thefire.org

Risky Business at ‘Slate’

May 24, 2012

Internet powerhouse Slate featured a piece on Tuesday interviewing the founder of the "risk quotient" scale, Dylan Evans. Evans' remarks about risk assessment and "risk intelligence" are interesting, especially when he mentions FIRE and his opinions about the increasingly risk-averse culture of academia (near the end of the interview).

Two years ago this month, FIRE President Greg Lukianoff wrote in The Huffington Post about a sexual harassment charge filed against Evans for discussing the sexual habits of fruit bats. (Professor Evans was censured by University College Cork in Ireland, which is outside of FIRE's mission.) This powerful experience with the stranglehold of academic political correctness gave Evans personal evidence for what he calls "a worrying trend in academia towards policies that inhibit free discussion of ideas and sharing of information," which we see throughout the American academy.

Check out the rest of Evans' take on the stymied progress of academic culture and his thoughts about risk intelligence here. 

Permalink | E-mail comments | Posted by Alison Meyer on May 24, 2012, at 1:33 PM

Dueling Editorials at Stanford about Standard of Evidence

May 24, 2012

This week, the Stanford Daily student newspaper featured dueling editorials about Stanford's decision to lower the standard of evidence in sexual misconduct cases in response to last year's Dear Colleague letter from the Department of Education's Office for Civil Rights (OCR). FIRE has taken the lead in opposing several provisions in that letter, which states that colleges and universities must employ a "preponderance of the evidence" standard—a 50.01%, "more likely than not" evidentiary burden—when adjudicating student complaints concerning sexual harassment or sexual violence. The OCR regulations further require that if a university judicial process allows the accused student to appeal a verdict, it must allow the accuser the right to appeal as well, resulting in a "double jeopardy" situation for the accused.

Stanford actually used to have a high standard of proof, "beyond a reasonable doubt," in all of its disciplinary hearings—the same standard used in our criminal courts. With the threat of losing federal funding if it did not comply with the OCR letter, Stanford, like many schools, has chosen to abandon that standard in the case of allegations of sexual harassment or misconduct. Yet this decision has not been without controversy. 

The majority of the editorial board of the Stanford Daily thinks that the new, lower standard of evidence will be a plus for Stanford as a whole. In its editorial, the board majority celebrates the fact that the standard of proof will now be lower, noting that since Stanford cannot compel testimony, it's less likely to be able to meet a higher standard of evidence. It also praises the fact that those accused of sexual assault will no longer be able to cross-examine their accusers, because that would be "traumatic and intimidating." Finally, it dismisses the possibility that the change will result in an increase in false accusations, saying that the real problem is "underreporting"—in other words, not enough accusations.

More interesting, though, is the fact that the Editorial Board Chair of the Daily isn't buying this at all. Student Adam Johnson uses reasoning that is similar to FIRE's to make the case that the preponderance standard undermines the very presumption of innocence itself:

[T]he preponderance of evidence standard goes against one of the core tenets of our judicial system: the presumption of innocence. Although a preponderance of evidence standard is not presuming guilt, it is hardly presuming innocence; only three-fourths of the reviewing panel needs to be 50.1 percent certain that a sexual assault occurred. Some find this acceptable, noting that the same standard is applied to civil cases. But whereas the penalty in a civil suit is monetary, the internal penalty for sexual assault is often suspension or expulsion. If anything, the consequences of being found responsible in such cases warrant the stronger clear and convincing standard.

We agree. Moreover, civil trials have other procedural safeguards to ensure reliability that campus proceedings simply don't have. For example, in a civil rights lawsuit the parties would typically have lawyers, the benefit of discovery to procure evidence, legally trained and impartial judges, rules of evidence that would prohibit hearsay and other irrelevant evidence, and the threat of perjury if a party or witness were to lie under oath. These protections designed to ensure that civil trials are fair and reliable are often absent in campus disciplinary proceedings. 

