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.

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.

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.

Georgetown’s Survey Stokes the Rape Panic

Both campus rape activists and their political allies—such as Kirsten Gillibrand—have consistently championed “campus climate surveys,” which they claim are necessary to provide more data about the purported epidemic of violent crime sweeping the nation’s campuses. It’s hard to argue against more data. But these surveys always are incomplete—they never ask about campus attitudes toward due process or what rights accused students should have. Moreover, their vague questioning seems designed both to confuse attitudes as to what sexual assault is, and to intensify the panicked attitude on campus. A recent survey at Georgetown accomplished both goals.

Related: Campus Surveys Inflate Rape Statistics

The survey’s topline, stressed by Georgetown president John DeGioia: “Thirty-one percent of female undergraduate students report having experienced non-consensual sexual contact.” If true, this finding, which would represent around 780 undergraduate students alone (although nearly one-third of this total indicated their victimization occurred off-campus at a location not affiliated with the university), would suggest that the Georgetown campus is the center of violent crime in DC’s Second Police District (the area within 1500 feet of Georgetown’s campus had only 19 reports of violent crime in the last two years).

Surely President DeGioia and the DC Police are engaged in intensive discussions to address the threat; perhaps a task force will be appointed? If so, the press release from Georgetown contains no indication. In fact, there isn’t a single known case of a campus climate survey leading to a university leader demanding an increased police presence to protect his or her institution’s students. This approach doesn’t fit the agenda of a movement that wants “#copsoffcampus.”

From this survey, Georgetown has promised multiple levels of action—including focus groups, a task force, required annual training for all students, and a new resource campaign. Presumably this will all cost (including staffing) hundreds of thousands of dollars annually.

As often occurs in surveys on this topic, female respondents outnumbered male, roughly 3-2. Georgetown weighted the survey for the actual total of Georgetown students without taking into consideration that the gender skew might have led to skewed results. Indeed, as occurred with the AAU surveys, internal data suggests such skewing. 22.8 percent of female undergraduates who say they experienced nonconsensual sexual contact by force say they reported this incident to the university.

The figure for female undergraduates who say they experienced nonconsensual sexual contact by force was 13.9 percent. According to the survey, that would mean just under 100 students made such a report. Yet according to the Clery Act database, only 25 students made such a report in the 2011, 2012, and 2013, and 2014 calendar years. This data would suggest that students who made a sexual assault report to Georgetown were substantially over-represented in the survey.

Related: Education Dept. Rules on Campus Rape Called Illegal

The data on the non-reporters was equally revealing. Around 77.2 percent of students who say they experienced nonconsensual sexual contact by force say they did not report the incident to the university. Of that total, more than 60 percent said they didn’t report because they believed what happened to them wasn’t serious enough. Perhaps large numbers of Georgetown undergraduates don’t believe sexual assault is serious. Far more likely: these students don’t consider themselves victims of sexual assault.

So what does the survey contain?

Some of the questions Georgetown asked students reflected the normal pattern of the campus sexual assault movement—framing the offense as far broader than its legal, or cultural, understanding, as a way of jacking up the final numbers. For instance, consider a question asked under the heading of “Bystander Intervention upon Witnessing Sexual Assault or Sexual Misconduct by Gender and Enrollment Status.”

77.1 percent of female undergraduates said they had “witnessed [a] drunk person heading for sexual encounter.” Consider the oddity of this question—part of a survey, recall, that’s producing enormous activities by the school. First, it asks students (who, given the context, might well have been somewhat drunk themselves) to judge the intoxication level of another student. Second, it then asks these students to anticipate what another student might or might not do. Finally, sex while drunk likely doesn’t constitute sexual assault, unless the student was incapacitated. So why is Georgetown classifying this question under “witnessing sexual assault”?

Did You Witness a Criminal Act?

At another stage, Georgetown asked whether respondents had “witnessed someone acting in sexually violent or harassing manner” (just under one-third of female undergraduates, listed as 2508 in the survey, said yes).  But these are two entirely different things—witnessing sexually violent behavior means asking whether the student witnessed a criminal act. Sexual harassment, while deplorable, isn’t criminal. Why did Georgetown choose to combine these two concepts?

The survey shows that some students appear to place themselves in very dangerous positions quite often. 1.3 percent of female undergraduates (which would translate to 32 or 33 students) say they have been the victim of “nonconsensual sexual penetration” four times or more as Georgetown students. Victims never deserve to be raped. But surely any responsible student life staff would want to know how so many students could have been victimized by violent crime so many times? This sort of question doesn’t appear to interest Georgetown.

Assaulted by a Faculty Member?

Likewise, more than 40 female students (1.7 percent) say they were sexually assaulted (extrapolating from the survey’s language, which always is risky) by a faculty member. Nothing in the current obsession with depriving accused students of due process rights will address this problem—which, if true, is very serious.

Around 27 percent of those who say they were victims of sexual assault (extrapolating from the survey’s language, which always is risky) were victimized by someone without any affiliation with Georgetown. Nothing in the current obsession with depriving accused students of due process rights will address this problem.

More than a quarter of those who say they were victims of sexual assault (extrapolating from the survey’s language, which always is risky) say they were victimized by the person they were dating. Did they continue dating this person? The survey doesn’t ask.

In about seven of ten cases involving those who say they were victims of sexual assault (extrapolating from the survey’s language, which always is risky), the alleged victim had been drinking. A similar figure exists for the alleged perpetrator. Nothing in the current obsession with depriving accused students of due process rights will address the relationship between alcohol and sexual assault.

Seven of eight female undergraduates who say they experienced nonconsensual sexual penetration by force experienced no physical injuries in the process.

The Saddest Thing

Perhaps the survey’s saddest finding, however, is the following. Georgetown asked students to assess the “likelihood of experiencing sexual assault or sexual misconduct off campus at university-sponsored events.” (Leave aside the vagueness of “sexual misconduct” in the question.) Many students—at Georgetown or anyplace else—never will be “off campus at university-sponsored events.” Others will be so only in very restricted capacities—say, as a member of a (single-sex) athletics team—in ways that would make the opportunity for any type of sexual misconduct seem remote.

Yet according to the survey, 39.6 percent of female undergraduates said it was somewhat, very, or extremely likely that they would experience “sexual assault or sexual misconduct off campus at university-sponsored events.” This figure is quite likely higher than the percentage of female undergraduates who will even be “off campus at university-sponsored events.” And for most of those who do participate in such activity, it’s unlikely that more than 1 percent of their time at Georgetown would be spent “off campus at university-sponsored events.”

There’s no reason to doubt the genuine nature of this response. But the fear is an irrational one. The chances of four-in-ten Georgetown females being victims of sexual assault “off campus at university-sponsored events” would seem to be infinitesimal. The logical response of a university leader to signs of panic among his student body would be to soothe his students. Instead, DeGioia, like almost all other university presidents, has chosen to stoke the panic.

The New Age of Orthodoxy Overtakes the Campus

The great threat to academic freedom today arises not from plutocrats determined to weed from the campus garden any sprouts of pro-unionism; nor from censorious divines on the hunt for misinterpretations of the Sermon on the Mount; nor yet from defenders of the flag who suspect disloyal thoughts among the cosmopolitan professoriate.  Those were demons of another age.  Perhaps in honor of the great liberal scholar who dedicated much of his life to fighting those demons, we can call it the Age of Hofstadter.  Columbia University historian Richard Hofstadter published Academic Freedom in the Age of the College in 1955—a masterly work on the sectarian squabbles that bedeviled American colleges through the 19th century.

Related: The slippery Use of Social Justice

Hofstadter famously championed progressive causes and idealized university education right up until the point in spring 1968 when student thugs occupied and trashed the president’s office at Columbia and made a point of defecating on his desk.  In Hofstadter’s 1968 Columbia commencement address he enunciated once again his vision of the university as “committed to certain basic values of freedom, rationality, inquiry, [and] discussion.”  He insisted that the university is “a citadel of intellectual individualism” and stands for “the most benign side of our society.”

Professor Hofstadter, meet Melissa Click.

The Age of Hofstadter has clearly passed. What we have now is the age of cry bullies, trigger warnings, safe spaces, Black Lives Matter, dis-invitations, and all the other cogs and gears that make up the tyrannical machinery of “social justice” on campus.  Professor Melissa Click’s call last year at a University of Missouri Black Lives Matter protest for “some muscle” to eject a student reporter from the event was no worse than some of the other things that radicalized professors and students did on campuses across the country, but it was caught perfectly on video and can stand as metonym for the moment.  The Age of Click.

Related: Liberals Who Drifted Toward the New Illiberalism

In the Age of Click, academic freedom is mainly at risk from academicians.  This is hardly news.  It has been amply documented at Minding the Campus.  But how do we explain how Hofstadter’s beloved university, founded on freedom and rationality and “a citadel of intellectual individualism,” flipped into a bastion of proud ignorance and our society’s greatest engine of aggressive intolerance?  What caused our most “benign institution” to become its opposite?

British education writer Joanna Williams is the latest to attempt an explanation.

Her new book, Academic Freedom in an Age of Conformity, joins a handful of others, including Kim Holmes’ The Closing of the Liberal Mind (2016), Michael Walsh’s The Devil’s Pleasure Palace (2015), and Jonathan Haidt’s The Righteous Mind (2012), as an autopsy of the old liberal university. It’s an indictment of the new progressive campus and a call for some kind of resurrection.  Holmes, Walsh, and Haidt are American observers.

