American Colleges Are Approaching a Constitutional Crisis

By David French

Wednesday, December 28, 2016

Intent on establishing progressive utopias, universities and federal bureaucrats are together systematically violating the constitutional rights of students and professors. The stories are legion, the legal standards are unconscionable, and it’s past time for other branches of American government to step in and set things right.

Consider what just happened at the University of Oregon. Acting in response to student and faculty outrage after a white law professor dressed up as a black man at an off-campus costume party (she was attempting to protest racism), the university suspended the offending professor and then issued a lengthy report holding that wearing the costume constituted “discriminatory harassment.”

Why? Because the incident was race-based and caused arguments and controversy on campus. Here’s a key statement in the report: “Based on both the reaction and lack of reaction from other faculty and professors, students have also felt a sense of anxiety and mistrust towards professors and faculty beyond just Shurtz, with some students considering and seeking out transfers to other schools.”

Allow me to interpret. Offended students weren’t just angry at the professor, they were also angry that not all students and professors were sufficiently outraged at the offending professor’s actions. In other words, at Oregon if you speak on an issue of race, gender, religion, or sexuality, you are responsible not only for any anger your speech may cause but also for other students’ and professors’ reactions to that anger.

But of course identity politics don’t merely impact free-speech rights. They also lead to systematic anti-male sex discrimination and violations of the most basic due-process rights of students accused of sexual assault.

Then consider this legal complaint, directed at Indiana University. It is simply astounding. The university expelled a male student for sexual misconduct even though the female student allegedly admitted that she invited the male student into her bedroom, asked him to retrieve a sex toy, and asked him to have sex with her. She told the Bloomington police department, “I was, like, telling him, like, to have sex with me.”

The resulting university proceedings were allegedly a due-process horror show, featuring university hearing officers trained by an official “who admits that he starts each case believing the [defendant] is guilty.” The lawsuit points to news reports where this same official admitted to trying to “break” another defendant.

And speaking of due-process horror shows, this case from James Madison University shows how universities engineer the results they want. After an initial finding that the male defendant was “not responsible” on the charge of sexual misconduct, the female student appealed. The appeals panel reversed the finding and sanctioned the male student. The male student sued, and a federal judge ruled in his favor, finding that “no reasonable jury” could find that he was given a “fair process.” The reasons were legion:

In short, Doe [the male student] was given no opportunity to respond to some of the evidence . . . , was hampered by the rules prohibiting contact with witnesses or limited by time constraints in responding to others . . . , and was not permitted to appear before the appeal board. . . . Additionally, because the appeal board made no finding of responsibility by Doe and provided no reasons for its “Increased Sanction” decision, the appeal board decision and its review . . . were unfair to Doe.

I bring up these cases not because they’re unusual but because they’re becoming all too typical on campuses overrun by identity politics and governed by a federal educational bureaucracy that is lawlessly expanding Title IX and other federal statutes well beyond their intended scope. For disturbing chapter and verse on this sad and unconstitutional spectacle, I’d urge you to read Robert Shibley’s excellent Twisting Title IX.

The new regime mandates that universities conduct their own quasi–court proceedings to adjudicate criminal matters best left to real courts, sanctions and encourages “due process” that often denies legal assistance to defendants, and effectively shifts the burden of proof (through bizarre “affirmative consent” standards) to the accused. In a Title IX investigation, the accused is often prevented from adequately reviewing the charges against him and prevented from adequately questioning witnesses. University officials conduct themselves in a manner that would embarrass even corrupt or amateurish judges and prosecutors.

As for free speech, on campus the heckler’s veto is alive and well — with a student’s or professor’s First Amendment rights mainly dependent on the size of the outcry against him or her. Raise enough of a ruckus, and the Constitution fails.

A generation of litigation has inflicted loss upon loss on public universities, yet the campus climate is still rife with censorship and due-process violations. It turns out that administrators fear their own on-campus ideologues and the progressive education bureaucracy far more than they fear the federal courts. Indeed, the financial penalty for angering a bureaucrat — loss of federal funding — is far greater than any damage award imposed by any court. Judges are proving to be a poor check on campus power.

So it’s time to turn the tables. It’s time to readjust the incentives. Congress needs to intervene in two concrete ways. First, it needs to withhold federal funds from any public university that repeatedly violates the constitutional rights of its students or faculty. If a court of final jurisdiction finds that a public university violated the constitutional rights of a student or faculty member more than once in any five-year span, it should lose all federal funding for at least a year. Moreover, there should be a substantial, fixed financial penalty for each constitutional violation, no matter how infrequent.

Second, universities need to get out of the sexual-assault-adjudication business. Universities are educational institutions, not criminal courts, and they are poorly equipped to decide criminal cases or even civil liability. It is easy enough to separate students who are embroiled in pending criminal or civil proceedings, and universities should discipline or expel only students who are found guilty or liable by courts of final jurisdiction.

It’s simply too much to ask the Trump Department of Education to “fix” Title IX or to protect constitutional rights on campus. Any rulemakings or memoranda generated by a new administration can be just as easily undone by the next. It’s time to use sensible congressional majorities to pass sensible laws. Universities have proven they can’t govern themselves. Perhaps Congress can fill the breach.