Says Instapundit, linking to Megan McArdle, who identifies a different anachronism: The persistence of the old in loco parentis model, "in which [colleges] could have parent-like rules about things such as being drunk or alone in your room with a member of the opposite sex."
[W]hen in loco parentis was the rule, the Title IX rules made a certain amount of sense. Now they make no sense at all. On the one hand, colleges are supposed to treat their students as full-fledged adults who cannot be told where and when to drink, or with whom they can have sex … but we also want to say that colleges have the responsibility for ensuring that nothing bad ever happens. And that in pursuit of this goal, colleges should punish the accused with the speedy and sometimes arbitrary fiat of parental authority, rather than the ponderous and sometimes unsatisfying protections of due process....That behavior, of course, includes many things that you might want to protect victims of sexual assault from getting blamed for doing (like drinking too much and going into a room with someone). These are, in fact, things that don't excuse sexual assault as a legal matter, but that's the point: Get into the proper criminal law mode, if that's the approach you want.
If college students are children, then the college should have much wider latitude to control and punish their behavior....
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Current University star chamber investigations of the male halves of regretted couplings are 'in loco parentis' tokens visited on kids of gay female marriages.
I guess I'm an old fossil, but I recall women looking out for each other back in the day.
They went out in pairs or groups and if one of them got snockered the other(s) wouldn't allow them to wander off with a guy.
In fact, my wife mentioned the old "women don't go out alone in unknown place" rule when we were walking the beach in the Bahamas. She noticed that almost all of the women walking (early morning) were paired off with someone while most of the men were, if not with a women, alone.
The thinking used to be that most guys were ok, but you never know when you might encounter a creep, so best take precautions.
Now the thinking seems to be that most guys are sexist pigs, but you shouldn't have to take precautions. Cause grrl power. Or something.
This entire exercise shows the great importance of the Bill of Rights, and of courts that will preserve these rights. Our supposedly most liberal educational institutions, in cahoots with the amusingly titled Department of Justice, have developed a set of rules and procedures that violate just about every element of what we usually consider due process procedural fairness.
The authoritarian impulse is not the sole provence of the left, but right now the American left is the best example of that tendency run amok in our country. It's all the more dangerous because the left so piously believes that it can do no wrong.
In the 70's, when I attended the other UW, the Campus Cops were mostly invisible. They had one hand-me-down Ford from the state patrol.
Today, they are a much larger force, they have multiple automobiles, bullet-proof vests, and make stops in the adjacent off-campus neighborhoods.
Hey, if you can put off adult decisions like buying health insurance until age 26, why not continue your childhood with adult supervision until you graduate from college at age 22?
Personally, I think the age of 18 should be a bright line for everything. Voting, drinking, etc. If you choose to go to a college that restricts your freedoms, well, that's an adult decision that you make. The problem is that the government is apparently tying federal funds to colleges assuming this ridiculous in loco parentis function.
The entire government-higher ed complex needs to be dismantled. It's disgusting. This is one of the many perverse results, which helps no one really and costs a boatload of money.
IANAL, but I don't see how public universities can comply with these regulations and remain compliant with constitutional protections such as due process, right to counsel, right to confront witnesses, etc.
Private universities might skate by since they can argue that these quasi-criminal procedures are agreed to by the students. (Much like the fact that private universities have the right to restrict speech by students in ways that state universities can't.)
What is going on here is that a lot of co-eds these days binge drink, get blotto drunk, several times the legal limit (despite the co-eds often being under aged). They then have sex they on occasion regret - and then repeat the next weekend, etc. And, somehow, it is the fault of the young men, who are just doing what they have been doing throughout recorded history, and much longer, at a time when their testosterone levels are at their highest.
Sure, sometimes the guys cross the line. But the criminal justice system handles those situations just fine. The problem is that with the ongoing War Against Men, esp in academia, universities across the country are stacking the process heavily in favor of the women, and against the men. The norms of our English criminal justice system, such as confronting the accuser, access to an attorney, presumption of innocence until proven guilty, heightened requirement for a verdict, etc are being discarded to appease the feminists on campus.
