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In recent weeks two public figures with far-right views—Breitbart provocateur Milo Yiannopoulos and white supremacist Richard Spencer—have made headlines with high-profile visits to American campuses, while their opponents on the left have made headlines by trying to derail those appearances.

With both Yiannopoulos and Spencer planning more campus talks, and with campus organizing on the rise in the wake of Trump’s victory, such protests, and the free-speech debates that accompany them, are going to gain much more attention in the coming months. As a civil libertarian who is also an anti-fascist, I have some thoughts on the issue that other civil libertarians might want to bear in mind…

Off-campus individuals have no right to speak on campus.

Professors, students, and staff are members of the campus community, and their ability to speak on campus without constraint is essential to fundamental principles of free speech and academic freedom. Outsiders aren’t in the same category.

When speakers like Spencer and Yiannopoulos come to our schools, they come as invited guests. Such invitations are privileges, subject to campus rules and to the preferences of relevant decisionmakers. It’s not a violation of their free speech rights for us to refuse to host them, or to discourage others from hosting them.

It’s not a violation of the First Amendment or of principles of academic freedom to oppose giving Nazis a soapbox.

The right to invite a speaker is meaningless without the right to change your mind.

Organizations like FIRE frequently raise alarms about disinvitations of campus speakers, but there’s nothing intrinsically wrong, from a civil libertarian perspective, with rescinding an invitation to speak. If an invitation has been extended without a full understanding of the issues involved, or without consideration of all relevant perspectives, there’s nothing sinister in withdrawing it. Likewise, there’s nothing inherently sinister in encouraging others to change their minds about extending such invitations, even where such encouragement takes the form of protesting the invitation.

It’s also worth bearing in mind that many “disinvitations” aren’t disinvitations at all. If a speaker cancels because their planned appearance has brought them negative publicity, or to avoid embarrassing the host institution, that’s not a disinvitation, and it’s not a violation of anyone’s free speech rights.

Shining a spotlight on the views and acts of an invited speaker is legitimate behavior, and if the speaker decides to withdraw in the face of such publicity, there’s not necessarily anything wrong with that.

The right to protest is an essential component of the right to free speech.

Protesting a speaker is an act of free speech, and the right to protest must be defended by civil libertarians even when the protest is indecorous or unruly. It’s not an infringment on a speaker’s rights to challenge them, even if that challenge is uncivil. Sometimes incivility is exactly what a situation calls for.

It’s crucial to be alert to infringements on the free-speech rights of protesters, even hecklers. When campus officials have protesters arrested, they are leveraging the power of the state against expression they disapprove of in ways that chill free speech far more powerfully than most hecklers.

Extending invitations to harassers has costs. 

Milo Yiannopoulos was banned permanently from Twitter in July because of his long history of coordinating harassment campaigns against other users of the site, and he has recently used his platform on at least one campus to engage in similarly abusive behavior. At UW Milwaukee in December, he put up the name and photo of a transgender student from that campus on a large screen behind his podium, then proceeded to spend the next several minutes abusing and deriding her, referring to her as “it,” calling her “a man in a dress,” and making a variety of cruel and ugly remarks about her.

There’s nothing obviously illegal about this nastiness—it’s Yiannopoulos’s right to engage in squalid, repulsive behavior. But again, universities have no obligation to provide a platform for it.

And they do, I believe, have at least some obligation, when they consider hosting speakers, to take into account their propensity for such behavior and anticipate its potential consequences. Yiannopoulos left UW Milwaukee that night, but his target remained to face the consequences of his actions.

People like Spencer and Yiannopoulos aren’t looking for debate.

Booking controversial speakers on campus is often defended as an opportunity for dialogue, but dialogue isn’t what these figures are after. They’re looking to build their base and their brand—to rally supporters and harvest attention.

When someone’s public persona is based on shock and “transgression”—on violating social norms for the sake of notoriety—actual dialogue isn’t in their interest and should not be used to justify their presence.

Not all questions raised by such speakers are as easily resolved.

Having said all this, I recognize that some difficult issues remain. While I consider it appropriate for universities to refuse to bring such figures to campus, for instance, I generally believe that student organizations deserve broad deference in booking speakers. Though I think the rights of hecklers should be granted far more weight than they’re typically afforded, there does come a point at which the exercise of those rights limits others’ ability to exercise theirs. And although the right to protest vocally, even rowdily, is worthy of strong defense, there are circumstances in which such protest crosses a line into physical intimidation or harassment.

