved is a contact sport. A school may not, however, adopt or adhere to requirements that rely on overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex (i.e., the same gender identity) or others’ discomfort with transgender students.”

Broad, but Not Too Broad

Note that OCR provides no guidance as to when a broad generalization becomes “overly broad.” In fact, there would seem to be a real possibility that a college or university could be found in violation of Title IX for complying with NCAA regulations.

For example, the “Dear Colleague” letter declares that “Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.” But the NCAA Inclusion of Transgender Student Athletes policy states that “A trans female (MTF) transgender student-athlete who is not taking hormone treatments related to gender transition may not compete on a women’s team.” MTFs and FTMs, however, are not treated the same, since “A trans male (FTM) student-athlete who is not taking testosterone related to gender transition may participate on a men’s or women’s team.”

As if this were not confusing enough, the NCAA inclusion policy also states that “A trans male (FTM) student-athlete who has received a medical exception for treatment with testosterone … may compete on a men’s team, but is no longer eligible to compete on a women’s team without changing that team status to a mixed team.” But by contrast, “A trans female (MTF) student-athlete being treated with testosterone suppression medication … may continue to compete on a men’s team but may not compete on a women’s team without changing it to a mixed team status until completing one calendar year of testosterone suppression treatment.”

In short, does OCR’s new command “that a school must not treat a transgender student differently from the way it treats other students of the same gender identity” apply to the locker room but not to the playing field? What about hotel rooms when the teams travel? Will NCAA have to revise its extensive regulations of transgender activity to conform to the new transgender diktats from Washington? Who knows?

Although still struggling with its insistence that sex and gender identity are the same thing — “… the same sex (i.e., the same gender identity)” — OCR obviously believes that sex not only still exists but can actually trump gender when distinctions based on it not only involve contact sports but also different sex-based “competitive skill.” Does this mean that a disproportionate number of men at the top of math-intensive STEM departments does not suggest a Title IX problem? (Larry Summers, are you paying attention?) Who knows?

More Gender Equity Conflict and Confusion

Confusion and conflict, of course, are not limited to locker rooms and athletic fields. Presumably, a college or university would worry about violating anti-discrimination laws if it complied with an incoming freshman’s request not to be assigned a roommate who was black or Jewish. Should it have a similar concern about a freshman woman’s request not to be assigned to a room with a transgender woman?

If there are as many transgender students as the administration’s recent flurry “guidances” and lawsuits suggests, then OCR may well have to revise its record-keeping categories and provide schools and colleges with new reporting requirements. On June 15, for example, OCR sent out another sweeping “Dear Colleague” guidance on increasing the participation of students in fields, especially career and technical fields, whose sex is underrepresented.

Although this “guidance” noted that it used the terms sex and gender “interchangeably,” it curiously referred only to males and females and never once used the term “transgender.” Thus left unclear, unexplained, and unguided is how colleges and universities should regard athletic participation and especially scholarships — watched like a hawk by the NCAA, with rigid quotas for men and women— of transgender students. Or how a community college should count an auto mechanics student transitioning from female to male. Since her biological sex remains female even though her gender identity is male, I wondered here, “does the student add to the number of students in that class who are ‘non-traditional for their sex,’ or simply add to the number of guys?” In fact, if ‘gender identity’ determines sex as OCR unilaterally insists, why does it continue to use the term ‘sex’ at all in determining who is under-represented?

LGBT Plus 11 Other Letters

For all of its postmodern deconstruction of “sex” as most people understand it, the Obama administration’s new transgender policy ironically insists on maintaining what many maintain is the old-fashioned binary view of sex (or gender) as male or female. Thus, one is one or the other, or transitioning from one to the other. But what about the “B,” bisexuals, in LGBTQ, not to mention the more amorphous “Q,” Queer? Can they be restricted to bathrooms and locker rooms that correspond to the sex “assigned” to them at birth? Are they free to choose as the spirit moves them?

Once “sex” no longer means sex, the possibilities of what groups are protected by Title IX and Title VII become almost endless, as revealed by one of Wesleyan University’s “themed” housing options for LGBTTQQFAGPBDSM students. “Open House is a safe space for Lesbian, Gay, Bisexual, Transgender, Transsexual, Queer, Questioning, Flexual, Asexual, Genderfuck, Polyamorous, Bondage/Discipline, Dominance/Submission, Sadism/Masochism (LGBTTQQFAGPBDSSM) communities and for people of sexually or gender dissident communities.”

Don’t Forget NGTs or NGBs

Speaking of safe spaces, the new transgender policy does not fit well at all with the pervasive panic over campus sexual assault. As Yale law professor Jeannie Suk wrote in “The Transgender Bathroom Debate and the Looming Title IX Crisis,” her recent New Yorker article, “having, in the past several years, directed the public toward heightened anxiety about campus sexual assault, the federal government now says that to carry that discomfort into bathrooms is illegitimate because it is discrimination.” A non-transgender girl (must we now speak of NTGs and NTBs?) who’s told she must share a bathroom with boys, Suk notes, would have a Title IX complaint. “But would she not have a similar claim about having to share with students who identify as girls but are biologically male? Well, not if her discomfort and ‘emotional strain’ should be disregarded.” And, as Ed Whelan writes on National Review Online’s Bench Memos, “The Obama administration fails to offer any coherent reason why her discomfort in the latter situation should be disregarded.”

TERF Wars

If OCR had bothered to gather public comment it would have learned of a vocal minority of influential feminists who believe, as former National Organization of Women leader Kathleen Stone wrote recently in opposition to a pending transgender bill in Delaware, that “the gender identity movement that is sweeping the country is bringing with it a multitude of problems for women and girls.” One “is the loss of safe sex-segregated spaces such as public bathrooms, changing rooms and even domestic violence shelters.” Another is the “much more significant problem for women is that it becomes impossible to name biological sex as the source of women’s oppression, subjugation and inequality in a patriarchal world.”

Stone is far from alone. Michelle Goldberg had a fascinating article in the New Yorker two years ago, “What is a Woman? The Dispute Between Radical Feminism and Transgenderism,” describing the bitter feminist civil war between today’s dominant transgender orthodoxy and usually older radical feminists “TERFs” (trans-exclusionary radical feminists), 37 of whom, “including major figures from the second wave, such as Ti-Grace Atkinson, Kathie Sarachild, and Michele Wallace,” recently issued a statement titled “Forbidden Discourse: The Silencing of Feminist Criticism of ‘Gender,’” describing “their ‘alarm’ at ‘threats and attacks, some of them physical, on individuals and organizations daring to challenge the currently fashionable concept of gender.’”

Some of those attacks, for example, have been aimed at women associated with the Michigan Womyn’s Music Festival, which since 1976 through 2015 met on 650 wooded acres near Lake Michigan and described itself as “an event for ‘womyn born womyn’ only.” Lisa Vogel, the founder and director, accused the meeting’s feminist critics of “targeting Michfet with McCarthy-era blacklist tactics.” Michfest succumbed to the attacks and closed after its 2015 gathering.

Also suffering feminist and transgender attacks is Sheila Jeffreys, whose work critical of the transgender movement (such as Gender Hurts: A Feminist Analysis of the Politics of Transgenderism) was summarized in Goldberg’s New Yorker article, recently resigned after 24 years as a political science professor at the University because “safety concerns” compelled her “to take her name off her office door.”

Radical Feminists Split

TERFs, although they remain radical feminists, are increasingly unwelcome on college campuses. “The most dramatic change in the perception of transgenderism can be seen in academia,” Goldberg wrote. “Particularly at liberal-arts colleges, students are now routinely asked which gender pronoun they would prefer to be addressed by: choices might include ‘ze,’ ‘ou,’ ‘hir,’ ‘they, or even it.’” One younger TERF told Goldberg that she “would get called out” if she were to say in a typical women’s studies class today, “Female people are oppressed in the basis of reproduction.” Some students would respond, she said, “What about women who are male?”

Judith Butler, perhaps the most prominent American feminist academic, has said that she sees “no problem with women having a penis, and men having a vagina.” Perhaps taking its cue from Butler, the New York Abortion Access Fund recently stopped using the word “women” in its mission statement, because “[w]e recognize that people who identify as men can become pregnant and seek abortions.” This may well be the new orthodoxy on campus and in the progressive precincts of the Obama administration, but it is not widely shared elsewhere.

Far from being settled — in law, common understanding, or even in progressive opinion — the relationship between sex and gender and the rights that are associated with them remain hotly contested terrain, and the attempt of government bureaucrats, isolating themselves from public comment, to pronounce them settled should not be tolerated by Congress or the courts.

Disingenuousness or Duplicity

No discussion of the evolution of anti-discrimination law in the Obama era and before can be complete without trying to sort out opinions reasonably changed over time, disingenuousness, and outright duplicity. Most Minding The Campus readers are familiar with the sad story of American liberalism’s abandonment of its more than century old commitment to colorblind racial equality in favor of race-based preferential treatment as soon as the ink had dried on the embodiment of the “without regard” colorblind principle in the 1964 Civil Rights Act. But that was only the beginning.

