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Note: This is an unedited rush transcript. Please check any quotations against the audio/video recording.

Nico Perrino: All right, welcome back to So to Speak, the free speech podcast where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. I’m your host as always, Nico Perrino. I’m here in FIRE’s Washington DC headquarters with my colleague Greg Lukianoff, again. Greg, two episodes in a row.

Greg Lukianoff: It’s a record.

Nico: I know, I know. He’s got the paperback edition of his New York Time’s best-selling book, The Coddling of the American Mind, coming out next month August 20. Yes, so pick up a copy of that. You can preorder it. It’s sold almost 200,000 copies.

Greg: Be sure to assail your local principals and professors and university presidents with it. Buy stacks of them.

Nico: Yes, and buy it using Amazon Smile. Because a portion of that –

Greg: Amazon Smile. Also, a portion of the proceeds go to FIRE as well, so no matter what, it’s benefiting us at the same time.

Nico: Yes, so double dip with that Amazon Smile usage. And this is a very special episode for us because while we have FIRE’s current President and CEO in the office today, our previous President and CEO from what? 2005?

David French: 2005.

Nico: David French is in the house.

David: That’s right. A homecoming.

Nico: And since then he’s become an ism.

David: Yes, I’m an ism.

Greg: Oh, I thought you’d be an ology.

Nico: Well, before we jump in into why you’ve become an ism. What got you interested in civil liberties on college campus. What brought you to FIRE in the first place?

David: Yes, I was in law school. A lot of people now sort of have this recency bias that says college campuses are awful and they have not been awful. I went to law school in 1991 in an era where the shout down was prevalent. If you were in class and you said something – I mean that mildly disagreed with the mandatory consensus, especially in ’91 and ’92. You would be hissed and booed. You would be shouted down. There were campaigns to try to – if someone was an outspoken conservative for example, people would call their employer, their future employer to try and get them fired.

Call federal judges to try to get their clerkships revoked.

Nico: Really, in the early ‘90s?

Greg: In the early ‘90s. That’s the first great age of political correctness. Whenever I talk about this stuff, I’m always like, “Oh, yeah. It hasn’t been this bad since 1986-1994.”

Nico: I knew speech codes were happening. But I didn’t know this sort of liberal – well actually, I did kind of know because I’m working on this documentary right now where I’m reviewing old archives of William F. Buckley’s Firing Line. And he actually did an episode, I think about political correctness, in which students came to the episode because he would do these live tapings. This was at a college campus. Leon Botstein was there. So, it might have been his campus.

And students protested it, disrupted it.

Greg: And I’ve got two book recommendations from this era. First of all, of course, The Shadow University, which you know was written in ’98. It talks a lot about this first great age of political correctness. But also, a book that I only discovered recently which was very popular at the time, Charlie Syke’s Hollow Man which is about –

Nico: I haven’t heard of that one –

Greg: It was surprisingly good. It was mostly about Dartmouth.

David: Yeah, and I was just reminiscing with a classmate the other day. If Twitter existed in 1992, the level at which people would think that the Ivy League in particular had just lost its ever-loving mind would be beyond today. Because it wasn’t just sort of the student gang tackling. I mean this was when people were passing speech codes and calling them speech codes. It just hadn’t penetrated public consciousness.
In large part because it hadn’t penetrated so widely. So, if you’re at the University of Alabama, for example or University of Tennessee, you’re not experiencing the shout downs and things like that. That would feel distant from you in a way that perhaps now, especially in say in 2015, it really spread a great deal. But I went there expecting some sort of platonic ideal of discourse and got shout downs and –

Nico: This was at Harvard?

David: At Harvard. And so, then I was very concerned about this issue, and years later I first came to FIRE actually as a – I might be the first member of the FIRE Legal Network.

Greg: I think you were.

David: I might be because I was very interested in the issue, and then FIRE launched a speech code litigation project. And I filed the first case in the speech code litigation project against Shippensburg University in Pennsylvania, which was really remarkable – again, just think about all of this. These things are happening, and there’s no Twitter, there’s no social media. And so, your only ability to get the word out to everyone is persuading mainstream media reporters mainly to cover this issue, which was a chore.

But, we would go through things – at Shippensburg University, one of the fact patterns in the case was that one of my clients had gotten penalized because he had on his dorm room door a picture of – and this is right after 9/11, a B52 bomber bombing a picture of Osama bin Laden with Osama bin Laden in the crosshairs. Which happened to be a pictorial representation of the policy of the United States of America. And he was punished because they said that would be offensive to Muslims.

Now, if we think about that for three seconds –

Greg: That itself is offensive to Muslims.

David: That’s offensive to Muslims. I mean the idea that we are protecting the person of Osama bin Laden is something a Muslim student would want to see happen is a remarkable assumption. But these kinds of fact patterns were happening all the time. I had a case; it was Penn State University where the speech code at issue actually said this. And you can’t think too hard about this or it will tear a whole in the space/time continuum. “Act of intolerance will not be tolerated.”

So, what happens if an act of intolerance occurs and you don’t tolerate it. That’s another act of intolerance. But anyway –

Greg: It’s a time loop or something.

David: Yes, exactly. So, I had doing legal work for student groups, for individuals with the FIRE Legal Network. And then when the presidency opened, they created the position of president, I leapt at the chance. Because I was at a point where I was a commercial litigator with this really big pro bono First Amendment hobby which is a tough lifestyle to maintain. So, I made the decision to switch from commercial litigation to the world of civil liberties, and I’ve really never gone back since.

Nico: Well, two historical questions for you just because I’m interested. I was born in 1990. So, I wasn’t around for this.

David: Oh my gosh, okay. I was 21 then.

Nico: What got the first wave of political correctness, the first wave of speech codes into the public consciousness. Was it Jonathan Chait’s New York Magazine piece. Was it some sort of special reporting?

David: Oh, you mean in the ‘90s?

Nico: In the ‘90s. Yeah.

Greg: Jonathan Chait wrote about it?

Nico: Well, I think he –

David: No, that was much more recent.

Nico: Well, I know he’s written about it recently. But I thought he wrote the first big article in the early ‘90s, but I could be completely wrong.

Greg: Oh, did he really?