Williams, the Education Editor of the UK journal Spiked, brings an off-shore perspective to a shared problem.  This difference alone makes her book of serious interest to American readers, who will be struck by the divergent forms of protest and controversy surrounding what look like the same set of underlying principles.  What does the debate on academic freedom look like in a social order that has no equivalent of America’s First Amendment?

Williams commences where no American writer would: with legislation pushed by the government to “prevent students from being ‘radicalized’ into joining extremist groups.” The UK “Prevent” strategy has no exact equivalent in the U.S., although the Patriot Act opened up some minor pathways to government monitoring of American colleges and universities.  Does anyone recall the hubbub among librarians in 2006 when the reauthorization of the Patriot Act allowed that the federal government might want to know which books potential terrorists were borrowing? They went into a frenzy about something far more mild than what had become standard practice in Britannia.  In any case, American campuses have not become significant conduits of recruitment for Muslim terrorists.  Thus, the basic framing of the debate over academic freedom in the U.K. and the U.S. differs.

Inappropriate Sighing

But in other respects, our countries act in parallel ways, even down to the level of bureaucrats magnifying petty sleights to take down people they disagree with.  We learn, for example, of Warwick University English professor Thomas Docherty, famous for criticizing British higher education policy, who was suspended from his position for nine months.  The official reason for his punishment, of course, was not the substance of his criticisms.  Rather, he was “insubordinate” as evidenced by his use of sarcasm and “inappropriate sighing in job interviews.”

“Inappropriate sighing” seems like something from a Monty Python skit, but there must be a cultural equivalent somewhere in America.  One possibility:  Marquette University professor John McAdams.  He faces an effort by his institution to strip him of tenure because he published the name of a graduate student who had peremptorily refused to let a student in her ethics class bring up his criticisms of gay marriage.  As in England, the pretext is process, but the real cause is dissent from progressive orthodoxy.

British activists took the lead in developing the practice of “no-platforming.”  We know that practice mainly in the form of dis-invitations, based on the idea that proponents of certain views should be prevented from speaking on campus.  Williams cites feminist “critical” lawyers as among the pioneers of this stratagem.  A group of such lawyers at the University of Kent, for example, published in 2013 a petition calling on the London School of Economics to no-platform two writers, Helen Reece and Barbara Hewson, who had expressed doubts about the prevalence of “rape myths.”  Reece and Hewson had been invited by LSE to be part of a public “debate.”  Excluding people from a debate because you disagree with their views is an odd conceit, but odder still is that the practice has rapidly gained credibility on both sides of the Atlantic as morally valid.

Justice Only for the Left

Williams holds that academic freedom lies at “the heart of the university” and is “integral to the collective enterprise to critique and advance knowledge.”  She is, in other words, a time traveler from the Age of Hofstadter. Academic Freedom in an Age of Conformity sets out to dismantle the now pervasive left-wing conceit that academic freedom is “an elitist principle” that deserves either to be re-defined in the name of “justice” as a right to be reserved exclusively to the left itself, or banished altogether.  Williams counters these political claims with the argument that “knowledge should be evaluated solely on the basis of intellectual merit.” In this light, censorship of controversial ideas is never justified.

Williams is not engaged in an idealization of the academic past.  For her, there was no “Golden Age,” but she is alert to the particular dangers right now.  In a chapter on “Conformity in the Academy,” she takes up the implications of treating students as consumers to be “flattered and appeased rather than challenged.”  This is surely a key element in the emergence of “snowflake” students, who demand that the university cater to their psychological fragility.  Williams also nails the sorry feedback loop between self-censorship by scholars and the peer-review system that rewards those who “merely confirm that which has gone before.”  The chapter is of particular value, however, in Williams’ lucid account of what happens when “knowledge” is severed from the pursuit of truth.

The effort to make knowledge into a construct of its own apart from whether it is true is not just a giddy conceit of the post-modernists.  It is also the stock-in-trade of supposedly practical people interested in data, information, skills, and “human capital.”  Utilitarianism has limited interest in what is true; what matters is whether something works. As Williams notes, this blurs knowledge with skill to the disadvantage of knowledge.  Knowledge is reduced to instrumental knowledge.  The post-modern left, the social justice crowd, and the utilitarian right find common ground in pushing the pursuit of truth to the margins.  The result is a university where “many academics feel more comfortable concerning themselves with nurturing students’ employability skills or personal values,” than they do in helping students come to a true knowledge of the subjects they study.

The Trap of Global Citizenship

Williams’ strictures on this provide a new way to look at higher education’s strange new emphasis on the imaginary category of “global citizenship.”  As she points out, the term doesn’t stand for “any particular knowledge about the world,” but rather “changes in students’ attitudes” mostly in the form of rejection of “national identity.” Global citizenship “connects private feeling and qualities such as care, empathy and awareness, with the global issues of the day.”  It thus “places whole areas of knowledge beyond debate.”  The “homogeneity of political views” on campus is thus driven as much by efforts to manipulate the psychological vulnerabilities of students as it is by the effort of faculty members to steer away from the hard task of attempting to sort truth from opinion.

Williams herself doesn’t flinch in that effort.  Academic Freedom in an Age of Conformity is a short (198 page) book written in lively English and rich with examples, but it is thick with thought-provoking arguments on exactly how the “benign institution” of the university somersaulted to the frequently malign institution we have today.  She finds some of impetus in what happened in the academic disciplines, and more of it in the pernicious influence of academic feminism.  These are compellingly presented, but American readers will note that Williams has next to nothing to say about “diversity,” race, and multiculturalism as the anvils on which academic freedom in our universities has frequently been crushed.

 

The absence of these topics from a book about enforced conformity on campus is arresting, and serves perhaps as testimony to the “exceptional” character of America’s descent into leftist intolerance.  Our campuses share with Britain and the rest of the English-speaking world an invasive new hatred of intellectual freedom.  But we have added to it our own homebrew of racial grievance and identity politics.  Britain certainly has experienced the woeful side of multiculturalism as well, but Williams treats it as secondary thread.  For us, in the Age of Click, it is primary.

Britain’s example shows that the intolerance endangering academic freedom is not tied to a particular grievance, but has become a force in its own right.

Basketball Star Sues Yale

Yale has brought controversial charges against two star athletes in recent years, both on the eve of their biggest games: quarterback Patrick Witt in 2014 just before the Yale-Harvard game (and when he was up for a Rhodes scholarship) and  Jack Montague, captain of the Ivy-League championship basketball tram just before this year’s  rare appearance in March Madness.  As promised, Montague has just filed suit against Yale.

His accuser said she had consensual sex with Montague three times before the alleged sexual misconduct and one time after. On the fourth occasion, his lawyer said, she joined him in bed, voluntarily removed all of her clothes, and they had sexual intercourse. Then they got up, left the room and went separate ways. Later that same night, she reached out to him to meet up, then returned to his room voluntarily, and spent the rest of the night in his bed with him.  You can read the full complaint here. I summarized the document here.

Four major points from the complaint:

1.) Why Did Yale Break Its Own Rules? Montague’s accuser did not file charges against him. Instead, a Yale Title IX administrator did so. Yale’s policies grant the Title IX bureaucrat this authority, but only in “extremely rare cases,” and only when “there is serious risk to the safety of individuals or the community.” In February 2016, Stephanie Spangler, who oversees Yale’s Title IX coordinators, told the Yale Daily News, “Except in rare cases involving an acute threat to community safety, coordinators defer to complainants’ wishes.”

Montague’s case was a claim filed by a former sex partner around a year after the two had slept together. Even his accuser didn’t claim that he was an “acute threat” (or any threat) to her at all. But if there was no “acute threat to community safety” from Montague, why did Yale pursue the case?

2.) What Would Discovery Produce? Montague has sued Yale—along with two Title IX administrators. The complaint certainly raises some troubling questions about one of those administrators, Angela Gleason. (As so often occurs in these cases, the administrators making key decisions seem to have a strong background in identity politics.) Gleason appears to have aggressively pressured the accuser to file a complaint against Montague—after the Yale bureaucrat learned from the accuser’s roommate about the basketball player allegedly having a “bad experience” with the accuser. According to the complaint, Gleason misled the accuser both about Yale’s policies and Montague’s disciplinary history.

The complaint plausibly suggests that Gleason wanted the accuser to file charges because Montague was such an inviting target—expelling a high-profile star athlete would prove Yale’s “seriousness” about confronting sexual assault. With whom did Gleason and other Title IX bureaucrats consult before deciding to go ahead against Montague?

3.) Yale’s Likely Response. In its public statements earlier in the case, Yale has telegraphed its response: citing material from the Spangler Reports (the twice-yearly documents summarizing all sexual assault cases on campus, which I’ve regularly analyzed), the university has argued that it doesn’t expel everyone accused of sexual assault. Therefore, its policies should be presumed discerning and fair.

The complaint uses these same reports, and other Yale sexual assault documents, to argue that—even assuming Montague was guilty, which looks like a big assumption based on the information, his punishment far exceeded comparably-situated Yale students. That disparity reinforces the theory that the university targeted Montague to send a message.

Another point: in its statement responding to the lawsuit, Yale touted its specially “trained” disciplinary panelists. But the university has, thus far, refused to reveal precisely what “training material” these panelists received. Since Yale considers this material so critical, will it make the “training” public?