Take Chai Feldblum (Please!), the EEOC commissioner discussed above who had previously announced her desire “to revolutionize societal norms” regarding sex and gender. In her recent letter to the New York Times, also discussed above, arguing contra Yale law professor Peter Schuck that protecting transgenders from sexual stereotypes involved no “novel interpretations of the law,” Feldblum insisted that these rulings “are common-sense applications of a federal anti-discrimination law that prohibits employers from taking sex into account.”

Feldblum would have you believe that all she and the EEOC require is that employers be sex-blind, just as they are required to be race blind. But wait a minute! Everyone knows that this EEOC, this administration, and indeed the whole progressive “community” detests race blindness with a passion, regarding it as simply the continuation of racism. Indeed, one of the reasons ENDA failed repeatedly is that the protests of its advocates that preferential treatment was not being sought fell on ears deafened to that argument by the rapid transition from equal treatment to affirmative action.

At one point, as I discussed here (“Does Sexual Equality Require Special Treatment?”) several years ago, ENDA advocates tried to combat this fear by inserting a provision that purported to prohibit “preferential treatment to any individual or to any group because of the actual or perceived sexual orientation or gender identity of such individual or group on account of an imbalance,” i.e., their underrepresentation. But that provision, I noted, did not bar preferences for other reasons, such as to promote “diversity” or compensate for past discrimination. And even if ENDA had passed and this provision really did succeed in prohibiting preferential treatment, wouldn’t that mean that sexual orientation and gender identity lack the “protection” awarded to race and ethnicity? Do ENDA supporters, Feldblum, the EEOC, and OCR really believe in such a double standard of civil rights?

Feminism from the ERA to the Death of Privacy

But the mother (if you’ll pardon the gender-biased expression) of all liberal contradictions must be the glaring conflict between the feminist argument in favor the the Equal Rights Amendment and today’s predicted but still improbable struggle progressives have launched over bathroom access. Looking back in 1981 at the failure of the failure of the ERA, Betty Friedan wrote in a letter to the New York Times that it “bogged down in hysterical claims that the amendment would eliminate privacy in bathrooms” and “encourage homosexual marriage.” The Washington Post’s Judy Mann, writing the next year, attributed Virginia’s failure to ratify the ERA to opponents who “trotted out the old canards about homosexual marriages and unisex restrooms.” Even though the ERA did not pass, those “canards” don’t look so canard-like today.

It is clear that the bathroom issue was a — perhaps the — leading nail in the coffin of the ERA. In WHY WE LOST THE ERA (1986), which remains in many ways one of the best analyses of ERA’s defeat, Jane Mansbridge argued that “[t]he unisex toilet issue fed the fervor of the anti-ERA forces by giving them something absolutely outrageous to focus on.” Mansbridge, perhaps with what now looks like irony, notes that proponents of the ERA found that argument so outrageous they often brought it up themselves, using “unisex toilets over and over to imply all other arguments against the ERA were equally exaggerated.”

ERA proponents were able to dismiss what was dubbed “the potty issue” as an outrageous canard because dominant academic, legal, and media opinion was virtually unanimous in proclaiming that the right of privacy would prevent opening the bathroom door to members of the opposite sex. Typical was an influential 1971 Yale Law Journal article by four Yale professors, led by Thomas Emerson, the iconic liberal civil libertarian, who declared that “the right of privacy would permit the separation of the sexes in public rest rooms” and other settings where disrobing occurs. Philip Kurland of the University of Chicago acknowledged in a 1970 Senate hearing that if the ERA invalidated all classifications by sex separate restrooms would be nullified, but he added that, although ERA’s language was absolute, “I would have to submit that the judiciary does not conclude that because the language of legislation is a clear mandate that they are not free to indulge in other devices for its construction.” (Quoted by Mansbridge, WHY WE LOST…, p. 283.) Indeed.

Ruth Bader Ginsburg, then a prominent Columbia law professor and ACLU lawyer, made the same point in a 1975 Washington Post OpEd. ”Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required,” the future Supreme Court justice wrote, “by regard for individual privacy.“

The regard for privacy, or rather the lack of such regard, by progressives has come a long way since the now quaint-sounding arguments for the ERA. The term “privacy” does appear a dozen times in the DOJ/DOE/OCR “Dear Colleague” transgender policy letter, but with only one exception all refer to “protecting transgender students’ privacy” because doing so “is critical to ensuring they are treated consistent with their gender identity.” For example, the letter warned, “[t]he Departments may find a Title IX violation when a school [fails] to take reasonable steps to protect students’ privacy related to their transgender status, including their birth name or sex assigned at birth.” With regard to any privacy concerns others students may have, the letter specifically states that transgender students may not be denied access to facilities or programs because of “others’ discomfort with transgender students.”

Many may regard it as ironic, but given the policy preferences embodied in the “Dear Colleague” letter it is not surprising that the first claim to a privacy right violation to reach the courts after North Carolina’s H.B. 2 became law was filed by transgender plaintiffs in the Lambda lawsuit mentioned above. They claim, among other things, that “[t]here is a fundamental right of privacy in preventing the release of, and in deciding in what circumstances to release … information of a highly personal and intimate nature” and that “H.B. 2 requires the disclosure of highly personal information regarding transgender people to each person who sees them using a restroom or other facility inconsistent with their gender identity or gender expression.”

Two of the plaintiffs are transgender men — one an employee of the University of North Carolina at Chapel Hill and the other a student at the University of North Carolina at Greensboro — who claim that forcing them to use the women’s restroom would “cause substantial harm to [their] mental health and well-being” and “cause [them] to experience significant anxiety as [they know] that it would be distressing for [them] and uncomfortable for others.”

What Ruth Bader Ginsburg Said

Representing the concern of those “others,” the Gloucester County, Virginia, school board another wants the Supreme Court to defend another, more traditional view of privacy. In its request for a stay of the Fourth Circuit’s decision in Grimm while it prepares an appeal to the Supreme Court, the school board argues that “[r]eplacing the term ‘sex’ in Title IX with the term ‘gender identity’ … [n]ot only is … contrary to the historical norms of civilization, it is contrary to the intent of Title IX and well-established law recognizing the dignity and freedom of bodily privacy.” The guidance “issued by OCR, DOE, and DOJ” does not, the school board asserts, “consider the bodily privacy rights of students.”

The courts will have to decide whether to defer to OCR’s claim of legal authority for its privileging the privacy rights of transgender students and staff, who want to avoid the anxiety, stress and possible threat involved with being required to use facilities that correspond with their sex but not their gender identity, over the privacy rights of of the non-transgendered, who feel uncomfortable and threatened by the presence of those of the opposite sex in their bathrooms and locker rooms.

For the courts to uphold the legality of the OCR/DOE/DOJ guidance, they would have to conclude that the privacy arguments of Thomas Emerson, Ruth Bader Ginsburg, and other ERA advocates were wrong, or at least no longer right. They could do so, however, by acting in the manner Ruth Bader Ginsburg also endorsed in another of her pro-ERA arguments, a 1979 lecture at Washington University: “Boldly dynamic interpretation, departing radically from the original understanding,” she insisted, “is required to tie to the fourteenth amendment’s equal protection clause a command that government treat men and women as individuals equal in rights, responsibilities, and opportunities.”

ERA failed to pass, but over the years courts (with Justice Ginsburg’s help)  have proved they are more than equal to the task. Moreover, the Obama administration’s zealous progressives in the EEOC and OCR are nothing if not boldly dynamic interpreters, eager to depart radically from original understanding or clear legal text whenever and wherever necessary, as EEOC Commissioner Chai Feldblum put it in defending EEOC’s creation of new transgender rights, to “revolutionize societal norms.”

Read Part One, “Transgender and the Transformation of Civil Rights”

The Remarkably Feeble Fisher Opinion

After the death of Justice Scalia, most people who have been following the protracted Fisher v. University of Texas case (myself included) expected that the Court would let the university’s racial preference system stand. It did that in a 4-3 decision released on June 23.

Justice Kennedy wrote the majority opinion, joined by Justices Ginsburg, Breyer, and Sotomayor. (Justice Kagan had recused herself.) So even if Justice Scalia had still been alive, the Court would have upheld the Fifth Circuit’s ruling that the racial preferences the university uses to achieve “diversity” are constitutionally acceptable.

Writing for Competitive Enterprise Institute, lawyer Hans Bader skewers the decision, which approves a governmental policy that “discriminates against white and Asian applicants” and “gullibly deferred to a university’s pretexts for using race….”

I want to focus on those pretexts.

Bear in mind that the Court has in the past held that if a governmental institution is going to use racial categories, it must show a “compelling interest” in doing so and that there are no racially neutral ways of accomplishing it. Also, courts are expected to look at such plans and purported justifications with “strict scrutiny.”

In Fisher, the University of Texas claimed that it needed to use racial preferences in order to:

Bring about the destruction of stereotypes.

Promote cross-racial understanding.

Prepare a student body for an increasingly diverse workforce and society.

Cultivate a set of leaders with legitimacy in the eyes of the citizenry.