With the compounding problem of double jeopardy, where a person found not guilty by a Stanford disciplinary panel can effectively be retried at the request of his or her accuser, the low standard of evidence mandated by OCR is a very severe problem indeed. As Johnson puts it, "In a criminal trial, if there is a generally low conviction rate for a given crime, we do not lower the burden of proof." Indeed we don't. There are other measures to try to increase reporting and conviction rates for crime. Lowering the level of certainty we have that the person accused of the crime is actually guilty of the crime is a cheap shortcut and an unjust way to address societal problems.

Permalink | E-mail comments | Posted by Robert Shibley on May 24, 2012, at 10:07 AM

Fight for Religious Liberty Continues

May 23, 2012

In what can serve as an excellent lesson for campus officials who target the associational rights of their students, the University of North Carolina at Greensboro (UNCG) has reversed its ruling against a campus religious group and will now allow the club to operate at UNCG. Citizen Link reports that the school reversed its denial of recognition to the Make Up Your Own Mind club after the Alliance Defense Fund filed a lawsuit against the school for refusing to accept the club's religious status and belief-based membership requirements.

The decision comes in light of the ongoing debate at Vanderbilt University over the school's decision to institute a policy forbidding student organizations from imposing membership requirements based on belief. Just yesterday, twelve student organizations wrote an open letter to the Vanderbilt administration asking that it reverse its decision and "adopt a policy that not only clearly advances our shared commitment to non-discrimination but also adequately preserves the religious liberty and the creedal integrity of faith-based student groups." FIRE urges Vanderbilt University to take this message to heart and look to schools like UNCG as models for reform.

Permalink | E-mail comments | Posted by Bridget Sweeney on May 23, 2012, at 2:31 PM

OCR: Reducing Protection for the Accused

May 22, 2012

Dissent about the Department of Education's Office for Civil Rights' (OCR's) "Dear Colleague" letter continues around the country. Most recently, North Carolina-based John William Pope Center for Higher Education Policy reporter Duke Cheston weighed in with a piece called "Tilting the Scales on Sexual Violence." Cheston hits the nail on the head: 

[OCR's] new rules were touted as a way of promoting "enhanced equity." But, in reality, the new rules rather inequitably reduce the protections of those who are accused ...

Cheston also examines how the Dear Colleague letter is adversely affecting the University of North Carolina at Chapel Hill.

Check out the article at the Pope Center's website!

Permalink | E-mail comments | Posted by Gina Luttrell on May 22, 2012, at 3:37 PM

Who You Gonna Call?

May 22, 2012

FIRE, of course!

Professor Maurice Eisenstein, who is suing Purdue University Calumet for violating his free speech rights after he criticized Muslims on Facebook, was interviewed by Frontpage in a piece published today. The interview provides a detailed account of his ordeal.

Here is an excerpt about FIRE's influence in his case: 

FP: The University cleared you of these 9 harassment/discrimination complaints. How or why do you think that happened?

Eisenstein: My very short answer is: the Foundation for Individual Rights in Education, FIRE. If not for FIRE, I think things could have and would have likely gone very differently. FIRE sent a letter in January 2012 and that letter was made public about 1 day before the University had to issue a ruling on these 9 complaints. The University ended up extending its decision time-line in the aftermath of the public relations fallout from the FIRE letter.

I really do think that without the support from a national organization with the credibility that FIRE has, the University would have tried to initiate termination proceedings. The whole attempt to fire me would be over the issue of "offending" someone. 

Later, he says:

There are two things I would say [to people in similar situations]: 1) get a lawyer right from the start.  And 2) contact FIRE.

Unfortunately, the university has continued to violate Eisenstein's rights. In the latter part of the interview, Eisenstein adds:

In fact, at this very moment, the University is conducting yet another investigation of my free speech. This time the University is investigating whether or not my blog has violated the University's anti-harassment/discrimination policies. The specific blog in question can be viewed here. It is essentially accusing me of retaliation for publishing emails they provided to me through a FOIA request. But, essentially, the University is continuing to violate my First Amendment rights even up to today. 

FIRE continues to help Eisenstein—and professors across the political spectrum—defend free speech and academic freedom.

