Tag Archives: Hans Bader

Another College Cost: Lower Birth Rate

Originally posted at Open



The Washington Times takes
of the burgeoning higher
education bubble
in a recent editorial:

cost of a college education has soared far in excess of the cost of health
care. This is in spite of — or, more accurately, because of — massive
government involvement in subsidizing and running schools. . . Doing more of
the same isn’t a realistic answer. America is in the midst of what University
of Tennessee Prof. Glenn Reynolds calls the “higher education bubble.” As with
the housing bubble, cheap credit is the primary culprit in inflating the price
of schooling. Federal student loans subsidized by taxpayers have made learning
more expensive, not more affordable.

Cato Institute’s Neal McCluskey estimates federal student aid increased by 372
percent between 1985 and 2010, from just under $30 billion to almost $140
billion. To put it another way, as Mr. McCluskey explains, “Taxpayer-funded
outlays per degree rose from $58,755 in 1985 to $78,347 in 2010.” This flow of
cheap money corresponded with rapid growth in tuition at rates well above
average inflation. Mr. Reynolds reports that college tuition grew at almost 7.5
percent annually between 1980 and 2010, when average inflation was 3.8 percent.
At less than 6 percent annually, even health care costs grew at a slower rate
than the university tab.

people aren’t getting much in exchange for this huge outlay. While enrollment
has increased, completion rates remain dismal. Barely a third of students
complete their degrees in four years, and less than 60 percent earn their
degree in six years, according to Mr. McCluskey. That means at least two out of
five enrollees don’t finish and fail to reap the benefits of a post-high-school
education. Even those who complete their programs of study and are fortunate
enough to find employment find that in one out of three cases, their degree
isn’t required for their work.

Continue reading Another College Cost: Lower Birth Rate

NYU Targeted over Gay Marriage


Cross-Posted from Open Market

New York
City Council Speaker Christine Quinn wants to kick
out of New York because its CEO, Dan Cathy, opposes gay
marriage. Accordingly, she informed
the head of New York University (which leases space to the one Chick-fil-A
restaurant in New York City) that “Chick-fil-A is not welcome in New York City
as long as the company’s president continues to uphold and promote his
discriminatory views […] I urge you to sever your relationship with the
Chick-fil-A establishment that exists on your campus.” 

My guess is
that the university will regard this letter more as an unstated threat than as
a mere statement of the Speaker’s opinion, since universities, vulnerable as
they are to ad hoc
government regulations and ordinances, are obligated to cultivate municipal
officials’ goodwill. As a rule, business owners are subject
municipal predation 
that can drive them out of business, and are thus forced them to ingratiate
themselves with city officials. Universities can end up with an enrollment
or lose lucrative
eminent domain
prerogatives if they annoy municipal higher-ups. 

Continue reading NYU Targeted over Gay Marriage

Why Harvard Law Took Elizabeth Warren

One of the pitfalls of race-based affirmative action is that many disadvantaged people are less able to take advantage of it than the legal and economic elite.

Harvard Law Professor Elizabeth Warren, a well-paid academic, claimed Native American status based on supposedly being 1/32 Cherokee. But the “white” plaintiff who unsuccessfully challenged the University of Washington Law School’s affirmative action policy, Katuria Smith, had much more Native American ancestry than Warren — she was 1/8 Native American. (A federal appeals court upheld the University of Washington’s affirmative action policy, rejecting Smith’s class-action lawsuit, despite the fact that its law school admitted it used racial preferences in admissions to favor black, Hispanic, and Native American applicants, giving a very large preference to black and Native American applicants. I was one of Smith’s lawyers in that case.)

Continue reading Why Harvard Law Took Elizabeth Warren

Diversity Training: Useless but Mandatory

Cross-posted from Open Market.

Diversity training doesn’t work, according to an article in Psychology Today. In it, Peter Bregman notes, “Diversity training doesn’t extinguish prejudice. It promotes it.”

But don’t expect it to stop. Government regulations often require that a school be accredited, a condition that accreditors like the American Bar Association use to force law schools to use racial preferences in admissions or run costly diversity and sensitivity-training programs (despite the dubious legality of some such diversity programs and admissions preferences). Such mandates have contributed to the growth of a vast and costly “diversity machine” in college administrations. (And as a condition of practicing law in California, I had to take continuing legal education on the topic of “elimination of bias in the legal profession.”)