Statistically, college campuses are relatively safe, in terms of violent crime, but somehow, we are supposed to believe that they are hotbeds of rape, some 100x the national norm, w/o any increase in other violent crime.
Like I said above, the War on Men, in order to get and keep the votes of single women. Holder DoJ doesn't care how many lives of how many guys they destroy, as long as single women keep voting for Dems, and keep the federal money and power spigots wide open for Dem politicians and their cronies. All notions of justice are expendable, in the pursuit and maintenance of power.
They're just protecting themselves against lawsuits - like workplaces, bars, Disneyland - all of whom have their own rules outside due process.
I've been wondering that for a long time. What qualifications does a college have to "try" a rape case?
Every college, whether in a big city or far out in the country, is located in some political district with a fully functioning criminal justice system. Real crimes should be reported to them and adjudicated through them. That's why they exist and they have the tools to do it right. Let the college handle plagiarism, let a real court handle violent crime.
I'm waiting for the first really big lawsuit against a university for violating a (male) student's civil rights with their kangaroo courts.
I agree with this very much. Schools are not police forces.
At the core of its sexual assault campaign, the Obama Admin wants colleges to treat every case of female, morning after regret, as an actionable incident...
The irony within this farce is that by arguing that any drinking by the two parties makes the female into a victim and the male into the perp. Punishing only males for the combined offense of drink/sex is clearly gender discrimination under Title IX.
The fact is that most colleges' rules on sexual assault demean and infantilize women.
They assume that women cannot be responsible for her own choices. If she has been drinking, she cannot make bad choices about with whom she chooses to have intercourse. But men can.
Women are allowed "do-overs" in which they can report sexual contacts they regret as "sexual assaults." Because apparently she's not grown up enough to accept that - with the consumption of alcohol or other intoxicants - she also has the responsibility for her own actions.
Instead, what we see all over the country, is men who are held to an entirely different standard and who have their futures - and presents - ruined by women who want all the benefits of adulthood without any of the responsibilities.
"It's my body, my choice" shouldn't just refer to abortion. It's also about the "choice" to get intoxicated beyond the ability to reason properly in a public venue and then having to take responsibility for the choices you make in that state.
If someone was drinking illegally (e.g. underage), what impact should that have in a college kangaroo court in an alleged sexual assault case?
If you say that the drinking should have no bearing, does your answer change if it was the alleged assaulter or alleged victim that did the drinking?
If you say the drinking should have bearing, then should the alleged victim be kicked out of school for "contributing to a sexually hostile environment" by making sexual assault easier?
If the university is failing to effectively restrict underage drinking, what responsibility should it bear in ""contributing to a sexually hostile environment" by making sexual assault easier?
"I've been wondering that for a long time. What qualifications does a college have to "try" a rape case?"
They are enforcing their own code of conduct which the students have presumably in some way agreed to submit themselves to, and the sanctions are things like expulsion from school.
Nevertheless, the criminal law still applies, and anyone who believes he or she has been victimized by a crime is free to call the police.
The issue here is what rights does the accused have in the campus procedure.
The problem I have with all this is that the college isn't taking on a comprehensive in loco parentis role like in the old days, when there were curfews and requirements that you avoid even being in a room with a member of the opposite sex with the door closed.
The issue here is what rights does the accused have in the campus procedure.
Whatever is decided by all the (likely female) administrators.
Because, you know, it's policy. Or something. They don't want to think about individual cases.
Every college, whether in a big city or far out in the country, is located in some political district with a fully functioning criminal justice system. Real crimes should be reported to them and adjudicated through them. That's why they exist and they have the tools to do it right. Let the college handle plagiarism, let a real court handle violent crime.
The first time I became aware that there was such a thing as campus "police" I thought, "What the hell! Why aren't the real police in play here? Where are the real police"?
