Why Do Dems and Liberals Tolerate Speech Codes?

New York magazine’s Jon Chait ran one of his periodic columns arguing that congressional Republicans were unlikely ever to have cooperated with President Obama, regardless of Obama’s policies. Chait has argued, persuasively, that given the current political climate and the institutional tools available to the minority to obstruct without paying a political price, only a naïf would have expected the congressional GOP to have worked in a collegial fashion with the President.

To make his point in his most recent post on the topic, Chait looked back to a 2008 column from Peter Berkowitz, who laid out several things Obama needed to do (or not do) to create an atmosphere conducive to bipartisanship. Chait pointed out that for the most part, Obama didn’t contradict Berkowitz’s recommendations–and yet this made no difference. (Chait defined the Sotomayor appointment in an overly charitable fashion, but the rest of his analysis was sound.) Both partisan and institutional incentives strongly leaned against House or Senate Republicans cooperating with the administration. That’s the way our system of government works in an environment like the current one, where the two parties are much more ideologically coherent than at most previous points in U.S. history.

But even Chait conceded that the President didn’t fulfill one of the terms laid out by Berkowitz, who had urged Obama to “call on public universities to abolish campus speech codes and vigorously protect students’ and faculty members’ speech rights.”

Chait first suggested that the proposal was irrelevant: “Obama did not do this, as far as I know. But if he had done it I don’t think anybody would have noticed. “Really? If a President elected with strong support from college and university students and faculty had come out against speech codes, the higher-ed world wouldn’t have noticed? Chait then downplayed the relevance of the issue: “I also hated speech codes when I was in college, but has this issue popped up at all since 2008?”

Chait (I read him daily and usually find him persuasive) is normally a careful columnist; a glance through FIRE’s website would have shown him that the scourge of campus speech codes remains very much with us, and the issue has “popped up”–over and over and over again–since 2008. Moreover, it’s not as if the administration has simply been neutral on the question of civil liberties at colleges and universities; instead, the Education Department, through its “Dear Colleague” letter, has all but waged war on campus due process.

Ironically, a few days after Chait wrote his column, an article went out over the AP wire referencing the administration’s policy–and providing a chilling rationalization for it. AP education reporter Justin Pope turned to “victims’ rights advocate” (and serial fabricator) Wendy Murphy to explain why the “Dear Colleague” policy (which requires colleges and universities to lower the bar for conviction in campus sexual harassment claims to a preponderance of the evidence) was needed. Pope paraphrased Murphy’s views in the following way: “Colleges must protect victims, she says. That means abandoning the fantasy they can make everybody happy by also offering accused students the full due process rights they’d enjoy in a criminal trial.” And then the AP quoted her directly: “You can’t run a school that way. If every once in a while a school has to be sued at the cost of being fair to all students, so be it.”

How is it that a policy reflecting such an extraordinary conception of due process could not generate widespread condemnation from Democratic politicians and liberal columnists, who usually are quite sensitive to protecting civil liberties? Alas, neither group has much incentive to speak out on the issue–and considerable incentive not to do so.

Both campus speech codes and the “Dear Colleague” letter operate from authoritarian impulses that the basic protections of the Constitution–whether free speech or due process–ought not to apply on college campuses. But their advocates claim that they’re necessary tools to promote “diversity,” and try to bully critics by labeling them as racists or misogynists.

Given the realities of the current Democratic political coalition, where is the incentive for an up-and-coming Democratic politician–or a high-profile liberal columnist–to take a strong stand against an issue that’s being sold as promoting “diversity”? (Unless, that is, they’ve previously been engaged with the question of campus due process rights.) There’s about as much incentive for so doing as there was for Senator McConnell to have spent 2009 facilitating the Obama agenda. That’s not to say someone like Chait supports speech codes or the “Dear Colleague” standard–it seems pretty clear that he does not. Instead, the preferred tactic is to minimize or ignore the issue, and then move onto something else.

What will it take for wider outrage to emerge? We’ve already had a case of an innocent student (Caleb Warner) expelled from school under the preponderance-of-evidence standard, as the AP article mentioned. But to my knowledge no congressional Democrats or liberal columnists commented on the Warner case. And so, I suppose, we’ll continue to wait, and be told that issues of campus due process and civil liberties haven’t popped up in recent years.