Lamentably, rather than carefully analyzing those reasons, the majority justices were content with, in Bader’s words, “blind deference masquerading as strict scrutiny.”

Let’s examine those four justifications one by one.

Supposedly, UT needs to discriminate against whites and Asians and in favor of students who are regarded as “representing” an underrepresented group because otherwise considerable numbers of its students would go through college with the racial stereotypes they harbor intact.

We are supposed to believe, therefore, that the state’s flagship university, with its high admission standards, nevertheless has found that quite a few students harbor racial stereotypes. These are very intelligent young people who have grown up in the wired world, in a country with a black president and great numbers of conspicuously successful people from all races and ethnic groups, and have in their schooling heard teachers sing the praises of tolerance and multiculturalism – and yet many hold to racial stereotypes!

I would love to know exactly what those students believe about all our various racial and ethnic groups. Presumably the university does, because it feels the need to combat their stereotypes.

I would also like to see the university’s evidence that students drop all their bad stereotypes as a result of being on a “diverse” campus – or to be more precise, a campus made marginally more diverse due to the policy of favoring students from certain groups. (After all, quite a few minority students are accepted without preferences.) Certainly the university has carefully studied how the attitudes of its students change over their years and has proof that stereotypes are overcome.

Actually, I doubt it. This is merely a pretext.

Second, the university claims that its increased diversity enhances “cross-racial understanding.” That makes it sound as if UT officials believe that there are distinctive thoughts and beliefs for the different racial groups they recognize – that students in each of those groups just aren’t able to “understand” students from the others unless the school is allowed to admit some additional black and Hispanic students under its policy.

That just isn’t credible. Nearly all of the students admitted to UT are American teenagers who have grown up in our culture. They mostly like the same things, no matter what their racial background. Now, it’s true that there are disagreements among individuals, but they have nothing to do with racial misunderstandings. Two white students might disagree vehemently over abortion; two black students might disagree vehemently over immigration policy; two Asian students might disagree vehemently over “affirmative action.”

And if this is anything other than an excuse concocted to defend the policy, Texas must have proof that by the time students graduate, they have substantially less “racial misunderstanding.” Such proof, however, has never been adduced.

What about the supposed need for a workforce that’s prepared for a diverse society?

To take this justification seriously, you’d have to believe that whether or not the nation’s workforce can adapt to “diversity” depends on letting UT (and other universities) discriminate in favor of a few minority students while turning away an equal number of whites and Asians.

Even if you think “diversity” improves the ability of students at a school to learn how to deal with people from other groups, all that racial preferences do is to move a few more minority students to one campus, which means fewer of them at other campuses. There is no net gain in college “diversity” when UT-Austin accepts a few more black and Hispanic students, who would otherwise have enrolled at other schools.

But there is no reason to believe that the marginal increase in diversity at any campus is essential to preparing students for a “diverse world.” Intelligent people have always figured out how to deal with people who are different, with or without the “optical diversity” (a phrase used by Professor Sheryll Cashin, who argues in favor of dropping racial preferences in favor of socio-economic preferences for students from poorer families) they’re treated to at a few prestige universities like UT.

If you doubt that, consider the Japanese. Their universities are notable for their lack of diversity and yet the Japanese are famous for their world-wide success in dealing with people who are different.

Lastly, it is true that UT needs racial preferences so that its graduates can become leaders viewed as “legitimate” by the citizens of the state?

To believe that, you’d have to think that many Texans wouldn’t regard their elected officials as “legitimate” if they hadn’t graduated from a university where the student body had been chosen to ensure “enough” blacks and Hispanic students and not “too many” white and Asian students.

That also strains credulity. People have many reasons for favoring or disfavoring candidates, but nobody decides that a candidate is not “legitimate” unless he or she has graduated from a college with a properly diverse student body.

And if that were true, where is the evidence that Texan leaders who did not graduate from schools using racial preferences have a “legitimacy” problem?

Suppose that Fisher didn’t involve a university using racial preferences in its admissions, but instead a corporation using them in its hiring. Can you imagine the reaction of judges if the company tried to justify a discriminatory hiring policy by saying, “We believe that our customers would lose confidence in our products if they thought our workforce had too many minorities”?

That argument would be laughed out of court.

But racial discrimination for “diversity” is judged by different standards. It’s one of those preoccupations of academic liberals and liberal justices won’t deprive them of it. We will have to look to voters, legislators and university trustees to do that.

Transgender and the Transformation of Civil Rights

Although it seems as though the transgender tsunami has been howling forever, in fact it hit the shore of national fixation only four months ago, in March, when the North Carolina legislature passed, and Gov. Pat McCrory signed, House Bill 2, which restricted access to the state’s public sex-segregated restrooms by, well, sex, as defined by one’s birth certificate or evidence of sex reassignment surgery. (For those interested in bringing their vocabulary up to required code, SLATE helpfully points out that “[t]he increasingly preferred term is gender confirmation surgery.”)

A firestorm of controversy soon followed, and has shown no signs of abating. Four days after H.B.2 became law Lambda Legal, the ACLU, and Equality North Carolina filed a lawsuit against Governor McCrory, Attorney General Roy Cooper, and the University of North Carolina on behalf of a UNC-Chapel Hill staff member, a UNC-Greesboro student, and a North Carolina Central University law professor.

Shortly thereafter, the Dept. of Justice sent letters to Gov. McCrory and the University of North Carolina claiming that H.B.2 violated Title VII and Title IX of federal civil rights laws. A few days later, on May 13, the Departments of Justice and Education announced a “significant guidance” in the form of a “Dear Colleague” letter sent to all school districts in the country that dropped an administrative nuclear bomb — declaring, among other things, that “The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.”

Making that argument crystal clear, in announcing the federal lawsuit against North Carolina, Vanita Gupta, head of the Justice Department’s Civil Rights Division, declared: “Here are the facts.  Transgender men are men — they live, work and study as men.  Transgender women are women — they live, work and study as women.” Thus the federal government has declared it “facts” that transgender men and women do not simply live and work as, and identify with, the opposite sex; they “are” the opposite sex.

No longer limited to bathrooms, the new edict also covers athletic activities, locker rooms, dormitories from K-12 through universities. Next came the dueling lawsuits, with the United States (here) and North Carolina (here) filing complaints against each other. In addition to North Carolina, eleven states have filed a lawsuit claiming that the Obama administration’s position “has no basis in law.” Finally (at the moment), the Alliance Defending Freedom has filed a complaint defending H.B. 2 on behalf of North Carolinians for Privacy, an organization that includes both university and K-12 students.

Legal Issues

The Departments of Justice and Education of course must ensure that the nation’s schools and colleges comply with applicable anti-discrimination laws, but Yale law professor emeritus Peter Schuck calls their interpretation “novel” in a New York Times OpEd. Harvard law professor Jeannie Suk agrees, noting in a recent New Yorker article, the Obama administration’s interpretation of those laws is “new and surprising.”

Those of us who are not Ivy League law professors need not be so circumspect. The transgender ukases from Obama apparatchiks are breathtaking in their reach and scope — both in their attempt to promote a radical transformation of our society’s understanding of sex itself, and hence of our understanding of the nature of sex discrimination, as well as in their ignoring or rewriting inconvenient statutory law that is extreme even by the standards of this administration, which has time and again run roughshod over traditional separation of powers barriers.

As Gail Heriot, University of San Diego law professor and member of the U.S. Commission on Civil Rights, demonstrated in her May 16 testimony before the House Judiciary Committee, “It would be an understatement to say that the Transgender Guidance goes beyond what Title IX, which was passed in 1972, actually requires. If someone had said in 1972 that one day Title IX would be interpreted to force schools to allow anatomically intact boys who psychologically ‘identify’ as girls to use the girls’ locker room, he would have been greeted with hoots of laughter. OCR [the Dept. of Education’s Office of Civil Rights] is simply engaged in legislating.”

Heriot’s testimony was so coolly professional and compelling that it caused Rep. Zoe Lofgren (D, Ca) to throw what people of a certain age will recognize as a hissy fit, interrupting Heriot’s testimony and sputtering “I think you’re a bigot, lady, I think you’re an ignorant bigot.”

The problem, from the Obama administration’s point of view, is that Title IX prohibits discrimination “on the basis of sex,” but it also explicitly states that “recipients [of federal funds] may provide separate toilet, locker room, and shower facilities on the basis of sex.” Nowhere in Title IX or its implementing regulations are transgender, sexual orientation, gender, or gender identity mentioned. In fact, the problem for Obama’s social transformers is even more daunting, for not only are those terms not included in the civil rights statutes but they have been proposed year after year and Congress has specifically refused to include them.

The Employment Non-Discrimination Act (ENDA) was first introduced in 1994. Significantly, for well over a decade the versions that were introduced in each Congress, controlled at various times by both parties, added only sexual orientation to the list of categories protected from employment discrimination. Gender expression and even gender identity were purposefully excluded. Even so, it never passed.