Nico: I’ll fact check that after this and make a note in the show notes. But I thought he did. Because when Nick Gillespie writes about these issues, he often references a piece in New York Mag in the early ‘90s as like the first big expose on what was happening on college campuses –

Greg: Well, FIRE co-founder Alan Kors – and Harvey Silvergate was fighting this long before this was cool.

Nico: Yeah, the Water Buffalo Case was in the early ‘90s.

Greg: Well, that was ’93. So, it was actually a little later in the whole sort of rise and fall of this kind of stuff. But Donald Downs is one of the people who points to 1987 as being an important turning point. Somehow that’s when it became okay to call something a speech code. And how it came to public consciousness, I mean that’s before my time. I entered college in 1992. But that definitely a year when the term political correctness was roundly made fun of both on left and right.

David: I would say – I can’t speak globally because it was really hard to sort of say, “Here’s this moment around the country.” But I will tell you a moment that occurred at Harvard Law School that began to switch the culture. I think it was GQ. GQ or Esquire, I can’t remember which one did a really long article called, “Beirut on the Charles,” where it talked about the civil war at Harvard Law School.

And frankly it made the radicals look silly. It really did. And I tried to look up the article recently, and you can only find excerpts of it online. I can’t find the actual –

Greg: We’ve got to hunt that down.

David: Full article. It’s called –

Nico: Beirut on the Charles.

David: It’s called, “Beirut on the Charles.” And I remember distinctly when that came out because I was thinking, “Yeah, Beirut’s overblown.” It would be like saying Raca on the Charles now or Fallujah on the Charles, which that’s a little overblown. But it did portray the very deep conflict, and there was this sort of a culture shift right there that people were saying, “You’re kind of embarrassing us.”

And it was not the conservative students because we were small and embattled. If you go to a Harvard Law School Federalist Society Meeting now versus the early ‘90s. Now, it’s hundreds of students will sometimes come to a Federalist Society event. In the early ‘90s there was about nine of us, and we were split between the social conservatives and the economic conservatives. And it was like from Life of Brian, People’s Front of Judea, and Judea’s People’s Front.

And there was this palpable sense that things have just gone too far. And the liberals on the left, the small l liberals in the left, as I recall began to assert themselves. And then Elena Kagan came as dean. And Elena Kagan just changed – was a sea change. So, she would go to Federalist Society Meetings, and say, “I love the Federalist Society.” She actively recruited conservative faculty members, busted up the sort of ideological monoculture on campus.

And when she was nominated for Supreme Court, there were people who tried to organize recent Harvard Law grads to oppose her; conservatives. And most of them were like, “Nope.” You don’t understand, she changed the campus. One of the things that I’m thinking a lot about now is that the small l liberals on each side of the spectrum have to hold their own side to account –

Nico: The classical liberals?

David: Yeah, the classical liberals. They have to hold their own side to –

Greg: No quite classical liberals. But I would say liberal circa 1982 where there’s like a good suspicion of government. Sort of the ACLU liberals –

Nico: Yeah, the higher-class liberals.

David: Yeah, old school. And she really – she had the credibility. She had the strength and fortitude to really set a new tone there. And I think because it hadn’t spread – this sort of virus hadn’t spread so much; you could take an institution and flip it around in a way that maybe might be more difficult now.

Nico: Well, it’s interesting because two weeks ago, Greg, or last week when we were talking to Sam Abrams over at Sarah Lawrence, I asked him the question, “I mean, how do you fix this situation at Sarah Lawrence?” And I said, “Is it a leadership change. Can a leadership on its own change the culture on a campus? And he seemed to think, “No.” But I’m kind of hearing that if you have someone like Elana Kagan, maybe you can.

David: Well, I think you can unless – there’s a point at which the student body is actually legitimately so comprehensively radicalized that you’re talking about sort of holding your finger in a dyke. But I think the reality – and I’ve been –

Nico: Like at Evergreen State, for example.

David: Right, right; which is rare. But I’ve been talking to folks in the Ivies and other major institutions, and they say that the vast majority of students even to this day are not interested in censorship. They may be more sympathetic than – they may be sympathetic to sort of the grassroots shame campaigns than they might have been 10 years ago. But when push comes to shove, they’re not in the quad. And it’s still a minority of students.

And a leadership can resist a five to 10 percent. Once it gets to 20 to 30 to 40, then you are talking about a different kind of challenge.

Greg: I just want to add in how I met David. And I started at FIRE way back on October of 2001. So, all my first cases were 9/11 cases. It was a really intense time.

Nico: You were in the air on 9/11.

Greg: I was in the air. I landed at Philadelphia International Airport at 9:10am on 9/11 2001. And I just thought it was a lame airport because it was super quiet, and we seemed like the only flight that had landed. And it actually turned out that we were one of the very few that had. And that’s when I was looking for an apartment as the first legal director of FIRE. And David was already – I think he was already in our legal network by the time I started.

And we just started chatting about different cases, and often times I’d stay late talking on the phone to David about Start Trek and moral philosophy. I was very angry about particular episodes of Voyager, and we had to talk through. So, we became friends pretty early on, and when he applied to be President of FIRE, I was psyched about it. And I like that we’re continuing the sort of identity of FIRE in which Harvey is left leaning and Alan is conservative leaning, of having a system in which the legal director is left leaning and the president was right leaning.

Because I think that’s one of those things that really makes FIRE special and keeps us honest. And I really enjoyed working with him.

Nico: Yeah, well I guess we should get into your background, David, because I think it helps set up this conversation about why you became an ism. You’re a conservative?

David: Yes.

Nico: You’re unabashedly conservative. You’re an evangelical Christian if I’m not mistaken.

David: Yes, PCA. I was predestined to by a Presbyterian.

Nico: You’re a veteran. After you left FIRE, you joined the army reserves?

David: Army reserves. I left FIRE at the very end of December of 2015, and I was in Fort Lee April – late April the next year, 2006. And then finished my JAG training in April of ’07 and then deployed to Iraq at end of October, beginning of November of ’08.

Nico: And you did that because you were a believer in the Iraq War?

David: Yes. Well, I felt –

Nico: Still are, I think.

David: Yeah, I was at my apartment when I was at FIRE, and I was reading an article about a marine who was injured in Anbar province. And in the article, they were saying that phoned his wife and two kids in the Medevac chopper. A reporter had handed him a satellite phone – to tell them that he had been hurt but he’s going to be okay. And I just felt stricken in that moment that I had a wife and two kids, now I have three. And I supported this conflict, and what was I doing.