4.) Yale and the Treatment of Athletes. From Baylor to Tennessee to Florida State, star athletes sometimes get special treatment in sexual assault cases. But when universities don’t make money from the athletics program, there’s scant evidence of favored treatment for athletes. Yale’s troubling attitudes toward due process when athletes are accused first came to light in the Patrick Witt case. It seems to have continued with its handling of Montague—where the complaint argues that the accuser was treated far more favorably than Montague.

One aspect of the Montague affair that has received insufficient attention is the treatment of the men’s basketball team. The basketball team—in a gesture of empathy for a friend going through a difficult time—wore warmup shirts with Montague’s nickname. In response, the players received vitriolic criticism (this Unite Against Sexual Assault Yale statement is representative), and, it seems, pressure from the Yale administration to issue an apology.

If the university were so sensitive to portraying Montague as guilty that it pressured other students to refrain from pro-Montague statements, how fairly could it have treated him?

Europe: The Disappearance of a Continent

What the College Board did to American history two years ago it has now done to European history: erase and contort. Writing at the National Review Online’s The Corner, Stanley Kurtz makes clear what is at stake: “The curriculum will shape textbooks and the way in which all high school and college students are taught about our Western heritage for years to come.” This report introduces a critique sponsored by the National Association of Scholars of the College Board’s new Advanced Placement European history standards. Two years ago, NAS’s critique of the College Board’s dramatically revised U.S. History Standards touched off a national debate. That debate led the College Board in 2015 to revise those standards again. NAS’s critique also prompted a movement to develop a competing set of standards and tests to provide American schools an alternative to the College Board’s monopoly.

Much of the European past goes missing in the new AP European History Course and Exam Description, as it is officially called.  Columbus is absent, and Churchill is reduced to a single prompt. The College Board tells the story of European history as the triumph of secular progressivism, and shunts to the margins the continent’s centuries-long rise to political freedom and prosperity.

In his 12,200-word essay, The Disappearing Continent, NAS Director of Communications David Randall (Ph.D., History, Rutgers University, 2005; specializing in early modern European history) traces the pattern of exclusions and inclusions in these standards, which are already shaping high school curricula across the country. The Disappearing Continent is the first extended examination of the College Board’s European history initiative. We hope to inspire others to join us in the effort to challenge the new standards—to improve them if possible and to replace them if necessary.

Excerpts from The Disappearing Continent

The College Board’s persisting progressive distortion of history substantiates concerns that the 2015 APUSH(Advanced Placement United States History) revisions do not represent a genuine change of direction, but only a temporary detour in the College Board’s long march to impose leftist history on the half a million American high school students each year who prepare themselves for college by taking APUSH or APEH (Advanced Placement European History).

The traditional history of Europe tells how Europeans, uniquely, articulated the ideals of freedom, put them into practice, and created the modern world. APEH’s leftist skew transforms the history of Europe into a story of a generic modernization process that turned Europe into a secular, well-governed welfare state. This skew disserves American high school students by presenting a badly distorted history of Europe that ignores or minimizes the parts of Europe’s history that contradict its progressive narrative. It reduces, above all, 1. The history of liberty; 2. The history of religion; and 3. The history of Britain.

Culture’s Formative Role Erased Historians have explored the ways religion and culture shaped Europe’s economic development ever since the publication of Max Weber’s classic study The Protestant Ethic and the Spirit of Capitalism (1905). Yet though APEH emphasizes economic history throughout, it focuses exclusively on how economic changes affect religion and culture, and never mentions the critical roles that religion and culture play in shaping economic development.

So far as APEH is concerned, economic causation is a one-way street. APEH never mentions Max Weber’s thesis that Protestant faith nurtured economic modernity. APEH emphasizes economic history throughout, but it never describes how the thrifty and striving Protestant culture in Geneva, Amsterdam, and London helped create the modern economic world. Neither does APEH mention how many entrepreneurs and technological innovators were members of this Protestant culture. APEH obscures the link between the Protestant work ethic and the creation of mass European prosperity

APEH also nearly eliminates Islam, Orthodoxy, and Judaism, because their very existence complicates and compromises APEH’s simple narrative of secular modernization. APEH’s removal of Islam may also be motivated by modern progressives’ reluctance to mention modern Islamist terror, much less to confront its deep roots in Islam’s millennial tradition of jihad. Certainly, Islam’s disappearance is the most dramatic of the three, because the portions of Europe under Islamic rule disappear as well.

APEH scarcely mentions the history of the Ottoman Empire, or of southeastern Europe, except for The Disappearing Continent – a) brief mentions of the Battle of Kosovo the Battle of Vienna (1683) and c) the decaying end of Ottoman rule between the Crimean War and Kemal’s formation of modern Turkey. APEH also overlooks a) the fall of Constantinople (1453).

APEH damages the history of early modern Europe especially badly by excising the ideals of freedom. APEH mentions that “Secular political theories, such as those espoused in Machiavelli’s The Prince, provided a new concept of the state” but not that secular political theories also provided new concepts of freedom from the state. APEH hints that “Admiration for Greek and Roman political institutions supported a revival of civic humanist culture in the Italian city-states and produced secular models for individual and political behavior,”—but it obscures civic humanism’s connection to republicanism and liberty. So too tolerance: APEH directs students to “Trace the changing relationship between states and ecclesiastical authority and the emergence of the principle of religious toleration” but it only cites examples of toleration that were granted reluctantly.

APEH never mentions that Americans should study Europe’s past because it is our history. APEH never acknowledges that we care about Europe because Europeans founded and settled America, because Americans modeled our ideals, our government, and our society on Europe, or because America shares in the Western tradition that stretches from the Battle of Thermopylae to the Battle of Britain.

America’s knowledge of its European legacy is part of our own history— but APEH obscures the reason George Washington’s peers called him Rome’s Cincinnatus reborn, or why Union soldiers sang of their president as Father Abraham at Shiloh, Big Bethel, and Jerusalem Plank Road. APEH relinquishes the most important reason to study Europe’s history—because its heritage is our birthright. APEH sunders America from its European past particularly by minimizing British history. APEH distorts European history in and of itself by its partial erasure of Britain, but it also removes the hinge that connects America to Europe through people, language, literature, law, government, ideals, society, and culture. Our Europe above all is Britain, and APEH amputates our mother country’s story as the necessary means to make Europe’s history a chronicle of a foreign land.

The College Board’s new 2015 AP European History examination (APEH) warps and guts the history of Europe to make it serve today’s progressive agenda. APEH turns Europe’s history into a foreshortened, neo-Marxist, generic narrative of historical modernization, powered by abstract social and economic forces. It defines modernization around secularism, the state, and a thin supportive intellectual history. It mentions neither Christopher Columbus nor Winston Churchill. APEH points the arrow of European history toward a well-governed, secular welfare state, whose interchangeable subjects possess neither national particularity nor faith nor freedom.

The College Board’s progressive distortion of European history powerfully resembles the bias in its 2014 Advanced Placement United States History examination (APUSH). The College Board’s persistent progressive bias substantiates concerns that the 2015 APUSH revisions do not represent a genuine change of direction, but only a temporary detour in the College Board’s long march to impose leftist history on the half a million American high school students each year who prepare themselves for college by taking APUSH or APEH.

The Findings

1) APEH presents the history of government rather than of liberty.

2) APEH presents religion throughout as an instrument of power rather than as an autonomous sphere of European history.

3) APEH treats the movement to abolish slavery without mentioning how it was inspired by religious faith, led by saints such as William Wilberforce, and hymned to Amazing Grace.

4) APEH underplays British history throughout, thus minimizing the importance of Britain’s distinctive history in the European tradition as the champion of liberty.

5) APEH minimizes and extenuates the evils of Communism, the brutal destructiveness of Soviet rule, and the aggressiveness of Soviet foreign policy.

6) APEH virtually ignores Europe’s unique development of the architecture of modern knowledge, which made possible almost every modern form of intellectual inquiry.

7) APEH doesn’t argue that European history is important or interesting in itself. APEH never gives a reason why students should study Europe’s history in particular.

8) APEH never mentions that Americans should study Europe’s past because it is our history.

We make 8 recommendations:

1) The College Board should justify the study of European history as the study of Americans’ history—the origin of our founding settlers, our government, our society, and our ideals.

2) The College Board should justify the study of European history because of its intrinsic interest.

3) The College Board should add an examination on Classical and Medieval European history up to c. 1450.

4) The College Board should restore the importance of contingency, culture, politics, and historical individuals, and reduce the importance of inevitability, society, and economics.

5) The College Board should live up to its ideals and incorporate diverse historiographies.

6) The College Board should place the history of religion (including histories of Orthodoxy, Islam, and Judaism), the history of liberty, and the history of Britain at the heart of APEH.

7) The College Board should also place the emergence of the theory and practice of freemarket economic liberty at the heart of APEH.

8) The College Board should accompany changes to APEH with parallel changes in all APEH materials, including textbooks, instructional materials, and teacher training. Americans should not rely on the College Board, or any one organization, to make these changes. We make one final recommendation:

9) Americans should restore choice and accountability to secondary education in America by developing competitive alternatives to the College Board’s AP testing program.