After an increasing outcry from the transgender lobby those terms were finally added, but with a notable qualification. “Nothing in this Act,” declared Section 8(a)(3) of the proposed Employment Non-Discrimination Act of 2011, “shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable.” Section 8(a)(4) added that “Nothing in this Act shall be construed to require the construction of new or additional facilities.” The LGBT community,” a progressive publication mourned, “has ceded the ground on social conservatives’ and the religious right’s arguments of ‘men in dresses’ using women’s public restrooms.”

But not for long: By 2013 that qualification had been removed, but to no effect since ENDA has still never become law, leaving even sexual orientation unprotected by federal employment statute. And the blame (or credit) does not belong exclusively to social conservatives and the religious right, since protections for gender identity and expression are also resisted by Democrats. In 2014, The Advocate observed, even New York could not pass legislation protecting gender identity. In 2002 it passed a statewide bill protecting only sexual orientation, and “every year since 2003” legislation to protect gender identity and expression has failed.

So, since Title IX prohibits discrimination based only on sex, and Congress has repeatedly and pointedly refused to add even sexual orientation, much less gender identity and gender expression, to the categories protected from employment discrimination, how does the Department of Education justify its authority to require all schools and colleges to treat gender identity as sex? The short answer: poorly; the longer answer: the “pen and phone” overreach of ignoring law or making it up that we’ve come to expect from the Obama administration.

The new gender identity “guidance” the administration is attempting to impose on K-12 and higher education is based on the conclusion — arrived at, as Professors Suk and Schuck (both linked above) and the 11 state lawsuit have pointed out, without benefit of hearings or comment from the public as required by the Administrative Procedure Act— is that sex means gender and gender means gender identity.

Insofar as this extravagant and even revolutionary policy has any legal justification at all, it relies on an embellishment and extension of the analysis in a 1989 Supreme Court case, Price Waterhouse v. Hopkins. Ann Hopkins was denied a partnership because some partners found her personality and style aggressive and un-feminine. In order to improve her chances for partnership, she was told, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Noting that “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes,” the Court held “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”

It is one thing to say that sex stereotyping can lead to sex discrimination when women are penalized for behavior that is rewarded in men. But it is quite a reach to claim that gender, divorced altogether from biology, is sex, that gender is determined entirely by subjective feelings, and hence that anatomical men who “identify” as women must be allowed to use women’s bathrooms and locker rooms and play on women’s athletic teams. No chasm, however, is too wide for progressive regulators to leap in their relentless pursuit of social transformation.

Even Obama may be ambivalent about the bathroom policy his minions are seeking to impose. On a PBS Town Hall a few weeks ago he sounded a bit dodgy, explaining that “Somehow people think I made it an issue. I didn’t make it an issue. “I just want to emphasize to you,” he added, “it is not like I woke up one day and said, ‘Man, what we really need to do is start working on high school bathrooms.’”

He did not have to say it, because he had staffed his administration with individuals whom he knew were determined to transform society’s sexual attitudes and practices. Take former Georgetown law professor Chai Feldblum (please!), whom Obama appointed to the EEOC in 2009 and who has described herself as “part of an inner group of public-intellectual movement leaders committed to advancing LGBT [lesbian, gay, bisexual, transsexual] equality in this country.” As I noted here shortly after her appointment, Feldblum had acknowledged that she wants “to revolutionize societal norms” regarding sex and gender. In order to gain approval, however, she did distance herself from some of her earlier positions, such as calling for the legal recognition of “committed, loving households in which there is more than one conjugal partner” and “queer couples who decide to jointly create and raise a child with another queer person or couple, in two households.”

With Feldblum on board, the Obama-staffed EEOC quickly set off down the path that would lead to sex being determined by subjective gender identity. In a 2010 case it acknowledged that although “Title VII’s prohibition of discrimination does not include sexual preference or orientation as a basis,” but, citing Hopkins v. Price Waterhouse, it nevertheless held that “Title VII does, however, prohibit sex stereotyping discrimination.” The complainant, a male (perhaps I should say a non-transgender male, since he was a male who “identified” as a male) “essentially argued,” according to the EEOC’s ruling, that a harassing co-worker “was motivated by the sexual stereotype that marrying a woman is an essential part of being a man, and became enraged when complainant did not adhere to this stereotype by announcing his marriage to a man in the society pages of the local newspaper.”

Similarly, in a 2011 case, the EEOC held that an ironworker could collect damages for harassment because his “supervisor harassed him because he thought he was feminine and did not conform to the supervisor’s gender stereotypes of a typical ‘rough ironworker.’”

In a 2012 case, also citing Hopkins v. Price Waterhouse, the EEOC extended its sex stereotyping rulings to transgender, finding “that the Complainant’s complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII.”

The problem the Obamanauts faced here is that, simply as a matter of fact, one’s “sexual orientation” is not the same as one’s “sex,” and the law the EEOC was obligated to enforced did not prohibit — and Congress has repeatedly refused to amend it to prohibit — discrimination based on sexual orientation. Faced with an inability to rely on either the facts or the law, the EEOC simply declared that discrimination based on sexual stereotypes was really discrimination based on sex, and hence illegal, an assertion Roger Clegg convincingly demolished several years ago in testimony before the U.S. Commission on Civil Rights. “I would be curious to know,” Clegg asked, “if the administration officials could describe the situations in which they would not view discrimination on the basis of sexual orientation as also discrimination on the basis of sexual stereotypes that is, they think, therefore illegal.”

The concept of sexual stereotypes, in short, simply cannot serve to bring transgender issues under the protection of the prohibition of discrimination based on sex. To see why, consider if Ann Hopkins, the Price Waterhouse plaintiff, had instead been Al Hopkins, a transgender male turned down for promotion because of inappropriately dressing and acting like a man. The Obama administration argument is that this rejection of the hypothetical Mr. Hopkins is a form of sex discrimination, but exactly what or where are the “sex” and the “sexual stereotype”?

How could Hypothetical Hopkins have been discriminated against as a man acting like a man? Presumably the claim would be that he was not treated the same as other similarly situated men because he was still regarded, falsely, as a woman and thus violating the “stereotype” that women cannot be men. But that view is a “stereotype” only insofar as it is true that “gender identity” itself, absent surgical or pharmacological intervention, can displace “sex.” By what authority are the Obamanauts in the Departments of Justice, Education, and Labor authorized to make that determination?

The only alternative would be to claim that the hypothetical Mr. Hopkins was in fact still a woman, and thus, like the actual Ann Hopkins, a victim of discrimination for not acting the way women are supposed to act. But that argument became unavailable once the government issued its fiat that for the purpose of anti-discrimination law one’s “gender identity” is one’s “sex.”

The EEOC’s solution to confronting this conceptual muddle and obstinate law was classic, typical Obama: “construe” the law so that it conformed to their own agenda, and then proceed to claim, quoting their prior transgressions, that their preferred policies are settled law.

Thus we have a letter in the New York Times a few weeks ago by — who else? — EEOC Commissioner Chai Feldblum responding to Peter Schuck’s criticism of “the administration’s novel reading of the law” in its bathroom guidance. Her argument? Nothing novel here: “for the last four years, the Equal Employment Opportunity Commission has processed hundreds of complaints from transgender employees and applicants based on the commission’s legal ruling in 2012 that sex discrimination law prohibits discrimination against transgender people.” This amounts to adverse possession (if you trespass long enough, it’s not trespass) coming to civil rights law: if a regulatory agency unilaterally asserts some radical new reading of the law long enough, it becomes law.

Equally revealing, and even more extreme, is OCR Director Catherine Lhamon’s explanation of why the new transgender bathroom edict required no prior notice and public comment. It is not new law but merely states her agency’s interpretation of existing law. As The College Fix pointed out, “Lhamon’s explanation seems to be that Title IX’s original formulation in 1975 went through notice-and-comment, so any further OCR interpretation” — no matter how “novel” (Schuck), “new and surprising” (Suk), or just plain far-fetched — “needs no follow up opportunity for colleges and the public to weigh in” … and, courts must defer to the agency’s interpretation.

But if the administration’s view that discrimination on the basis of sexual orientation and even gender identity had been prohibited since the initial passage of Title IX, or at least ever since Hopkins included sexual stereotypes, then there was never any need for ENDA, and the years struggling to enact it were a waste of time.

Obama’s Justice Dept., EEOC, and Dept. of Education (via its Office of Civil Rights), has in fact been issuing actual or de-facto rulings that are not authorized by the law they are supposed to enforce. So far Congress has done nothing to stop them, but the trouble with revolutionaries is that their reach often exceeds their grasp, causing the pendulum of popular and even legal opinion to swing back directly at them. In her Congressional testimony, quoted above, Gail Heriot demonstrates that there are some limits, known generally as the non-delegation doctrine, whose revival she urges. Her fundamental complaint is that the recent bathroom edict is simply the latest example of a disturbing trend: “OCR routinely issues guidance that that are untethered to any plausible violation of Title VI or Title IX or to any rule lawfully promulgated pursuant to those statutes,” a charge that she supports with chapter and verse examples and with recommendations about what can be done to reign in the out of control agencies.

A Grimm Fairy Tale?