Permalink | E-mail comments | Posted by Adam Kissel on May 22, 2012, at 9:59 AM

Peter Bonilla Speaks into the PolicyMic

May 21, 2012

FIRE's Peter Bonilla has a piece over at PolicyMic discussing the recent firing of The Chronicle of Higher Education blogger Naomi Schaefer Riley. Riley inspired controversy with her contention that a selection of Ph.D. dissertations in black studies indicated that the discipline was not up to general academic standards. Describing the way academia all too often handles dissent, Peter has this to say:  

The many who supported Riley's firing may think we've all been done a favor by taking away one of Riley's forums. We haven't. By granting the protesters' wishes, the Chronicle has condescended to its readers and, for our college students, watered that weed of a notion that we should never have to confront ideas we dislike.

Check it out!

Permalink | E-mail comments | Posted by Andrew Kloster on May 21, 2012, at 12:51 PM

‘Stanford Review’ Questions University’s Political Speech Policy

May 21, 2012

Last week, Gideon Weiler of student newspaper The Stanford Review penned an article criticizing Stanford University's policy governing "political activities." Weiler wrote:  

Stanford University has an ambiguous set of policies regarding student political activism on campus.

Students running for public office, for example, are not allowed to use campus resources for their campaign efforts. As a result, Stanford forbids students from using Zimbra email accounts to send campaign related messages.

University regulations make it that much more challenging for student politicians to succeed. It is hard enough as it is, for students such as Roman Larson, who ran for his district's school board in Wisconsin, or Michael Tubbs, who is running for city council in Stockton, to get elected so young. 

Weiler wondered why Stanford's policy hadn't caught our interest here at FIRE. We're happy to explain our take on the policy—and as the election season hits its stride, it's worth revisiting our Policy Statement on Political Activity on Campus, updated for the 2012 races. 

First, let's look at Stanford's policy. Political activity at Stanford is governed by Administrative Guide Memo 15.1 (PDF). Here's the summary: 

While all members of the University community are naturally free to express their political opinions and engage in political activities to whatever extent they wish, it is very important that they do so only in their individual capacities and avoid even the appearance that they are speaking or acting for the University in political matters.

This isn't concerning to us here at FIRE for two reasons. First, it makes clear that students and faculty enjoy full freedom to engage in political expression. Second, it's an accurate expression of Stanford's obligations as a 501(c)(3) organization. As we write in our Policy Statement: 

Despite the seeming severity of the restrictions on political activity at private colleges and universities imposed by the requirements of section 501(c)(3), however, it is extremely important to note that these prohibitions apply to the institution itself and those reasonably perceived to be speaking on its behalf, not to individual students, faculty, or staff engaged in clearly individual, unaffiliated activity. In a 1994 statement, the IRS made clear that "[i]n order to constitute participation or intervention in a political campaign ... the political activity must be that of the college or university and not the individual activity of its faculty, staff or students."

Further, we explain that 

Students, student groups, and faculty members do not endanger the 501(c)(3) status of private colleges and universities by engaging in partisan political speech when such speech is clearly separate and distinct from the institution's views or opinions. The presumption is that such speech does not represent the views of the university as an institution. Moreover, this presumption applies with particular vigor when speakers clearly indicate that they are not speaking for the university. The risk of appearance of institutional endorsement may be greater when the speaker is a high-level university administrator, but decreases as one moves down the chain of command to lower-level administrators. Additionally, this risk does not apply to students or student groups, or to faculty who do not hold a position as an administrator or department head.

So Stanford's summary is generally unproblematic, although I'd prefer that it made clear that students can "speak in their individual capacities" as part of a student group without raising 501(c)(3) problems, as well. 

Next, let's look at the specific language of Stanford's policy. The relevant part for our interests, Section 2(a)(4), states:   

No person supporting candidates for public office or engaging in other political activities may use University space or facilities or receive University support, except in the limited ways described in section 3.a.

And here's Section (3)(a) in full: 

3. PERMISSIBLE POLITICAL ACTIVITIES

a. In General — As noted above, the federal, state, and local laws which limit the partisan political activities that can take place in University facilities and with University support in no way inhibit the expression of personal political views by any individual in the University community. Nor do they forbid faculty, students, or staff from joining with others in support of candidates for office or in furtherance of political causes. There is no restriction on discussion of political issues or teaching of political techniques. Academic endeavors which address public policy issues are in no way affected. 

