FIRE's 'One Trick': Protecting Civil Liberties
June 2, 2011
Given the deeply deserved contempt we as a society harbor for those guilty of sexual assault, I suppose it was only a matter of time before somebody confused FIRE's continuing defense of due process rights for those accused of sexual assault with a defense of the heinous acts themselves. Because any decent human being finds rape reprehensible, discussing how to respond to sexual assault engenders strong feelings. As a result, it is perhaps unsurprising that some observers are angry and confused about our May 5 open letter to the Department of Education's Office for Civil Rights (OCR) and our work defending civil liberties more generally.
Even so, I didn't expect experienced student conduct administrators to be among those mistaking our defense of due process for a defense of sexual assault. So it is therefore disappointing to find that some student conduct veterans are, in fact, doing just that.
In a recent blog entry, Illinois State University Associate Dean of Students Rick Olshak accuses FIRE of many things: engaging in a "sad and tired act" of "overstating a fear that generally exists in their own minds"; "using a handful of cases to project an inaccurate hypothesis"; "challenging  every step taken to protect those that have historically been at a disadvantage"; and propagating an "alarmist mentality." And that's just with regard to our daily work of defending student and faculty rights, generally.
Turning specifically to FIRE's May 5 letter to OCR, Olshak hurls still more accusations: FIRE is treating due process rights as a "a zero-sum game," "puffing up its chest and staring down OCR in a public tantrum over how the [OCR's Dear Colleague Letter of April 4, 2011] will now infringe upon free speech rights and violate due process rights for accused students"; and failing to "acknowledge the rights of aggrieved parties to participate equitably in processes that matter just as much to them as they do to the accused students."
Most disappointingly of all, Olshak cites with approval Brett Sokolow, founder and president of the National Center for Higher Education Risk Management, as stating that "all FIRE has done is to demonstrate that it could stand up for the rights of rapists everywhere." But before answering this remarkable charge, let's go through Olshak's arguments point by point.
FIRE: Overstating the Problem?
First, let's cover Olshak's problems with FIRE's work generally. Olshak's central critique seems to be that FIRE is a "one-trick pony"—that we invariably "seize on a handful of cases, some entirely out of context, to paint with a broad brush and accuse universities of infringing upon free speech and trying to create a politically correct culture of automatons."
Does FIRE emphasize the worst abuses we've seen in our nearly 12 years defending student and faculty rights to illustrate the problem on campuses across the country? Of course! Why wouldn't we want to tell the country about the student-employee who was found guilty of racial harassment for reading a book? Why wouldn't we want to shine a spotlight on a student expelled for posting a collage on Facebook? FIRE is an advocacy group defending student and faculty rights, so you can bet we want the country to know about particularly egregious and unconstitutional rights violations. FIRE's lawyers specialize in constitutional law, but even we're shocked on occasion by the abuses we've seen. While it's true that we encounter the worst of what happens on campus, these terrible abuses of student rights cannot be cursorily wished away or dismissed as mere anomalies. As FIRE President Greg Lukianoff said to me recently, "When universities are helping organize disruptions of musical comedies because they don't like the content, that's a problem."
Do we take cases "entirely out of context"? Not at all. For every case we publicize, we post all of our materials and all of the evidence we have available on the accompanying case page. Check out our case archives for many, many examples. After levying the accusation, Olshak fails to cite any example of FIRE taking a case "entirely out of context," and for a good reason: We don't.
Olshak's overarching argument is that by highlighting these abuses, FIRE is "painting with a broad brush" and "overstating its case to reach predetermined conclusions that are not supported by the facts." In so doing, Olshak argues that FIRE is making all student conduct administrators look bad—indeed, he takes "personal offense" with us for doing so. But Olshak fails to acknowledge the fact that the cases we highlight aren't isolated incidents. When 67% of the 390 colleges and universities we examined last year maintain policies that seriously infringe upon students' free speech rights, there is a free-speech problem on campus.