And it’s not just Congress that may be forced by the administration’s bathroom bullying to reconsider the extreme deference provided to regulatory agencies’ interpretations of their own powers. Writing on the National Constitution Center’s Constitutional Daily blog, respected Supreme Court analyst Lyle Deniston argues that a transgender case the Gloucester County, Virginia, school board is appealing to the Supreme Court could provide a strong challenge to the deference (known as Auer deference) courts have traditionally given to regulatory agencies.

A three-judge panel of the Fourth Circuit Court of Appeals recently ruled 2-1 that a transgender student, Gavin Grimm, who was born a female but identifies as a male, can sue his school board to gain access to the boys’ bathroom. In its statement of intent to file a Supreme Court appeal the school board charges that DOE and DOJ have sought to do “what Congress has not done — replace the term ‘sex’ with ‘gender identity’ in order to support an outcome unilaterally desired by the Executive Branch. This raises substantial questions concerning both federalism and the separation of powers” as well as “the individual’s right to bodily privacy.”

If the Dept. of Education had paused to listen to public comment, it would no doubt have been asked to explain how its new theory of what Title IX requires can co-exist with Title IX’s clear and undisputed text allowing schools and colleges to maintain “separate toilet, locker room, and shower facilities on the basis of sex.” The “Dear Colleague” letter from the Departments of Justice and Education to the nation’s schools and colleges states that “A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity.”

Here is the square peg / round hole problem entailed by treating gender as sex: Can that school prohibit a transgender student from using facilities that correspond to his or her sex at birth? Does OCR, in short, believe that Grimm, whose biological sex was and still is female, can legally be excluded from the girls’ bathrooms?

If so, that means that “gender identity” always trumps biological sex, with the result that in its zeal to create new transgender rights OCR has in effect obliterated sex as a meaningful category, making the recognition of sex-segregated facilities of any kind non-sensical. If not, that would mean that transgender students are afforded special rights: they could choose which bathroom to attend, while non-transgender students would be limited to the one that corresponds to their sex.

There is another, even more troubling aspect to what the Grimm story reveals about intrusive government overreach. It is the government’s position that even very young students are entitled to determine their own “gender identity,” sometimes even without the involvement of their parents. Thus Examples of Policies and Emerging Practices for Supporting Transgender Students the Dept. of Education recently distributed endorsed the policy of the District of Columbia Public Schools “noting that ‘students may choose to have their parents participate in the transition process, but parental participation is not required.’” That document also endorses a similar policy in Massachusetts that notes “Some transgender and gender nonconforming students are not openly so at home for reasons such as safety concerns or lack of acceptance. School personnel should speak with the student first before discussing a student’s gender nonconformity or transgender status with the student’s parent or guardian.”

As noted in the Fourth Circuit opinion, Gavin Grimm is now a sixteen-year old high school junior. Mrs. Grimm first presented the school board with their demands in August 2014, when Gavin was 15. Thus the Obama administration is arguing that even young — sometimes very young — students can determine their own “gender identity,” and hence “sex” for Title IX purposes, even though they have not even reached — some by many years — the age of consent to have sex anywhere in the United States. (The age of consent ranges from 16 to 18 across the country; in Virginia it is 18.)

(Tomorrow: transgenderism’s impact on school sports, dorms and feminism.)

 

Brexit Shows Ugly Side of British Universities

Censorious antics of ‘snowflake’ students have regularly made front-page news here in the UK. No longer. The momentous political fall-out from the June 23rd referendum, when a majority of citizens voted in favor of Britain leaving the European Union, has swept all other concerns aside. Whatever occurs in the coming months, whether ‘Brexit’ actually happens, or, as looks increasingly likely, the democratic will of the people is kicked into the long grass, the response to the referendum from within universities has had a devastating impact on academic freedom.

A Predetermined Position

My first indication that the debate around Brexit might be used to curtail free speech on campus came, ironically, after I gave a lecture on academic freedom. When I had finished speaking, the vice chancellor of the university thanked me but then went on talk about the institution’s perspective on the referendum. It surprised me that, despite making a rhetorical nod to the importance of debate, the most senior person in the university was prepared to advocate so forcefully for one particular political position. A week later, over coffee, a colleague confided that although he wanted to argue the case for Brexit publicly, he was concerned that this might have a negative impact upon his career.

It would be difficult to imagine universities, in the run up to a general election, publicly articulating a preference for one party over another, or urging staff and students to vote a certain way. But this is what happened in the run up to the referendum. Universities UK (UUK), an umbrella group representing the collective interests of the British higher education sector, launched its Universities for Europe campaign in July 2015. Its aim was to demonstrate how ‘the EU strengthens our already world-class higher-education system’ and to ‘promote powerful evidence and highlight compelling stories about the benefits of European Union membership’.

If an undergraduate sought ‘powerful evidence’ to prove an already determined political position they would, rightly, be criticized. An academic would be accused of blurring the lines between research and propaganda. Yet UUK expected scholarship to support a clearly defined agenda rather than simply contribute objective knowledge to a marketplace of ideas. If academic freedom is not formally curtailed, it certainly becomes more difficult to practice when intellectual contributions are not seen as competing claims of truth but as moral position statements.

Academics Fall in Line

When scholars first fought for the right to academic freedom it was precisely so that they could teach and argue for ideas that ran counter to the beliefs of university managers and benefactors. Today, the expectation that academics will fall in line with an institutional perspective on EU membership has passed virtually without comment. It has gone unchallenged because the overwhelming majority of academics share the opinion they were asked to support.

In the weeks prior to the referendum, a poll conducted by a British magazine, the Times Higher Education, suggested that 90 per cent of academics intended to vote to remain in the EU. As the referendum approached, a number of these scholars took to social media to declare ‘I don’t know anyone who is voting leave.’ Such statements were intended to summon up the collective might of academia, the assumption being that if all these clever people are voting remain then that must be the only reasonable course of action. Obviously, with hindsight, these bold declarations only emphasize how cut off some academics are from the general population.

The result of the referendum, a 52 per cent vote in favour of leaving the EU, reveals at a stroke the gulf between the political views of an academic class and the views held by the general population. This chasm, together with academia’s growing ideological homogeneity, is bad for both academic freedom and the pursuit of knowledge. When one view dominates over all others then the voices challenging dominant perspectives and asking awkward questions of research data are silenced. Truth does not emerge from consensus, even if all members of the consensus have doctorates, rather it emerges from putting theories to the test and rigorous testing requires a plurality of perspectives.

Homogeneity Suppresses Knowledge

 The shock that many academics expressed upon hearing the referendum result provides a neat illustration of how political homogeneity acts to suppress knowledge. If British universities had acted less like an ideological bubble, then scholars may have been less surprised at the outcome and more aware of the factors influencing the leave vote.

Since the referendum result has been announced, rather than expressing humility at their ignorance of public attitudes, many academics have instead further pulled up the university ramparts. One professor has called the vote to leave a triumph of ‘xenophobia, fear, ignorance and nostalgia.’ Everywhere leave voters were charged with racism, xenophobia and ignorance. Yet this is despite the fact that polling conducted on the day showed the primary motivation for people deciding to vote leave was ‘the principle that decisions about the UK should be taken in the UK.’ Another highly respected survey, conducted a year before the referendum, showed that ‘the poorest and least educated were less likely than anyone else to think Brexit would reduce immigration.’

The sentiment some academics have expressed against leave voters has been ugly, unfounded and prejudiced. This was not just directed at voters from outside of universities but at the tiny minority of academics brave enough to declare publicly that they voted leave. One lecturer tells me she was yelled at in a corridor, another that colleagues have stopped speaking to him altogether. The danger now is that the 90 percent political consensus is turned into 100 percent ideological homogeneity as academics with opposing views are told that they are not welcome in academia.

How to Overcome the Referendum

Since the referendum, academics have been busy. Some, such as Professor A C Grayling, Master of the New College of the Humanities, have been demonstrating, signing petitions and writing letters ‘urging Parliament not to support a motion to trigger Article 50 of the Lisbon Treaty’ or, in other words, campaigning to have the referendum result overturned. Others have been re-evaluating degree programs, exploring ways to make the promotion of European citizenship more explicit. But it is no more the role of academics to interfere in the democratic process than it is to instruct students in which values they should adopt.

After the referendum, British academics need to pause for thought. They urgently need to consider the consequences for academic freedom and the pursuit of knowledge of the emergence of an institutional perspective on the one hand and a growing political consensus on the other. Not all ideas are equally valid and the university provides an ideal place for testing opinions through debate. However, for debate to be meaningful a variety of views must be heard. Attempts to use higher education to mould a particular type of citizen, one who enacts values predetermined by an academic elite, can only ever lead to the stifling of debate through mindless conformity.

What The Rolling Stone Affidavits Show

University of Virginia dean Nicole Eramo’s lawsuit against Rolling Stone has produced hundreds of pages of documents on how the botched article about University of Virginia came to be published—and how UVA employees handled sexual assault claims.