How Chinese Students Are Changing Our Colleges

Nearly 600,000 foreign undergraduate students now study at US colleges and universities, some 165,000 of them from China, the total from China grew by nearly 30 percent in 2009/2010, with a percentage rise in double digits every year since, according to the Institute of International Education’s “Open Doors” report, funded by the U.S. Department of State

UC Berkeley’s 2015 international students’ GPA’s, and SAT and ACT test scores were competitive with those of California and out-of-state residents, according to a spokeswoman from the Student Affairs Communication office.  Average admission SAT scores were 2124 for California and international students, 2171 for out-of-state residents.

UC Berkeley’s 2015 international students’ GPA’s, and SAT and ACT test scores were competitive with those of California and out-of-state residents, according to a spokeswoman from the Student Affairs Communication office.  Average admission SAT scores were 2124 for California and international students, 2171 for out-of-state residents.

The Problem of Cheating

But colleagues of mine still teaching say that the quality of Chinese students is deteriorating. Schlafly reports that about 8,000 Chinese students were expelled last year for poor academic performance or for cheating.  An executive from the WholeRen company that caters to such students admits that the students used Jo be considered “top-notch”; but over the past five years they have gained a reputation as wealthy kids who cheat.

The Wall Street Journal recently acquired data on cheating from 14 public universities around the country and found that students from China were reported  to be cheating at five times the rate of American students. Faculty contacted by Journal reporters often singled out Chinese students. “Cheating among Chinese students, especially those with poor language skills, is a huge problem,” said Beth Mitchneck, a University of Arizona professor of geography and development.

Maseratis and Lamborghinis

The wealth of the Chinese who come to the United States to buy real estate and study (including high school students) has been widely reported.  An indication comes from sales data at luxury car dealers.  Chinese students’ car purchases accounted for 10 to 20 percent of a luxury car dealer’s entire sales near Michigan State in East Lansing, 8 percent of luxury car sales near the University of Oregon at Eugene, and 5 percent near the University of Iowa in Iowa City.  The 12,000 Chinese students (out of 44,000 total foreign students) attending the dozens of colleges in the Boston area are often seen driving Maseratis, Lamborghinis, and Range Rovers, according to Schlafly’s report.

Boston University, where international students make up 24 percent of the student body, has a “strong” and longer than usual history of welcoming international students, says Anne Corriveau, Senior Associate Director of the Office of International Admissions

At public colleges, administrators see a financial benefit from the higher out-of-state tuition rates that international students pay. While UC Berkeley maintains that scores for admission of international students are competitive, Schlafly claims that 4,500 California students were denied entry to the state’s public colleges in favor of out-of-state and foreign students with lower SAT scores. Foreign students pay two to three times the rates for in-state American students, which makes up for shrinking subsidies from state governments.

While overall SAT scores may be on par, international students’ scores in the critical reading and writing portions may lag, says Carriveau.  She admits that the Toefl (Test of English as a Foreign Language) often does not indicate a proficiency that is adequate for passing a freshman writing course.  Agencies in China and other places guide families through the application process, even writing essays for students. Many pass the Toefl test by memorization.  Such students are accommodated with extra resources and special classes at Boston University, and elsewhere.

The Pressure on Teachers

College administrators, however, are also placing the burden on professors, as the Chronicle of Higher Education reported in the recent article, “Colleges Help the Faculty Adapt Teaching for Foreign Students.”  Iowa State University communications professor Jay Newell, for example, adapted after observing a group of disengaged Chinese students and realizing that they could not understand his lectures because, of course, they were in English. Newell told the Chronicle, “My job is to make sure that students learn this stuff and understand it and engage with it.”  He saw the foreign students’ falling behind as being his “’problem as much as it was theirs.’”

But it seems to be getting worse.  Rather than insisting that Chinese students perform at the same level as other students, our universities are catering to them. This includes my old workplace, Emory, where a 2014 news article applauded professors who took lessons in Mandarin.  One is Italian lecturer Simona Muratore who enrolled in the free language classes offered on campus after she found she could not communicate in either English or Italian with the growing number of Chinese students in her Italian language class.

Economics professor Frank Maddox, who also teaches on Emory’s Oxford campus, was preparing to leave for a fall sabbatical in Beijing to study “business culture and central banking,” as well as to participate in a seven-week language immersion course. After teaching an intermediate microeconomics course in the fall 2010 semester, in which over half of his students were Chinese, he had learned Mandarin well enough to drop phrases into his lectures.  But he wanted to get to the point where he could “’casually chat with’” and “’engage’” his students.

International students do indeed bring both diversity and new perspectives into the classroom. But while American students are encouraged to study abroad and learn about foreign cultures and languages, students from China are being catered to here by professors and administrators.  Faculty time previously spent on scholarly research is being used for training to “engage” a certain ethnic segment of the student body. Time previously spent with American students is spent on bringing international students up to speed.  Classroom discussions and lessons have to be slowed down for international students. Our students stand to lose more than they gain as their universities cater increasingly to international students.

Yale Lets the Abusive Protesters Win

Among all the idiocies on campus in the last year, there is no more dispiriting statement than a line quoted in The Wall Street Journal on June 3rd.

In an op-ed entitled “How the Yale Halloween Vigilantes Finally Got Their Way,” an undergraduate named Zachary Young records the final episode of the whole affair in New Haven.  The Christakises have resigned as master and associate master of Silliman College.

Young notes that after Erika Christakis wrote her infamous Halloween email and Nicholas Christakis was denounced and cursed by an undergraduate on Yale grounds, things got even worse.  People scribbled attacks in chalk outside their home and “posted degrading images of them online.”  They left a sombrero and Rastafarian wig outside their office.  At this year’s graduation ceremony, several students receiving their diplomas refused to shake Nicholas’ hand.

None of the perpetrators seemed to recognize the value of the Christakises’ work.  An op-ed in The Wall Street Journal last January, Paul McHugh called Nicholas “one of America’s outstanding physician-scientists.”  And Erika’s book The Importance of Being Little, published earlier this year, has been one of the most discussed education books in 2016.  (My review of it appears here)

But the students’ conduct is not the dismaying part of the latest information.  It is, instead, what Nicholas wrote in the couple’s letter of resignation.  After suffering harassment and insult all year long, he still manages to be conciliatory:

“We have great respect for every member of our community, friend and critic alike.  We remain hopeful that students at Yale can express themselves and engage complex ideas within an intellectually plural community.”

That doesn’t sound like the expression of a flesh-and-blood man.  It’s the voice of a bureaucrat whose words have been approved by higher-ups.  Respect for the student who shrieked the f-word at him?  Respect for people vandalizing their property?  Gimme a break.  Can you really say with a straight face that Yale is an “intellectually plural community”?

The op-ed notes that during the year “the Christakises have met one-on-one with offended students.  They have invited their critics over for a group lunch to ‘continue the conversation.'”  Our only response is, “You call this a conversation?!”

Let’s be clear about why students are acting in this high-handed, commanding way.  It’s because they know their superiors will take it.  When the students confronted Nicholas Christakis on the quad, they knew who he was, and they knew that he wouldn’t do much of anything if they bullied and berated and humiliated him.  They wouldn’t do any such thing with an authority disinclined to tolerate their tantrums.

Mr. Young concludes with an optimistic note: “With luck, the sorry episode at Yale will cause students to spend less time vilifying professors and more time engaging with their ideas.”

Nope, it will do the opposite. The students got exactly what they wanted.  They were rewarded for their nastiness.  They’ll do it again.

Liberals Who Drifted Toward the New Illiberalism

Liberal. Progressive.  Liberal progressive.  Progressive liberal.  Radical.  Social democrat.  Democratic socialist.  Occupiers.  Social justice warriors.

What do we call today’s leaders of the political left?  Where do they stand in the eye of history?  Answering these questions resembles sometimes trying to grab an eel with your bare hand.  Most likely it will slip away, but it may bite as well.

Related: The Strange World of Social Justice Warriors

Kim Holmes, a historian who served as assistant secretary Closing of Liberal Mindof state under Colin Powell, has undertaken an ungloved eel-hunt in The Closing of the Liberal Mind (Encounter, 2016).  It is not an entirely thankless task in that there are those of us who will thank him.  (Thank you, Dr. Holmes.)  But a book such as this will win no friends in places such as The New York Times or The Chronicle of Higher Education, which are among those who insist that today’s leftist priorities are the plain extension of the same principles that animated the leftist priorities of past generations of liberal activists.  Holmes opposes that narrative.

Holmes’ thesis is that “progressive liberals” are not “really liberals,” but are “postmodern leftists.”  The eel is touched.  What, in turn, is a “postmodern leftist”?  The postmodern part, says Holmes, is the belief that “ethics are completely and utterly relative” and human knowledge is whatever people say it is.  (Truth, fantasy, error, and lies flow together in the endless stream of consciousness.)  The “leftist” half of “postmodern leftist,” in Holmes’ unpacking, is “radical egalitarianism” along with “sexual and identity politics and radical multiculturalism.”