Continue reading Diversity Training: Useless but Mandatory

The New VAWA–A Threat to College Students

Cross-posted from Open Market.

Provisions are being added to the 1994 Violence Against Women Act that could undermine due process on campus and in criminal cases, as civil liberties groups like the Foundation for Individual Rights in Education (FIRE) and civil libertarians like former ACLU board member Wendy Kaminer have noted. The changes are contained in a reauthorization of the Act that is likely to pass the Senate over objections from some Republican senators like Charles Grassley of Iowa, who has also objected to the lack of safeguards against fraud in the law and the misuse of millions of dollars in taxpayer money. (Even if the Senate’s reauthorization does not pass the House, programs set up by the 1994 law will continue to operate.)

Continue reading The New VAWA–A Threat to College Students

Tyler Clementi and the Anti-Bullying Panic

Cross-posted from Open Market

A jury has convicted Dharun Ravi of hate crimes in the Tyler Clementi case, which created a furor over bullying that led to legislation that endangers free speech on campus, and helped spawn a thriving “anti-bullying” industry that has enriched opportunistic consultants and self-proclaimed experts. Ravi surreptitiously captured on webcam his gay college roommate, Tyler Clementi, kissing another man. Clementi committed suicide two days later. Initial media accounts falsely claimed that Ravi had filmed Clementi having sex, not just kissing, and sensationalized the case through factual exaggerations. Press reports also jumped to conclusions about the mental state of Ravi and Clementi, and falsely made it sound like there were gaps in existing law that somehow facilitated Ravi’s mistreatment of Clementi. (In reality, Rutgers, like most colleges, enforces rules against sexual and sexual orientation harassment, and New Jersey state law forbids invasions of privacy, and holds colleges liable for negligently failing to respond to anti-gay harassment committed by students, as a 2007 ruling by the New Jersey Supreme Court made clear.)

Continue reading Tyler Clementi and the Anti-Bullying Panic

Obama Seeks Disability Quotas

Cross-posted from Open

The Obama administration is pushing quotas in the workplace
and higher education, seeking to force
that have federal contracts to hire at least 7 percent disabled
workers, and encouraging colleges to use race in admissions to achieve a
“critical mass” of black and Hispanic students — a de facto quota.  It is
also apparently drafting
an executive order about sexual-orientation discrimination among federal
contractors, an order that key administration allies would like to include
“goals” (effectively, quotas) for gays and lesbians (most Americans work in states, cities, or counties
that already forbid sexual-orientation discrimination, but these laws do not
require preferences for gays or lesbians, and at least a few expressly forbid
“affirmative action” discrimination against heterosexuals. Virtually all
Fortune 500 companies already ban sexual-orientation discrimination).

Continue reading Obama Seeks Disability Quotas

Why They Seem to Rise Together:
Federal Aid and College Tuition

It’s called “the Bennett Hypothesis,” and it explains–or tries to explain–why the cost of college lies so tantalizingly out of reach for so many. In 1987, then Secretary of Education William J. Bennett launched a quarter century of debate by saying, in effect, “Federal aid doesn’t help; colleges and universities just cream off the extra money by raising tuition.” Now Andrew Gillen, research director of CCAP–the Center for College Affordability and Productivity–has tweaked the data and produced a sophisticated “2.0” version of the hypothesis. It’s filled with heavy math, game theory and terms like “inelastic fairly vertical curves.” You probably won’t read it. We know. But it’s important. So here are some smart people who have read it, and have something to say: Peter Wood, Hans Bader, Richard Vedder, George Leef and Herbert London. image for mtc.jpeg