Olshak argues that FIRE's 200 victories over nearly 12 years are evidence that we overstate this problem:
By my math, that is approximately 16.7 "victories" a year, and I won't get into what constitutes a victory, or how many of these cases are actually related to student free speech and conduct issues, since a large portion of FIRE's advocacy has been on behalf of university faculty as well as students. But let's look at that math. I know that in my own professional responsibilities I have averaged at least as many decisions annually (sometimes far more) that would be perceived as potential free speech issues, and I am not the only person on my campus who is in the position to make similar decisions. Now magnify that by more than four thousand institutions across the country. It gets very hard to believe that there is this Orwellian conspiracy that Kors, Silverglate, Lukianoff, and others would have us believe.
FIRE declares public victories when we resolve a case we've been forced to take public. We receive hundreds of case submissions annually. (Who knows how many hundreds or thousands of students don't report rights violations, whether out of confusion, fear, apathy, ignorance, or simply not knowing to whom they can turn?) Many of these complaints are resolved privately, many are referred to other organizations, and many are submitted to us after a student has graduated and there is nothing FIRE can do to help. We can't do it all ourselves—as Olshak notes, there are more than 4,000 institutions across the country. We're a small non-profit organization with a national mission. We have fewer than twenty people on staff, and we don't directly litigate. Given those structural factors, I would say that one major public victory per month every year for nearly twelve years is an excellent record. What's more, the lion's share of our victories have come in the last few years, because we're now well-staffed enough to handle a larger percentage of the case submissions we receive. And while FIRE's goal has always been to put ourselves out of work, the cases keep rolling in, every week of every month of every year.
The fact is that free speech abuses occur with shocking regularity on campuses across the country. Don't believe FIRE? Ask the Student Press Law Center; they're not hurting for "business" either. Don't believe the good folks at SPLC? Ask the Thomas Jefferson Center for the Protection of Freedom of Expression, whose annual "Muzzle Awards" list invariably includes a case of campus censorship. Don't believe them? Ask the students themselves, as researchers for the Association of American Colleges and Universities did just last year. Their 2010 survey (.PDF) found that less than a third—30.3%—of seniors strongly agreed that it was safe to hold unpopular positions on campus. That means more than two-thirds of seniors deem it relatively "unsafe" to hold unpopular opinions at their institution. (As far as we're concerned, answering that it's only somewhat safe to hold unpopular opinions is effectively the same as answering "not really.") I would hope that all American citizens would agree this is a serious problem.
Nevertheless, Olshak argues FIRE must be guilty of hyperbole, because free speech abuses don't happen on his watch: "In my own experience I have handled numerous cases that were overtly free speech issues, and I ruled in each case on the side of free speech, not for any reservations I may have had about FIRE and their ability to advocate, but because it was the right decision to make." Count FIRE among the first to applaud Olshak for doing the right thing. While we rate Illinois State University as a "red light" school due to its policies, we haven't had any cases on Olshak's campus, so (as far as we know) the kudos is deserved.
But as Olshak himself notes, "there are just enough people doing their jobs wrong and/or making poor choices to give the rest of us a bad name." So while Olshak is doubtlessly right in pointing out that many student conduct administrators like himself consistently do the right thing and uphold student rights, not all share his respect for civil liberties. That's where FIRE comes in. If, for reasons of professional pride, Olshak chooses to attack the messenger instead of acknowledging the problems on campus, that's his choice.
Now, I can certainly understand being frustrated with people criticizing one's profession in general terms—after all, I'm a lawyer. People love us, let me tell you. But FIRE is a watchdog group, and our beat includes student conduct administrators. This is what we do. To paraphrase the oft-uttered pronouncement of many a reality show contestant, "We're not here to make friends." That isn't to say we don't try, of course, and Olshak's frame—FIRE vs. the student conduct profession—is disappointingly inaccurate.
Like FIRE President Greg Lukianoff and Associate Director of Legal and Public Advocacy Azhar Majeed, I'm a member in good standing of the Association for Student Conduct Administration (ASCA). FIRE has had a presence at ASCA's annual conference for many years now, and I've presented a lecture on student rights there for the past three years. When presenting, I don't simply grab the microphone and start haranguing the audience of student conduct administrators. Instead, I discuss the problems FIRE sees on campus, the types of cases that we're working on, and the legal developments in the field, trying to offer as much in the way of pragmatic, "best practices" guidance to the administrators in the audience as possible. I recognize that, like Olshak, the majority of student conduct administrators want to do the right thing, and my job is to help them do so. That's why we attend ASCA's conference every year; that's why we publish pamphlets like Correcting Common Mistakes in Campus Speech Policies; that's why, in writing colleges and universities about their policies or practices, we always offer to discuss the issues as a first step. We're a watchdog group, but we're here to help.