Related: The Power of Buzzwords like ‘Dispositions’ and ‘Social Justice’

This is certainly a serviceable definition.  One could—and Holmes does from time to time—annex other pieces of the left’s core agenda.  Let’s not forget sustainability and radical environmentalism, or the apocalyptic element in the left’s agenda; or transnationalism (turning us all into “citizens of the world”); or radical feminism’s war on marriage and the family; or the numerous importations from Marxism.  How much of the “postmodern leftism” is the legacy of Barack Obama, and how much was Barack Obama just the cork floating on the wave of postmodern leftism?  Holmes starts with the easier clarification that the two go together.  Postmodern leftism is “the predominant worldview of Barack Obama’s Democratic Party.”  That seems to me an objective truth of the sort postmodern eels squirm away from.  Holmes sets himself the task of holding on tight.

Two Closings: Bloom and Holmes

The Closing of the Liberal Mind echoes Allan Bloom’s The Closing of the American Mind, but while Bloom put his primary emphasis on the university as the door-closer, Holmes sees a whole army of door-slammers at work as much in the media and politics as on campus.  But as this is Minding the Campus, I will attend to just the academic portion of his argument.

Holmes’ point of departure is the 18th century Enlightenment, which he divides into the “moderate” Enlightenment (Locke, Montesquieu, Adam Smith, the American Revolution) and the “radical” Enlightenment (Spinoza, Bayle, Diderot, Rousseau, the Reign of Terror, socialism, communism, and postmodern ideas of egalitarianism.)  This is an important distinction that is familiar to readers of intellectual history but Holmes presents it lucidly for readers who aren’t.  The line from Spinoza’s 17th century materialism to today’s academic ascendency of leftist utopians passes through the New Left of the 1960s.

A large part of the story Holmes tells is how the New Left revived the radical egalitarianism of the radical Enlightenment and gave it a new home on the college campus, where it shortly found its postmodernist component in the likes of French theorists such as Derrida, Lyotard, and Foucault.  It also found its anti-liberal lodestars in Frankfurt School Marxists such as Marcuse and Adorno.  The cast of relevant characters is large, but Holmes is excellent in pinning them to their places in the story of how old-style American liberalism, with its emphasis on liberty and individual rights, transformed to the new-style postmodern leftism, with its emphasis on conformity, control, and group identity.

As an analyst of the contemporary university, Holmes’ great strength is, perhaps paradoxically, his decision not to lean too heavily on campus developments themselves.  For example, his explanation of the rise of multiculturalism puts as much emphasis on the residue of the “legal realist” movement of the 1920s, which attacked the ideal of legal neutrality and the notion of “general principles,” in favor of a view of law as essentially arbitrary.

As Holmes sees it, legal realism was the nihilistic blade that cleared the ground for feminists and other radical identity theorists to turn the law into a tool of their political agenda.  Without the radical multiculturalist legal theorists who moved into this vacuum, “there would be no talk of ‘hate speech’ or ‘hate crimes’” and “no expansive judicial interpretations of Title IX to force universities to act like courts in rape cases.”

The drift from liberalism towards illiberalism, Holmes says, is partially explained by the emergence of a new ruling class distinguished by “cultural habits.” He refers to David Brooks’ term for Baby Boomers who grow rich but persist in thinking of themselves as cultural outsiders, “bourgeois bohemians,” and he updates Brooks with Charles Murray’s characterization of the “cognitive elite” who dominate the professions.

These folks “think alike” and “live in the same kind of places, eat and dress alike, watch the same movies, read the same blogs and news sites, and listen to the same radio programs (All Things Considered, not The Rush Limbaugh Show.)” And they attend America’s elite universities. “The result is a high correlation between elite education and wealth. Murray observes that 31 percent of Wesleyan University graduates, for example, live in what he calls ‘Superzips’—the wealthiest zip codes in America based on median family income and education—and 65 percent live in zip codes at the 80th percentile or higher.”

This aristocracy plainly sees itself as superior to everyone else and Holmes says it is “ruthless” in maintaining its position. But members of this elite also “fashion themselves as hip advocates of equality.” The paradox has grown old.  Tom Wolfe’s depiction in Radical Chic of Leonard Bernstein’s posturing to a leader of the Black Panthers as angry about his own wealth and privilege goes back to 1970.  I pick up today’s New York Times to read in the letters a declaration from someone who says, “I, too, am a white male and work every day to overcome how I was raised, to recognize that I am not entitled to superior rights because I was born a white male of European heritage.” The moral vanity of people who say this sort of thing is the real enunciation of their elite standing.  Instilling that vanity is the principal work of elite colleges, which teach this exquisite form of self-regard far more effectively than they teach the heritage of Western civilization or the substance of any particular subject.

The subtitle of Holmes’ book is “How Groupthink and Intolerance Define the Left.”  Because the motherlode of groupthink and intolerance is the contemporary American university, Holmes has bright and shining examples by the truckload of such academic devilment.  Many of these are familiar, e.g. the Rolling Stone University of Virginia rape hoax and Marquette University’s effort to unseat tenured professor John McAdams. But even the familiar stories of academic groupthink and intolerance gain from Holmes’ careful contextualization.

The Closing of the Liberal Mind is a synthesis that comes along at the just the right political moment.  As we ponder the shift in American culture that has made avowed socialist Bernie Sanders the most popular presidential candidate among college students and that has kept Hillary Clinton afloat on a platform of feminist exceptionalism, we are in need of some sober thinking about the decline of the old liberal tradition.  Postmodern leftism is a threat not just to higher education but to our Constitutional republic.  It may not be the only threat, but it is one that deserves focused, historically informed, and intellectually precise attention.  Holmes has reached into the basket of eels and given us that.

Problems in the Stanford Sexual Assault Case

In a recent op-ed in the Washington Post Stuart Taylor, Jr. and I discuss the Brock Turner case at Stanford. We argue that the case proves that campus felonies like sexual assault are better handled by the criminal justice system than by campus tribunals—in no small measure because the public can have confidence in the Turner verdict in a way that would have been inconceivable with Stanford’s notoriously one-sided campus disciplinary process. The case thus gives the lie to campus rape groups like Know Your IX and their academic supporters, such as Stanford Law’s Michele Dauber, who have attempted to delegitimize the role of the police in handling campus felonies, at least when the felony is sexual assault.
A few other points from the case that deserve a mention:

  • The 6-month sentence imposed on Turner (along with a lifetime requirement that he register as a sex offender) has triggered a severe backlash. Given the backlash, as Jason Willick first pointed out, it’s very difficult to comprehend the far more restrained response to the 6-month sentence imposed on former Baylor football player Sam Ukwuachu. By virtually any measurement, Ukwuachu’s case (which, like Turner’s, also received extensive media attention) was more severe: the nature of his assault appears to have involved more violence; alcohol does not seem to have played any role in his crime; he seemed to have had a pattern of treating women violently; and he had no remarks comparable to Turner’s expression of remorse. Yet there was no national campaign to recall the judge in the Ukwuachu case, nor was his photograph regularly used in social media with a “rapist” theme.It would be interesting to hear from the accusers’ rights movement, and their media and academic allies, why they responded to the two sentences so differently. (I also agree, by the way, with the inappropriateness of the recall campaign against the judge, though I consider the sentence for Turner—like the sentence for Ukwuachu—too lenient.)
  • Before the judge issued his sentence, Michele Dauber, law professor at Stanford, wrote a letter to the judge demanding that Turner spend more time in jail than what the probation office recommended. Dauber said that she wrote because of her expertise on the issue—without revealing that she had previously disparaged the ability of the same prosecutor’s office that successfully tried Turner to handle campus rape cases.In her letter, Dauber conceded (correctly) that “the facts here are in some ways especially egregious when compared with many other assaults on campus.” She cited the public nature of the crime, and the fact that Turner and his victim were strangers. Just over a page later, however, Dauber suggested that “at Stanford, assaults that are very similar to this case are unfortunately all too frequent.” [emphasis added] Really? Cases similar to public assaults of strangers are “frequent” at Stanford?
  • In her letter, Dauber asserted, remarkably, that students who have committed sexual assault at Stanford “typically have participated in athletics.” [emphasis added] She cited no evidence for this claim. Given that the data on which such a claim could be based is confidential, Dauber either: (a) simply misled a judge; or (b) inappropriately revealed protected information. I’d bet on (a).
  • The Stanford Law professor justified her demand for a lengthier sentence (it’s worth pausing to consider the extraordinary nature of a high-profile left-wing law professor writing a judge to demand a sentence for a convicted criminal longer than the probation office recommended) by citing deterrence. It’s not clear why potential Stanford rapists would be deterred by seeing a classmate get a three-year sentence (plus lifetime as a sex offender, loss of a degree, loss of ability to compete as an intercollegiate athlete, and massive media exposure as a rapist) but would not be deterred by seeing a classmate get a six-month sentence (plus lifetime as a sex offender, loss of a college degree, loss of ability to compete as an intercollegiate athlete, and massive media exposure as a rapist). Dauber did not explain how she reached her deterrence evaluation.
  • Dauber concluded by claiming that “Turner will have plenty of opportunity to finish his education.” It’s not clear what academic universe she lives in, but it’s hard to believe (and for very good reason) that many universities will accept a convicted sex criminal who has a lifetime obligation to register as a sex offender. But—much like Jared Polis in his infamous 2015 remarks—it’s critical for figures like Dauber to keep alive the myth that colleges routinely admit students found guilty of sexual assault.

How the Feds Use Orwell to Apply Title IX

Among the many anti-campus due process groups that have appeared in the past five years, the most prominent is Know Your IX, co-founded by two self-described sexual assault victims, Dana Bolger and Alexandra Brodsky. The group has an active presence on social media; trains activists to crusade against due process at their home campuses; and has sought to influence Congress. Know Your IX members appear to have been among the group applauding Congressman Jared Polis’ call for the expulsion of innocent accused students at a 2015 congressional hearing.