These are thorny questions that pose conflicts between reasonable claims. But they’re not questions that can be engaged in a productive way unless the rights of protesters are given due weight and issues of speakers’ rights are disentangled from issues of institutional policy.

Spencer, Yiannopoulos, and their ilk hold extremist, overtly bigoted views, but they are not fringe figures—they represent an ideology and a political movement that is on the ascendancy in the United States and in much of Europe. They must be fought, and with all the tools at our disposal.

An effective defense of our civil liberties requires it.

 

The things she knew, let her forget again—
The voices in the sky, the fear, the cold,
The gaping shepherds, and the queer old men
Piling their clumsy gifts of foreign gold.

Let her have laughter with her little one;
Teach her the needless, tuneless songs to sing;
Grant her her right to whisper to her son
The foolish names one dare not call a king.

Keep from her dreams the rumble of a crowd,
The smell of rough-cut wood, the trail of red,
The thick and chilly whiteness of the shroud
That wraps the strange new body of the dead.

Ah, let her go, kind Lord, where mothers go
And boast his pretty words and ways, and plan
The proud and happy years that they shall know
Together, when her son is grown a man.

—Dorothy Parker, 1928

Less than two weeks after it was slammed with stiff new sanctions by the Department of Education, and just days before its fall semester was scheduled to start, giant for-profit college chain ITT Tech has closed its doors.

ITT announced the shutdown in a blistering statement, released early this morning, in which it called last month’s sanctions “unwarranted . . . inappropriate and unconstitutional.” The statement described “the damage done to our students and employees, as well as to our shareholders and the American taxpayers” as “irrevocable.”

The Department’s actions, however, reflected ITT’s ongoing corporate malfeasance. The chain is currently the subject of lawsuits and investigations by a long list of state and federal agencies, and it has been out of compliance with Department of Education oversight mandates for months.

And ITT Tech’s misbehavior was of particular concern to the Department because the company’s revenue came overwhelmingly from the American taxpayer. Since 2010, some $5 billion in federal money has flowed to ITT in the form of grants and loans, outlays for which the chain had steadfastly refused to be held accountable.

Last month’s sanctions were designed to rectify that. Limits were placed on ITT’s ability to divert revenue to its management and investors. Enrollment of new students using federal loans and grants was paused. And crucially, ITT’s letter of credit was hiked dramatically.

This last provision is worth explaining in more detail, because it clarifies both why ITT failed and what will happen next. When the Department requires that an educational institution post a letter of credit, that institution essentially places a specific amount of money in escrow, setting it aside so that it will be available to use to, for instance, compensate students if the company fails while their studies are ongoing. It’s an insurance policy, in essence, imposed to ensure that the taxpayer isn’t left holding the bag in the event that a college collapses.

If a company is healthy, a letter of credit will be a straightforward cost of doing business—either they’ll be able to cover it themselves, or someone will be happy to lend them cash to do so. If a company is already failing, securing a substantial letter of credit becomes more crucial (because the risk of inaction on the part of the Department is greater) but also more dangerous (because more robust oversight could expose and compound structural weaknesses).

In the past, the Department of Education has often delayed taking action against predatory and mismanaged for-profit colleges until they were in such dire straits that any attempt to impose even mild sanctions would lead to disaster. (Chris Hicks and I discussed this problem, and proposed ways of fixing it, in a report we released this summer.) Thus, when the Department announced in the summer of 2014 that it was placing a three-week delay on disbursements of federal financial aid to Corinthian Colleges, it sent that chain into a tailspin. Corinthian imploded in the months that followed, taking an additional $35 million in emergency taxpayer funding with it.

In some ways, the fall of ITT Tech seems to mirror that of Corinthian—after years of gentle treatment by the Department of Education, a crackdown was followed almost immediately by a collapse. In other ways, however, the Department’s actions in regard to ITT reflect lessons learned from Corinthian, suggesting that the ITT crackdown is less Corinthian II than a first step toward a new model of for-profit college oversight.

I’ll be discussing the similarities and differences between Corinthian and ITT, and what the Corinthian debacle tells us about how the Department should handle the ITT aftermath, in a later post.

 

A point I’ve often made in response to sky-is-falling critics of classroom trigger warnings is that there’s no substantial movement afoot to make them mandatory. Where trigger warnings have been adopted, it’s been voluntarily by professors.