I have nothing against the concept of armed security guards, properly trained in the handling of firearms, who can call in REAL police when a crime occurs but unless these campus "police" are graduated from the local police academy they are not real police.
In loco parentis has always been a load of crap when applied to universities. The parents have no particular rights or responsibilities at that point (because the "child" has come of age), so the university has no responsibilities to assume in that area.
"They are enforcing their own code of conduct..."
Two sincere questions:
1) What point, exactly, in the code of conduct is at issue here? If it's not rape, what is it (and is it a criminal offense or simply a campus offense)?
2) Deciding what to do and whether a breach has occurred presumably is based on what happened. If they decide a rape has occurred (without a court verdict) then they are, in essence, trying a rape case. If they decide some other infraction happened irrespective of a rape, is it just a proxy for punishing a presumed rape? (Again, absent a court finding.)
My daughter graduated from U of Arizona last May and saw none of this. She is pretty and social and drinks but doesn't believe the statistics being prattled about.
Her general ed classes were a cesspool of misinformation but she came out even more conservative than I am.
My daughter graduated from U of Arizona last May and saw none of this. She is pretty and social and drinks but doesn't believe the statistics being prattled about.
Her general ed classes were a cesspool of misinformation but she came out even more conservative than I am.
I'm waiting for the first really big lawsuit against a university for violating a (male) student's civil rights with their kangaroo courts.
There have already been a few...all lost. A couple of particularly egregious examples of due process failure are the Bleiler case at Holy Cross and the Yu case at Vassar. And there are others.
While there can be no opposition to the pursuit of rapists, everyone else gets caught up in the shadow of the accusation with no due process protections, a preponderance of the evidence standard and training materials that state:
“everyone should be very, very cautious in accepting a man’s claim that he has been wrongly accused of abuse or violence” and that one indication of an abuser is that he will “act persuasive and logical.”
Indeed! Heaven forbid that a guy accused of misconduct that can get him expelled and ruined would act persuasive and logical (sic).
Liberal fascists have no boundaries. No limits. It's all about the ends.
- Krumhorn
Althouse, what do you think of the stigma that attaches to a finding of "sexual assault" in a case which would not have been pursued criminally?
So many of these colleges presume the guilt of the man, even if both parties are drunk and incapable of consent. Aren't they raping each other?
"The problem I have with all this is that the college isn't taking on a comprehensive in loco parentis role like in the old days, when there were curfews and requirements that you avoid even being in a room with a member of the opposite sex with the door closed."
I believe there are still a few universities that have curfews and requirements that most would regard as outmoded at best if not actually repressive - mostly military academies and universities with religious affiliations that they take seriously.
Nobody (mostly) complains when they kick someone out for not following the rules, their students chose to go there after all and they knew the rules.
However, I do see a couple of problems with the rules the DOJ is currently trying to propagate.
1) I don't think that most of the students do realize that a male can be kicked out of school and labeled a rapist on no more than the say so of another student if said student is of the proper gender.
2) Such policies will, inevitably, be used to stifle dissent. Someone voices an unpopular opinion, accuse them of sexual assault. In fact, why not make voicing unpopular opinions a form of sexual assault. "What, you say that there is no rape culture and the sexual assault statistics I cite to prove it exists are specious? That makes me feel unsafe, I think you should be expelled because that is the same thing as sexually assaulting me."
3) Single Investigator - you might as well just send the accused an email stating, "pack up your things and get off campus immediately" as soon as the accusation is made. What administrator is going to be willing to become known as the individual who let a rapist get away with it?
By the way, I have read about a couple of successful lawsuits against accusers and schools for defamation. The schools may have the right to kick someone out for eating chocolate on Tuesdays if that is against the rules, but not following due process can lead to litigation in regards to libel and slander.
"1) What point, exactly, in the code of conduct is at issue here? If it's not rape, what is it (and is it a criminal offense or simply a campus offense)?"
First, I'm not your lawyer, and I'm not an expert on what's in the code or anything of this.
