pageok
pageok
pageok
Anonymous Complaints:

Stanley Kurtz (National Review Online's The Corner) writes:

East Germany Hits Virginia

I've heard of speech codes, but I've never heard of anything quite like this: a mechanism to anonymously report "bias related to race, gender, sexual orientation, religion, or other protected conditions" to the university administration, for possible action against the perpetrator. This system has been set up at William and Mary, and a website protesting it can be found here. Is this something new, or at least rare, or is it perhaps more common than I realize?

InstaPundit seems to echo this concern, as have some readers who have e-mailed me.

It seems to me that these concerns are somewhat overstated, at least absent more facts about how the system is being used. Let me briefly explain why.

1. The College is certainly free to punish biased conduct, such as beatings or vandalism, and even a narrow zone of speech, such as threats. In fact, it should punish such behavior, though I'm not one of those who thinks that bias-motivated beatings, vandalism, or threats should generally be punished more than other beatings, vandalism, and threats. What's more, the College's Web page acknowledges that "because the expression of an idea or point of view may be offensive or inflammatory to some, it is not necessarily a bias-related incident. William and Mary values freedom of expression and the open exchange of ideas and, in particular, the expression of controversial ideas and differing views that is a vital part of civil discourse."

2. The Web page does go on to say, "While this value of openness protects controversial ideas, it does not protect harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities." This leaves open the possibility that the College will punish protected speech as "harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities"; but it also leaves open the possibility that only unprotected speech (such as threats) would be covered.

On first reading, the statement of rights and responsibilities didn't strike me as particularly troubling — the most clearly relevant responsibility there seems to be the duty to obey "the general law," which I take it means no vandalism, assault, threats, and the like. If William & Mary starts punishing protected speech, then it should be condemned for that. And, more broadly, I would condemn it for not being more precise about what exactly constitutes, in its view, punishment "harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities." But on balance the College's Web page and the statement of rights and responsibilities — which do provide pretty broad and specifically worded assurances of speech protection — don't seem extremely troubling.

3. This then gets us to what seems to have triggered the "East Germany" reference: The encouragement of anonymous complaints. I know many of my friends are very troubled by such complaints, and I can see their possible costs. But they also have substantial benefits, and I would not roundly condemn institutions that encourage them, at least until I see the institutions misusing them.

In fact, we almost always allow and often encourage confidential reporting of alleged misconduct — poor performance by a company's or government agency's employees, street crime, corporate crime, and so on. We do this because we realize that without the promise of anonymity, people will often be chilled from speaking about misconduct.

Of course if a school or a police department acts badly based on an anonymous complaint — restricts speech, or punishes someone based on the anonymous allegations — then that's bad. But anonymous tips are often useful for investigation, even if they can't be used in the actual adjudication.

Say, for instance that a student (1) sees evidence that a classmate is cheating, (2) hears a professor say in class "If you express an anti-abortion view on the exam, you'll get an F," or (3) hears some acquaintances brag about how they've beaten up a gay student (or, if you prefer, a Muslim student, a white student, and so on). In any of these cases, the student might well want to alert the authorities without revealing his name, and opening himself up to retaliation. And the anonymous tip may well lead to the discovery of credible evidence (whether tangible evidence or nonanonymous testimony).

It seems to me we should indeed allow and even encourage such anonymous tips, while of course remaining suitably skeptical about such tips, insisting that actual punishment not turn on such tips, and insisting that protected speech (as opposed to violence, vandalism, or threats) not be punished at all, whether based on anonymous tips or on nonanonymous ones.

UPDATE: A bit of further looking led me to a page that might be occasion for more worry:

What is Bias?

A "bias incident" consists of harassment, intimidation or other hostile behavior that is directed at a member of the William and Mary community because of that person's race, sex (including pregnancy), age, color, disability, national or ethnic origin, political affiliation, religion, sexual orientation, or veteran status. A bias incident may be verbal (whether spoken or written) or physical.

If you are not certain whether an occurrence meets the above definition, please report the occurrence under this protocol and allow the College to make the determination.

If you wish to report an incident of bias, you may do so by contacting the Chair of the Bias Reporting Team. Please, if this is an emergency, contact Campus Police at 911.

Certainly some of this "hostile behavior" is properly punishable (e.g., a physical attack or a threat), some is constitutionally protected (e.g., among many other examples, "hostile behavior" in the form of statements condemning the target's religion, political affiliation, sexual orientation, or veteran status), and some may be occasion for further investigation though not itself actionable (e.g., hostile statements that might suggest that the speaker has in the past engaged in other violence or vandalism, and that should lead the College to look further at whether the speaker has indeed done so). And the statements break down into these three categories regardless of whether or not they are submitted confidentially.