Indeed, even activists who’ve pushed for their use haven’t typically attempted to have them made a requirement. Last year’s notorious Columbia University op-ed on the subject merely “proposed that [the university’s Center for the Core Curriculum] issue a letter to faculty about potential trigger warnings and suggestions for how to support triggered students,” while 2014’s Oberlin College document on the subject—since withdrawn—was explicitly framed as advisory rather than directive. (A student government resolution passed at UC Santa Barbara in February 2014 did call for mandatory trigger warnings, but it had no formal authority and was essentially ignored by the university.)

Today, however, FIRE reports that “there are several colleges and universities that, as part of their sexual misconduct policies and procedures, require professors to use trigger warnings in the classroom,” citing a passage from Drexel University’s sexual misconduct policy—replicated in the policies of at least four other colleges—that reads as follows:

“[i]t is expected that instructors will offer appropriate warning and accommodation regarding the introduction of explicit and triggering materials used.”

This is closer to a mandate than anything I’ve seen or heard of before, and as policy it definitely takes the trigger warning debate in a new direction, but it’s not quite as clear as FIRE suggests that it amounts to a mandate.

For starters, the FIRE extract leaves out important context for the quote. Here’s the full text of the relevant passage:

Examples of behavior that might be considered sexual or gender-based harassment or misconduct include, but are not limited to:

[. . .]

Non-academic display or circulation of written materials or pictures degrading to an individual(s) or gender group (It is expected that instructors will offer appropriate warning and accommodation regarding the introduction of explicit and triggering materials used.).

Note that the list that this entry appears on is a list of actions that “might be considered” misconduct rather than a list of prohibited acts. Note also that the non-use of trigger warnings does not appear as a main entry on the list but as a parenthetical.

In context, then, the statement about trigger warnings is an aside about “expected” behavior rather than a formal directive. And while one could certainly read “expect” as a veiled mandate, other instances of the word in the same document clearly refer to behavior that is hoped-for but not compelled. Consider the following examples:

“Not every individual will be prepared to make a report to the University or to law enforcement, and individuals are not expected or required to pursue a specific course of action.”

“The University expects all community members to take reasonable and prudent actions to prevent or stop an act of sexual harassment or misconduct. Taking action may include direct intervention, calling law enforcement, or seeking assistance from a person in authority. Community members who choose to exercise this positive moral obligation will be supported by the University and protected from retaliation.”

In the first of these quotes the word “expected” is explicitly distinguished from “required,” and in the second an expectation is characterized as reflecting a moral obligation rather than an institutional requirement.

Is it possible that a professor at Drexel (or one of these other colleges) could be disciplined for, say, screening hardcore porn in a classroom setting without warning? Definitely. But that would be possible even in the absence of this policy. Given that, it’s not immediately obvious to me how much of a change this represents.

As I said above, these policies certainly strike me as a significant development in the national debate over trigger warnings. To my knowledge, they’re the only formal, college-wide policies in the country to even recommend the use of trigger warnings in the classroom. And the fact that they’ve flown under the radar until now suggests that there may well be more—and perhaps more explicit—policies in place that haven’t yet attracted notice. I’ll be following up on this, both in respect to the five campuses that have adopted this policy and more generally.

In the absence of more information about how this language is being interpreted and implemented, to describe them as explicit mandates strikes me as unwarranted. If I were an anti-trigger-warning professor on one of these campuses, though? I’d certainly be asking my administration some pointed questions.

More soon.

By now, most people who read this blog have seen the letter that the Dean of Students of the University of Chicago sent to incoming students this week:

The crucial paragraph of the letter was the third:

Our commitment to academic freedom means that we do not support so-called “trigger warnings,” we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual “safe spaces” where individuals can retreat from ideas and perspectives at odds with their own.

There’s a lot to say, and a lot that’s been said, about this passage—Jeet Heer wrote a short piece at the New Republic (using some of my tweets as a jumping-off point) arguing that it was an attack on academic freedom, for instance, while the former president of the U of C student government unleashed a devastating tweetstorm addressing the various ways in which the college’s administration had, during his time on campus, ducked its obligations to engage in open and constructive dialogue. (Link is to his Twitter feed. Scroll back.)

What I want to talk about today, though, is an essay by Jesse Singal of New York magazine, a writer whose views on campus issues I often share.

Singal is no huge fan of the letter’s framing, it’s important to note. Many of the criticisms I’ll be raising here are ones that he himself makes. But his core premise is that while the letter was perhaps over-aggressive and over-simplified, it was nonetheless a useful and justified intervention because it addressed a real problem on the contemporary campus—attacks on free speech.