Because the University encourages freedom of expression, political activities which do not reasonably imply University involvement or identification may be undertaken so long as regular University procedures are followed for use of facilities. Examples of permissible activities are:

1) Use of areas, such as White Plaza, for tables, speeches, and similar activities.

2) Use of auditoriums for speeches by political candidates, but subject to rules of the Internal Revenue Service, the Federal Election Commission, and the California Fair Political Practices Commission, and other applicable laws. Arrangements must be made with University Events & Services. (See also Guide Memo 82.1, Public Events, for more information.)

To reiterate, because tax and political compliance laws impose restrictions, and even prohibitions, on certain political activities and on the use of buildings and equipment at a non-profit institution such as the University, any such activities must be in compliance with these legal requirements. 

Individuals taking political positions for themselves or groups with which they are associated, but not as representatives of the University, should clearly indicate, by words and actions, that their positions are not those of the University and are not being taken in an official capacity on behalf of the University. 

As written, Stanford's policy does a commendable job of balancing the university's obligation to protect political expression with the need to avoid engaging in prohibited institutional political activity prohibited by the tax code. 

So what about The Stanford Review's concern about students running for public office being forbidden from using their Stanford email? Stanford's policy states that "University services, such as Interdepartmental Mail; equipment, such as duplicating machines, computers, and telephones; and supplies should not be used for partisan political purposes." In other words, students running for political office can't conduct campaign business from their stanford.edu email account. Here, Stanford is trying to avoid the appearance of an institutional endorsement for a particular candidate that would arguably be implied by the use of the Stanford account. I think that's fair enough as a good-faith effort to comply with IRS regulations.  

The Stanford Review argues that when it comes to what constitutes "partisan political purposes," the line isn't always clear:  

Second, the definition of political activism seems overly fuzzy. Stanford can prohibit students from sending out emails if they are running for office, but not if they are organizing a meeting with expressly political purposes. For example, groups such as Stanford Dems, SPER (Students for Palestinian Equal Rights), and SIA (Stanford Israel Alliance) routinely use Zimbra to coordinate events and express political convictions.

Let's look back at the policy. Stanford defines "partisan political purposes" as activities "in support of or opposition to any candidate for elective public office." So, in application, The Stanford Review is right to note that Stanford is on some level engaging in a line-drawing exercise. When it comes to students running for elected office using their Stanford email accounts to run their campaign, the university has determined that this use of resources comes too close to the appearance of an institutional endorsement, but political student groups using their email accounts to discuss candidates or set up meetings is unproblematic.  

While this line-drawing may be understandably frustrating to The Stanford Review, it reflects to a significant extent the IRS's attempt to incorporate an element of common sense into its reviews of institutional compliance with the tax code. As we explain in our Policy Statement: 

Whether or not a 501(c)(3) organization has engaged in prohibited political activity is an ad hoc determination contingent upon examination of "all of the facts and circumstances of each case." However, in the campus context, the IRS has interpreted the restriction on political activity differently in light of the educational mission of colleges and universities, allowing certain activities (such as a political science class that requires students to work on a campaign, as long as the student, not the instructor, is allowed to choose the campaign; or a political editorial in favor of a candidate published in a student newspaper) that would otherwise likely constitute prohibited activity.

In other words, the IRS is trying to ensure that universities can allow students to engage in political speech without threatening their non-profit exemption, while also making sure that candidates for office don't unfairly benefit from the institutional involvement of universities in the campaign. While there's no bright line, common sense is a good guide: A candidate running for office using her Stanford email account for campaigning is too close for comfort, but students talking about their political preferences over email is part of the daily life of the university and doesn't suggest institutional endorsement. It can certainly be a tricky line to discern, but I don't think Stanford has unfairly or unreasonably cracked down on student political expression in this instance by disallowing candidates from using their university email in their campaign. 