So, my wife kind of looked at me as I began to vocalize these thoughts. And I think her initial response was something like, “Don’t even think about it.” But I asked her to think about it. And the very next day she was out in the Independence Hall area near the FIRE offices. And there’s this place where – well, there are statues of founders all over and the signatures of founders. And my son, who was very young at the time, said to my wife, “Who are these people?”
And she said, “Well, they are the founders of our country.” And he’s super young, doesn’t really know. And she said, “They were farmers and pastors and soldiers and lawyers, but they were all patriots.” And my son said, “What’s a patriot?” And then my wife said came up with this great definition of patriotism just right off the top of her head. And she said something like, “A patriot is someone who loves his country more than they love themselves.”

And then my son looks at her and says, “Are we patriots?” And like that just absolutely touched her to her core. So, I come home from the FIRE offices and there she is with tears in her eyes and says I need to do it. And I said, “I’m going to go to Iraq” and she said, “You need to do it anyway.” And so, I walked down to the recruiting office, and they had no idea what to do with me.

Nico: You’re 37.

David: I’m 36 about to turn 37. Bald, I was not this ninja physique you see before you today. I weighed more. I was way out of shape, and I just said, “I want to be a JAG officer.” They had no idea what to do other than to give me an army physical at Fort Dix. So, I got up at crack of dawn and went to Fort Dix, barely passed the army physical. And then started the process of getting in shape. And just to tell you how comical that all was. The very first run that I did, I not only pulled a hamstring, I was so out of breath that I went to the doctor.

But months later I got my carcass into decent shape. And then let’s just put it this way, Michael Bay is not doing any training montages of my time at Fort Lee unless it is for a comedy. But I made it through.

Nico: And you were in the reserves. So, you had a job at Alliance Defending Freedom, ADF. And now you’re at National Review which I should mention. You’re an editor there. I think it’s fair to say that you were a part of what’s now been coined, the Conservative Consensus, surrounding the Bush Administration, the Iraq War. At least what Sohrab Ahmari, who is with the New York Post now, calls the Conservative Consensus.

And there is this journal called First Things, I believe it is a religious journal. And there was a manifesto of sorts written by a bunch of young conservatives against this Conservative Consensus.

David: Against the dead consensus I believe was the subtle title, yes.

Nico: And it’s kind of hard for me because I’m not in sort of conservative intellectual sphere to understand what that consensus is. But it seems to be – from the manifesto and from Sohrab’s subsequent article which we will discuss, that there was an agreement between kind of classical liberals, evangelical Christians, political conservatives as to what policy should look like.

It should be free marked oriented, free trade oriented, kind of a hawkish foreign policy. And also, critically for this conversation, a support for neutral principles. The law is blind, and that the libertine drag queen storyteller in San Francisco has equal rights to their beliefs that the evangelical Christian does.

David: Why would you think of that example?

Nico: Which brings us to, Against David French-ism, by Sohrab Ahmari who – interesting side note here, he probably wrote the most important article about FIRE ever in 2012. It was a weekend interview in the Wall Street Journal when he was an editor there, about Greg and FIRE. And that really put us kind of on the map in 2012.

Greg: In terms of publicity, it was actually related to my first book on learning liberty which came out in 2012. And in terms of raising our profile, nothing has really matched it since.

David: I remember that.

Nico: Yeah, it’s called, “How Free Speech Died on Campus.” I’ll put it in the show notes here. Anyway, that’s just an interesting aside, but, “Against David French-ism” – before I describe what he says in here, it could also be titled, “Against Civil Libertarianism, Against Neutral Principles, Against FIRE” in a sense because we are supporters of the civil libertarian principle.

David: Is the subtitle on there, “Down with the Foundation for Individual Rights,” –

Nico: It could also be, “For Theocracy” in my opinion. But we can get to that. And David, I think in your response, “In Defense of French-ism,” you kind of sum up his article pretty well. So, I’m going to read from that. “Ahmari’s stated desire is to fight the culture war with the aim of defeating the enemy and enjoying the spoils in the form of a public square reordered to the common good and ultimately the highest good.” That’s a quote from him. By contrast he says, “That David believes that institutions of a technocratic market society are neutral zones that should in theory accommodate both traditional Christianity and the libertine ways and paganized ideology of the other side.”

What inspired Sohrab to write the article was seeing an ad on Facebook or somewhere for a drag queen story time in San Francisco. You went on to write that, “According to Ahmari, contemporary politics should be viewed through a prism of ‘war and enmity’ and then public commitments to decency and civility become optional. In fact, they can become a hindrance to political victory over a vicious and committed opponent.”

“In essence,” you write “Ahmari is forsaking classical liberalism, the commitment to neutral principles such as free speech, religious liberty and due process, grounded in respect for individual liberty for a largely undefined version of Christian state-ism.”

“Classical liberalism,” you write, “especially polite classical liberalism is the path to defeat and decay. Only a more robust status Christian response can meet the challenge of the illiberal secular onslaught.” And in Sohrab’s piece, he kind of gives reasons for why we need to abandon neutral principles, why we need to abandon this classical liberalism that allows for free speech, religious liberty, freedom for atheists, as well as evangelical Christians.

He says, “Forced to reckon with the fact that autonomy unbound,” which is what classical liberalism sort of allows for. He says, “It hasn’t yielded freedom, but new and insidious forms of digital tyranny.” He says that you, David, “Treat as a nonstarter conservative proposals to intervene.” Instead he says that, “You urge essentially a cultural solution. Silicon Valley should voluntarily adopt First Amendment norms per French, and I wish him good luck persuading our programmer kings to go along.”

He continues, “How do we counter ideological mono thought at universities, workplaces and other institutions, try promoting better work life..

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Harvard Law Professor Noah Feldman recently wrote an op-ed for Bloomberg entitled The Courts Still Don’t Understand Trump’s Twitter Feed. The op-ed was a commentary on the Second Circuit’s ruling in Knight First Amendment Institute v. Trump (July 9, 2019). In relevant part Professor Feldman argued:

Although its decision will be hailed by some as a win for free expression, it’s actually based on a misconception about our social media accounts — one the U.S. Supreme Court is going to have to fix.