Rolling Stone Rape Charge
False rape charges

Last week, Rolling Stone filed affidavits and notes from the key people involved in the project. I’ve provided excerpts from the affidavits of reporter Sabrina Rubin Erdely, editor Sean Woods, and fact-checker Liz Garber-Paul. Robby Soave has an excellent article with five take-aways from the material; Ashe Schow offers commentary. I recommend both pieces. In addition, a few items:

Rolling Stone’s defense is based on two points, which appear in all three affidavits: (1) that everyone at the magazine believed the accuser, “Jackie,” and had reason to do so; and (2) key people involved in sexual assault adjudications at UVA believed Jackie as well.

There’s no doubt that Erdely, Woods, and Garber-Paul believed Jackie. There’s also no doubt that each of them were ideologically inclined to believe Jackie. (Erdely, for instance, opened her “reporting” by speaking with the biased experts Wendy Murphy and David Lisak, and all of her interview subjects appear to have been people who agreed with her on the existence of a campus “culture of rape.”) Rolling Stone’s groupthink meant that every inconsistency in Jackie’s story, or unusual behavior on her part, was explained away as “consistent with other victims of sexual assault.”

And so behavior that might have raised red flags—Jackie claiming that her attacker would retaliate against her if Erdely contacted him (while she didn’t worry about retaliation once the article appeared); Jackie discouraging Erdely from contacting friends who could corroborate her tale; Jackie changing the number of assaulters—was dismissed or excused.

The only problem, of course, is that Jackie was a fabulist. Rolling Stone’s argument that the behavior of an actual victim and the behavior of someone inventing a gang rape are identical should raise significant concerns about the always-believe-accusers mantra.

Second, the Rolling Stone affidavits make clear that campus activists, and every UVA employee dealing with sexual assault matters that Erdely encountered, also believed Jackie. Rolling Stone highlighted the point for legal reasons: if all of the UVA apparatus, including Eramo, believed Jackie, how can Eramo sue Rolling Stone for publishing an article based on Jackie’s fantasies?

From the standpoint of policy, however, this material is chilling: if the UVA sexual assault bureaucracy believed that someone like Jackie was a victim, how could the process of which they’re a part possibly be fair? Ironically, since Rolling Stone, UVA’s policy has only grown more unfair, as the recent FIRE lawsuit indicated.

In this respect, Erdely actually had a great story—how a campus atmosphere of moral panic was exploited by a fabulist. But she was too closed-minded to see it.

Third, it’s striking that even as their case collapsed, those who Jackie had fooled didn’t change their underlying assumptions. Erdely, for instance, stated in her affidavit that he she had any sense that Jackie might be lying, she simply would have used another vignette to prove her campus “rape culture” thesis—without even stopping to wonder whether her initial assumptions, which had led her to trust Jackie, were wrong. Sara Surface, a UVA activist, told Erdely that Jackie was no longer credible—but rationalized, “I think trauma has done something to the details.” A few days later, another UVA activist, Alex Pinkleton, reminded the Washington Post that “the majority of survivors who come forward are telling the truth.” Pinkleton didn’t explain how the minority—who, by her framing, were not telling the truth—could be “survivors.”

And, perhaps, my favorite item from the affidavits: Editor Sean Woods said, “I stand by the statement that we verified the perpetrator’s existence.” If the case goes to trial, perhaps Rolling Stone could summon Jackie’s invented attacker, “Haven Monahan,” as a witness?

AAUP Meeting Unanimously Backs Melissa Click—But Why?

Since its founding by progressive academics 101 years ago, the American Association of University Professors (AAUP) has had little affection for the governing authorities of colleges and universities.  Of course, when college presidents, trustees, and boards of regents bow in submission to its edicts, the AAUP will spare a few words of non-condemnation for the penitents.  But for the most part, the AAUP pursues its vision of higher education as best governed by the collective will of the faculty, by which it means the progressive faculty.

Related: AAUP Takes a Sharp Left Turn

The deep roots of this hostility to non-faculty governance are nicely documented in Hans-Joerg Tiede’s recent book, University Reform: The Founding of the American Association of University Professors.  Tiede is an AAUP man through and through, and sees nothing amiss in the organization’s long war for faculty domination of colleges and universities.  That war grew out of an earlier time when the non-faculty governing authorities had nearly unbridled control of their institutions, and faculty members served pretty much at the whim of plutocrats, clergy members, or other figures whose commitment to open intellectual inquiry was often dubious.

As Tiede puts it, “Since the beginning of higher education in the United States, institutional governance has ultimately been based on the lay governing board, which in a strictly legal sense, is the university.”

That “strictly legal sense” hasn’t changed despite 101 years of organized pushback by the AAUP and other bodies that aimed to transfer effective power to faculty members.  In Tiede’s account, this battle to overcome “the wanton power that presidents and trustees possessed” faltered early on.  The founders of the AAUP in this Game of Thrones hoped to secure all the power for the faculty, but a decisive early intervention by the Carnegie Foundation for the Advancement of Teaching resulted in college presidents grabbing the scepter from the trustees. Faculty were left with the flyswatter of complaints about academic freedom, job security, and professionalization.

That’s a pretty fair summary of where things have stood for the last century:  strong college presidents dominate the boards of trustees and regents who, on paper—but often only on paper—hold the power to govern their institutions.  Faculty members have in some cases unionized to present a counterforce to the dominant presidents, but even where they are not unionized, faculty members typically range themselves as an independent third voice under the doctrine of “shared governance.”  This doctrine is often given a semblance of authority though formal agreements, but those agreements have also, time and again, proven to be a weak bulwark against college and university administrations.

The AAUP bellyaches about this, but the weakness of the faculty isn’t just an AAUP talking point.  Other observers have said much the same thing.  In The Fall of the Faculty: The Rise of the All-Administrative University and Why It Matters (2011) Benjamin Ginsberg inveighed against what he saw as a “surrender” by the faculty to “rampant administrative blight.” Ginsberg, a highly regarded professor of political science at Johns Hopkins, didn’t seem to view the AAUP as a very effective antidote to this blight.  He cited a 2009 AAUP conference on academic freedom and shared governance as the equivalent of a Geneva Convention in which the participants hoped the treaty would protect them from “water boarding.”  These days the AAUP is investing a lot of effort into organizing adjunct faculty members, hoping against hope to stem the further dilution of faculty power.

Then there is Melissa Click: the unavoidable Melissa Click.

The AAUP membership at its recent annual meeting in Washington DC, voted unanimously to “censure” the University of Missouri at Columbia for—what else?—the decision by its Board of Curators to fire Melissa Click.

The story of Click’s outrageous behavior wasn’t lost on the participants.  He call for “some muscle over here” to eject student photojournalist, Tim Tai, from a November 9 Black Lives Matter protest, and her screaming profanities at police officers trying to clear protesters from a public street at a homecoming parade, gave plenty of evidence that she had overstepped her authority as a faculty member. That Click was a hard-core ideologue who had nothing of value to teach Mizzou students didn’t enter into the University’s rationale for firing her, though it ought to raise serious questions about “university governance” that she was ever hired in the first place.   Click’s scholarship and teaching involves studies of Lady Gaga and Fifty Shades of Grey.

Knowing all this, the AAUP members (I repeat) unanimously voted to censure the University of Missouri on the grounds that the university had denied Click “academic due process.”  Specifically, the AAUP believes that Click should have had the benefit of a faculty hearing, and a year’s salary or a year’s notice.

Related: The AAUP’s Ludicrous Declaration

Let me allow that Mizzou’s Board of Curators might have made some technical mistakes in its firing. One would have to go deep within the wreckage of Mizzou’s governance to see what foolish agreements were signed, what abridgements of governing authority were authorized, and what reckless precedents had been created before one could say with any confidence that the Mizzou Board of Curators acted in a way that didn’t expose them to AAUP’s patented petulance.

But let’s keep in mind that the AAUP’s membership has shown no such urgency in many other situations in which “due process” is in jeopardy.  At the same meeting in which the censure of Mizzou passed, the AAUP officially adopted its report, The History, Uses, and Abuses of Title IX, which I previously reviewed.  This document faults the Office for Civil Rights as well as many colleges and universities for imperiling “due process rights and shared governance.”  The peril in the case of OCR’s systematic attack on the presumption of innocence, evidentiary standards, sloppy definitions, and more is many orders of magnitude greater than any inkblots left on Mizzou’s dishonorable discharge of Melissa Click.

But the AAUP has yet to find anyone to censure over abuses of Title IX.

Trustees ‘Come from Different Worlds’

So why the urgency on Click?  The Chronicle of Higher Education answers by quoting Howard J. Bunsis, chairman of the AAUP’s Collective Bargaining Congress.  Bunsis explains. “The attacks are not going to stop.”  It seems boards of trustees “come from different worlds than we do.”