But generally, it's important to see that a person's conduct — the very same instance of conduct — could be a violation of the criminal law, could be an actionable tort, could violate a contract, and could violate some other rule that the person is subject to.
It's not as though once some action is a crime, it ceases to be any of these other things. It can be all of them. And there may be different entities that can seek to do something about it. You could be sued in tort by the victim. The school might expel you. And it could still be a crime.
You see why this has to be, I take it.
"So many of these colleges presume the guilt of the man, even if both parties are drunk and incapable of consent. Aren't they raping each other?"
I certainly think both could be violating the same rule, and if the remedy is sought agains the man and not the woman when they've done exactly the same thing, that is sex discrimination.
If both are drunk how is it the woman is incapable of giving consent but the drunk man is capable of intent?
Absent evidence of rape-rape perhaps both should be expelled since there is no evidence of rape and there is an indication of a false-rape accusation.
Perhaps the universities should get rid co-ed dorms and drinking on university property.
When you say "presume the guilt," you're acting like it's a criminal case, where the presumption of innocence applies. I'm guessing the code of conduct is written in a way that changes the procedures. Whether these procedure changes violate due process is what is important (at least where it's a public college).
Using a "campus court" system that has no effective due process and at most can expel a perpetrator to handle serious criminal activity including sexual assault or rape shows a profound lack of seriousness. The fact that the Obama Administration is doubling down on this system demonstrates that they care about nothing more than scoring points for their "War on Women" campaign. Anyone who actually cares about reducing sexual assault on campuses should be appalled by this.
There's that "20%" figure that Obama tossed around--that one in five women on college campuses has been sexually assaulted. If that number is to be believed--and isn't broad enough to include many things that shouldn't be put in the same category as rape--then this is a serious crisis. Our college campuses are far less safe for women than our country's most dangerous inner cities.
No parent would ever rest easy after sending their daughter off to live in the most crime-ridden block in Anacostia or West Baltimore, so why would they be okay with their daughters going to an American college campus where their chances of being a victim of a serious crime are much higher there? Even in the slums your chances of being a victim of assault are far lower than 20% over a four year period.
If Obama really beleived his numbers--which let's face it, he doesn't, he's now just a leftist hack trying to fire up his base and completely gave up on actually presidenting--he'd be calling for nothing less than a complete separation of men and women at college and conditioning any further federal aid to these institutions on the hiring of additional security.
The problem I have with all this is that the college isn't taking on a comprehensive in loco parentis role like in the old days, when there were curfews and requirements that you avoid even being in a room with a member of the opposite sex with the door closed.
That would be very heteronormative of them.
"they are not real police"
And even if, by whatever definition, they are real police, they are not reporting to a real court system.
"If Obama really beleived his numbers--which let's face it, he doesn't, he's now just a leftist hack trying to fire up his base and completely gave up on actually presidenting--he'd be calling for nothing less than a complete separation of men and women at college and conditioning any further federal aid to these institutions on the hiring of additional security."
Exactly. I searched the Internet for some statistics on sexual assaults in prisons and I am seeing numbers like 9 to 20%. Are they seriously saying that the state pen is safer than state U?
I went to a non-US university.
Also have mainly lived in a society of people who went to non-US universities - French, Spanish, British, Hong Kong, Singapore, Philippines, etc.
There is NO idea of in loco parentis outside the US. At Euro and Asian universities students are on their own. Their private lives are unsupervised and they rarely receive "services". There are rarely any dorms either, and if there are they are not owned or supervised by the universities.
Nor are there university sports, or at least they are not semi-pro and are not owned or run by the universities. Separate private entities if at all.
And this freedom is ancient. In Euro tradition students were notoriously free to do as they would. There are lots of operettas about dissipated students - see "The Student Prince".
Heck, Orff's "Carmina Burana" is all medieval students drinking and wenching songs.