The question is what the College will do with the reports: Will it punish just the constitutionally unprotected behavior, or will it try to punish the constitutionally protected speech as well? As I noted above, the College should be faulted for not being more precise in its definitions. But the East Germany comparisons, it seems to me, should wait until there's more tangible evidence that the College is indeed punishing, or even attempting to punish, protected speech.

Brooks Lyman (mail):
I think that the greatest potential problem would be over-reaction on the basis of anonymous tips or rumors; as you say, one should be initially skeptical af such tips, and action (except in cases of potential violent criminal/terrorist activity, where better safe than 100% sure) should wait for hard evidence.

The danger perhaps lies in today's politically correct academic culture, where an innocent - if perhaps tactless - comment in a privavte conversation can be blown out of all context and send some hapless student looking for another school - presumably one less PC.
10.26.2007 4:11pm
WHOI Jacket:

Say, for instance that a student (1) sees evidence that a classmate is cheating, (2) hears a professor say in class "If you express an anti-abortion view on the exam, you'll get an F," or (3) hears some acquaintances brag about how they've beaten up a gay student (or, if you prefer, a Muslim student, a white student, and so on). In any of these cases, the student might well want to alert the authorities without revealing his name, and opening himself up to retaliation. And the anonymous tip may well lead to the discovery of credible evidence (whether tangible evidence or nonanonymous testimony).


Your examples (1) and (2) are potential academic honor code violations and the (3) regards the investigation of an actual crime.

I don't see how this W&M system will be anything other than 4-5 "The CRs are saying that they hate Muslims and women in all of their cell phone conversations" a day.
10.26.2007 4:16pm
Bpbatista (mail):
Given the pervasive PC culture and abysmal history of speech codes on colleges across the country, I think it is more than fair to be concerned that this is blatant encouragement for Stasi-like informing on the Politically Incorrect.
10.26.2007 4:38pm
Houston Lawyer:
So is the administration just going to call students before a star chamber and start asking questions based upon an anonymous complaint? Most of the proper responses to such an inquiry would involve strong profanity and rude hand gestures.
10.26.2007 4:44pm
Daniel Messing (mail):
The author's attitude would be fine if there were sufficient evidence of the college/university PC police being fair in whom they prosecute and how they prosecute. There is, however, too much evidence of the opposite. For details, check FIRE [http://www.thefire.org/index.php/torch].
10.26.2007 5:06pm
Ken A (mail):
(1) To be sure, tactless comments and the like could give rise to a lot of unneccessary and false reporting, but I wonder why this wasn't a concern of Instapundit (among others) during the debate about "John Doe" legislation a few months ago.

In other words -- why is reporting suspicions of terrorism (even if unfounded) a good and noble policy, but reporting of gender/racial bias an "East German"-like policy?

(2) FWIW, my law firm (and most law firms I'm aware of) have a policy similar to that of W&M.
10.26.2007 5:26pm
TheEastGerman:
Put another way, I don't think we'll ever see Kurtz raise the specter of East Germany because of the fact that law enforcement can rely on anonymous tipsters to support an affidavit for a search warrant. No, anonymous tipsters are clearly only a problem when used by left-wing, liberal colleges. If we find out tomorrow that the Administration has been relying on anonymous tips when determine who to wiretap, I'd love to see Kurtz's comments. Actually, maybe I wouldn't...
10.26.2007 5:26pm
Alan Gunn (mail):

In fact, we almost always allow and often encourage confidential reporting of alleged misconduct -

Yes, but we don't "almost always" take action based on anonymous reports, which is what this fuss is about.
10.26.2007 5:26pm
CheckEnclosed (mail):
Any entity that solicits anonymous complaints like this had better have a good idea about how it is going to repsond to them, because every Plaintiff who ever sues the entity is going to point to complaints as evidence that it was on notice and did nothing. This is just an invitation to litigation.
10.26.2007 5:28pm
Smokey:
Seems to me that in a university setting, the incendiary charge that someone committed a 'hate crime' should require that the accused must have the right to face his accuser. All other considerations are secondary.
10.26.2007 5:30pm
Le Messurier (mail):
EV, I think you are very naive to think that this is anything but another attempt at enforcing the PC. The title alone tells you that. "The Bias Reporting System" is the name of the effort, not "Silent Witness: report crimes at this number."

If I were a student at W &M and called President Nichols an AH to his face, can one honestly say that it is bias? I'd say it was an opinion. It is not hate, but it is disgust. So under the Bias Reporting System can you honestly believe that I wouldn't be brought before his court?

The way I read it he has set himself up as the arbiter of speech with which he disagrees and has created a reporting mechanism to enforce it. As the ad indicates, it is very Orwellian. I'd add frightening as well. As you are a lawyer, it surprises me that you aren't more concerned about the free speech implications of this than you appear to be.