Perhaps understanding that outright opposing due process makes for bad P.R., Know Your IX representatives occasionally have made vague references to fairness in the campus adjudication process. They’ve never quite spelled out what they mean by “fair,” however, other than to say that an accused student shouldn’t enjoy all of the due process rights a criminal defendant possesses.

A recent letter from Know Your IX co-director Dana Bolger to the House Judiciary Committee makes clear that by a “fair” process, the organization actually means “unfair.” The letter contained two remarkable provisions. The first attempted to justify the Obama administration’s decision to ignore the requirements of the Administrative Procedure Act and issue the 2011 Dear Colleague letter—which eviscerated due process rights for accused students.

In her letter, Bolger acknowledged that in the 1997 and 2001 “Dear Colleague” letters dealing with sexual harassment on campus, OCR proceeded with a notice-and-comment period. Know Your IX then cited the two letters as justification for the Obama administration not seeking comment. She provided no explanation for her illogical argument—that is, notice and comment was good enough for the Clinton and Bush OCR, but the Obama OCR doesn’t have to utilize the procedure. Instead, without explanation, she suggested that the terms of the 2011 letter (preponderance of evidence, right of appeal to accusers, discouragement of cross-examination) were merely a “clarification” of the 1997 and 2001 documents.

This Orwellian argument is a mere setup for the letter’s second major claim—that students accused of sexual assault are treated more fairly than students accused of all other offenses on campus. Here’s Bolger: “By mandating fairness and equity in campus sexual misconduct proceedings, Title IX affords accused students the right to prompt investigations, regular updates, notice of rights, and trained adjudicators. In so doing, Title IX provides students accused of sexual assault far more procedural protections than are enjoyed by students accused of other disciplinary infractions, like perpetrating simple assault or selling drugs out of a dorm room.”

In these remarks, Bolger seems to have dropped her earlier comparison of sexual assault to plagiarism. Instead, she’s embraced an insinuation by OCR head Catherine Lhamon that colleges are hotbeds of drug-dealing activities, which the schools resolve not by going to police but instead by handling the matter internally.

Below are some comparisons of the fairness accorded to a student accused of drug-dealing, and one accused of sexual assault.

Title IX chart

Legal requirement to investigate:

And yet according to Know Your IX, the student in Column 2 receives fairer treatment than the student in Column 1. Orwellian.

I Helped Shove My College Downhill

Not long ago, I wrote a piece for City Journal about my alma mater entitled, unsubtly: How My Friends and I Wrecked Pomona College. I saw it as a very belated mea culpa, for it detailed the malicious glee with which, back in the Sixties, we student radicals forced well-meaning, weak-willed administrators to abandon the standards, both behavioral and academic, that had sustained Pomona since its founding; leading, inevitably, all these years later, to an institution depressingly in the grip of all-encompassing PC.

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In fact, the article was prompted by events in Claremont (Pomona is one of five schools in the so-called Claremont consortium) just this past fall, as other campuses from Missouri to New Haven were experiencing their own paroxysms of madness. Claremont’s crisis, (in the comic bouffe fashion common to such affairs), was touched off by a do-good progressive; in this case, a Claremont-McKenna administrator who sent a sympathetic but ineptly worded email to a Hispanic student; and whose resignation in disgrace prompted the Social Justice Warriors at the other schools to in turn start howling about racism and present their presidents with the inevitable lists of non-negotiable demands. Pomona’s cry bully contingent demanded, among other things, the hiring of full-time counselors “specially trained in queer and trans mental health issues” and a department of disability studies.

I don’t know how people felt reading it, but I can assure you it was a depressing piece to write, noting, as it did, some of the key markers in the school’s ever more avid embrace of leftist dogma since my own sorry day. A curriculum that once guaranteed the school’s graduates a broad overview of the Western culture and philosophical tradition slowly gave way to one top heavy with departments of group grievance and entitlement.

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In 2004 — long before ‘safe spaces’ were a fixation on campuses nationwide, — students in Claremont were so fragile that a visiting professor’s claim that her car had been smeared with racist and anti-Semitic graffiti sent the campuses into a frenzy of grief and panic, with classes suspended for a day of reflection and protest.  Indeed, even after the revelation that the supposed “terrorist act” was a fraud perpetrated by the professor herself, Pomona’s president seized upon the prevailing hysteria to declare the school would redouble its efforts against “racism, homophobia and religious intolerance.”

Today. as elsewhere, free speech and thought are increasingly under threat, with the banal, all-too-familiar pieties on race, gender, sexual preference and environmentalism having taken on the status of baseline assumptions. Leftist dogma is so entrenched (and so enforced via a mix of school policy, social convention and activist faculty) that to challenge it constitutes an act of moral courage.  Not for nothing were the heroes of my piece the intrepid students who write and publish the conservative student paper, The Claremont Independent, who risk not just social pariah status, but retribution at the hands of their professors.

In any case, by the end, I figured I’d pretty much hit all the low points. But no.

Recently there appeared the following headline in Inside Higher Ed: Diversity as a Tenure Requirement.

Related: When Diversity Dictates Lower Quality Hires

“Pomona College’s faculty has voted to change the criteria for tenure to specifically require candidates to be ‘attentive to diversity in the student body,’” it begins. “While many colleges and universities encourage faculty members to support diversity efforts, and a few have encouraged tenure candidates to reference such work, Pomona’s requirement may go farther in that it applies to all who come up for tenure…(t)he Pomona policy outlining the preparation of a tenure portfolio by a candidate says that the faculty members should ‘specifically address their efforts to create and maintain an inclusive classroom.

This may include describing classroom practices used to encourage the participation of a diverse student body, or to cultivate an awareness of differing backgrounds, focuses, and needs among the student body and broader community. Techniques such as communities of learning and community partnerships are relevant here, as are the inclusion of scholarly and other works emerging from the perspectives of underrepresented groups, or any other classroom practices that support inclusivity and diversity.’”

There they are, the magic words, (and the dead giveaway): inclusivity and diversity.

In the piece, Ashley Thorne of the National Association of Scholars (NAS), identifies this policy for exactly what it is: an ideological litmus test for Pomona’s faculty hires. Indeed, notwithstanding the school’s laser fixation on diversity and inclusion, the report never makes so much as a nod toward the need for ideological diversity.

It is hardly, as we also learn, that this particular bit of noxious leftist mischief on the part of Pomona’s faculty, which overwhelmingly endorsed it, was initiated in concert with activist students, who had presented the faculty with a petition demanding tenure criteria that would meet “the needs of a diverse student body.” As admiringly observed one of their faculty allies, an associate professor of psychology and Africana studies, these students were after more than mere tinkering, they wanted serious “structural change.”

Is any of this surprising? Of course not. It is entirely of a piece with all the rest. In fact, though I didn’t get into the tenure question in my article, I did discuss it with one of my sources, someone with deep and long standing ties to the school, who told me that activist professors, especially those in the various grievance studies department, made a practice of attending the classes of up-for-tenure colleagues, monitoring them for ideological reliability. “The word for it,” he said, “is Stalinist.”

Like many campuses, Pomona is headed in an ominous direction, sacrificing learning for grievance and now linking tenure to ideology. How long will non-ideologues want to go to this kind of school?

Should Colleges Coddle the Whiners?

Our recent campus upheavals, focusing at times on offensive speech, have provoked a worry: are colleges infantilizing their students? Last March, the journalist and cultural critic Judith Shulevitz raised this concern in a tour de force of an op-ed, in which she argued that protecting students from offensive speech, except in the most extreme cases, is a species of educational malpractice: “People ought to go to college to sharpen their wits and broaden their field of vision. Shield them from unfamiliar ideas, and they’ll never learn the discipline of seeing the world as other people see it. They’ll be unprepared for the social and intellectual headwinds that will hit them as soon as they step off the campuses whose climates they have so carefully controlled.”  This argument has since taken off.

It has taken off, in part, because it is a good argument. To take one of Shulevitz’s own examples, students invite the charge that they are infantilizing themselves when they construct a “safe space” that contains “cookies, coloring books, Play-doh, calming music, pillows, blankets, and a video of frolicking puppies,” particularly when this safe space is to protect them from being “bombarded by a lot of viewpoints that really go against my dearly and closely held beliefs.”

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I don’t want to dissent from Shulevitz and others who have made related arguments, but I do think that the debate between those who wish to protect students from offensive speech and those who want to expose them to it is incomplete.

John Stuart Mill, one of the foremost champions of freedom of discussion had no illusions concerning its benefits. “I acknowledge,” he says in On Liberty, that the tendency of all opinions to become sectarian is not cured by the freest discussion but heightened and exacerbated thereby.” Mill thinks that free discussion will tend to heighten partisanship, as those whose dear and cherished beliefs are challenged by their intellectual and political enemies cling to those beliefs all the more fiercely. For Mill, this drawback is made right by the benefits that accrue to people who are observing the quarrel: “It is not on the impassioned partisan, it is on the calmer and more disinterested bystander, that this collision of opinions works its salutary effect.”