Peter Wood: They Are Insatiable

Long before I knew it was called the “Bennett Hypothesis” I knew that colleges and universities increase tuition to capture increases in federal and state financial aid. I attended numerous meetings of university administrators where the topic of setting next year’s tuition was discussed.
The regnant phrase was “Don’t leave money sitting on the table.” The metaphoric table in question was the one on which the government had laid out a sumptuous banquet of increases of financial aid. Our job was to figure out how to consume as much of it as possible in tuition increases. This didn’t necessarily mean we were insensitive to the needs of financially less well-off students. A substantial portion of the money we captured would be reallocated as “tuition discounts” or “institutional aid.” That is to say, just as Andrew Gillen observes, we combined Bennett Hypothesis-style capture of external student financial aid with “price discrimination.” And we did all this in the pursuit of educational excellence. It was a large private university in the shadow of world-ranked neighbors and it was attempting to pull itself up in the world of prestige and influence by its bootstraps. There were townhouses that needed buying; laboratories that needed building; faculty stars that needed hiring; classrooms and residence halls that needed refurbishing; symphonies that needed performing; grotesque modern sculptures that needed displaying; and administrators that needed chauffeuring. So long before I heard of “Bowen’s Rule,” I was also familiar with the idea that “in the quest for excellence, prestige, and influence, there is virtually no limit to the amount of money” a university could spend. Familiar as these ideas are, I have never seen them as well elucidated as Andrew Gillen has in Introducing Bennett Hypothesis 2.0. If there is a fault in this remarkable policy paper it lies in the modesty of the title. Gillen has provided what by all rights should be a foundational document for any further analysis of the vexed issue of how federal (and state) financial aid interacts with the pricing strategies of colleges and universities. Gillen’s sophisticated revision of Bill Bennett’s idea explains many of the perplexities of the data. Yes, Pell Grants do not drive tuition increases the way general tuition assistance does. Yes, many colleges prefer to increase their selectivity rather than expand capacity. (He doesn’t mention, however, the strategy of doing both at once by creating highly selective “honors programs” and remedial tracts at the same institution.) Price discrimination in the form of variable tuition discounts ensures that no ordinary observer can figure out what is happening when federal aid mixes with pricing strategies. One of Gillen’s most compelling observations, however, is what he calls “the dynamic story,” which he introduces by way of game theory. This is his explanation of why a college cannot plausibly sit on the sidelines as its competitors raise tuition and use the increased income to raise their standing. Gillen’s theory, though highly plausible, remains to be tested. Let’s hope that comes soon.

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Richard Vedder: Market Discipline, Please

Andrew Gillen masterfully demonstrates that Bill Bennett is right–federal financial aid programs lead to higher tuition. The implications of this and related financial aid effects are profound:

1. The intended income transfers from taxpayers (and, increasingly bondholders) to students have been largely diverted to college coffers; swelling payrolls and leading to armies of new university bureaucrats, million-dollar college presidents, an academic arms race and other pathologies;

2. This, in turn, has thwarted university productivity growth and helps explain why higher education is vastly more expensive than in most other major developed countries;

3. The goal of helping low-income students has not been met, and a lower percent of recent college graduates come from less affluent students than was true in 1970 when Pell Grants did not exist;

4. To the extent that these aid programs have increased enrollments (read Gillen), they have added to the growing disconnect between labor-market realities and student job expectations, creating armies of college graduates who are bartenders, taxi drivers, etc.

5. Enrollment increases, in turn, have contributed to a dumbing down of higher education and to declining standards.

What to do? The federal government needs to wind down its financial aid commitment. Restrict eligibility for aid to truly low-income students. Impose performance criteria for aid recipients: mediocre students will lose aid. Make the college absorb some of the risk for loan defaults–a lesson we should have learned from the financial crisis. Give Pell Grants as vouchers directly to students, not schools. Reinstate private lending options. Unveil new human capital contract approaches that reduce debt reliance. Downsize and reinvent federal programs and allow market discipline to operate more.

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George Leef: Will Politicians Pay Attention?

William Bennett is no economist (in fact, he once told an interviewer that he never reads books on economics) but his instinct on the connection between federal aid and rising college costs was pretty accurate. While higher education establishment defenders have often tried to dismiss Bennett’s insight, it’s basically correct, Gillen shows.Not always, however. Gillen argues persuasively that student aid targeted at low-income students who otherwise wouldn’t have gone to college contributes little or nothing to rising costs because the institutions cannot “capture” the additional funds. That finding doesn’t mean that it would be a good policy to increase this kind of aid, of course.Government student-aid programs that are universally available, however, do lead to rising college costs. Gillen has worked through various differing scenarios to show how increasing student aid is apt to influence college officials. Particularly important in that regard is his emphasis on looking not just at short-run effects, but also what he calls “the dynamic story.” Here’s what he means. Even if some schools decide not to raise tuition when government aid puts more dollars in student pockets, those that do will spend the revenues gained on the zero-sum game of gaining prestige. Since most colleges won’t want to keep falling behind in that arms race, they’ll eventually give in and raise tuition. Not always, however. Gillen argues persuasively that student aid targeted at low-income students who otherwise wouldn’t have gone to college contributes little or nothing to rising costs because the institutions cannot “capture” the additional funds. That finding doesn’t mean that it would be a good policy to increase this kind of aid, of course.Gillen concludes that the only escape from Bennett 2.0 is for the nature of competition in higher education to change–away from seeking greater “prestige” and toward competing for consumer dollars by offering better value. He’s right and the rumblings of disaffection with mere credentials and the search for real education seems to presage just that.I applaud this work, but will it make any difference? After all, it is clear beyond any doubt that raising the minimum wage is counter-productive, but politicians keep doing that. Why should Gillen’s demonstration that the more politicians try to make college “affordable,” the more costly it becomes be any different?