And if things really are that bad isn't that an indictment of the campuses current leadership? Shouldn't those people be fired and competent adults be put in charge? Certainly the state governments should be investigating. How could something like that be happening without at least silent consent from the administration?
@Ann,
The problem I have with all this is that the college isn't taking on a comprehensive in loco parentis role like in the old days, when there were curfews and requirements that you avoid even being in a room with a member of the opposite sex with the door closed.
Out of curiosity, what were the rules related to curfew and dorm room visits when you attended U of Michigan?
I don't remember such rules where I attended as an undergrad. (A decade and a half ago, at a private Tech University. The student body was mostly commuters, and on-campus housing were apartments rather than dorms.)
I attended grad school about a decade ago at a public Tech University, and I don't recall curfews in place there. Visitation rules may have been in place for dorm rooms, but I kind of doubt it.
"You see why this has to be, I take it."
Yes, you laid that part out very well and gave me something to think about concerning the overlap.
But I have a follow-up question. You talk about the "instance of conduct" being addressed at multiple levels. But what if the instance of conduct never occurred? That seems to be the prime issue in many of these cases - did anything happen at all? And if it didn't, none of the types of sanctions you mentioned above should apply. So how can one determine if anything happened without an investigation and how can an investigation determine the truth in a system that's not designed to determine the truth? A court system is designed that way (in theory). This system, especially the newer version, seems designed to promulgate a political theory, not a search for the truth. FIRE has stories all the time about students being expelled for flimsy reasons unsupported by evidence.
President Zaccari [expelled] Barnes’... on the grounds that Barnes was a “clear and present danger” after he posted a collage page on Facebook that included pictures of Zaccari, a parking deck, and the caption “S.A.V.E.-Zaccari Memorial Parking Garage,” a sarcastic reference to concerns Barnes says Zaccari had expressed in a meeting about his “legacy” as president of VSU.
The student was deemed a "danger" for opposing a parking garage on environmental grounds. I guess I'm wondering what item in the student code that instance of conduct violated.
Campus disciplinary procedursre do not use a presumption of innocence because if they did there would not be sufficient punishments of the accused to satisfy the "feminist" activists at the schools. Those folks still believe that "If a woman says she's been raped, believe her" - regardless of the context or timing of when she makes the claim.
"Out of curiosity, what were the rules related to curfew and dorm room visits when you attended U of Michigan?"
I don't remember any rules like that. Not in East Quad anyway. I think there was a dorm on campus at that time that had a curfew and a no-late-night-visitors policy -- a dorm for women who wanted that.
"There is NO idea of in loco parentis outside the US. At Euro and Asian universities students are on their own. Their private lives are unsupervised and they rarely receive "services". There are rarely any dorms either, and if there are they are not owned or supervised by the universities."
Most if, if not all, of the Ivy League universities were founded to train ministers so student behavior was a concern. Later on "land grant" colleges were founded to train people for professions and in modern agricultural techniques. The land grant colleges were founded in areas away from cities to keep the students away from "wine, women, and song." Of course wine, women, and song flocked to where young men with money where located.
In both cases housing for the students was a problem, thus the creation of dormitories.
As new universities were founded they too offered dormitory accommodation to students. In fact, some required students to live in a dormitory.
Because housing in the U.S. was scarce when the first universities were founded, living in a dormitory while attending university came to be seen as part of the college experience.
"the old days, when there were curfews and requirements that you avoid even being in a room with a member of the opposite sex with the door closed."
Are 1961-65 the old days? Yes, I think they are.
The rules you note were common at women's colleges, and female dorms at men's colleges, but at the all male colleges there usually were no such restrictions. I'm not so sure about the male dorms in the coed colleges.
The necktie on the door know was the universal signal saying "privacy please" and it was observed. This is one of the reasons that the girls preferred to travel to the male schools for dates, rather than vice-versa.
So you see, the necktie was not a useless appendage after all.
Ann Althouse said...
"So many of these colleges presume the guilt of the man, even if both parties are drunk and incapable of consent. Aren't they raping each other?"