A speech code is not needed to encourage the reporting of violations of an honor code, or violations of laws. Such encouragement can be done with mechanisms already in place, unless the intent is more sinister.

The way I'd sum it up is: Bias Reporting System = Speech Code, and Speech Code = restriction on freedom of speech. I don't see how you can read it any other way.
10.26.2007 5:33pm
Ken A (mail):

Yes, but we don't "almost always" take action based on anonymous reports, which is what this fuss is about.


If that's what the fuss is about, the Prof. Volokh is right: this "concern" is way too premature and alarmist. Is there any evidence that W&M is going overboard in its response to this policy?

Of course not. Sounds to me like W&M understands the difference between actual discrimination/bias, and free speech, even if perhaps some anonymous callers might not.

Which is why I conclude that this is just an excuse for Kurtz (among others) to engage in liberal academic university bashing.
10.26.2007 5:37pm
KeithK (mail):

In other words -- why is reporting suspicions of terrorism (even if unfounded) a good and noble policy, but reporting of gender/racial bias an "East German"-like policy?


The terrorist activities that people are encouraged to report is that which presents a direct, physical threat. Bias related to race, gender, etc. does not in and of itself present a comparable threat. Using a racial epithet is just not a danger on the same level as terrorism.It's not even a crime in many (most?) circumstances.

Bias certainly can lead to direct physical danger. I doubt there would be many here who would complain about anonymous reporting of actual threats. But that's different from a speech or conduct code.
10.26.2007 6:10pm
Ralph Phelan (mail):
"Prof. Volokh is right: this "concern" is way too premature and alarmist. Is there any evidence that W&M is going overboard in its response to this policy? "

This concern appears to be based on total cynicism regarding the good faith of academic administrators and an assumption that anything that can be used to stifle anti-leftist on campus immediately will be.

Based on recent history, this concern strikes me as legitimate.
10.26.2007 6:11pm
gattsuru (mail) (www):
In theory, this sorta thing could be done without violating the average person's right to confront their accuser and their right to speak freely. On the other hand, if we're presupposing that the average administrator is going to follow the Constitution, it's impossible to argue that the action will be used to violate an individual's rights.

But if we don't presuppose such a thing, it's very hard to see this sorta system used for good. In fact, to any libertarian-minded individual, "The Process of Reporting Bias" page seems to go out of its way to present potential problems.

Any and all reported incidents go to the "Bias Reporting Teams Chair", whose first metric is only to verify that the report is or is not "a bias or hate related event". Bias Incidents are described as "harassment, intimidation or other hostile behavior that is directed at a member of the William and Mary community because of that person's race, sex (including pregnancy), age, color, disability, national or ethnic origin, political affiliation, religion, sexual orientation, or veteran status. A bias incident may be verbal (whether spoken or written) or physical."

The "Bias Report Team" is [i]required[/i] to convene and act if "the event includes physical harm, or its potential. There is the potential or reality for large-scale impact (to the campus or wider community). The event includes the presence of hate or bias-related symbols. The more public, the more urgent."

Showing bias- or hate-related symbols is usually morally suspect (but not always), but as long as The College of William and Mary takes public funding, they do not have the legal authority to punish students for such a symbol.
10.26.2007 6:15pm
Steve:
East Germany, Orwellian, Star Chamber. How the overwrought rhetoric doth flow.
10.26.2007 6:20pm
Eugene Volokh (www):
Alan: To be precise, the bias reporting site seems to be suggesting anonymous reports in the sense of anonymity from the target (i.e., confidential), not total anonymity; people are urged to give their names, but are told that the complaint will be kept confidential.

Also, as I mentioned in my post, if William &Mary takes disciplinary action based on a confidential complaint -- "an anonymous person told us you drew a swastika on the corridor wall; we don't have any other evidence of it and we won't let you know who the complainant is, but we'll punish you for it in any event" -- that would be bad. But if William &Mary takes action simply in the sense of using the confidential complaint as a basis for further investigation, and then takes disciplinary action based on the tangible evidence or the nonconfidential witnesses that it discovers, then that's not a problem.
10.26.2007 6:21pm
Patrick216:
I was a 2000 graduate of W&M. In my time there, the university was never a bastion of leftism and I never felt unsafe or unwelcome as a right-of-center student there. To be sure, the professors were predominantly left of center, and in some cases were not afraid to express those views to students in their classes. But I always felt comfortable expressing right-of-center views in class and my grades were never penalized as a result.