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Hans Bader: Ever-growing Bureaucracies

You don’t need to be a Ph.D in economics, like Gillen is, to know that government subsidies usually lead to higher costs. That subsidies drive up costs is something I learned in introductory economics, long before I got my degree in economics or worked for the Education Department. The value of Gillen’s study is to show that this conclusion logically remains true even under widely-varying assumptions about educational markets. Gillen does not discuss certain Education Department rules that drive up tuition even more directly. For example, certain low-cost schools are affected by the Education Department’s 90-10 rule, which requires that the school keep tuition high enough for students that no more than 90 percent of its funding is covered by federal financial aid. So as financial aid rises, tuition necessarily rises even faster. But financial aid is not the only way that the government drives up tuition. State and federal regulations imposed on colleges have mushroomed in recent years, requiring colleges to hire ever-increasing numbers of administrators to comply with them. (There are now more college administrators than faculty at the California State University system and many other colleges). For example, colleges in New Jersey are subject to a costly and complicated anti-bullying law that has 18 pages of required components. Colleges in some states are subject to state sexual harassment laws that are more stringent than federal law, and hold colleges liable for uncapped damages for harassment by students, effectively requiring them to create specialized university bureaucracies to swiftly investigate and discipline students, rather than relying on ordinary campus disciplinary bodies that operate at a slower and more deliberative pace. Government regulations often require that a school be accredited, a condition that accreditors like the American Bar Association use to force law schools to use racial preferences in admissions or run costly diversity and sensitivity-training programs (despite the dubious legality of some such programs and admissions preferences). Such mandates have contributed to the growth of a vast and costly “diversity machine” in college administrations. Recent Education Department guidance documents have also made Title IX compliance more difficult and costly for colleges, by seeking to force them to process sexual harassment complaints against students in ways that differ from customary college procedures in disciplinary cases, and to give certain complainants the ability to appeal a school’s finding that an accused student was innocent. Gillen cites a study showing that for-profit colleges whose students received federal financial aid charged 75 percent more than those whose students were not eligible. I wonder if some fraction of this difference was the result of government mandates tied to the financial aid, rather than the aid itself. image for mtc.jpeg

Herbert I. London: We Need Controls

My experience in higher education confirms the opinion that federal aid has an influence, a profound influence, on tuition decisions and other aspects of university finances.

Clearly not all federal aid is the same and not all college responses to aid are the same. However, there is a dynamic quality to federal subsidies that cannot be ignored. Every federal dollar given to a university will be spent. This is a version of higher education’s Parkinson’s Law. The institution expands in multiple ways to accommodate government largesse. Derek Bok, former Harvard president, said, “Universities share one characteristic with compulsive gamblers and exiled royalty: there is never enough money to satisfy their desires.”

Every dollar given to a college goes through the turnstile of institutional improvement. Teaching loads could be reduced, new laboratories might be built, an academic “star” might be lured into a newly created position. But year one in this allocational arrangement is not always related to year two. If the initial costs are borne by government aid, the future costs may put pressure on the administration to seek additional revenue, very often in the form of tuition increases.

In fact, the process tends to be self-fulfilling. Aid producers reforms; reform leads to additional expense; additional expense very often translates into upward pressure on tuition rates. While President Obama has discussed controlling college costs, he overlooks the influence federal assistance has on college affordability. Nor is there any reason to assume a change of direction. There is political capital to be garnered by demanding cost controls and, at the same time, expanding access to tuition assistance. That these conditions may be contradictory is lost on a public increasingly frustrated with the inflated cost of a college education.