Here’s the basic problem: The U.S. Court of Appeals for the 2nd Circuit assumed in its opinion that Trump’s Twitter account was either “private” — in effect, Trump’s own property to do with as he wishes — or else “public,” in the sense that the account was a government-controlled space in which the First Amendment should apply. . . .

The reality [of the situation] is that Trump’s Twitter account isn’t his private property or a government-controlled space. It’s something else: property controlled by Twitter Inc. (Disclosure: I have advised Facebook on issues of governance and free expression.)

Consider that neither Trump nor anyone else has free reign to say absolutely anything on a Twitter feed. Twitter has rules for content moderation — and those trump even Trump. . . .

If Twitter were to decide that Trump violated its content standards, Twitter would have a legal right to take down Trump’s rule-breaking tweets. If Twitter believes that someone who is commenting on Trump’s feed has violated its rules, it can take down that content, too.

For these reasons, Trump’s Twitter feed is nothing whatsoever like the public forums to which the courts have applied the First Amendment in the past. . . .

[T]he appeals court’s decision rests on a conceptual confusion that has serious negative implications for the freedom of speech. The government shouldn’t be able to get away with designating a public forum for speech where the speech isn’t constitutionally free.

The Supreme Court should revisit this issue and get it right — to protect freedom of speech in the long run.

Related

Commentary 

Dan Kennedy & David Huson on Justice Stevens & The First Amendment

 →  In an op-ed for WGBH, Dan Kennedy wrote:

The late Supreme Court Justice John Paul Stevens today is being hailed as a liberal beacon who took strong stands against the death penalty and in favor of gun control and limits on political spending.

But despite his well-deserved reputation as a judge who was motivated by decency and principle, his legacy with regard to the First Amendment is mixed.

Justice John Paul Stevens

For one thing, as Linda Greenhouse observed in The New York Times, Stevens in 1989 broke with his colleagues when they overturned a Texas law that banned flag-burning. “His patriotism was of the old-fashioned, unabashed variety,” wrote Greenhouse by way of explanation.

For another, on two important cases that pitted the right to privacy against freedom of the press, Stevens sided against the media. In one instance he was on the losing end. In the other, though, he wrote the majority opinion, limiting public access to government information in a decision that reverberates three decades later.

→  Writing on the Freedom Forum Institute website, David L. Hudson, Jr. pointed out that:

Many may forget that it was Stevens who authored the court’s plurality opinion, upholding the ability of the Federal Communications Commission (FCC) to fine a radio station for playing George Carlin’s “Filthy Words” monologue during daytime hours. Even though the monologue was nothing close to obscenity, federal law also gave the FCC power to regulate so-called indecent speech. In FCC v. Pacifica Foundation (1978), Stevens approved of this power, writing that when the commission finds that “a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.”

However, years later when the Supreme Court first examined a direct speech regulation on the worldwide web, Stevens wrote the court’s majority opinion in Reno v. ACLU (1997), involving the part of the Communications Decency Act that criminalized the online transmission of patently offensive or indecent speech. . . .

David L. Hudson, Jr.

Stevens created the secondary effects doctrine in a footnote in Young v. American Mini-Theatres (1976), involving an amendment to Detroit’s anti-Skid Row ordinance that regulated the location of adult businesses. In the footnote, Stevens wrote: “It is this secondary effect which these zoning ordinances attempt to avoid, not the dissemination of ‘offensive’ speech.

However, years later the court examined a direct restriction on the clothing that nude performance dancers wear in gentleman’s clubs in City of Erie v. PAP’s A.M. (2000). The majority of the court expanded the reach of the secondary effects to apply not just to the geographic location of adult businesses but to the direct expression of nearly nude entertainers.

→  Justice Stevens on Amending the First Amendment

  • He proposed amending the Constitution: “Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.”

→  Justice Stevens & The Roberts Court

Source: Collins & Hudson, “The Roberts Court First Amendment Free Expression Cases 2006-2019” (forthcoming)

Robson on 4th Cir. Non-Disparagement Clause Case

Over at the Constitutional Law Prof Blog, Professor Ruthann Robson has a post entitled Fourth Circuit: Non-Disparagement Clause in Police Misconduct Settlement Violates First Amendment. In it she writes:

In its opinion in Overbey v. Mayor & City Council of Baltimore, the Fourth Circuit held that non-disparagement clauses in settlement of police misconduct claims violates the First Amendment.

Prof. Ruthann Robson

Writing for the majority, Judge Henry Floyd, described the non-disparagement clauses that the Baltimore Police Department inserted in 95% of its settlement agreements. Here, Ashley Overbey sued the city for being arrested in her home when she called 911 to report a burglary, resulting in a settlement of $63,000, complete with the usual non-disparagement provision. The Baltimore Sun newspaper reported on the settlement as it went before a city agency for approval, including a negative comment about Overbey from the City Solicitor, and the reporting prompted some anonymous on-line comments, to which Overbey responded online. The City decided that Overbey’s online comments violated the non-disparagement clause and thus remitted only half of the settlement amount, retaining $31,500 as “iquidated damages.”

The court found that the settlement agreement included a waiver of Overbey’s First Amendment rights (rejecting the City’s argument that the First Amendment was not implicated by refraining from speaking), and further held that the waiver was “outweighed by a relevant public policy that would be harmed by enforcement.” The court rejected the city’s arguments, including a fairness argument that the court should enforce Overbey’s sale of her speech rights.

Upcoming: Knight First Amendment Institute Symposium

Earlier this year, we announced that the Knight Institute will host a symposium in the fall focused on the use of anti-monopoly tools to address the tech giants’ power over public discourse. The symposium, which will take place on November 14 and 15 at Columbia University, will examine the extent and nature of the technology giants’ ability to structure, shape, and distort public discourse, and consider whether anti-monopoly tools might usefully be deployed to limit, expose, or counter this power.


Since we announced the symposium, these questions have become only more salient. Some have called it an “antitrust moment,” with Congress, the Justice Department, and the Federal Trade Commission having launched investigations, multiple presidential candidates having called for more aggressive enforcement of the antitrust laws, and the tech giants having begun to respond. Our symposium will look at these and other developments through the lens of public discourse, asking, among other questions, whether concentration within the technology industry is a threat to free speech and self-government; what lessons might be drawn from earlier efforts to regulate the telecommunications industry and the media; and what the implications of “breaking up” the technology giants would be for the diversity and quality of online speech.