Free speech is under threat on campus, he believes, and so, in taking a forthrightly pro-free-speech, pro-academic-freedom stand, the letter “could be a useful nudge to help get other, more timorous university administrators to stand up and do their jobs.”

Singal is right that there’s a real culture clash happening in American higher ed right now, but he’s wrong to portray it as a clash between supporters and opponents of free expression. To understand why, let’s examine the letter’s core positions one at a time.

“Our commitment to academic freedom means that we do not support so-called ‘trigger warnings…'”

The college has already had to walk this one back a bit, because of course one may support trigger warnings and also be committed to academic freedom. Indeed, as a college professor who uses trigger warnings in my own classes, I’d interpret a statement like this from administrators at my college as a denigration of my pedagogical choices, and perhaps even a not-too-subtle suggestion that I revise my syllabi.

A university truly committed to academic freedom will allow its professors to decide for themselves whether to use trigger warnings, and will foster open and unfettered discussion as to whether they should so. It will also recognize that students who choose to agitate for the adoption of such warnings are themselves engaging in acts of free speech and deserving of the protections afforded by the principles of academic freedom.

The letter, sadly, acknowledges none of this.

“…we do not cancel invited speakers because their topics might prove controversial…”

Here too the letter reduces a complex, multifaceted question to a fatuous soundbite. Are there many people really arguing that a university should “cancel invited speakers because their topics might prove controversial”? Not in my experience, and I pay quite a bit of attention to this stuff. No, the letter is here misrepresenting the position it argues against, and in so doing it papers over the most interesting questions it raises.

Here are some of those more interesting questions:

Should a university invite speakers who are bigots? If so, under what circumstances? Who should decide who is invited to speak on campus, and who should determine how student money is allocated to bring such speakers? Does a student club have an obligation to go forward with an invitation it has extended if it later comes to regret it? What are the proper limits of dissent and protest and disruption when an obnoxious speaker appears?

These are all questions on which people committed to free speech can vigorously disagree. (They’re all questions on which I’d happily argue one of several contradictory positions, for starters, if you’re buying the beer.) But there’s no hint of that vitality and complexity here.

“…and we do not condone the creation of intellectual ‘safe spaces’ where individuals can retreat from ideas and perspectives at odds with their own.”

Again the letter elides the most interesting, and most important, issues at hand. Should a campus Atheist Club be required to accept a fundamentalist Christian as a vocal participant in its meetings, and vice versa? Must a Women’s Center open its discussion group for sexual assault survivors to men? Are all spaces on campus sites of perpetual intellectual combat, open to all comers, or might students reasonably choose to affiliate only with like-minded friends and allies on occasion? The letter presupposes one answer to each of those questions, and to any other that could be asked from similar premises. But there is a strong civil libertarian case to be made for the opposite stance on each.

In fact, on each of the topics mooted in the letter—trigger warnings, campus speakers, and safe spaces—it could be argued that the principles of free speech and academic freedom demand the opposite conclusion from the one the letter reaches. Both the professor guarding her freedom to use trigger warnings and her colleague who opposes them may be civil libertarians, as may the reviled speaker and the student protesting at their talk and the atheist who demands a voice and the Christian who asserts her right to converse with those she chooses.

Again: There is no single pro-free-speech position on on any of these questions.

And so while Singal is right that there are major divisions on the contemporary American campus around issues of freedom of speech and academic freedom, he fails to recognize that those divisions are so deep and so contentious in large part because each side in each of those the debates can legitimately lay claim to the mantle of free expression.

The positions that the letter takes are not more civil libertarian than the ones that I, for instance—a supporter of trigger warnings and agitation against obnoxious speakers and safe spaces—take. In fact they are, I’d argue, in each case a less civil libertarian position.

And that is why we will never, despite what the University of Chicago might hope, and despite what Singal suggests, resolve these disputes via appeals to first principles.

Now maybe I’m wrong. Maybe my views on one or more of these questions is unsustainable from a civil libertarian perspective. But if so, we’ll figure that out not by fiat, but through robust, unfettered debate and by real-world experimentation. That debate is necessary, and it is not advanced be pre-emptive deployment of “we do not supports” and “we do not condones.” (Particularly when many members of the campus community emphatically do support and do condone precisely the positions that are repudiated by the dean’s letter.)

I stand with Singal in his advocacy for freedom of expression on campus, and I share some (though not all) of his concerns about contemporary campus climate. But the authors of the University of Chicago letter are not my allies in that fight, and I suspect that they’re mostly not Singal’s, either.

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