The Good-Hearted, Wrong-Headed Anti-Bullying Campaign

Cross-posted from Open Market

“It launched a hundred ‘anti-bullying’ initiatives at all levels of
government, but much of what you think you know about” the Tyler Clementi case
“is probably wrong,” notes
legal commentator Walter Olson
at Overlawyered, the world’s oldest law
blog. Andrew
discusses this as well, linking to Ian
Parker’s article in The
New Yorker

Continue reading The Good-Hearted, Wrong-Headed Anti-Bullying Campaign

12 More Law Schools Sued for Defrauding Students

from Open Market

The Chronicle of Higher Education reports
a team of eight law firms have just “sued a dozen more law schools
across the country, accusing them of luring students with inflated
job-placement and salary statistics and leaving graduates ‘burdened with debt
and with limited job prospects.’ The lawyers . . . said they planned to file 20
to 25 new lawsuits every few months . . . the lawsuits had been filed on behalf
of a total of 51 graduates, and each suit was seeking class-action status. The
targets of the latest round of lawsuits” include  “Brooklyn Law School
(N.Y.),” “Chicago-Kent College of Law,” DePaul University College of Law,”
“Golden Gate University School of Law,” “Hofstra Law School,” “University of
San Francisco School of Law,” “Widener University School of Law,” and several

Continue reading 12 More Law Schools Sued for Defrauding Students

Obama Fosters the Skyrocketing Tuition He Criticized

Cross-posted from Open Market.

In his State of the Union Address, President Obama decried
skyrocketing college tuition
, attempting to take advantage of public anger over the steadily-worsening college tuition bubble.
This was ironic, since his own Administration has done much to foster rising college tuitions.

For example, it imposed the 90-10 rule, which forced low-cost educational institutions to raise their tuition to comply with a new federal regulation requiring them to charge
enough over federal financial aid so that at least 10 percent of education costs don’t come from financial aid.  For example, Corinthian College had diploma programs in health care and other fields that can be completed in a year or less.  Until 2011, many of those programs had a total cost of about $15,000, which meant that federal grants and loans could cover nearly 100 percent of their cost.  In response to the Education Department’s rule, the college raised
to comply with the 90/10 rule.  The net result of the Obama Education Department’s rule was to “create a perverse, no-win ‘Catch-22’ that could prevent low-income students from attending college,” by encouraging such colleges to raise tuition to outstrip rising financial aid by more than ten percent.  Administration allies like Senator
Richard Durbin (D-IL) are now pushing a new rule, the 85-15 rule, that would require low-cost institutions to further raise tuition so that at least 15 percent of education costs aren’t covered by financial aid.  (With this kind of mentality, it is no wonder that college graduation rates have actually “fallen
since the 1970s” “among poor and working-class students”).

Continue reading Obama Fosters the Skyrocketing Tuition He Criticized

The Ever-Expanding Concept of “Bullying” Casts an Ominous Shadow Over Free Speech

Cross-posted from
Open Market.

A school superintendent has labeled a column in a school newspaper that criticized homosexuality as “bullying.” (The Shawano High School newspaper decided to run dueling student opinion pieces on whether same-sex couples should be able to adopt children; the student article that was labeled as “bullying” answered the question “no.” The school district also publicly apologized for the column, and said that it is “taking steps to prevent items of this nature from happening in the future.”)

Continue reading The Ever-Expanding Concept of “Bullying” Casts an Ominous Shadow Over Free Speech

A Law Professor Takes on the Victimhood Industry


The Supreme Court.jpg

Keeping quiet can seal your fate if you are a professor facing a campus kangaroo court after being accused of racial “harassment” over your classroom speech. Free-speech advocates use adverse publicity to save wrongly-accused professors from being convicted and fired. They put to good use Justice Brandeis’s observation that publicity cures social evils, just as sunlight is a disinfectant.

But as the plight of Lawrence Connell at Widener University illustrates, if an accused professor speaks up, resulting in possible adverse publicity for his accusers, he risks being punished for “retaliation” against them, even when harassment charge is baseless. Connell was convicted of “retaliation” because he and his lawyer denounced meritless racial harassment charges against him over his classroom teaching. Retaliation charges have become a growing threat to academic freedom, fueled by court rulings that provide murky and conflicting guidance as to what speech can constitute illegal “retaliation.”

Connell, who is white, was charged with racial harassment and removed from Widener’s campus because he discussed hypothetical crimes in his criminal law class, including the imaginary killing of the law school dean, Linda Ammons, who happens to be black. (He was also accused of harassment because he “expressed his philosophical concerns about the fairness and utility of hate crime” laws).