Earlier this year, I spoke to Elizabeth Wheeler of Higher Education Legal Alert at length for an article she wrote about FIRE and our efforts to help campus administrators. I urge Olshak and all his colleagues in the field to read it in full. In contemplating whether FIRE is a "watchdog" or an "attack dog," Wheeler concluded: "So you and FIRE actually share a goal. You both want what's best for students. And here's the thing: They're specialists on campus rights—and want to share their expertise with you."
In sharp contrast to Wheeler's observations, then, Olshak stridently argues in a follow-up post that FIRE is "being exposed as an organization with a political agenda and as an organization that is either unable or unwilling to take a reasoned position in order to promote collegial discourse." First, let's dispatch the tired accusation of political bias, which seems to be the last refuge of FIRE critics. FIRE is a proudly nonpartisan organization. We defend students and faculty from across the political spectrum. Our work speaks for itself. Just in the past few months, we've successfully defended the right of Students for a Democratic Society to bring education theorist and former Weatherman Bill Ayers to Montclair State University without being burdened by unconstitutional security fees; we've defended the right of an art instructor at Gainesville State College to display artwork criticizing the Confederacy; and we filed an amicus curiae brief with a federal circuit court of appeals on behalf of a liberal student expelled for protesting plans to build a parking garage on his campus. Our brief was joined by 15 organizations, from the Cato Institute to the ACLU of Georgia, from the National Coalition Against Censorship to the National Association of Scholars.
So if FIRE is simply a collection of partisan hacks, as Olshak would have it, then we're doing a pretty lousy job of advancing our secret political agenda. But again, this is an old, baseless charge, and one we've answered before at length. But apparently it's just too tempting for FIRE's critics to cast us as a partisan villain. So be it. At this point, anyone making this argument has simply decided to ignore the actual work we do, preferring instead their own fact-free caricature.
As far as being "either unable or unwilling to take a reasoned position in order to promote collegial discourse," it is hard to take this charge seriously, either—particularly given Olshak's own statements. "Collegial discourse"? Olshak didn't bother to contact anyone at FIRE to discuss his concerns before launching into his public tirade. I can only presume he decided it was more fun to call FIRE a "one-trick pony" and accuse us of having some bizarre vendetta against him based on a conversation he reports having with one of our co-founders more than a decade ago. Olshak seriously believes that FIRE could be "targeting [him] because [he] dared to confront one of their co-founders," and then, without irony, takes us to task for indulging in "grand conspiracies." It's too much: Olshak states that there's "nothing collegial about FIRE," then proceeds to praise and post an entry written by a colleague who says we wear "tinfoil hats." And as far as "reasoned positions" are concerned, Olshak's criticism of FIRE barely touches upon our OCR letter and blissfully ignores the substance and specifics of our arguments.
Criticism of FIRE's May 5 Letter to OCR
Let's turn now to Olshak's specific criticism of FIRE's May 5 letter to the Department of Education's Office for Civil Rights.
In that letter, I argue that OCR's April 4 "Dear Colleague" letter erodes due process protections on campus because it mandates that colleges and universities adjudicate sexual harassment and sexual assault charges by using a "preponderance of the evidence" standard. The preponderance of the evidence standard is our judiciary's lowest standard—the same standard used in traffic court for non-criminal offenses—and FIRE believes that forcing schools to use this inexact standard when dealing with such serious charges is inappropriate, given the stakes for all involved.
Olshak disagrees vigorously, but at much less length than his more general critique of FIRE. Indeed, his specific criticism of FIRE's OCR response is relatively brief in comparison. In that abbreviated space, however, Olshak makes a few points that I'm happy to answer here.