I think that Mill is right and that although the trade-off he describes is plausible in public discussions, it would be a peculiar model to follow in a college setting. Clearly our job is not only to, so to speak, toughen up our students, though that couldn’t hurt, but to educate our students to benefit, as Mill’s “calmer and more disinterested bystander” does, from the free exchange of ideas. That many of our students at present are not in a position to do so is no reflection on their childishness. Anyone who has paid a moment’s attention to “adult” political discourse will have noticed that getting angry, alleging bad faith, taking umbrage, and even demanding censorship, are standard. This is not new, though I don’t deny that our therapeutic response to it is somewhat new. As Hamilton says in Federalist #1 of “cases of great national discussion,” in which people’s interests and passions are deeply implicated, “a torrent of angry and malignant passions will be let loose.”

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Insofar as such discussions work their way onto college campuses, there is no reason to think that simply throwing our students into so polluted a sea in the hopes of hardening them, will result in an education. For that reason, I think it is singularly unimaginative to try to resolve the problem of a too liberal academy by inviting, though of course people are welcome to invite whomever they want, conservative controversialists like Milo Yiannopoulos to our campuses. Instead, we need to think much more than we presently do about teaching our students how to benefit from the arguments they hear.

John Locke, in Some Thoughts on Education distinguishes between the “art and formality of disputing,” which tends to turn a student into “an insignificant wrangler, opinionated in discourse, and priding himself in contradicting others,” and the art of reasoning. I am not sure whether our present focus on “critical thinking,” even when it somehow gets through to our students, does enough to distinguish between wrangling and reasoning, or between philosophy and sophistry. But I am confident that a “Crossfire” approach to campus discussion is not going to help our students make such distinctions.

To throw our students into such an atmosphere and invite them to deliberate may avoid the danger of infantilizing them but it also demands more of our students than we demand of adults. Indeed, in some ways the university oscillates between treating students too much as adults and treating them too much as children.

In a Slate column, Eric Posner, a professor of law at the University of Chicago, inadvertently illustrates the problem. On the one hand, he argues that today’s students are like children and consequently need protection. In the midst of an exaggerated argument in favor of this proposition, he says at least one sensible thing, namely that professors know that students need an education, which is why classrooms are not typically free for alls, in which students go at each other, hammer and tongs. But then he says that colleges should give in to student demands for protection because “that’s what most students want.” So which is it? Are we supposed to treat students like children, in need of protection, or like adult sovereign consumers?

Related: ELIMINATING FREE THOUGHTS IN THE NAME OF FALSE SAFETY

The answer, as I suspect most teachers grasp, is that college-aged students are neither children, to be protected from scary ideas nor adults, who either, in Posner’s way of viewing things, should have what they want or, in Shulevitz’s (to judge from the op-ed alone), should be thrown into the water and told to swim. They are neither children nor adults, and what we owe them is an education.

The education I have in mind makes no sacrifices with respect to inquiry into the questions that divide us. Instead, it puts the aim of conversation inside and outside the classroom, at the center of education, and thereby demands that our approach to conversation be tailored to that aim. In Plato’s Republic, Socrates admonishes Thrasymachus, who cares only about whether he has won or lost the argument, in these terms: the argument is not about just any question but about how one should live.”

How do people who genuinely think they can make progress in important matters act in conversation? Among other things, they practice the courage that enables them to continue an inquiry in the face of threats to their cherished beliefs, and the moderation that enables them to hear others out and to look for what use can be made of their arguments, rather than for how their arguments can be dismissed. But what every educator who has reflected on his or her experience knows is that such virtues do not come naturally to people. All our attentiveness as teachers may barely be sufficient to cultivate them in our students.

When Diversity Dictates Lower Quality Hires

Progressives at Tier 1 research universities and top liberal arts colleges sit at the summit of the higher ed hierarchy, where their eminence rests upon high standards of academic work.  But they are fervently committed to hiring and retaining more persons of color.  They have attempted affirmative action of the official and unofficial kind for a long time, but gains in the percentage of professors of color in elite departments have been disappointing.  If you listen to them, you can hear a rising dismay in their voices.  They want so much to have more non-white colleagues, but the years pass and nothing seems to change.

This is a case of bad faith.  People are in bad faith when they think and act in way that deny the reality of what they otherwise enjoy.  The behavior is to demand more non-white hiring and promotion and retention.  The reality is a combination of the meritocratic system of selective schools plus the limited pool of minority candidates.  The number of African American and Hispanic PhDs falls well below the proportions those groups constitution of the general population.  And in the humanities, Asian Americans, too, are underrepresented.

‘Inclusivity’ vs.  Prestige’

This means that superior institutions must compete vigorously for faculty of color who have the qualifications that put them into the ranks of high-achievers.  Inevitably, they must lower the bar for them, setting up a showdown between a top school’s prestige and its “inclusivity.”

It has happened recently at Dartmouth College.  A female Asian American English professor has been denied tenure even though the department’s tenure committee voted unanimously to promote her.  The headline of a story on the case at  reads “Campus unrest follows tenure denial of innovative, popular faculty member of color.”  Aimee Bahng, a UC San Diego PhD, has been an assistant professor at Dartmouth since 2009.  The titles of her various writings indicate the nature of her expertise:

“Extrapolating Transnational Arcs, Excavating Imperial Legacies: The Speculative Acts of Karen Tei Yamashita’s Through the Arc of the Rain Forest

“Queering The Matrix: Hacking the Digital Divide and Slashing into the Future”

She has also supported Black Lives Matter and was co-founder of the Ferguson Teaching Collective at Dartmouth.  In other words, all her interests fall nicely within Dartmouth’s reigning identity politics.

But the higher-ups rejected her.  Why?

Not Close to Dartmouth’s Standards

Bahng’s colleagues say that the Dartmouth administration isn’t sufficiently committed to raising ‘the number of underrepresented minorities on the faculty.  They don’t accuse the leaders of racism, but they do allege an unpleasant climate on campus and little appreciation of the special pressures and burdens faculty of color experience.  Reporter Colleen Flaherty interviews a SUNY-Buffalo professor of transnational studies who claims that people of her profile end up doing extra service work on diversity committees and programs, and they do extra work mentoring students of color who seek them out.  That cuts into their research time.  Additionally, she claims, research on race, gender, and sexuality “has less cultural capital” (tell that to Judith Butler, Cornel West….)

Nobody who turned Bahng down speaks in the story, but it isn’t hard to see why they did in fact speak out.  Flaherty includes a link to Bahng’s CV, and it displays a research record that doesn’t come close to meeting Dartmouth’s tenure standards.  All English departments at major institutions want to see a book in hand and several research articles.  But all Bahng has is a book “forthcoming” from Duke University Press in early 2017.  By itself, that counts for nothing.  We need, at the very least, a contract from the Press stating that the manuscript has passed through peer review, been approved by the board, and has a production schedule.  Bahng’s defenders don’t say anything about it, suggesting a contract doesn’t exist.

As for essays, since her hiring in 2009, Bahng has only two of them in print.

Making it all Go Away

The situation is clear. The department was willing to lower Dartmouth standards in order to meet identity needs (and, possibly, friendship).  Higher officials weren’t.   She has delivered 37 lectures, and she lists 19 fellowships and grants on the CV, but those awards and activities haven’t produced much in the way of the written word. However much Dartmouth wants more faculty diversity, the output was just too low.

I don’t think it will be too long, however, before the scruples of administrators in these kinds of situations soften.  the identity demand is growing too shrill, and in the humanities, research is increasingly meaningless.  Who cares whether someone has just published the 4,210th essay on literary transnationalism?  Soon, administrators will ask themselves whether it is worth it to insist upon strict standards of published research when they run against the diversity mandate, incense other professors, and bring on bad publicity.  A simple and quiet acquiescence can make it all go away.

4 Well-Known Universities With No Integrity

In a Commentary essay earlier this spring, I argued that universities’ response to the 2015-2016 campus protests can be seen, in part, through the lens of faculty and administrators sharing the protesters’ diversity-obsessed goals, if not agreeing with them on tactics. A recent protest from Dartmouth confirmed the point.

Sometimes, campus speech issues are complicated. This one wasn’t. The Dartmouth College Republicans, following college rules, requested access to a bulletin board, where they posted items with the theme of “Blue Lives Matter.” The move coincided with National Police Week.

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In response, “Black Lives Matter” protesters tore down the Republicans’ posters, put up posters that reflected their political viewpoints, and “occupied” the area around the bulletin board to prevent the College Republicans from re-posting their original material. The College Republicans went to the administration throughout the day to ask for assistance in replacing their posters, but were rebuffed. The administration, apparently fearful of confronting the students engaged in a heckler’s veto, informed the Republicans they’d have to wait a day; when the building was shut down in the overnight hours, the hecklers’ posters would be removed. Dartmouth administrators followed up with a statement forcefully condemning the removal of the posters—but without any indication of punishment. Nor was there any indication of Dartmouth devoting additional resources to free speech. This type of non-effect would have been inconceivable if the “Blue Lives Matter” students had torn down the “Black Lives Matter” students’ poster.

The student activists remained defiant. In an open letter, they remarked, “We acknowledge that many of you are concerned about the question of free speech. However, one hundred students’ disapproval for ‘Blue Lives Matter’ does not constitute a disregard for free speech, nor does it condemn policemen who have died in the line of duty. What it does constitute is a concern for anti-blackness on this campus and nationwide.”