But there was never any evidence that Connell used the dean in these hypotheticals because of her race. (Comments are not “racial harassment” unless they target a victim based on her race, and are severe and pervasive, according to Caver v. City of Trenton, a ruling by the appeals court that has jurisdiction over Widener.) Far from being a racist, Connell had spent 15 years successfully working to save the life of a black man who had been sentenced to die after he was convicted of murder by an all-white jury.

Leading law professors submitted affidavits in support of Connell pointing out that discussing hypothetical crimes against law deans was standard practice in criminal law classes. George Washington University’s Orin Kerr noted that “one of the common ways that law professors keep students mildly entertained in class is by posing hypotheticals involving their professors and the Dean. . . . students just love it. If you teach first-year criminal law,” “that means you spend a lot of time imagining your colleagues meeting horrible fates.” In Bauer v. Sampson, a court ruled that depicting a college official’s imaginary death was protected by the First Amendment.

After Connell was exonerated by a committee of law professors, the charges against him were resubmitted to a disciplinary panel including Dean Ammons herself, another Widener administrator, and a professor hand-picked by Ammons.

While even this panel was forced to concede that Connell had not committed racial harassment, it found him guilty of two acts of “retaliation”: the first was an email protesting his innocence after he was suspended and banned from campus, and the second was his lawyer’s public statement that he was preparing to sue over the unfounded allegations. The email called the accusations against him “preposterous” and said that they were made by “two unnamed students from my Criminal Law class of spring 2010” who “falsely” quoted and took “out of context” his classroom “remarks.” The panel deemed the email to be illegal retaliation, even though the email did not even name the accusers, because the email supposedly had the “foreseeable effect of identifying the complainants.” (The email led to students speculating about who the complainants were, and a complainant suspected that others “believed that she was one of the complaining students.”). Connell was then suspended for a year without pay. As a condition of reinstatement, he must undergo psychiatric treatment, and be deemed sufficiently “cured” before he is allowed to return to his classroom.

Connell’s email did not constitute “retaliation” under controlling legal authority. But Widener was able to claim otherwise with a straight face, by cherry-picking language from court rulings it selectively cited. First, it recited the vague, broad definition of retaliation from the Supreme Court’s decision in Burlington Northern v. White (2006): conduct that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” The email, it suggested, could dissuade complaints by making complainants uncomfortable or inciting ostracism against them.

But Widener ignored language in that court ruling saying that mild expressions of hostility in response to a complaint do not rise to the level of “retaliation.” The Supreme Court declared that “snubbing by supervisors or co-workers” or “petty slights” in response to a complaint do not rise to the level of retaliation, since they would not be “material” enough to dissuade a “reasonable” person from complaining. If actual snubbing is not retaliation, Connell’s email can’t qualify based on Widener’s speculation that it could lead to snubbing. The Supreme Court also said that only “significant” rather than “trivial harms” constitute retaliation, and that “sporadic” “abusive language” or “occasional teasing” does not qualify.

Second, Widener cited a ruling from a Midwestern appeals court (which has no jurisdiction over Widener), that rejected a challenge to a professor’s discipline for publicly criticizing a harassment complaint. That disturbing ruling, Bonnell v. Lorenzoessentially held that bans on “retaliation” trump the First Amendment, menacing academic freedom.

In doing so, Widener ignored other First Amendment rulings limiting the reach of retaliation law. For example, in BE&K Construction Co. v. NLRB (2002), the Supreme Court held that an employer’s reasonable, but unsuccessful, lawsuit was protected by the First Amendment’s petition clause even if it had a “retaliatory motive.” In Bain v. City of Springfield (1997), the Massachusetts Supreme Court ruled that a mayor was entitled to publicly denounce a sexual harassment complaint against him, even if that could dissuade the filing of harassment charges, since retaliation prohibitions are limited by “constitutional guarantees of freedom of speech. The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech.” Similarly, in Brooks v. City of San Mateo (2000), the Ninth Circuit held that “retaliation” could not be found based on “mere ostracism” or employees’ refusal to associate with an employee after she brought an unsuccessful harassment complaint, citing a potential clash with the “First Amendment freedom of association.”