First, Olshak characterizes FIRE as believing that "OCR is advocating too strongly for these people, and that it is somehow a zero-sum game that means that the rights of accused students are being violated or abridged in order to create a responsive environment for the aggrieved party."
Simply put, FIRE does not believe that creating a "responsive environment" for aggrieved students necessitates compromising the due process rights of students accused of sexual harassment and sexual assault. We think institutions can incorporate a "clear and convincing evidence" burden of proof while still maintaining an appropriately sensitive and responsive environment for victims of sexual harassment and sexual assault. We do not think Title IX's requirement of "prompt and equitable" grievance procedures necessitates lowering the evidentiary standard, nor do we believe that an institution's Title IX duty to "take immediate action to eliminate the hostile environment, prevent its recurrence, and address its effects" requires eroding student due process rights.
As I wrote in our letter:
While it is of course necessary for colleges and universities to address allegations of sexual harassment and sexual violence with all requisite purpose, seriousness, and speed, the rights of those accused cannot be sacrificed simply as a function of the accusation itself.
We do not conceive of due process rights generally as a "zero-sum game" (or any kind of "game," for that matter), whereby every "gain" for one side is matched by an equivalent "loss" for the other. Rather, FIRE believes that reducing due process protections hurts both the accuser and the accused. Even if innocent, the accused student may now be found guilty of serious misconduct by our lowest evidentiary standard. Lowering this standard means that more innocent students will be found guilty, just as surely as raising the speed limit means more traffic deaths: it's an outcome dependent on the structural mechanisms incorporated into the process. As a result of this "wider net," students bringing accusations of harassment and assault are eventually hurt, as well. Because the lowered standard will result in more erroneous guilty findings, confidence in the integrity, reliability, and fairness of the judicial process will decrease over time. As students come to view the process with suspicion, student complainants may be denied the vindication guaranteed by a fair proceeding, regardless of the verdict. It's important to remember, too, the reason we have procedural due process rights in the first place: to safeguard against human fallibility and bias. Olshak and OCR seem to believe that lowering the certainty of guilt needed to proceed with punishing a student for rape will somehow increase justice. But eliminating due process protections will instead produce the exact opposite of the intended result, as more innocent students will be found guilty.
Olshak next argues that "[n]ot once does FIRE acknowledge the rights of aggrieved parties to participate equitably in processes that matter just as much to them as they do to the accused students." This is also untrue. In our letter, we applaud OCR's clarification regarding the rights afforded to both the accuser and the accused:
The April 4 letter provides useful clarity regarding several aspects of the hearing process OCR expects recipient institutions to administer. FIRE welcomes OCR's specific and explicit emphasis on the necessity of equal treatment for both the complainant and the accused student with regard to many aspects of the hearing process, including but not limited to access to information to be used in the hearing, access to counsel and participation of counsel, the ability to review the other party's statements, access to pre-hearing meetings, and equal opportunities to present witnesses and evidence.
Additionally, FIRE is pleased that OCR recommends that recipient institutions provide accused students with a procedure for appeal and instructs recipient institutions to "maintain documentation of all proceedings, which may include written findings of facts, transcripts, or audio recordings."
It is precisely because these steps improve the chances that both aggrieved and accused students will be able to "participate equitably," as Olshak puts it, that we praise OCR's guidance here.
In a similar vein, Olshak complains that FIRE is insufficiently cognizant of both the problem of sexual assault on campus and its victims. Olshak writes, "Not once did FIRE bother to acknowledge the systemic deficiencies found by the [Center for Public Integrity] study." He quotes his colleague Dan Kast, Director of Student Judicial Affairs at Colorado State University - Pueblo, as stating: "FIRE completely glosses over any ‘legal or moral duty' institutions have to provide timely protections for the complainant as ‘mere expediency'. Then again, perhaps victims are just ‘beyond the scope of FIRE's mission'."
Here, Olshak is correct: We did not acknowledge the systemic deficiencies catalogued in the Center for Public Integrity (CPI) study. While we are well aware of the study and its findings—indeed, I was interviewed by a CPI researcher about campus sexual misconduct policies for the study—our letter concerned the ways in which the OCR letter affects student rights. It did not concern the study's exposure of the failure of student conduct systems to adequately punish those found guilty of sexual assault, nor the study's documentation of the barriers faced by students victimized by sexual assault. As a civil liberties watchdog organization concerned about student rights on campus, our targeted focus was entirely appropriate. FIRE does not need to restate the problem; we need to help OCR and our nation's colleges and universities solve it in a way that is fully accountable to the interests of all parties.