But that was under the old President, Tim Sullivan. The new guy, Gene Nichol, strikes me as a total disaster. This was the guy who last year ordered the Wren Cross to be removed from the Wren Chapel out of a fear of offending religious minorities. (Mind you, no religious minorities actually felt offended.) Now we have the Bias Reporting System. Is there any indication that ethnic, religious, sexual orientation, etc. minorities are under assault at W&M such that this system is needed? Or is this another Gene Nichol gross PC overreaction? (Given that Nichol was formerly associated with the ACLU, I'm inclined to believe he's overreacting for no reason.)

There is currently a board that's been appointed by the Board of Visitors to consider whether they want to retain Nichol as President following the expiration of his contract on June 30, 2008. You better believe I am going to write a letter advocating that he not be reappointed. This kind of stuff is over the top and is defaming the good name of a great school.
10.26.2007 6:25pm
gattsuru (mail) (www):
Mr. Volokh, with all due respect, that very site [i]requires[/i] that the Bias Reporting Team convene within 24 hours if an anonymous reports claims an event which "includes the presence of hate or bias-related symbols" and is determined by the Bias Reporting Team Chair to be a "hate or bias-related event".

Such action may be limited and not considered punishment (I'd argue otherwise about being forced to meet with the sort of individuals that are likely to be running this thing), but it's certainly not exactly inspiring confidence.

The reporting metric seems to require student to log in, but it also goes out of its way to state that "[i]the team will not receive information about the identity of the person reporting the incident[/i]". The fax/printout form does not even require the name of the accuser to be provided unless the accuser wants to be included in the follow-up.
10.26.2007 6:33pm
Lonely Capitalist (mail):
I think the best response to this would be for the College Republicans (and any other concerned students) to file anonymous complaints on a daily basis for any and all leftist slights they encounter. Surely conservative students hear offensive comments on a daily of not hourly basis. Extremist leftist professors could receive dozens of complaints against them a day! It's time for the Right to become sensitive and hurt at every slight!
10.26.2007 6:41pm
C Thomas:
"It's time for the Right to become sensitive and hurt at every slight!"

Based on the bellyaching herein, that train left the station some time ago.
10.26.2007 7:02pm
Clayton E. Cramer (mail) (www):

In other words -- why is reporting suspicions of terrorism (even if unfounded) a good and noble policy, but reporting of gender/racial bias an "East German"-like policy?
Terrorism is a crime. Gender or racial prejudice is not--yet. But I'm sure that the PC crowd will correct that.
10.26.2007 7:48pm
W&M alum:
A real danger here is the possible chilling effect. The prohibition seems so vague -- can a straight student tell a gay student that he thinks being gay is sinful? can a Christian urge a Muslim to convert, or vice versa?

I'd be curious to hear the administration's reasons for implementing this system, given all the problems it might cause.
10.26.2007 8:02pm
DangerMouse:
LonelyCapitalist is right. Perhaps the first complaint should be that W&M discriminates on the basis of race by having an affirmative action program.
10.26.2007 8:08pm
The General:
Considering how much leftists love shutting up conservatives and Christians, especially on college campuses, there can't really be any doubt that they will abuse this system and use it to stifle conservative and religious views with which they disagree. These people believe that being against welfare is "hating on black people" or believing that the bible condemns homosexuality and saying so is a hate crime. Given they're recent history, they simply aren't entitled to the benefit of the doubt.
10.26.2007 8:15pm
Smokey:
Steve:
East Germany, Orwellian, Star Chamber. How the overwrought rhetoric doth flow.
I have a strong suspicion that Steve would see things a little differently if he were anonymously accused of being a hater. But maybe not. Personally, I would want to look my accuser in the eye.
10.26.2007 8:30pm
markm (mail):

Any and all reported incidents go to the "Bias Reporting Teams Chair", whose first metric is only to verify that the report is or is not "a bias or hate related event".

So first they decide it was a crime, and then investigate what actually happened? Like the Duke 88?

How it works out depends on who the chief investigator is. If it's a calm, unbiased, and competent investigator who respects the rights of the accused, there's no problem. However, in my limited experience with investigations by university and public school administrators, such people are far outnumbered by the hysterics who jump to conclusions and run off on a crusade to punish the accused before the facts are in. And that was in totally non-political cases.