I certainly think both could be violating the same rule, and if the remedy is sought agains the man and not the woman when they've done exactly the same thing, that is sex discrimination.
Which is why I advocate male students file a Title IX lawsuit. Title IX prohibits sex discrimination. If you can show a pattern of discrimination against men, you have a chance to win the case.
Barring that, I'm not going to encourage my grandsons to attend a university where any woman can destroy their reputation at will. Let them learn a trade. This may be one of the reasons why many universities are approaching 60% female enrollment and climbing. Young men may look at attending college as not worth the cost or the risk. Perhaps this will be the only way colleges start to rein in the politically correct insanity.
All the rules in the 50's and early 60's did not prevent sex in colleges. The notion that sex was not commonplace is a myth. It was, however, more private and circumspect, and less promiscuous. This is all part of the overall coarsening of popular culture.
It is also part of the rise of the police.
I don't think we even had campus cops. When cops were needed, the local police were called, and they generally handled the situations with wisdom and professionalism.
My favorite moment of combined professionalism and wisdom was when some friends of mine (a group of wrestlers from Lehigh) came to visit for a weekend in a beaten up old car. They had a flat tire and no jack, a problem they solved by turning the car on its side and climbing on top to change the tire. When the cops came by and saw this, they told the guys to put the car back upright, loaned them a jack and picked out a sober person to drive the car. Problem solved.
Campus courts should only be dealing with academic-related issues--who is cheating on a test, whether a professor is grading fairly, whether a campus student organization is spending its funds properly. The moment anything criminal is alleged--by which I mean anything that real police and real courts have an interest in--it should be passed over to the actual police and criminal courts. The idea that a campus organization should investigate or penalize actual criminal behavior without due process (or the ability to mete out actual punishments--I mean, so you expel a rapist, is that really an adequate punishment?) is absurd.
how about some fucking common sense:
1. Don't get so wasted in public that you can't recall what you did the night before.
2. don't be a slut
these things aren't affirmative defenses to rape charges, of course, but they are common things a young female can do to AVOID potentially precarious situations, like assault. They used to be known as "asking for trouble."
Drunk and horny young men aren't paragons of good decision-making either, so look the fuck out and avoid trouble.
Out of curiosity, what were the rules related to curfew and dorm room visits ....
When I was a freshman at PSU, my recollection is that the all-girl dorms (Simmons, McElwain) could not have men overnighting in them. My dorm was all guys and anyone could overnight.
The fun was watching how many men exited Simmons/McElwain during fire alarms at night.
Ann Althouse said...
"Out of curiosity, what were the rules related to curfew and dorm room visits when you attended U of Michigan?"
I don't remember any rules like that. Not in East Quad anyway. I think there was a dorm on campus at that time that had a curfew and a no-late-night-visitors policy -- a dorm for women who wanted that.
------------------
When you were an undergrad, Stockwell was probably like that. Along with the Martha Cook hall. By the time I got there, I think Martha Cook was still like that, but Stockwell was beyond those strictures.
The only restrictions at East Quad were the price controls on marijuana.
James Taranto's shattering Wall Street Journal story on an infamous Auburn case:
http://online.wsj.com/news/articles/SB10001424052702303615304579157900127017212
"Campus courts," I'm against them for any reason. Not for disciplining profs, students, enforcing classroom requirements, academic-related issues, etc.
There should be no such entity in any school, from pre-K through grad school.
What due process is afforded the accused? Not much.
See the DOE's "Dear Colleague" letter of 4/2011 and pages 11 through 14 or so, in particular. Examples: DOE strongly discourages schools from allowing the accuser to question the accused; the accused cannot look at the accuser's statement unless he provides a statement for the accuser to read (which no lawyer would readily let him provide if there is also a parallel criminal investigation).