Bunsis means that as a bad thing.  Imagine: Members of boards of trustees come from a world where college professors are expected to uphold freedom of thought and freedom of expression; where faculty members express some modicum of respect for the rule of law and police officers who are doing their jobs; where persuasion is valued over force; where civility is integral to the exchange of ideas.  Perhaps they even come from a world where people possess actual competence in the fields in which they are employed; where “activism” cannot be substituted for scholarship; and where people gain employment in higher education to teach students worthwhile subjects.  But if that were the case, it might well be that Bunsis’ worries are well placed.  Melissa Click is unlikely to be the only Mizzou faculty member hired to engage trivial research and feckless teaching.  As The Federalist headlined the story of her firing, “Melissa Click: One Bad Professor Fired, Thousands to Go.”

So in that sense, the AAUP vote makes perfect sense.  But it also reveals the AAUP as a body acting in the spirit of trade unionism to protect its members no matter how incompetent or reprehensible.

The AAUP was in a censorious mood at its convention.  It aimed its peashooter not only at Mizzou, but also at the Iowa Board of Regents and the College of Saint Rose in New York, and it leveled a “sanction” against Union County College in New Jersey.  The Board of Regents at the University of Iowa hired a new president without adequately involving the faculty.  Saint Rose, faced with financial exigencies, laid off 23 professors.  Union County College likewise failed to consult faculty members on various matters.

Lapdogs of College Presidents

Let’s remind ourselves of Professor Tiede’s observation:  “the lay governing board…in a strictly legal sense is the university.”  The governing boards of the great majority of our colleges and universities have for a long time acted as lapdogs of college presidents.  Every once in a while a board rouses itself form its usual torpor and attempts to exercise some portion of its legal rights.  These steps may be awkward because college and university governing boards are used to the supine position and walking is, at first, a novel experience.  But we should encourage the exercise.  If they at first knock over a lamp or break a vase, it is a small price to be paid for the prospect that, with a little practice, they will begin to walk upright and hit a steady stride.

I know a good many individual trustees who are ready and able to do this, but they are conjoined to boards that have been padded out with friends of the college president, sports boosters, and sentimentalists who have no real idea of what happens in the classrooms of the institutions they are supposed to oversee.  When these independent trustees show some sign of wanting to exercise their authority, bad things happen. In 2008, at Dartmouth, the president successfully launched a board-packing plan, akin to FDR’s court-packing plan.

When the University of Virginia’s Board of Visitors in 2012 tried to dismiss its egregious president Teresa Sullivan, she successfully mounted a campaign to be reinstated.  Sullivan went on to preside over (and foster) the campus hysteria that followed Rolling Stone’s confabulated account of a rape at a campus fraternity.  In 2014, when Regent Wallace Hall at the University of Texas at Austin started asking hard questions about the operations of the university, he was brought up on charges by the Texas House Select Committee on Transparency in State Agency Operations for “misconduct, incompetency in the performance of official duties, or behavior unbefitting” a holder of state office.

A Resurgence of Trustees? Not Really

So challenge a college president’s domination of “governance” is plainly no easy task.  The law almost always invests authority in the trustees, but the power is firmly in the hands of the president.  Stories about the resurgence of trustee authority need to be taken with a grain of salt.  But exceptional events can change that. The catastrophic meltdown of administrative authority at Mizzou was one such instance in which the board was, in effect, forced to step in and exercise its genuine authority.  When boards do that, they ought to expect that the AAUP and faculty activists will be incensed.  And then they should do it some more.

I say this not because I have such high confidence in our current boards of college trustees, but because I have such low confidence in our current college presidents and college faculties.  The presidencies are held in overwhelmingly numbers by careerists who are deeply indebted to the campus grievance marshals and the dynamics of identity-group politics.  The faculties are dominated by progressive activists who have intimidated their colleagues into silence. Fear of being labeled a racist, sexist, homophobe, or a conservative keeps nearly everyone in line.  The result of all this is that “shared governance” has become a code word for the hard left’s dominion in American higher education.  A 101 years ago, the problem may have been “the wanton power” of presidents and trustees.  Today it is the wanton power of the faculty activists.

Robert Reich and Berkeley Colleagues Make Big $$ in Inequality

Scholars from the University of California at Berkeley have played a pivotal role in making income inequality a major political issue. But while they decry the inequities of the American capitalist system, Berkeley professors are near the top of a very lopsided income distribution prevailing at the nation’s leading public university.

Among the most prominent of these scholars is Robert Reich, Chancellor’s Professor of Public Policy at the University of California at Berkeley. Reich’s 2013 film, Inequality for All, is an indictment of a rigged U.S. economy that makes a select few richer while consigning the middle class to stagnation. A review of the film and Reich’s other work suggests that the economist and former Clinton-era Labor Secretary provided numerous talking points for Bernie Sanders’ high-profile – though ultimately unsuccessful – presidential campaign.

Related: How Elite Colleges Drive Income Inequality

While Reich helped popularize the income inequality theme, much of the intellectual heavy lifting has been done by UC Berkeley economist Edward Saez and his colleagues at the university’s Center for Equitable Growth (CEG).  Saez has been researching income inequality since 2003, when he co-authored a paper on the topic with Thomas Piketty, the French economist whose book Capital in the Twenty-First Century also played a key role in popularizing the income inequality issue. The pair continue to collaborate.

Since these Berkeley academics preaches, we wondered whether the university community also practices greater equality. To answer this question, we examined distributional equity at the university, relying on publicly available data.

Social science researchers often measure income inequality with the Gini Coefficient – a calculated value that can range between zero and one. The higher the Gini Coefficient, the more unequal the country, municipality or community. If everyone in a population has exactly the same income, that group’s Gini Coefficient is zero.  By contrast, if one individual receives all of a community’s income (and everyone else receives nothing), the Gini Coefficient is 1.

Related: More College Aid for Low-income Families, Please

According to World Bank statistics, the average country had a Gini Coefficient of around 0.36 in 2012, when data for 68 countries were available. In 2013, the coefficient for the U.S. was 0.4106 – roughly the same as it was under Bill Clinton in 1997. The country with the lowest reported Gini was Ukraine (at 0.2474) and the highest was Haiti (at 0.6079). Scandinavian countries are among the most equal (between 0.26 and 0.29), while Latin American nations dominate the high Gini countries (with several over 0.50).

Within the United States, the Census Bureau reports Gini coefficients for over 500 cities.  The latest data available are for 2014. The city of Berkeley’s Gini score of 0.5356 places it in the top 5% of U.S. cities for income inequality. In California, it ranks third of 133 – behind Davis (another city dominated by a UC campus) and Los Angeles. Internationally, city of Berkeley’s score is virtually identical to that of Colombia.

Public employee compensation data allows us to measure income inequality on campus. The State Controller’s Public Pay database contains salaries for all UC employees, indicating which campus each employee is on. The Gini coefficient for the 35,000 UC Berkeley employees in the data set is 0.6600 – higher than that of Haiti.

Getting Rich in Researching Inequality

Income inequality at Cal extends to the university’s inequality research arm, the Center for Equitable Growth mentioned earlier. According to 2014 data from Transparent California, Center Director Emmanuel Saez received total wages of $349,350. Its three advisory board members are also highly compensated Cal professors: David Card (making $336,367 in 2014), Gerard Roland ($304,608) and Alan Auerbach ($291,782). Aside from their high wages, all four professors are eligible for a defined-benefit pension equal to 2.5% times final average salary times number of years employed. It is also worth noting that all four are in the top 2% of UC Berkeley’s salary distribution, and that Saez is in the top 1%. It could be that an effective researcher has to know his or her subject: thus to the study the top 1%, we suppose one has to be in the top 1%.

Robert Reich receives somewhat lower compensation than the four CEG economists, collecting $263,592 in pay during 2014. But Reich’s salary was likely not his only source of income in 2014. Reich makes himself available to give paid speeches through a number of speaking bureaus, charging a fee estimated at $40,000 per talk. He is also likely to receive some income from his books, movies and pensions from previous employers.

Reich is not the only senior academic who can avail himself of significant income aside from that provided by his university employer. Because teaching and publication demands on tenured professors are relatively modest, there’s time to earn extra income from consulting and writing textbooks. The latter can be surprisingly lucrative, since many college textbooks sell for over $200 per copy. Last September, the Cal bookstore offered an introductory economics textbook for $294. Lucrative opportunities to supplement one’s income with consulting fees and royalties are typically unavailable to a college’s administrative staff

Look at the Pay of Administrators and Coaches

Aside from tenured professors, UC Berkeley also provides generous compensation for athletic coaches and administrators. The highest paid UC Berkeley employee in 2014 was Daniel Dykes who received $1,805,400 for coaching the California Golden Bears football team, which went 5-7 that year and did not make a bowl appearance. Dykes was followed closely by Jeff Tedford (at $1,800,000), the Bears’ former coach who was still on the payroll in 2014 despite having been relieved of his coaching responsibilities. The next five highest paid UC Berkeley employees were also coaches.

UC Berkeley Chancellor Nicholas Dirks was paid $532,226 in 2014, but a unique perk substantially boosted his effective compensation.

He Built a Wall and Taxpayers Paid for It

Like all UC Chancellors, Nicholas Dirks is provided with a free residence. According to the San Francisco Chronicle, University House – now occupied by Dirks – contains 15,850 square feet of living and meeting space. Living on campus has not been an unalloyed benefit for Chancellor Dirks, however. The home has been attacked on numerous occasions by student activists. In response, the university recently completed a metal fence around the home at a cost of $699,000 – two and a half times over budget.