I furthermore expect that the main competitors to sit in the Bias Reporting Teams Chair will come from the ranks of the Perpetually Offended, who imagine that everything that can possibly be construed as a slur was a deliberate slur, and never imagine that the words might have been inaccurately reported. Even if the first appointee is a good investigator, he'll move on eventually (and probably sooner rather than later, considering the abuse he'll take for not immediately convicting every white male ever accused), and the odds are very much against getting two good ones in a row. And I don't see anything that will effectively restrain a biased, out of control investigator
10.26.2007 9:24pm
Redlands (mail):
Sounds like W&M is trying to emulate government. Hey, this seems like a good idea, let's do it. Consequences? We're aiming to do good here, the consequences can only be good.
10.26.2007 9:50pm
Christopher (mail):
At Rockwell Intl. - I'm assuming it’s still true - if a man was accused of sexual harassment he was fired. No review or due process. It was based on expected cost. The manager told me it was all money. That a man even if wrongly fired, usually would not sue. And even if he did sue the cost to the company was small. However, if a woman sued and won the cost was very high. So firing the man immediately made it harder for the women to sue the company.
If history is correct the people accused will cost the university less in terms of publicity or money then ignoring or demanding that one’s accuser be faced.
This will in the end guarantee that many false and politically motivated accusations will be made.
10.26.2007 10:42pm
Eli Rabett (www):
And this differs from the generic Fairfax terrorism tip 24x7 call 1.866.488.8554 line how?
10.26.2007 11:42pm
Richard Nieporent (mail):
I can see it now. This crack bias reporting team, aka the Anti-Bias League will be on duty 24 hours a day to defend the university against offensive language. When a bias call comes in the Anti-Bias League will immediately assemble in the university (watch) tower to fight against the appearance of offensive words. Lead by Wonder Woman, the intrepid member of the university’s Women Studies department, Black Lightning, the daring head of the Black Studies department, Superman the stud from the English department and Batman the swashbuckling member of the Gay Studies department, they hunt down the evil campus conservatives who are spreading vile and hurtful words.
10.26.2007 11:48pm
Javert:
But the East Germany comparisons, it seems to me, should wait until there's more tangible evidence that the College is indeed punishing, or even attempting to punish, protected speech.

So you want to wait for the Brown Shirts to condemn Mein Kampf?
10.27.2007 12:17am
Elliot123 (mail):
I just received the following message when attempting to post a quite civil comment about the W&M bias reporting system. It's really a great message. Blacklisted words?

"Your comment contains a blacklisted word. Please re-submit your comment excluding any words which might make it seem like you're trying to sell medications or gambling. (I'd love to tell you what the blacklisted word is, but it would help the spammers by revealing sources and methods.)"
10.27.2007 1:22am
Hans Gruber:
Bias? Can't the university simply say: "Please tell us if somebody threatens you or beats you up." It's hard to support the policy when a broader, clearer policy of "dont beat up or threaten other students" would suffice. Heck, I would think that'd sorta go without saying.

Clearly they intend more than that, Professor. The policy itself, as quoted by you, limits expressions of hate. Feminists on occasion hate men. Some Republicans, at times, hate Democrats (and vice versa). Lots of people hate Ann Coulter. Some people hate gays. While others hate Christians. Still others hate Israel (or Jews). I hate Dr. Phil. I would think all of the above would be protected speech, even if expressed with intense hatred, aslong as threats or force weren't used. The policy is more than ambiguous; it appears to limit protected speech if deemed to be "hate."
10.27.2007 8:06am
Bpbatista (mail):
Let's see, William and Mary gets along just fine for 300+ years without an anonymous bias informant system. Then a president with demonstrated PC bona fides takes over and such a system is created virtually over night. If you don't think this system will be used to punish the Politically Incorrect, you are living in Fantasyland.
10.27.2007 9:56am
Kevin P. (mail):

Patrick216:
The new guy, Gene Nichol, strikes me as a total disaster. This was the guy who last year ordered the Wren Cross to be removed from the Wren Chapel out of a fear of offending religious minorities. (Mind you, no religious minorities actually felt offended.)

This seems to me to be a suitable bias complaint against President Gene Nichol, meeting the criterion of "other hostile behavior" based upon religion. I tried to submit a bias complaint, but alas, it requires a College user ID and password. Any takers in the William and Mary community?
10.27.2007 11:03am
Eli Rabett (www):

Let's see, William and Mary gets along just fine for 300+ years without an anonymous bias informant system.

Let's see, the first woman was admitted in 1918, the first black student in the 60s. It's been all downhill since then
10.27.2007 1:42pm
MDJD2B (mail):
In other words -- why is reporting suspicions of terrorism (even if unfounded) a good and noble policy, but reporting of gender/racial bias an "East German"-like policy?