In short, contrary to what a Florida trial judge recently suggested, there is no blanket exception to the First Amendment for speech that is “discriminatory” or “retaliatory.” In DeJohn v. Temple University (2008), the federal appeals court with jurisdiction over Widener invalidated a college sexual-harassment policy that restricted academic speech, noting that “there is no ‘harassment exception’ to the First Amendment’s Free Speech Clause,” and “no categorical rule . . . divests `harassing’ speech as defined by federal anti-discrimination statutes, of First Amendment protection.” Similarly, White v. Lee (2000) rejected liability for speech that allegedly incited discrimination, holding that the anti-discrimination provisions contained in the Fair Housing Act did not override free speech protections. That appeals-court ruling held that citizens could not be investigated under the Fair Housing Act, even if their speech was bigoted, and led to a city blocking a housing project for the disabled. If the First Amendment protects speech that incites actual discrimination, it certainly protects speech that merely unintentionally incites snubbing of a discrimination complainant. In Rodriguez v. Maricopa County Community College (2010), an appeals court, citing the First Amendment, dismissed a racial harassment lawsuit against a white professor over his racially-charged anti-immigration emails.

While Widener’s claim that Connell’s email was “retaliation” was a tortured reading of the law, it reflects what retaliation ought to mean to some left-leaning lawyers who counsel universities. (Other academics, like Richard Osborne at Mesabi Community College, have also been punished for “retaliation” for speaking out vigorously in their own defense; Osborne’s punishment was rescinded only after he brought a free-speech lawsuit.) To these lawyers, current legal rules privilege white male faculty at the expense of minority complainants, giving them insufficient protection.

When law professors at the Volokh law blog condemned Widener’s treatment of Connell, most of its lawyer readers disagreed with Widener’s “retaliation” finding in the comment thread. But a liberal employment lawyer who represents universities disagreed, arguing that Widener was not only permitted but legally “compelled to punish” Connell for “retaliation.” Brushing aside the arguments of many other lawyers pointing out that Connell’s email did not legally amount to “retaliation,” that commenter, who represents employers, argued that simply proclaiming your innocence without even mentioning the name of your accuser can be retaliation. He claimed that Connell, who had received high marks for his teaching (and successfully handled high-profile cases in court), was a “warped,” “underachieving white male” who should have been fired. People wrongly accused of harassment, he said, should just keep their “mouth shut and let the process” work, “not contact” potentially helpful witnesses, and “say nothing to anyone.” He argued, “when you are accused of race and sex discrimination, it is best to be silent . . . And you should keep silent unless and until you have been exonerated.” (That is a prescription for disaster in dealing with a campus kangaroo court, or in getting sympathetic witnesses to come forward to rebut a claim that a professor’s classroom remarks created a racially-harassing “classroom climate”). Exuding racial grievance against whites, he depicted those who disagreed with him as racists, and called the conservative Connell an “anti-black bigot,” citing the alleged existence of “OBVIOUS historical antipathy between conservatives (especially white male ones) and minorities” — even as he claimed that jurors were legally “required” to find O.J. Simpson not guilty. As a commenter observed in response, lawyers like this are “part of the whole victimhood industry, . . . ‘advising’ clients to genuflect before the gods of political correctness, lest they be harmed.”

Employment lawyers are a lopsidedly liberal lot. In my employment-law class at Harvard Law School, my classmates were overwhelmingly hostile to employers in harassment and retaliation cases. Ironically, some of those classmates now have jobs representing employers and advising them on their legal responsibilities. Their advice may well be colored by their ideology, and may lead to their clients firing innocent employees as “harassers” or “retaliators.” Moreover, broad legal definitions of “harassment” and “retaliation” create more lawsuits, and thus more demand for these lawyers’ services, benefiting them financially.

There is a final reason why Widener’s finding that Connell engaged in illegal retaliation was erroneous: the complainants’ allegations were legally unreasonable and thus not protected against “retaliation.” Retaliation against a harassment complainant is not legally prohibited if the complaint was based only on trivially-offensive speech, as the Supreme Court made clear in Clark County School District v. Breeden (2001). Thus, a complaint about a single racist utterance was not protected against retaliation, according to an appeals court in Jordan v. Alternative Resources, because it could not reasonably be perceived as illegal harassment. No reasonable person would think that Connell’s perfectly-defensible classroom remarks were illegal racial harassment. (Note that while unreasonable charges are not protected if made to an employer, they are protected if made to a civil-rights agency; agency complaints are generally protected even if false).