We’re excited to announce today that the following legal scholars, economists, and technologists will be writing papers for the symposium and participating in the November event.

→  List of participants here.

50 Universities Now FIRE’s Highest Rating for Free Speech

Soon to be Released (in paperback): The Coddling of the American Mind

Upcoming Book Event: Silenced Stages by George La Noue

George R. La Noue’s Silenced Stages: The Loss of Academic Freedom and Campus Policy Debates will be the subject of a breakfast “book launch” hosted by the Bipartisan Policy Center in Washington, D.C. on July 30th from 8:00 a.m. to 9:30 a.m. From their announcement:

George R. La Noue

Disinvitations, protests, and speech codes make headlines, but just as important is the chilling of campus discourse to the point some views and arguments are not brought forward at all. What is left out of campus debates may be more worrisome than the overt suppression of speech.

These are issues George R. La Noue takes up in his just-released book, Silenced Stages: The Loss of Academic Freedom and Campus Policy Debates. Professor La Noue researched nearly 100 campuses and found that, on far too many campuses, some ideas are deemed too unorthodox for open discussion and some speakers are judged too controversial to be invited. This limiting of campus discourse prevents students from fully testing their deepest convictions and learning from arguments across the spectrum of ideas.

Please join us for a breakfast conversation with Professor George R. La Noue and distinguished higher education experts about his findings and recommendations that college leaders, higher education donors, and students can take to invigorate open campus discussion.

→ Register here

New & Forthcoming Scholarly Articles 

New & Notable from The Volokh Conspiracy

New So To Speak Podcast: “Prof. Samuel Abrams wrote an op-ed encouraging viewpoint diversity. Then came the fallout.” 

His office door was vandalized. He was accused of causing “harm” to his “college community.” There was even a demand — supported by dozens of his faculty peers — to review his tenure. Why? Because he wrote an op-ed in The New York Times arguing for more viewpoint diversity at his campus.

On today’s episode of So to Speak: The Free Speech Podcast, Sarah Lawrence College professor Samuel Abrams joins us to discuss the response to his op-ed and the future of academic freedom, viewpoint diversity, and the role of faculty in college life.

New Clear & Present Danger Podcast

The Enlightenment’s emphasis on science, progress, tolerance and rationality attracted not only philosophers — even absolute monarchs dreamt of “Enlightenment Now.” But how do you incorporate the enlightenment’s revelations without undermining the traditions and ideas that legitimate absolute rule in the first place? Fortunately for Europe’s modernizing rulers, some of the continent’s most prominent 18th century philosophers — including Voltaire — stood ready to praise the new winds of “enlightened despotism” that took hold in places like Russia and Prussia.

In this episode, we cover Russia — the ground zero of enlightened despotism — and Tsar Peter the Great, who, according to Voltaire, single-handedly dragged the country across both time and place from the Dark Ages and Asia into the 18th century and Europe.

In the News

2018–2019 Term: Free Expression & Related Cases

Rulings & Opinions

Summary Action

Pending Petitions

Cert. Denied

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Last month, Williams College announced a final report released by the college’s Ad Hoc Committee on Inquiry and Inclusion. The report covers a wide range of topics related to freedom of expression and open inquiry on Williams’ campus, and the committee members (and Williams as a whole) are to be commended for their careful attention to these important issues. However, the committee’s report also contains reason for concern, particularly given Williams’ recent history on free speech. Ultimately, the report will bear further watching to see whether it protects freedom of expression at Williams in practice. 

Williams’ checkered history on free speech

The report comes in response to a campus-wide controversy following the introduction of a Williams faculty petition to endorse the University of Chicago’s “Report of the Committee on Freedom of Expression” (the “Chicago Statement”). The Chicago Statement is considered the gold standard of institutional free speech policy statements by FIRE and other commentators and represents an institution’s commitment to freedom of expression. 

This is not the first time Williams has struggled with issues surrounding free expression. The college earned a spot on FIRE’s annual list of “10 Worst Colleges for Free Speech: 2017” for its president’s unilateral disinvitation of a speaker he deemed too controversial for campus. (Ironically, the speaker had been invited by a student group named Uncomfortable Learning.) This past spring, Williams’ student government denied recognition to the student group Williams Initiative for Israel because of its pro-Israel stance, earning it a letter from FIRE. The group eventually received recognition after administrative intervention. 

Positive aspects of the committee’s report

In light of this past record, it is encouraging to see Williams community members grapple with free speech issues and pay careful attention to getting the difficult questions right. While the committee itself was comprised of faculty members and college officials, the committee reached out to students via individual and group meetings and an online survey. As such, the report spends a great deal of time discussing student attitudes toward freedom of expression, speaker invitations and events, and open and robust inquiry. As with any effort to improve a college’s climate for free expression, the involvement of a wide range of campus stakeholders is key.

Furthermore, the report rightly emphasizes practice as much as policy, recognizing that Williams officials will need to handle and publicly address speech-related controversies – from divisive speakers to students interfering with the expressive activity of fellow students – in a manner that upholds the principles of free speech and academic freedom. Additionally, the report references a forthcoming institutional statement on free speech for this fall, which Williams President Maud Mandel also mentions in her commentary on the report. That statement, too, will warrant careful review upon release and will help to provide a fuller picture of where things stand at Williams.

Negative aspects of the committee’s report

On the negative side, the report rejects an institutional endorsement of the Chicago Statement. This is disappointing given the Chicago Statement’s eloquent and principled defense of free speech and open inquiry – a quality that has led 66 universities and faculty bodies to adopt their own version of it. Instead, the report calls for Williams to embrace political theorist Dr. Sigal Ben-Porath’s “inclusive freedom” principle, summarized in the report as “an approach to free speech on campus that takes into account the necessity of protecting free speech in order to protect democracy and the pursuit of knowledge while recognizing the equal necessity of making sure that all are included in the ensuing conversation.” However, in Ben-Porath’s argument against adopting the Chicago Statement, the scholar neglects the fact that freedom of expression has long been the champion of minority and oppressed voices, thus reinforcing a false dichotomy between freedom of expression and inclusion. 