Umm... maybe because terrists have a history of killing lots of people, while irresponsible college undergraduates might, at worst, hurt someone's feelings? (I'm referring to statements, not to physical acts, cross burnings, etc.)
10.27.2007 1:52pm
William Van Alstyne (mail):
"The College is certainly free to punish biased conduct," says Ilya, in his comment on the newly posted Wm.&Mary proposed policy (which is fraught with serious mischief).
His statement seems innocuous, but it is rife with assumptions and it is not responsive to fundamental problems involved in the Wm. &Mary newly posted policy. Here's why.
Bear in mind that what is made punishable (and reportable) are acts of "harassment," and/or acts of "intimidation" directed to individual students, faculty, staff, or employees (whether the acts of "harassment and/or of "intimidation" consist of words rather than something else). So far, so good, i.e., there is assuredly nothing inappropriate in making it clear that "harassing" and/or "intimidating" others is not to be regarded as conduct the College views with indifference.
But note, also, that unless one is harassing and/or attempting to intimidate another because of characteristics 1. through 12., the act of harassment and/or of intimidation does not qualify as suitable to report, and likewise is simply not prohibited by the rule itself. (I say "l. through 12," because a close reading of the "forbidden" grounds expressly lists twelve kinds of harassment, i.e., it does not simply forbid (and make reportable) targeted acts of harassment and/or of intimidation (e.g., "threatening" another), rather, it reaches such acts if, but only if, according to the enumerated list, they proceed from some kind of "bias"--and only then if the "bias" is within one of the twelve kinds included within this list (e.g., sending a threatening note to a fellow student whose only offense is that she is pregnant--the "condition" of being "pregnant" is one of the twelve listed "protected conditions") But plainly one may harass, or seek to intimidate, another for all sorts of reasons. So, when is "harassment" all right? And when is "intimidation" equally all right? Evidently, by the metric of this rule, whenever it occurs for any reason other than one of the twelve "prohibited" reasons for harassment and/or intimidation.
The irony of the rule is that it is NOT a rule that (simply) disallows acts of intimidation (whether of a particular faculty member, of an identified student, or of an identified employee at the College). Rather, it is a purely "touchy-feely" "political correctness" rule. If, but only if, the individual is "harassing" another person or "intimidating" another person FROM SOMETHING THE COLLEGE REGARDS AS AN UNACCEPTABLE KIND OF "BIAS," THEN they are subject to be reported, placed on some kind of "list," and referred to some other body for possible suspension or worse.
One may also try out a variation of this "rule," and will not find it any more edifying or defensible. Here is a single example: a rule that provides generally that harassing and/or intimidating acts are not condoned by the university, and then proceeds to "scale" the harshness of the penalty for such acts differently, however, such that one who sends a threatening note to another student that they withdraw from a particular class (where the student sending the threatening note wants them out to give them a better chance to be the "top" student in that class)is subject (only) to a written reprimand, but if the "reason" for sending the threatening letter was because of resentment of the targeted student's race (i.e., that he or she is "white" and the student sending the threatening note is frankly resentful of white students who seem to hog class discussions to the exclusion of the black students)then, the offense being a "bias" offense, the minimum sanction is suspension for a semester and the sanction may be expulsion.
Each act of intimidation (placing the other student in fear of harm by identically worded threatening notes)is indistinguishable in terms of its impact on the threatened student, nor does the reason for the second student's unfortunate act strike one as somehow more pernicious than the reason for the first student's identical acts. What then distinguishes them?
These politically-"skewed" codes of conduct are seriously misguided (and, I think, frankly embarrassing to universities which endlessly contrive to take the "correct" stance on all sorts of matters.....)
WVA
10.27.2007 1:56pm
MDJD2B (mail):

Mr. Volokh, with all due respect, that very site [i]requires[/i] that the Bias Reporting Team convene within 24 hours if an anonymous reports claims an event which "includes the presence of hate or bias-related symbols" and is determined by the Bias Reporting Team Chair to be a "hate or bias-related event".


Indeed. Law professors rarely appreciate the transaction costs of lawsuits and analogous actions. I refer not only to economic costs, but to the time and agita' that result from being haled before an official tribunal and forced to defend oneself.

Even if the W&M bias squad were scrupulously fair, and if there were a real presumption in favor of the accused (which is not always true with campus disciplinary bodies), the accused still has to appear and explain himself. The publicity of being accused harms people's reputations. (Yeah, these tribunals are supposed to be confidential.)

Encouragemnt of anonymous tips harms anyone falsely accused anonymously. And the experience of snonymous reporting systems like child abuse reporting shows that there are many false reports:

familyrightsassociation.com/info/statistics/false_reports

"Drawing from data submitted by the states, NCCAN estimated that 2,806,453 total reports of child abuse and neglect were phoned in to hotlines across the country in 1998. Thirty-four percent of those (955,186) were immediately judged unfounded and "screened out" of the investigative process. Of the 1,851,267 that were investigated, 295,169 were substantiated for physical or sexual child abuse — about 11% of the 2.8 million reports"

BTW I support anonymous reporting of child abuse because of the consequences to the children. Violence to children, rettorism, etc., has much more of an impact on recipients than does hearing biased statements. In the case of the latter, the harms of encouoraging anonymous reporting outweigh the benefits.
10.27.2007 2:13pm
whit:
"because of the fact that law enforcement can rely on anonymous tipsters to support an affidavit for a search warrant"

with the understanding that it's a small piece of the puzzle. i've written scores of search warrant affidavits. in some states (aguilar spinelli), there is a two prong test, that means that anonymous witnesses are worth very very little. in other states, maybe a bit more, but in general- anonymous tipsters are a reason to start an investigation and look for corroborating facts. they are not nearly enough to get a search warrant (generally).

most cops know that people who give anonymous tips are often less than credible and take anonymous tips with a BIG grain of salt.

courts look at them the same way.
10.27.2007 4:23pm
Passing By:
Is Glenn also horrified by "Crime Stoppers"?