Dirks’ cash compensation was slightly lower than that of former UC President Mark Yudof, who co-instructed one class at Cal’s Law School in 2014, receiving $546,057 for his time. According to the Sacramento Bee, “Yudof benefited from a UC policy that allows high-ranking administrators to receive a year of pay if they are preparing to teach again.” After stepping down as president, Yudof took a one-year sabbatical, co-taught one class in Fall 2014 and another in Spring 2015, and then retired.

Tenured faculty and administrators at Cal have also been shielded from harsh discipline, even when they engage in sexual harassment. According to a recent report in the San Jose Mercury News:

Astronomer Geoff Marcy received a warning last year despite the university’s finding that he had serially harassed students over nearly a decade. Former law school dean Sujit Choudhry received a 10 percent pay cut but was initially allowed to keep his position after he was found to have sexually harassed his executive assistant. And former Vice Chancellor Graham Fleming — who stepped down last April amid allegations he had sexually harassed a staff member — quickly landed an administrative job as ambassador for UC Berkeley’s new Global Campus, a satellite campus in Richmond.

The three Cal employees cited received generous compensation in 2014. Marcy collected $217,861; Choudhry made $472,917 and Fleming received $404,625. More recently, Berkeley has taken stronger disciplinary measures in response to media attention and pressure from UC’s system President Janet Napolitano. Fleming was fired and Choudhry resigned in March.

Good Pay, Light Teaching Load

High compensation for tenured faculty does not necessarily come with a heavy teaching workload. Instead, most of the teaching burden appears to fall on junior faculty and teaching assistants.

Introductory classes at UC Berkeley often have several hundred students. Although a faculty member gives the lectures and designs the syllabus, students functioning as teaching assistants, readers and graders handle most live interaction with course participants, review their homework and score their exams. Students fulfilling these roles may be in a graduate program, but are often juniors or seniors.

In Fall 2013, Cal’s Intro to Computer Science – CS 61A – had 1,098 registered students, exceeding the capacity of the lecture hall. The assistant professor conducting the course, John DeNero, recorded lecture videos for those who could not fit into the room. He told the student newspaper: “Almost all of the learning in computer science courses happens in the lab and when they’re working on projects. So if you don’t fit in the room, you can definitely still participate in all the important parts of the course.”

Students taking the class had access to 19 teaching assistants and 15 readers. DeNero was paid $46,643 in 2014 – likely exceeding the amounts paid to the enormous assistant and reading staff who now receive around $14 per hour. Thus, one of the university’s most important services – orienting new students to the fast-growing field of computer science – was delivered by poorly paid staff, without any input from its highly compensated senior faculty.

Although the City of Berkeley has a higher minimum wage than the rest of the state, Cal is exempt from this municipal minimum. In late 2014, The East Bay Express reported that the university was paying hundreds of student workers less than the $10 per hour city minimum.  More recently, the university implemented a UC-wide Fair Wage/Fair Work Plan under which the minimum wage rose to $13 per hour in October 2015 with subsequent increases to $14 per hour in October 2016 and $15 per hour in October 2017. It should be noted that, unlike other minimum wage requirements, UC’s minimums apply only to employees working more than 20 hours per week, so it is possible that some student workers will remain below the City of Berkeley minimum, currently set at $12.53.

It is difficult to assess how little of the teaching burden falls on the shoulders of tenured faculty.  The University of California’s Annual Accountability Report (covering all 10 UC campuses) indicates that most instruction is provided by “full-time permanent faculty.” This designation includes assistant and associate professors who have yet to obtain tenure. Further, the university employs a misleading metric for reporting relative instructional burdens between full-time permanent faculty, lecturers, visitors, adjuncts and others.

Teaching loads are shown in “student credit hours (SCH),” which is the number of students enrolled in a given course times the number of credits earned from that course. If a permanent faculty member gives the lectures for a 4-credit course attended by 1000 students, 4000 SCH are added to the full-time permanent faculty total even though most instructional activities in the course are performed by juniors, seniors and graduate students.

Relatively low-paid and heavily worked staff also keep many of Cal’s core functions running. Administrative staff faced a round of layoffs in 2011 and are now undergoing a further workforce reduction despite increasing enrollment numbers. Meanwhile, unrepresented staff (those not unionized) have seen minimal salary growth in recent years. Although administrative tasks – such as managing financial aid applications, administering grants applications and maintaining university software platforms – may seem less glamorous than research, individuals performing these functions often work much harder than tenured faculty while earning far less.

Yes, Pay Must Be Competitive.

The University of California at Berkeley has a great reputation, and the school continues to earn its high standing with a mixture of world-class scholars, outstanding students and (at least some) great facilities.

To attract excellent academics and administrators, the university must offer competitive compensation packages. In some cases, these packages will draw truly outstanding people who go on to do excellent work for the university. In other instances, these packages amount to sinecures enabling high-status individuals to receive compensation disproportionate to their contributions.

In this respect, Cal is no different from a large, publicly held corporation. Companies offer big salaries to CEOs and other high-level professionals, sometimes getting their money’s worth and other times not. Just as it isn’t reasonable to expect a tenured professor or senior administrator to be paid in line with entry-level employees, we shouldn’t expect senior university administrators and tenured professors to be paid the same as work-study students.

While it is true that the compensation ratios between the highest- and lowest-paid employees are greater at many large corporations than at universities, there is an offsetting consideration. A very large portion of compensation at UC Berkeley and other public universities is paid by federal and state taxpayers through grants and financial aid. This is not the case for private companies – at least those that don’t sell to the government.

The hefty salaries and generous pensions awarded to Berkeley administrators, professors and coaches are funded by taxpayers – most of whom earn far less than these academic luminaries. So if UC Berkeley economists are really opposed to income inequality and are concerned about low-paid workers, they might consider sharing some of their compensation with the teaching assistants, graders, readers and administrative staff at the bottom of Cal’s income distribution.

We’re not saying income inequality is a bad thing; we’re not saying that Reich, Saez and other Berkeley professors should make less than they do, or that student teachers ought to make much, much more. In fact, there are reasonable arguments that income inequality is not only inevitable and even ethical, but that it’s also a generally positive feature of advanced economies.

We are saying there’s something unusual in the Berkeley phenomenon – the high-profile role of high-income earners in criticizing income inequality.

This report was originally published by the California Policy Center.

 

The Fisher Decision: Not Good News, But…

The Supreme Court today upheld the University of Texas’s use of racial preferences in student admissions.  The vote was 4-3, with Justice Kennedy writing the majority opinion, joined by Justices Breyer, Ginsburg, and Sotomayor (Justice Kagan was recused).  Justice Alito write a powerful, 51-page dissent, which he read from the bench.

Needless to say, for those of us opposed to racial discrimination in university admissions, the decision is disappointing, for all the reasons that Justice Alito explains.  But the silver lining is that today’s decision is a narrow one.

As the Court says, UT’s program “is sui generis” and the way the case was litigated “may limit its value for prospective guidance.”

Justice Kennedy also warns the university repeatedly in his opinion that it has an ongoing duty to minimize its use of race.  Race is, the Court says, only a “factor of a factor of a factor” at UT; was considered contextually; does not automatically help members of any group; and could in theory help the members of any group, including whites and Asian Americans.

Now, much of this may be quite false as a matter of what really happens at the University of Texas, but other schools are now obliged to jump through the hoops that the Court says UT jumped through.

So look at it this way:  Barring a decision by the Court that overruled Grutter v. Bollinger and said that schools may never use racial preferences because the “educational benefits of diversity” are not compelling, lots of schools would continue to use such preferences, even if the Court had left the door open only a tiny crack.  If the Court had said, “You can use racial preferences only if the school can prove XYZ,” then every Ivy League president would swear that, what do you know, we have found XYZ.”  And it doesn’t matter what XYZ is.

That’s what the law was before today’s decision, and it remains what the law is after today’s decision.  Sure, it would have been better if the Court had given the opponents of racial preferences more ammunition than it did today to attack those XYZ claims, but we still have plenty of ammunition from the Court’s earlier decisions.

The bottom line is that the Court’s decision leaves plenty of room for future challenges to racial preference policies at other schools, and at UT itself for that matter.  It’s interesting that in the run-up to the decision, there was much discussion even among liberals that maybe indeed there are better approaches to student admissions that UT’s.  Here’s hoping that those discussions continue, prodded along by lawsuits and FOIA requests to ensure that all of Justice Kennedy’s hoops have been jumped through.

So the challenges to racial preferences will continue; cases already filed against Harvard and the University of North Carolina–Chapel Hill that had been on hold will now proceed.  And the Supreme Court has also made clear that states are free to act on their own to ban racial preferences, through ballot initiatives or legislation.  The struggle goes on.

Roger Clegg is president and general counsel of the Center for Equal Opportunity, which has joined numerous amicus briefs on behalf of plaintiff over the course of the Fisher litigation.