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Again: the student protesters took down posters with which they disagreed, and, on a bulletin board temporarily designated to the College Republicans, put up posters that reflected the protesters’ point of view. If that doesn’t “constitute a disregard for free speech,” it’s hard to imagine what could.

Missouri

The campus that triggered the fall protests was the University of Missouri, where the highest-profile defender of the protests, ex-Professor Melissa (“muscle”) Click was back in the news last week. The AAUP produced a report faulting the University of Missouri for its slipshod procedure in firing Click. I agree.

But then the AAUP offered the following conclusion: “[W]e doubt whether Professor Click’s actions, even when viewed in the most unfavorable light, were directly and substantially related to her professional fitness as a teacher or researcher.” This statement is astonishing. Recall, again, the context: on the campus quad—a public area of the university—Click called for “muscle” against a University of Missouri student. How could such conduct possibly not be directly related to her position as a teacher? And, again, imagine the unlikelihood of the AAUP in reaching this conclusion if the facts had been reversed—if, say, a white male professor, an advisor of the Mizzou Republicans, had called for “muscle” against a black student journalist.

Rutgers

One of the most perceptive analyses of the fall 2015 protests came from Robert Tracinski. Writing in The Federalist, Tracinski observed, “The more you read through the students’ demands, the more they look curiously like a full-employment program for the faculty who just happen to be egging on these naive youngsters.” The demands, he noted, read “less like a manifesto of student revolutionaries, and more like a particularly aggressive salary negotiation. But this is not about higher pay for all faculty members. Notice in the middle the emphasis on “specialty positions,” we are defined as “faculty who work on critical issues related to social justice.” So it’s a special sinecure for those with the correct political agenda.”

Tracinski’s observations came to mind when reading a Chronicle piece earlier this month involving a tenure case at Rutgers. The basics: Rutgers denied tenure to an African-American professor of communications, Jennifer Warren. Warren came up for tenure without a book. And her teaching evaluations had recently declined. According to the article, Warren seems to have blamed both developments on guidance she received from her department. But on paper, it hardly seems outrageous to see a quality research institution like Rutgers deny tenure to a professor without a book, and with falling evaluations in the classroom.

Related: IS YALE USING TITLE IX TO TRUMP FREE SPEECH?

Nonetheless, the tenure denial triggered protests, holding signs with such sayings as “RU for Black Tenure.” (Imagine the outrage if students carried signs demanding “RU for White Tenure.”) And then, according to the Chronicle, “Several days after the students’ rally, Ms. Warren received good news: She had won her grievance hearing and would have another shot at tenure, in the spring of 2017.”

The article supplies no additional information regarding the contents of Warren’s grievance, or the substance of the appeals decision. This incomplete record leaves two options: (1) Warren’s department committed an unspecified major procedural error, and it fortunately was caught in a university appellate process. (2) After denying tenure to someone whose scholarly and teaching credentials the university had deemed insufficient, Rutgers reversed itself to appease the protesters. The statement from the head of the Rutgers faculty union didn’t inspire confidence: “Students are driven to involvement,” said he, “in a sense of desperation because they’re seeing that percentage go down in a microcosm. What they see in Jennifer Warren’s case is the black-faculty percentage falling instead of rising.”

That might well be true. But a decline in the percentage of black faculty doesn’t constitute a procedural violation.

Amherst

The New York Times has been all but hermetically sealed, ideologically, in covering campus events in recent years. Its one-sided approach to due process and campus sexual assault has matched its fawning, uncritical coverage of the 2015-2016 campus protests.

But even against that standard, a recent column from Frank Bruni stood out. It offered the administration of Amherst’s Biddy Martin as a model for other schools to follow in the quest for student diversity. That would be the same Biddy Martin whose administration has presided over what is likely the most egregious sexual assault trial since issuance of the Dear Colleague letter, and who proposed a new campus speech code modeled on the anti-due process approach Amherst has used for sexual assault. The idea that Amherst would be the model for anything is absurd.

Yet none of these controversies are mentioned by Bruni. He even gives column space to Martin to allow her to suggest her administration isn’t obsessed with only the usual types of campus diversity: “The college’s president told me that one of her current passions is to admit more military veterans, who bring to the campus abilities, experiences and outlooks that other students don’t possess.”

How many veterans has Amherst admitted in the past three years? Bruni can’t find the space to reveal the total.

Political Tests for Faculty?

What’s going on when a public university feels entitled to ask potential faculty members questions clearly aimed at ferreting out their political and social commitments? Such questions, reminiscent of loyalty oaths and the demands of totalitarian regimes would seem to have no place in an educational institution in modern-day America.  But for some years now, at the University of Massachusetts Amherst, as at many other universities, the administration has allowed and actively encouraged precisely such interrogations.

In fact, the Office of Equal Opportunity and Diversity at UMass thoughtfully provides Supplemental Search Instructions, including suggestions for typical questions to be asked during interviews. These invite search committees to fill in the blank with the name of the “protected group” of their choice.

Related: How PC Corrupted the Colleges

The suggested questions include the following representative queries:

  • How have you demonstrated your commitment to (____) issues in your current position?
  • Which of your achievements in the area of equity for (____) gives you the most satisfaction?
  • In your current position, have you ever seen a (___) treated unfairly? How would/did you handle it?
  • How many of the top people at your current or previous institution are (___)?
  • What did you do to encourage hiring more (___)?

Where, one may well wonder, in the context of a public university supposedly committed to education rather than indoctrination, could such questions come from?  They turn out to be based on a nearly 30-year-old report entitled, It’s All in What You Ask (Association of American Colleges, Project on the Status and Education of Women, 1988), which contained scores of questions for job searches reaching into every part of the university – faculty, administrators, and staff – all aiming to uncover candidates’ underlying commitments to promoting particular groups.

But where the original document aimed at promoting women and merely mentioned in passing that the questions “can easily be adapted to apply to minority and disabled persons,” UMass Amherst has corrected that narrow perspective by providing its long (but not exhaustive) list of identity groups.

Related: Political Correctness Is the New Puritanism

In other respects, however, the guidelines largely replicate (and credit) the specific language of the original document, which makes no effort to disguise the “gotcha” mentality underlying the entire endeavor, despite a disingenuous assurance that there are no “right” or “wrong” answers. The rationale is spelled out:

When prospective employees are asked, “Are you concerned about and supportive of these [identity group] issues?” they will invariably give an affirmative reply. Unfortunately, that gives little indication of their level of concern or commitment. Asking some of the questions listed [here] may help you gain a better understanding of a candidate’s position on these issues.… Many candidates will not have prepared answers to these questions in advance. These questions will, therefore, be useful in drawing out the candidate’s opinions rather than the “correct answer.”

The problem with these questions may not be primarily their legality—although there should be some concern about the possible unconstitutionality of anything smacking of an ideological qualification. The main problem is the overshadowing of genuine education by the demand for conformity and an explicit display of one’s politics.  The result is likely to be a monolithic corps of new employees, selected for their political commitments as much as, perhaps indeed more than, their professional qualifications.

Nor is this is happening in isolation. It has been accompanied, for years, by an out-of-control growth in administrators and staff whose explicit task is promoting and protecting certain identity groups.  Who knew that after thirty years of tireless efforts, universities would still be in desperate need of measures to combat their allegedly exclusionary policies toward all who aren’t able-bodied heterosexual white males?

All Diversity All the Time

Whereas certain parts of the academic world – Schools of Social Work, for example, and Schools of Education — have for some years insisted on overt expressions (on the part of both students and faculty) of correct political attitudes, it’s important to recognize how such demands are built into the entire job search procedure itself.

In addition, at UMass Amherst, as at other universities around the nation, the key documents about proper search procedures place a persistent and ceaseless emphasis on diversity, as required by equal opportunity regulations. Pages and pages of details are devoted to spelling out the efforts to identify and recruit “diverse” candidates, providing suggestions for every stage of the process.  Ironically, detailed lists are also provided of questions that are prohibited (having to do with ethnicity, race, gender, national origin, ancestry, and so on.  And to ensure that this process is fully complied with, search committees must meet with a representative of the Office of Equal Opportunity and Diversity for orientation and “coaching” sessions.

Yet, though we are repeatedly told that, “An applicant’s potential contribution to workforce diversity is an asset that should be carefully considered,” at the completion of the search process, everything changes. Despite the relentless emphasis on “diversity-enhancing measures” up to this point, and the careful documentation of these efforts that are required, when final recommendations are made by the search committee and sent up the chain of command, we are told that the candidates’ race, sex, and other identity markers should not be mentioned, only the excellence of their qualifications:

When describing candidates’ strengths and weaknesses, the committee’s rationale must focus strictly on their qualifications for the job itself. Do NOT comment on their race, ethnicity, accent, personal appearance, clothing, personality, age or maturity, gender, sexual orientation, national origin, or marital status. . . . The process will move much faster if the Chair, or, as a last resort, the Dean has made sure that all recommendations focus on qualifications for the job and do not make inappropriate references to protected personal characteristics.

In other words, after dominating the search and hiring procedure in multiple ways, the obsession with identity politics needs to be disguised at the very end, when all talk reverts to academic qualifications alone.

Thus, to the entire overdetermined process is added, at the last stage, a whiff of utter fraudulence. There’s the part where everyone is put through their diversity paces; then there’s the part where you cover it up.