MDJD2B, why do you assume that every report will result in action, and that every action will require the person accused to appear at a hearing?
10.27.2007 5:53pm
Prof. Ethan (mail):
Such a system at the University of Michigan, just as vague in its precepts of the forbidden but LESS draconian in its operation, was declared unconstitutional in Doe v. Michigan (1989).

One of the architects of that unconstitutional speech policy was Lee Bollinger--now President of Columbia University. His career wasn't hurt by his effort to subvert the First Amendment.
10.27.2007 6:48pm
gattsuru (mail) (www):
Is Glenn also horrified by "Crime Stoppers"?


Crime Stoppers only has one the aspects which make this series potentially problematic, the "anonymous tips" section. It does not, by itself, create laws which punish speech, nor does it require action by those in power.

This one does.
MDJD2B, why do you assume that every report will result in action, and that every action will require the person accused to appear at a hearing?


I can't answer for other people, but at least in my case...

Because the statement on the The College of William and Mary's official Bias Reporting Team's site, it states that the Bias Reporting Team is required to convene within 24 hours for any event which involved "physical harm, or its potential", "the potential or reality for large-scale impact (to the campus or wider community)", [i]or[/i] "the presence of hate or bias-related symbols". If the Bias Reporting Team does convene, it [i]must[/i] provide a person to act as point of contact with the accused and victim. They are also required to determine a list of actions from the provided questions on said site, including "What additional steps can be taken so the institution feels it is contributing to a just community?"

It does not [i]require[/i] a hearing itself, per say, but it does require action, and a meeting of some kind with the accused and the 'victims'.

I dare say that sounds like it has a lot of potential for abuse.
10.27.2007 7:21pm
Smokey:
Eli Rabett:
"And this differs from the generic Fairfax terrorism tip 24x7 call 1.866.488.8554 line how?"
OK Eli, since you don't understand it, I'll 'splain it to you:

The fact that terrorists have repeatedly stated that they intend to kill people, and have done so time after time, 'differs' from a student who perceives a slight. See? Someone coming to murder you and your family 'differs' somewhat from the typical university crybaby - who anyway has plenty of other recourse even without an anonymous snitch line.

There could not be an easier way to sabotage someone's carreer than to call in a few anonymous tips: "We'd better not hire [or give tenure to] Joe. He's been accused of sexual harrassment on several different occasions. True, they could never nail him on it; he's a slippery character. But where there's smoke..."

See the problem?
10.27.2007 8:21pm
Brian K (mail):
The fact that terrorists have repeatedly stated that they intend to kill people, and have done so time after time, 'differs' from a student who perceives a slight. See? Someone coming to murder you and your family 'differs' somewhat from the typical university crybaby

So the magnitude of the likely response or the resulting social stigmatization has nothing to do with it? Having some permanently and erroneously labeled a terrorist or a pedophile is perfectly alright but having someone erroneously labeled as being "insensitive" is a horror amongst horrors?

Or is that every value that makes this country so great can be set aside in the pursuit of terrorists?
10.27.2007 9:13pm
Eli Rabett (www):

The fact that terrorists have repeatedly stated that they intend to kill people, and have done so time after time, 'differs' from a student who perceives a slight.
Well let's see, a bunch of folks are hanging nooses near black guys' offices lately. Some guys saying that what some woman needs is a good sc...There is a history of violence against women and blacks. Seems to me you have something there.

OTOH I'll bet you 99% of the calls to the Fairfax terrorism tip line are "don't like the swarthy guys hanging around the 7-11" or "there are women with head coverings shopping at Fair Oaks Mall"
10.28.2007 2:01am
Swede:
Lefty loves the speech code, doesn't he?

And "hate words".

Was Orwell writing about future government or college campuses?
10.28.2007 6:53am
dmoo:
One area of potential bias is listed as "sex (including pregnancy)". I never knew there was a sex called pregnancy. Maybe what they mean was "gravid status". This entire situation is no joking matter.
10.28.2007 7:55am
Moneyrunner43 (www):
The Nichol family have a habit of this kind of oppressive stifling of free expression and association. Gene’s wife is also a professor, Glenn George, – the academy has a habit of hiring husband and wife teams – who began a campaign against religious groups at UNC – Chapel Hill.