Be sure to check out our Policy Statement in full as election season heats up. 

Permalink | E-mail comments | Posted by William Creeley on May 21, 2012, at 10:41 AM

Free Speech Lawsuit at Purdue-Calumet Hits Fox News, Associated Press

May 18, 2012

Yesterday, the media began to pick up the lawsuit filed in Indiana last week by a Purdue University Calumet professor who had generated controversy by criticizing Muslims on Facebook. As his lawsuit points out, Professor Maurice Eisenstein was cleared of nine complaints after a months-long investigation only to be found guilty of "retaliation," when really it was his own colleagues who had ganged up against him to shut him up. FIRE has been advocating for Eisenstein since January. 

The case was covered this afternoon by Mike Jaccarino at FoxNews.com: 

"When you investigate free speech, you chill free speech," Eisenstein said. "How am I supposed to do my job without free speech. I've changed. Every time I go into a classroom, I look around and wonder who will complain about what I say."

Eisenstein enlisted the Foundation for Individual Rights in Education (FIRE) in bringing his suit against the Big Ten school. 

Information from FIRE's press release also appeared in an Associated Press article by Charles Wilson as well as online in USA TODAY by John Bacon, in an article by Abigail Rubenstein for Law360 (a news source for lawyers), and in a piece by Dennis Carter for eCampus News. 

Most of the media so far (including Fox News) have quoted FIRE President Greg Lukianoff:

This is not the first time and it won't be the last time we will see a university punish a student or professor for constitutionally protected speech on Facebook. Professors at public universities should not have to go to court to defend their free speech rights. 

In addition, Eisenstein's lawyer, Edward W. Hearn of Johnson & Bell, Ltd., told Law360:

We are asking for an award of damages because this investigation dragged on for many, many months and the individual named defendants conspired to basically shut him up, which violates his civil rights.

FIRE will keep you informed as new information comes in.

Permalink | E-mail comments | Posted by Adam Kissel on May 18, 2012, at 3:04 PM

Don’t Film Me, Bro!

May 18, 2012

The Civil Rights Division of the U.S. Department of Justice issued a guidance letter this week finding a First Amendment right to record police engaged in their official duties. Professor Eugene Volokh of UCLA School of Law picks up on this over at the Volokh Conspiracy.

The most recent case clarifying this First Amendment right is ACLU v. Alvarez, issued this month by the United States Court of Appeals for the Seventh Circuit. In Alvarez, the Seventh Circuit held that "[t]he act of making an audio or audiovisual recording is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected ...." (Emphasis added.) 

These First Amendment protections for recording police officers apply on university campuses as well. In fact, in an incident at University of Massachusetts Lowell last year, a campus police officer attempted to stop a student from recording a campus police response to an altercation outside campus apartments. While that police officer has apparently been disciplined, some universities still retain policies that might allow them to punish students for exercising their First Amendment right to record police officers. 

For example, a number of public universities, such as Minnesota State University, prohibit "[a]ny unauthorized use of electronic or other devices to make an audio or video record of any person while on University premises without his/her prior knowledge, or without his/her effective consent when such a recording is likely to cause injury or distress." Insofar as these policies require either prior authorization or consent to record police officers on campus, they are impermissible speech restrictions, contrary to the First Amendment and contrary to the policy of the Department of Justice.

Permalink | E-mail comments | Posted by Andrew Kloster on May 18, 2012, at 12:07 PM

Kissel to Georgetown: Honor Commitment to Free Speech

May 17, 2012

FIRE Vice President of Programs Adam Kissel comments on a commencement controversy at Georgetown University in The Huffington Post today, arguing that the university should honor its commitment to free speech. Adam contrasts Georgetown's laudable decision to stick by its promises of free expression in allowing Secretary of the U.S. Department of Health and Human Services Kathleen Sebelius to speak at commencement with the university's past failure to provide equal treatment to pro-choice student group H*yas for Choice. As Adam notes, Georgetown's guarantee of freedom of expression cannot be selectively applied.

Permalink | E-mail comments | Posted by William Creeley on May 17, 2012, at 4:38 PM