As FIRE often points out, endorsing a robust free speech statement serves to strengthen a university’s resolve to cultivate a campus community filled with myriad voices and ideas. Discussion is elevated and improved when every voice – including the marginalized and the controversial – is heard. As expressed in the committee’s report, a community that sustains “vigorous campus dialogue” is exactly the climate Williams should seek, a laudable aim for an academic institution that values the search for truth. 

Further, the report contains broad and vague language that could facilitate censorship in the future. At one point, the college declares that it is obligated to maintain “dignitary safety” on campus in the face of so called “hate speech,” defined as “the sense of being an equal member of the community and of being invited to contribute to a discussion as a valued participant.” This language sets up the inevitable clash between offensive – but protected – speech, and the college’s inclusion initiative. 

In its recommendations, the report also suggests the college “should acknowledge harm,” an undefined, amorphous standard that could mean nearly anything in application. Such broad and vague language threatens free and open debate and could chill a wide range of expression. 

Wait and see

Ultimately, while there are some steps forward in the Williams report, one will have to take a “wait and see” approach toward the college’s climate for free speech. For now, Williams remains a “yellow light” institution in FIRE’s Spotlight database for speech codes, due to the maintenance of several speech-restrictive and vague policies. FIRE hopes that the Williams administration is willing to make the necessary revisions to bring those policies in line with the college’s commitment to freedom of speech. More dialogue on these issues, and the continued involvement of a wide range of campus stakeholders, will be important. 

As always, FIRE will be monitoring the situation and ready to help students and faculty members stand up for their rights.

The post Williams College ‘Inquiry and Inclusion’ report a mixed bag on campus free speech, will bear further watching appeared first on FIRE.

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“The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure,” The New York Times best selling book written by FIRE President and CEO Greg Lukianoff and New York University professor Jonathan Haidt, is coming to paperback on Aug. 20!

You can preorder a paperback version of “The Coddling of the American Mind” today.

And why wouldn’t you? Since its release last year, “The Coddling of the American Mind” was named one of The New York Times’ 100 Notable Books of 2018 and received the Hugh M. Hefner Foundation’s 2019 First Amendment Award. The Financial Times, Inc. magazine, The London Evening Standard, and The New Statesman all chose “The Coddling of the American Mind” as one of their best books of the year, and it was named the most read book on Bloomberg’s Best Books of 2018 list.

When you preorder, a portion of the proceeds from the book’s sale will support FIRE’s work defending civil liberties on America’s college campuses. And don’t forget to use Amazon Smile  — at no additional cost to you — to automatically have a portion of your purchases benefit FIRE and to the important work we do.

Click here to preorder your paperback copy today!

The post Preorder now: ‘The Coddling of the American Mind’ available in paperback Aug. 20 appeared first on FIRE.

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Last week, FIRE awarded Mississippi’s Delta State University our “green light” rating, meaning the school does not maintain any written policies that seriously infringe on student speech rights. Here at FIRE, we celebrate every time university leaders commit to respecting free speech on campus, but this green light is extra special: 50 college and universities — the highest number ever — now earn FIRE’s top speech code rating.

Click to enlarge.

When FIRE issued our first Spotlight on Speech Codes report, only eight universities of the 334 surveyed earned a green light rating. That number increased steadily until 2015, when it started increasing rapidly as FIRE’s Policy Reform team continued to work with schools across the country to eliminate unconstitutional policies and encourage free speech. Today, more than 1 million students are enrolled at green light schools. 

Public/private split

Of the 50 universities earning FIRE’s top rating, 44 are public institutions. Public universities are legally bound by the First Amendment to respect student speech rights, while private institutions are bound by their own promises of free speech. This means that the vast majority of America’s top colleges and universities — we rate 466 institutions in total — restrict free speech in violation of the First Amendment or their own promises of free speech. And although college leaders routinely tout the importance of free speech and open inquiry, few put those words into action. 

Six private institutions maintain the green light rating. Notably, the University of Chicago and Emory University are the only green light universities in their respective states (Illinois and Georgia), meaning the two schools’ policies better respect students’ First Amendment rights than the rated public institutions in their states.

State of the states

Click to enlarge.

In recent years, several state legislatures have passed bills that require colleges to eliminate policies limiting student speech rights. Alabama, Arkansas, South Dakota, Iowa, Kentucky, and Oklahoma joined the list in 2019 alone. 

These legislative developments have contributed to several states, including Virginia, North Carolina, Arizona, and Mississippi, garnering a flurry of new green light schools. 

Today, 27 states still don’t have a single green light school. In the coming years, FIRE is hoping to change that by working with students, professors, administrators, and policymakers to reform campus speech codes. 

Help FIRE defend free speech

Take a look at FIRE’s Spotlight database to find out how much speech your college or university restricts, and use our Take Action portal on each institution’s Spotlight page to write directly to administrators about the speech policies they maintain. You can also encourage your college or university to join 66 other institutions and faculty bodies that have actively affirmed free expression and open discourse on campus by adopting the “Chicago Statement.”

Stay tuned in the coming months as FIRE continues to work with colleges around the country to make their campuses friendly toward free speech. With your help, FIRE is helping to protect First Amendment rights from coast to coast.

The post 50 universities now earn FIRE’s highest rating for free speech appeared first on FIRE.

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On June 13, FIRE wrote to the University of Northwestern to express concern over the university’s obstruction of a planned event by the UNW chapter of Young Americans for Freedom featuring conservative political activist Star Parker. This viewpoint-based decision by UNW directly contradicts the free speech promises the university makes to its students. While UNW is a private university and therefore not bound by the First Amendment, it is bound to uphold the promises of freedom of speech it makes in its policies.

The June 19 response from UNW’s president, Dr. Alan Cureton, was illuminating. It reads, in its entirety:

Dear Mr. Greenberg:

Per your request, your letter dated June 13, 2019 was received and read.

Blessings, 

Alan S. Cureton

This response from the UNW, much like a text message read receipt, indicates that it is not taking our concerns seriously. While that may be merely disappointing if the concerns were about something trivial, such as ice cream flavors in the dining hall, these are not. Such a nonchalant response — and its implicit acknowledgment of the university’s violation of its own free speech policies — is alarming. To be “left on read” by the university highlights the disregard UNW has for its students and their rights.