Glenn George was named as University Counsel at UNC-Chapel Hill on December 7th, 2002. Just three days later, a Jihad was launched against religious organizations at that school. Thirteen letters were written to religious groups - twelve to Christian groups – threatening to de-fund them and kick them off campus.

These threats were issued because the groups did not allow membership and voting privileges to students hostile to their religious views. There was also a mandate that the groups adopt policies that allow all students to hold office in the religious groups they oppose.

The policy was so absurd that it should not have required a lawsuit to correct. But it did.

After a religious group filed suit, a federal judge issued an injunction against UNC that caused the policy to be amended. Eventually, Glenn George and her husband Gene Nichols – then the Dean of UNC School of Law – moved on to William and Mary. And they took their penchant for harassing Christians with them.
10.28.2007 10:32am
MDJD2B (mail):

Well let's see, a bunch of folks are hanging nooses near black guys' offices lately. Some guys saying that what some woman needs is a good sc...There is a history of violence against women and blacks. Seems to me you have something there.


And how many of thes incidents end in violence?
10.28.2007 11:50am
Richard Aubrey (mail):
I don't expect the college intends to take much action.

The chilling effect will do the work they want done. There will be very little controversial speech supporting conservative positions.

Imagine quoting, say, the DOJ stats about intraracial crime, black on white vs. white on black. Somebody is certain to figure that complaining about feeling threatened is a good tactic.
10.28.2007 4:37pm
Wandering (mail):

Prof. Volokh, please use some imagination. Consider the Duke lacrosse case tried via an internal board of inquiry consisting of 5 professors from the Group of 88. Would there be any chance of finding the truth, would there even be an attempt at it?

It is interesting to me how civil libertarians who are so skeptical of expanding the powers of government suddenly become quite faith-based &assume only good intentions when an ivory tower is trying to expand its powers over what students are allowed to say, and think, and believe. Why, it is almost as though there's one standard for one group and a different standard for another group...
10.28.2007 6:23pm
Richard Aubrey (mail):
Wandering.

Boy, that would be a stunner.
10.28.2007 8:15pm
Eli Rabett (www):
So, MD, the guys hanging nooses and threatening women are just playing games? Wanna bet?
10.29.2007 1:22am
Randy R. (mail):
The General; "These people believe that...believing that the bible condemns homosexuality and saying so is a hate crime. "

Because, you know, conservatives students just have to police everyone's sex life rather than, oh I don't know, do their homework?
10.29.2007 1:57am
Richard Aubrey (mail):
Eli.

A good many of the nooses and related incidents were bogus.

Randy R. Your idea of what conservatives should be doing is not a matter of law. There's the First Amendment which liberals believe should be applied selectively. Sorry, sport. Not yet.
10.29.2007 7:15am
Richard Aubrey (mail):
I still haven't heard back from W&M about what they'll do about false reports.
Welcome them, I suppose.
How far are they from Duke? Geographically, I mean.
10.29.2007 7:16am
ronnie dobbs (mail):
All of these controversies at W&M would have totally predictable to anyone familiar with Nichol's time at UNC and/or Colorado. The guy never lets accountability or wisdom get in the way of his politics.
10.29.2007 10:54am
Jeff Lebowski (mail):
Richard N.:

Thanks! I haven't laughed that hard in awhile. I'm just glad I wasn't drinking anything when i read it.
10.29.2007 10:54am
Hans Bader (mail):
This raises big due process problems, since without knowing the identity of the accuser, the accused cannot raise legitimate challenges to the credibility of the accuser. It also makes it harder to raise legitimate alibi defenses.
10.29.2007 11:41am
Hans Bader (mail):
Interestingly, this civil liberties violation (see above comments explaining how it violates due process and free speech) is occurring under the college presidency of Nichols, a man with close ties to the ACLU.

Subjecting someone to a chilling investigation because of their speech can violate the First Amendment. (See, e.g., White v. Lee (2000)). Denying someone the identity of their accuser can violate due process.

If you are concerned with civil liberties, think twice about giving money to the ACLU. All too often, the ACLU attacks rather than defends civil liberties, as in the Rosenberger case (where it supported censorship, which the courts struck down), the Meltebeke case (where it supported curbs on religious expression, which the courts struck down), the Dale case (where it supported curbs on freedom of association, which the courts struck down), and the Gratz case (where it supported limits on equal protection, which the courts struck down).
10.29.2007 11:48am
SethB (mail):
I would hope that the key phrase is "directed at a member". That is, if the complainant can't identify a specific member of the community at whom the speech is directed, then there's no policy violation.

So: "White guys can't jump" is allowed; "Seth can't jump because he's white" isn't.
10.29.2007 1:33pm