FIRE a Topic of Conversation at Georgetown Law Center’s Conference on Sexual Assault and Academic Freedom on College Campuses

On October 14, Georgetown Law Center hosted a conference on Sexual Assault and Academic Freedom on College Campuses, bringing together campus presidents, professors, lawyers, Title IX investigators, and researchers to discuss topics ranging from free speech on campus and its impact on minorities to the problems accused students and survivors face in sexual assault investigations. I was in attendance and took this opportunity to listen to other voices in this area.

Panel One: Words, Violence, and the Law — on College Campuses

The first panel brought together Catherine Ross of the George Washington University Law School, Kathy Baker of Chicago-Kent College of Law, Kathryn Pogin, Ph.D. candidate at Northwestern University and member of Faculty Against Rape (FAR), and Brooke Mascagni, Assistant Professor of Political Science and Women & Gender Studies at Texas A&M University, also a member of FAR.

Mascagni provided an interesting perspective on free speech and minority voices based on her experience teaching at a historically Hispanic-serving institution close to the Mexican border. Mascagni argued that in theory free speech is for all people, but marginalized voices—like racial minorities or victims of sexual assault—do not have the same access to free speech as the dominant population. She also shared her experiences working to improve responses to Title IX obligations on her campus and the backlash she and others have experienced for doing so. Pogin argued that support of free speech on college campuses from organizations like FIRE is actually silencing some on campus. She claimed that those who try to use their voice to bring attention to problems like rape or racism on campus are silenced because the conversation turns into one about free speech, instead of about the issues students were trying to bring attention to originally.

It was interesting to hear how FIRE was characterized. Being in the audience, I was able to remind the panel and others in attendance that attacks on free speech are indeed a problem on campus, as documented almost daily on FIRE’s Newsdesk. Although members of the panel argued racial minorities need “protections” from free speech, I reminded attendees that last fall’s demonstrations at the University of Missouri (Mizzou) and other student-led protests across the country demonstrate the opposite. Instead of trying to “protect” certain groups from speech, FIRE believes it is imperative to empower all students to know and understand their rights. This is why we created “Back to School” resources for students, including a FAQ for student protesters.  

Attendees were also reminded that FIRE worked diligently with members of both parties in the Missouri Legislature to pass the Campus Free Expression Act (CAFE) in July 2015, a law that allows students to spontaneously assemble and exercise their free speech rights in all open areas of campus. In part because of CAFE, minority students at Mizzou were able to shine a national spotlight on the issues at Mizzou’s campus.

This panel also briefly discussed due process issues on campus, but ignored their impact on racial minorities. As a member of a minority group myself, I found it frustrating to hear stakeholders talk about the need to protect racial minorities when it comes to free speech on campus, but not express the same concern for racial minorities in campus disciplinary proceedings. College officials are oddly reluctant to consider the possibility that racial minorities are likely disproportionately affected by the lack of due process protections for students in sexual assault and misconduct hearings. In fact, FIRE has been one of the only organizations drawing attention to possible biases, actively engaging policymakers at the state and federal level about this issue.

Panel Two: Harassment, Abuse, and Fair Processes — on College Campuses

The second panel focused on sexual misconduct hearings and the impact inadequate procedures have on faculty and students, including survivors of sexual assault. The panel brought together William Kidder of Sonoma State University, Nancy Cantalupo of Barry University’s Dwayne O. Andreas School of Law, Brian Pappas of Michigan State University College of Law, Kelly Behre, Director of the Family Protection and Legal Assistance Clinic at UC Davis School of Law, and Alexandra Brodsky, board chair and co-founder of Know Your IX and editor for Feministing.com.

The most interesting part of this panel was hearing how current campus procedures harm survivors of sexual assault. For example, just as FIRE has consistently argued, the panel agreed that active representation by counsel or a chosen advisor for students—both accused and alleged victims—is paramount for a fair proceeding. The panel also discussed the importance of counsel to ensure that students are receiving the resources to which they are entitled, the right questions are asked, and alleged victims are treated with dignity and respect throughout the course of the investigation and hearing. All the panelists agreed that multiple lawsuits from accused students alleging unfair procedures and due process violations, coupled with the recent resolution agreement with Wesley College from the Department of Education’s Office for Civil Rights, have made clear that reforms must be made if the system is to have any credibility. FIRE has called for reforms to ensure adequate due process protections for accused students, and it was refreshing to hear this panel acknowledge that unfair proceedings hurt everyone. As we’ve said before—and as Know Your IX has agreed—“[w]ithout due process, campus proceedings will arrive at arbitrary, unsupportable conclusions that lack the integrity all parties deserve.”

Panel Three: Speech and Coercion — on College Campuses

The final panel brought together Joan Howarth of the Michigan State University College of Law, Venezia Michalsen and Francesca Laguardia of Montclair State University, Holly Rider-Milkovich of the University of Michigan, and John Bonine of the University of Oregon School of Law. This panel discussed trigger warnings and whether they help more students participate in the educational process or hinder that participation. Michalsen and Rider-Milkovich argued that “trigger warnings” have gotten a bad name, arguing that the term should be replaced by “content notices,” and opined that, contrary to what free speech advocates may believe, their research shows that trigger warnings (or “content notices”) actually allow for more opportunities for learning and engagement of potentially upsetting material. For example, Laguardia explained how, while teaching a human trafficking course, she offers trigger warnings before showing graphic videos. She stated that in her experience, only a few students have chosen to not participate at all, whereas a “vast majority” of students talk with her before or after class, allowing her more opportunities to engage on the topic and develop a closer relationship with students.

Again, FIRE was mentioned frequently on this panel. The panelists’ opinions on trigger warnings led me to ask the question of whether the panel believed trigger warnings should be required or if it should be left to the discretion of the professor in the spirit of academic freedom. All panelists agreed trigger warnings should never be forced on a professor. However, they did suggest that professors should be educated on the usefulness of such warnings each school year. FIRE believes colleges should leave it to faculty to determine whether trigger warnings should be used in their classrooms.

Overall, the conference was a great opportunity to hear from other interested parties about free speech and due process issues on college campuses. Although the panels were not as intellectually diverse (with a few exceptions) as they could have been, the conference presented a chance to interact with other stakeholders and find opportunities for collaboration. FIRE looks forward to engaging with all groups on these important issues in the future.