Colleges and universities presumably balance the amount of Title IX funds they receive vs. what they might pay out to an accused, like the Auburn fellow. And they'll also need to figure out the collateral costs of winding up on the DOE's 55-school list of campuses being "investigated" if they don't kowtow preemptively.
http://www.whitehouse.gov/sites/default/files/dear_colleague_sexual_violence.pdf
@ Ann said "The problem I have with all this is that the college isn't taking on a comprehensive in loco parentis role like in the old days, when there were curfews and requirements that you avoid even being in a room with a member of the opposite sex with the door closed."
Not only were there rules there were proctors and "housemothers" who enforced them. Those were the days when you were not supposed to attain adulthood until you were 21 and in that circumstance it made sense for the college to act as parent.
Today you are supposed to be an adult at 18 (hogwash) so it does not make as much sense for the institution to act as parent.
I have come to the conclusion that college faculties , today, are unable to manage their own affairs with any rationality (see here updated). Ms. McArdle is correct that they should certainly not be deciding criminal cases. Look how well the Duke faculty handled the LaCrosse team situation - and what it is purported to have cost the school.
For the historical record by way of comparison, LSU circa 1962-1966 located womens dorms and mens dorms at opposite ends of the campus. There was an 11:00 curfew for women with 12:00 on Sat nights and one elected "late night" of 1am once a month. Men were not allowed in womens dorms save to pick up dates. Women also were not allowed in mens dorms. Men had no curfews. Of course women also were not allowed to wear slacks or shorts to class--only dresses or skirt/blouse sweater combinations were allowed. It was a more formal time long, long ago in a galaxy far far away, lol.
Of course the drinking age was 18 for the State at that time, however the paradox of en loco parentis forbidding drinking on campus was logically inconsistant.
IIRC Wisc also had a State age of 18, but allowed drinking on campus--which is why half of LSU seemed to attend UWs summer school each year. The other half went to CU @Boulder which also allowed drinking on campus in an 18-yr-old drinking age state.
Every man, upon receiving notice of an alleged infraction, should immediately report every sexual partner he ever screwed while drunk for rape because he could not consent. All of them. Keep a list.
And force the universities to live by their own ridiculous standard or open themselves to a disparate treatment sexual discrimination claim. The answer here is for men to use this system until the system breaks. If I were a student I would report every drunken encounter just to prove a point.
I would be ruthless and wrathful.
What Larry J said. People will vote with their feet and the crazier schools will fold. This is not an attractive or stable business model; and let's not kid ourselves, higher education is a business like any other. An incredibly badly-run business, but still one that is ultimately dependent on delivering value to its customers. This reign of terror can very quickly reduce the value proposition by a huge chunk, and cannot easily be reversed.
Ann is of course right about the multiplicity of legal claims and concerns arising from a single set of facts. What she doesn't enumerate is the counterclaims (or new causes of action) that might be asserted by a person accused of "sexual assault" (where that term covers everything from rape-rape to "I felt threatened/harassed by all those dirty jokes and wolf whistles"). Imagine a girl about to graduate from an Ivy school having racked up a quarter-million of student loans, only to be accused by an unhappy ex that she forced herself on him two years before. Try sorting that one out. Suppose she loses and of course, adopting Eric Holder's draconian "guidance," the school throws her out. Do you think she won't bring an action against her accuser for tortious interference with her contract with the school? For fraud? For defamation? We could work up some really good law school exam questions here. If I were in university management I'd be fighting this as hard as I could. But they can't or won't; so (see above) there is going to be a crash in the industry.
Correction to my earlier post: the accused should not be allowed to question his accuser.
Owen:
I am not sure there could be tortious interference on the theory that the school and the student had a contract that could suffer interference. After all, the schools have created contracts of adhesion in the form of student handbooks. And those handbooks seemingly allow schools to disregard due process.
Now, one might argue the unconscionability of the terms of the contract of adhesion the schools have created, given the inability to negotiate the terms and the power differential between the parties.
Exam questions abound!!!
""Campus courts," I'm against them for any reason. Not for disciplining profs, students, enforcing classroom requirements, academic-related issues, etc. There should be no such entity in any school, from pre-K through grad school."