What Do the Law Schools Think They’re Doing?

from OpenMarket.org

The New York Times featured an excellent news story
Sunday by David Segal
on the costly white elephant that is legal education
in America. He describes how law school is expensive because of
government-enforced accreditation standards that prevent law schools from
containing costs even if they wanted to (and in truth, most law schools are all
too happy to jack up their costs and pass them on to law students and consumers
of legal services): “the lack of affordable law school options, scholars say,
helps explain why so many Americans don’t hire lawyers” when they genuinely
need legal assistance or advice. One reason for that is that lawyers who incur
a fortune in student loans need to bring (or defend) big-ticket lawsuits — even
socially destructive lawsuits — to pay off their loans, instead of providing
badly needed legal advice and assistance to people of modest means, who can pay
less, even though handling their unmet legal needs would be much more
meaningful work for conscientious lawyers. (Certain types
of lawsuits are favored
by one-way
statutes that encourage trial lawyers to bring those particular
types of lawsuits
, even when the entity being sued is probably innocent.)

Continue reading What Do the Law Schools Think They’re Doing?

How Federal Aid Drives Up College Tuition

At Bloomberg News, Virginia Postrel writes about how federal
subsidies intended to make college more affordable have instead encouraged
rapidly rising tuitions, in a column entitled, “U.S.
Universities Feast on Federal Student Aid
.” Education analyst Neal
McCluskey links to four studies showing that increased government spending on
student aid results
in large tuition increases
. As Postrel notes, talk of a “higher education bubble” is now common: “As veteran education-policy consultant
Arthur M. Hauptman notes in a recent essay: ‘There is a strong correlation over time
between student and parent loan availability and rapidly rising tuitions.
Common sense suggests that growing availability of student loans at
reasonable rates has made it easier for many institutions to raise their
prices, just as the mortgage interest deduction contributes to higher housing

Continue reading How Federal Aid Drives Up College Tuition

Senate Bill Would Further Undermine Due Process on Campus

From OpenMarket.org

Historically, most colleges used a “clear and convincing” evidence standard in student and faculty discipline cases, to safeguard due process. As Nicholas Trott Long noted in 1985 in the Journal of College and University Law, “Courts, universities, and student defendants all seem to agree that the appropriate standard  of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” (Long, The Standard of Proof in Student Disciplinary Cases, 12 J.C. & U.L. 71 (1985).)

But in recent years, this due process safeguard has come under attack,…

Continue reading Senate Bill Would Further Undermine Due Process on Campus

Washington Invents an Anti-Bullying Law

image001111.jpgThere’s no federal law against bullying or homophobia.  So the Department of Education recently decided to invent one.  On October 26, it sent a “Dear Colleague” letter to the nation’s school districts arguing that many forms of homophobia and bullying violate federal laws against sexual harassment and discrimination.  But those laws only ban discrimination based on sex or race – not sexual orientation, or bullying in general.  The letter from the Education Department’s Office for Civil Rights twisted those laws, interpreting them so broadly as to cover not only bullying, but also a vast range of constitutionally protected speech, as well as conduct that the Supreme Court has held does not constitute harassment.  In so doing, it menaced academic freedom and student privacy rights, and thumbed its nose at the federal courts.

The letter successfully left the false impression that federal law already bans bullying and anti-gay harassment.  For example, a sympathetic news story reported that  “the Department of Education issued guidance to all school officials in October 2010, reminding them that federal law requires schools to take action against bullying–including . . . sexual harassment of LGBT students.”  The letter was part of a high-profile Obama Administration campaign against bullying, that recently culminated  in “a high-visibility conference on bullying prevention March 10, with the president and first lady” and the introduction by Administration allies of “several LGBT-inclusive bills designed to address bullying of students.”

But in reality, there is no federal ban on bullying, and no federal statute prohibiting sexual orientation discrimination.  Bills banning anti-gay discrimination, such as the Employment Non-Discrimination Act, have yet to pass Congress.  Existing sexual harassment laws generally do not cover harassment aimed at gays based on their sexual orientation, as opposed to their gender – even if such harassment is sexual in nature.  As the Supreme Court emphasized in its 1998 Oncale decision, “workplace harassment” is not illegal sexual harassment “merely because the words used have sexual content”; instead, victims “must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination ‘because of'” a victim’s “sex,” such that “members of one sex are” treated worse than “the other sex.”  Thus, federal courts have usually dismissed sexual harassment lawsuits brought by gay employees over bullying and foul language, in cases like Higgins v. New Balance (1999).

Harassment is legally defined even more narrowly in schools than workplaces.  In the workplace, harassment need only be severe or pervasive enough to create a hostile environment in order to be illegal.  A single, severe physical act can occasionally be enough for a lawsuit.

Continue reading Washington Invents an Anti-Bullying Law