When I was growing up, it was widely believed that colleges and universities were the part of our society with the widest scope for free expression and free speech. In the conformist America of the 1950s, the thinking ran, few people dared to say anything that went beyond a broad consensus. But on campus, anyone could say anything he liked.
Today, we live in an America with enormous cultural variety in which very few things are considered universally verboten. But on campus it's different. There, saying something considerably milder than some of the double entendres you heard in cable news coverage of the Anthony Weiner scandal can get you into big trouble.
These reflections are inspired by a seemingly innocuous 19-page letter on April 4 from the Department of Education's Office of Civil Rights to colleges and universities. The letter was given prominence by Greg Lukianoff, president of the Foundation for Individual Rights in Education, which has done yeoman work opposing restrictive speech codes issued by colleges and universities.
OCR's letter carries great weight since there are few things a university president fears more than an OCR investigation, which can lead to losses of federal funds -- which amount to billions in some cases.
The OCR letter includes a requirement that universities adopt a "preponderance of the evidence" standard of proof for deciding sexual harassment and sexual assault. In other words, in every case of alleged sexual harassment or sexual assault, a disciplinary board must decide on the basis of more likely than not.
That's far short of the requirement in criminal law that charges must be proved beyond a reasonable doubt. And these disciplinary proceedings sometimes face charges that could also be criminal, as in cases of alleged rape.
But more often they involve alleged offenses defined in vague terms and depending often on subjective factors. Lukianoff notes that campus definitions of sexual harassment include "humor and jokes about sex in general that make someone feel uncomfortable" (University of California at Berkeley), "unwelcome sexual flirtations and inappropriate putdowns of individual persons or classes of people" (Iowa State University) or "elevator eyes" (Murray State University in Kentucky).
All of which means that just about any student can be hauled before a disciplinary committee. Jokes about sex will almost always make someone uncomfortable, after all, and usually you can't be sure if flirting will be welcome except after the fact. And how do you define "elevator eyes"?
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