How would you apply and enforce rules about cheating and plagiarism on the academic work?
Birkel: I am not expert or current on contract law as it applies in a university setting; and every case turns on its own facts (and here, fine print by university administrators scratched onto reams of paper or, worse, click-wrap). But I submit that our hypothetical plaintiff will have strong motivation to argue for breach of contract by the university and for tortious interference by the complaining ex with her economic relations with the university. If she can allege malicious interference, she will. She will argue that she had made a 4-year, $250,000 investment with a vendor who was then stampeded, bullied and defrauded by the complainant into withdrawing the bargained-for benefit; and the complainant not only knew this, but intended exactly that and only that by bringing his complaint.
If we can sketch such arguments in a few minutes of discretionary web chat, imagine what a serious plaintiff's attorney could do. Multiply by the discovery demands to search for a pattern or practice by the university. Multiply further by the prospect of serious damages for emotional trauma due to false accusation of serious crime and loss of reputation. Re-multiply by the reputational impact on the defendant university (why have we heard so little of the Duke lacrosse players falsely accused of rape? I imagine Duke bought their silence in a very expensive settlement).
Just to scratch at the "contract of adhesion" problem here: bad enough that the contract with the university is part of the excitement and pressure of a hard-fought admissions process; worse that it is between a powerful institution and in most cases a legal minor or at least an unsophisticated young adult; doubly worse that --get this-- it keeps changing. It incorporates by reference the student handbook and skatey-eight policies on housing, conduct, safety, you name it. Which are not static and will be, as we see, themselves further modified by exogenous "guidance" from third parties such as Eric Holder and Arne Duncan. The old model of a contract as a fixed text in the four corners of the parchment is long gone; and a resourceful plaintiff will show that.
Pass the popcorn.
How would you apply and enforce rules about cheating and plagiarism on the academic work?
Just as in any business, enforcing rules, punishing cheating(which also goes on in business and is rampant in bureaucracies) would be the job of management.
I DO believe students and university employees should report rules breakers and plagiarism. But "courts?" No. I look at a courts setup as a cutesy way for management to avoid responsibility:
University management in their lounge: "Wow, firing that professor and suspending that cheating student sure fired up a lot of controversy! But hey, WE didn't do it … it was that darn court again. Well, what are ya gonna do ... By the way, Chauncey, where are you going to spend summer vacation? I've heard the Catskills are fun this time of year. Eloise, could you pass the green tea, the oolong seems to be a bit stale."
"The persistence of the old in loco parentis model" etc...
If you want acadamic freedom then you will have to have a certain distinct and independent entity.
It started in Catholic Europe within the dual state(s)/church society. The fact that universities were church institutions granted them an independence of the "secular" state. The states themselves had an interest in the universities. It's where they send their sons (that is of course aristocracy and money, sons of lower classes could enter via the church itself) to have an education. It also made the universities international as well as national institutes and linked them together.
The model served very well for around a 1000 years.
The contemporary instutitions all suffer from the famous "march through the institutions". It's the left who is boss now.
So I can tell what the problem is. Quit simply, the left perverts everything it touches.
And if this means that universities just becomes as "independed" like a kindergarten, well it's just one more institute murdered by "modern" society.
The "Catholic University of America" reinstituted separate dormitories for males and females.
They were promptly threatened to be sued for "gender discimination" by a liberal asshole professor "John Banzhaf", a law professor at George Washington University. I believe nothing came of it.
So, "In loco parentis" is still possible, and university as an indepent institute is also still possible.
Bruce Hayden,
What you said.
When I was at Michigan in 78-81, the Martha Cook Building was an all-woman dorm with strict, traditional rules on male visitors, hours, etc. I believe it still has those rules (in particular, limitations on male visitors) and still has Friday teas. Of course, it's possible that Martha Cook residents make the walk of shame back to the dorm on Sunday mornings, but it's possible for girls to live unmolested if they so choose.
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