FIRE protects the civil liberties of all students, and we particularly serve as a much-needed voice for the accused. Many victim's rights organizations advocate for victim's rights exclusively: Security On Campus (SOC); Students Active for Ending Rape (SAFER); Break the Cycle; National Alliance to End Sexual Violence; National Center for Victims of Crime; National Coalition Against Domestic Violence; National Network to End Domestic Violence; National Resource Center on Domestic Violence; Family Violence Prevention Fund; Rape, Abuse & Incest National Network (RAINN), and many more. While these groups have their own focus, FIRE's "one trick" is protecting student civil liberties, and we do so without apology.
Finally, and most depressingly, I am forced to address Brett Sokolow, whom Olshak quotes as stating that "all FIRE has done is to demonstrate that it could stand up for the rights of rapists everywhere." I call this statement depressing because Sokolow is not only founder and president of the National Center for Higher Education Risk Management (NCHERM), he's an attorney. As such, I would expect Sokolow to be entirely familiar with the importance our American conception of justice places on the rights of the accused.
In this country, we presume innocence before guilt. To ensure fairness, we afford those accused of misconduct basic due process rights— including, at the very least, "some kind of hearing," to use Judge Henry Friendly's famous phrase. In the spirit of these normative commitments to justice, FIRE's May 5 letter argued that when adjudicating charges as serious as sexual misconduct, hearings should use a higher standard than simply "more likely than not." As I wrote in our letter:
In cases involving allegations of criminal misconduct such as acts of sexual violence, the preponderance of the evidence standard fails to sufficiently protect the accused's rights and is thus inadequate and inappropriate. Given the unequivocal value of a college education to an individual's prospects for personal achievement and intellectual, professional, and social growth, OCR's insistence that schools reduce procedural protections for those students accused of sexual harassment and sexual violence is deeply troubling. Because of the seriousness of these charges, virtually all institutions will punish those students found guilty with lengthy suspensions, if not immediate expulsion. The interest held by both the accused student and society at large in ensuring a correct and just result is therefore far greater than that implicated by a simple "monetary dispute," and a higher standard of proof is demanded. It is unconscionable, given the prospect of life-altering punishment, to require only that those accused of such serious violations be found merely "more likely than not" to have committed the offense in question. (Citations omitted.)
This may be a lonely argument to make, but hey, such is the lot of civil liberties advocates, who are often required to make unpopular stands. If standing up for unpopular speech or those accused of terrible crimes was easy, we wouldn't need a Bill of Rights.
Sadly, by deeming our advocacy as simply "standing up for the rights of rapists everywhere," Sokolow has ignored the basic presumption of innocence, a fundamental tenet of the American judiciary. In conflating those accused of an act with those guilty of an act, Sokolow's disdain for due process echoes the worst instincts of the angry mob.
Unfortunately, Sokolow's disregard for student rights only confirms the necessity of FIRE's work. After all, as "a law and consulting firm that is dedicated to best practices for campus health and safety," NCHERM claims to have served over 800 clients as of 2009. If Sokolow believes that standing up for due process is indistinguishable from standing up for rape, he has no business advising colleges on how to achieve justice for students.
FIRE unequivocally stands by our practices generally and the points made in our May 5 letter specifically. We will continue to point out our concerns about the latest OCR guidance, and we will continue to raise awareness of the problems on campus. In so doing, of course, we will continue to answer critics -- that's par for the course. Our work as a watchdog will necessarily result in tension with campus administrators. Accordingly, FIRE fully expects that student conduct administrators won't always appreciate our efforts or our methods. However, we believe that without our advocacy, student rights would not get the attention they deserve and require. We will continue to invite all campus administrators to work with us on behalf of student rights, to help campuses be places where free speech flourishes and campus judiciaries are effective, prompt, equitable, and even-handed.