UNW had a variety of options: It could have written us back and told us how it is remedying the violation, or asked for assistance, or even sent us the form letter that it distributed to staff in early June. Rather, President Cureton sent us a single sentence. In that single sentence, the message was clear: He read what we wrote, but he doesn’t care what we have to say.

Take action and urge President Cureton to reaffirm the University of Northwestern’s promises to protect its students’ free speech.

Kelsey Sheronas is a FIRE legal intern and a rising 2L at Temple University Beasley School of Law.

The post ‘Left on read’ by University of Northwestern appeared first on FIRE.

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Student journalists at Georgia State University are scrambling to distribute thousands of copies of their summer magazine, The Urbanite, after administrators decided not to include it in the university’s student orientation materials. While the administration is under no legal obligation to distribute the magazine, it didn’t help its relationship with student journalists by offering a dubious justification for the decision — and student employees’ refusal to let the student newspaper’s staff distribute the newspaper themselves likely abridged the First Amendment. 

For the previous five summer orientations, Georgia State’s administration had included copies of The Urbanite — the summer magazine published by the student newspaper, The Signal — in bags distributed to new students. On June 3, just a few days before summer orientation, Director of International Student and Scholar Services Heather Housley informed The Signal’s editor-in-chief that 2,000 copies of The Urbanite would not be distributed to new students. Housley cited the university’s desire to “avoid using paper as much as possible” as the reason for the change. 

At first blush, the university’s reason is puzzling. The magazine had already been printed at a cost of nearly $8,000, so no paper would be saved by declining to hand out the magazine in orientation packets. If the reason was to reduce the use of paper, why hadn’t the university informed The Signal sooner? It’s possible that the university was concerned about overloading incoming students with paper information, rather than environmental concerns, but an investigation by The Signal suggests another possibility.

Indeed, the university’s proffered explanation wasn’t borne out by emails between administrators, obtained via a Freedom of Information Act request. Those emails revealed that the less-paper rationale was a pretext and that administrators were concerned about the content on Page 33 of The Urbanite titled, “Students with alternative jobs.” 

The article consisted of interviews of students with what The Urbanite calls “alternative jobs,” namely as a stripper, a sugar baby, and a marijuana dealer. The article was meant to serve as a foil to another article: “On-campus jobs for everyone.” 

“Black marketing selling is not an alternative job, it is a crime,” wrote Allison Calhoun-Brown, the university’s new vice president for student engagement and programs, wrote in an internal email. That same day, she emailed about her decision to keep The Urbanite out of student orientation packets. 

In general, administrators are under no obligation to include a student publication among the materials compiled by the administration. But offering a pretextual reason for the refusal — or at least providing a half-truth — suggests that administrators were most concerned with GSU’s image, which weighed on the decision to exclude the magazine. 

Subsequent events demonstrate the consequences of that attitude and skirted the line of unlawful censorship. 

At the orientation event, which consisted of student groups distributing information to incoming students from tables in the event space, an orientation leader approached newspaper staff and informed them that they were not allowed to hand out copies of The Urbanite. The orientation leader didn’t cite the administration’s original excuse for reducing paper usage; she claimed it was “because they talk about stuff that’s not appropriate at Georgia State” and cited FERPA, a federal privacy law pertaining to student records. 

After the newspaper’s staff pushed back, a student orientation coordinator said the magazine could be distributed by newspaper staff, but only from their table. This policy, if consistently enforced without respect to content or viewpoint, might be a reasonable restriction, but the university did no favors for itself by citing the content of the magazine in enforcing it. Had the university not quickly allowed The Signal’s staff to distribute the magazine at all, while letting other organizations hand out documents, the university would certainly have violated the First Amendment.  

Faced with the university’s response to the magazine’s contents, the newspaper staff did what journalists do: they shared their story

The Signal interviewed several student members of the orientation staff. While a few supported the university’s decision, many did not, and some only spoke to the newspaper anonymously for fear of retribution by the administration — a clear example of the chilling effect of the administration’s actions have had on students. “In general, they want us to stay away from you guys,” said the anonymous student. 

But why even flirt with censorship in the first place? 

Georgia State is a typical example of what can happen when school officials are more worried about their school’s image than about students’ free expression. Administrators should realize that students want their rights protected and that the illiberal handling of The Urbanist is likely to frustrate their efforts to build relationships with students. It should also serve as a warning to students to be skeptical when administrators advance pretextual content-neutral reasons for restricting student expression — especially when that expression just happens to be viewed disfavorably by the administration.

The post The “problem” with Page 33: Georgia State University walks censorship line appeared first on FIRE.

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Episode 28 - Writing on Human Skin - Enlightened Despotism, part I, Russia - SoundCloud
(3711 secs long)Play in SoundCloud

The Enlightenment’s emphasis on science, progress, tolerance and rationality attracted not only philosophers — even absolute monarchs dreamt of “Enlightenment Now.” But how do you incorporate the enlightenment’s revelations without undermining the traditions and ideas that legitimate absolute rule in the first place? Fortunately for Europe’s modernizing rulers, some of the continent’s most prominent 18th century philosophers — including Voltaire — stood ready to praise the new winds of “enlightened despotism” that took hold in places like Russia and Prussia.    

In this episode, we cover Russia — the ground zero of enlightened despotism — and Tsar Peter the Great, who, according to Voltaire, single-handedly dragged the country across both time and place from the Dark Ages and Asia into the 18th century and Europe.

Among the topics tackled are: 

  • How the benefits of modern science, learning and the fresh air of religious tolerance attracted Peter the Great;
  • How Peter believed in “moving fast and breaking tradition” and combined enlightenment reforms with ruthless suppression;
  • How Peter kicked off his modernizing reform with a fashion statement: ordering men to shave their beards and women to dress like Parisians;
  • How Peter’s reforms planted the seed for more liberal Enlightenment reforms;
  • How Catherine the Great introduced the idea and principle of freedom of speech into Russia’s deeply traditional culture;
  • How Catherine modeled her “Great Instruction” on the ideas of Montesquieu and Beccaria and corresponded with thinkers like Voltaire, Diderot, and d’Alembert;
  • How Catherine reversed her course and tightened censorship;
  • How the French Revolution caused Catherine to crack down on radical Russian writers like Alexander Radishchev and Nikolay Novikov; and
  • How Alexander Radishchev relied on “freedom of the press as the great bulwark of liberty” to write the most radical and robust defense of free speech in Russian history. 

Why have kings, emperors, and governments killed and imprisoned people to shut them up? And why have countless people risked death and imprisonment to express their beliefs? Jacob Mchangama guides you through the history of free speech from the trial of Socrates to the Great Firewall.

You can subscribe and listen to Clear and Present Danger on Apple PodcastsGoogle PlayYouTubeTuneIn, and Stitcher, or download episodes directly from SoundCloud.

Stay up to date with Clear and Present Danger on the show’s Facebook and Twitter pages, or visit the podcast’s website at freespeechhistory.com. Email us feedback at freespeechhistory@gmail.com.

The post Clear and Present Danger podcast – Episode 28: Writing on human skin – enlightened despotism, part I, Russia appeared first on FIRE.

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Barring a settlement, sex discrimination lawsuits against Grinnell College and Quinnipiac University appear to be headed to trial after judges in each case denied the school’s motion for summary judgment on both sex discrimination and breach of contract claims.

These decisions demonstrate that schools need to take seriously both their obligation to respond to sexual misconduct and their obligation to conduct fair and impartial judicial proceedings. They are also significant because, coming at a later stage of litigation when discovery has already taken place, they provide the public with a look under the hood of campus judiciaries in a way that decisions at the earlier motion to dismiss stage cannot. The evidence in both cases reveals a concerning disregard for fundamental fairness, one that both courts felt raised serious questions for a jury about whether these schools breached some of their most basic obligations to students. 

Doe v. Grinnell College

The plaintiff in this case, John Doe, was expelled from Grinnell after two women alleged that he had nonconsensual sexual contact with them. Doe alleged that, in the course of its disciplinary proceedings, the college discriminated against him on the basis of sex in violation of Title IX. He brought his Title IX claim under an “erroneous outcome” theory, which requires him to demonstrate both that (1) there was “articulable doubt” as to the accuracy of the college’s finding and (2) that gender bias was a “motivating factor” behind the inaccuracy. 

As the court explained, summary judgment is appropriate only when “there are no genuine issues of material fact in dispute.” If “a factual issue capable of sustaining a claim under the governing law ‘may reasonably be resolved in favor of either party,” then it goes to trial (unless the parties settle before trial, which often happens).

On the Title IX claim, the court first found that there were genuine questions about the accuracy of the proceeding’s outcome because the appeals officer — who was supposed to be impartial — consulted during the appeal with the adjudicator who found Doe responsible. The appeals officer even gave the adjudicator “the opportunity to respond with any comments” to Doe’s appeal, which the adjudicator did, “addressing each of Doe’s appeal arguments and providing additional support” for the finding of responsibility. According to the court, a reasonable jury could find that “such consultation detracts from the appeals officer’s independence,” and that the lack of an impartial appeals officer casts doubt on the accuracy of the proceeding’s outcome.

Moving to the question of gender bias, the court found that the adjudicator may have held “a biased perspective regarding the behavior of women during sexual encounters” when deciding one of the complaints, which turned on whether Doe had coerced the complainant into sexual activity. In deciding that complaint, the court held, the adjudicator “failed to engage with the evidence in the record indicating [the complainant] chose to engage in sexual activity—even if she was motivated only by a desire to ‘get [it] over with.’” 

The court also found that Doe raised an issue of material fact by comparing the adjudicator’s discussion of his case to an otherwise similar case from 2015 involving two female students: “It would be reasonable—although not necessary—for a jury to draw the inference that the language in the 2015 determination differed because the respondent was female.”

The court also denied summary judgment to Grinnell on Doe’s breach of contract claim. The parties did not dispute that Grinnell deviated from its policy, and the court found those deviations may have “made the disciplinary proceedings unfair to Doe and thus amounted to a material breach of the contract that caused him harm.”

Doe v. Quinnipiac University

This case involves a romantic relationship in which both parties — the plaintiff John Doe and his ex-girlfriend Jane Roe — made allegations of intimate partner violence against each other. Doe was found responsible and punished; Jane Roe was not.

The judge was particularly troubled by the fact that two Quinnipiac administrators involved in Doe’s case destroyed their investigation and hearing notes, which Doe believes contain evidence pointing to gender bias as a motivating factor in the outcome of the proceedings. 

In the Second Circuit, a party affected by the “spoliation” (that is, destruction) of evidence is entitled to an “adverse inference” based on the destruction if he or she can show that (1) the party who destroyed evidence was under a duty to preserve it; (2) the destruction of evidence was done with a “culpable state of mind”; and (3) a reasonable jury might find that the evidence was relevant to the affected party’s claim or defense. 

The court found that all of these elements were met, meaning that a jury is entitled to presume that the destroyed evidence likely supported Doe’s claim of gender discrimination.

On Doe’s Title IX sex discrimination claim, the court held that there were “undisputed facts and genuine disputes of material fact that preclude a grant of summary judgment [in favor of the university] on Plaintiff’s Title IX claims for erroneous outcome and selective enforcement.” 

First, the university may have used a different definition of “intimate partner violence” when deciding Doe’s claims against Jane Roe than it did when deciding Roe’s claims against Doe.  Second, the court found it was possible that gender bias was behind the university’s decision to credit Roe’s statement that she was afraid of Doe, but not Doe’s statement that he was afraid of Roe.

In his breach of contract claim, Doe alleged 29 specific provisions of Quinnipiac’s handbook that were allegedly violated in the course of his conduct proceedings. In defense, Quinnipiac pointed to a disclaimer in its handbook stating that it was merely “informational” and did not constitute a contract, but the court held that this did not preclude a breach of contract claim, and denied summary judgment.

While there have been hundreds of lawsuits brought in recent years by students alleging they were denied a fair process in campus sexual misconduct hearings, very few have proceeded to the summary judgment stage. Unlike motions to dismiss, which are brought in the earliest stages of litigation, summary judgment motions are filed after discovery has already taken place. In deciding a motion for summary judgment, the court looks not only at the plaintiff’s allegations but also at the evidence in the case. It is quite significant for a court to hold, after reviewing the evidence, that a university may have engaged in deliberate sex discrimination and breached its contract with a student. For courts to hold that in two separate cases in the span of just two days illustrates the magnitude of the due process crisis on campus right now.

The post Due process legal update: Two accused-student lawsuits survive summary judgment appeared first on FIRE.

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