pageok
pageok
pageok
Confidential and Anonymous Speech / Confidential and Anonymous Complaints:

People are often troubled when the government and universities solicit confidential or anonymous complaints; the William & Mary Bias Reporting system controversy is the latest example. I think such systems are principle necessary and legitimate, so long as they are properly run. True, there's a risk that they'll be abused, but that's true of most enforcement systems -- the risk alone should not lead us to reject them, though it may lead us to look careful about how they actually operate.

1. Anonymous Speech: To begin with, note the similarity between anonymous speech in public (such as on blogs) and anonymous speech to the government. Requiring that people reveal their identities may deter them from saying things that will open them to retaliation. Allowing anonymous speech will diminish this "chilling effect." It will encourage people to blow the whistle on what they see as misconduct, whether they're revealing (a) government misconduct to the public, (b) nongovernment misconduct (say, by their corporate employers) to the public, (c) government officials' misconduct to the government (for instance, if they are complaining about alleged misbehavior or poor performance by their public university professors), or (d) nongovernment actors' misconduct to the government.

At the same time, anonymity encourages falsehoods as well as accurate whistleblowing. This is why we as readers should be extra cautious about charges levied by anonymous speakers (though we should be cautious about charges levied by named speakers, too). Likewise, government officials should be extra cautious about charges levied by anonymous complainers.

2. Confidential Speech: The William & Mary system seems to be encouraging confidential complaints -- which is to say complaints for which the complainers' identity will be shielded from the target, and even from many of the investigators -- rather than purely anonymous complaints. (Of course, one can always submit even purely anonymous complaints to any agency, and William & Mary seems likely to consider them; but its system, which requires a William & Mary user name and password, is intended to solicit confidential complaints, not anonymous ones.)

The effects, both good and bad, of confidential speech seem likely to be moderate versions of the effects of anonymous speech: The system encourages both accurate and false complaints more than a your-name-will-be-revealed system but less than a purely anonymous system. (The system could discourage false complaints more if William & Mary takes aggressive steps to investigate whether a complaint is not just unproven or mistaken but a deliberate lie, punishes the liars, and publicizes such actions; but I doubt that William & Mary is likely to do this. Unfortunately, such a system would also discourage true complaints to some extent, though if the system is trusted, it will discourage false complaints more than true ones.)

3. Anonymous/Confidential Speech Systems in Practice: Because of this, many institutions routinely rely on anonymous or confidential evaluations. Most universities, for instance, have student evaluations be anonymous. Likewise, most universities assure outside tenure reviewers that their names will be kept confidential from the person being reviewed, and while this assurance isn't ironclad -- there's always the risk of leakage, and of the rare subpoena.

Naturally, the anonymous evaluations are treated with some extra skepticism because of their anonymity. But the sense is that the university will get far fewer accurate criticisms of the professor if the students knew that their names will be revealed; and the risk of some extra inaccurate criticisms is seen as being worth running, especially given that the anonymous evaluations are read skeptically.

A few states, by the way, expressly require by statute that evaluations of government employees not be based on anonymous criticisms, and thus require that students sign the evaluations. I don't know of any empirical comparisons between such systems and the anonymous evaluation systems. Still, my tentative sense is that the anonymous evaluation systems are better, despite the slightly higher risk of unfairness to the person being evaluated. What do you think?

And note that these confidential and anonymous evaluations are directly used in deciding whether certain employees are to be promoted, hired, or even dismissed. My sense is that confidential and anonymous complaints are even more commonly used when it comes to looking into something, and seeking tangible or nonconfidential evidence.

4. Investigating Based on Anonymous/Confidential Speech: Let me elaborate a bit more on this, and bring in point 1 above. Say that someone e-mails you some anonymous allegation about a politician. You'd often be reluctant to believe the allegation, and act (even if it just means publicizing the allegation with your endorsement) without further investigation. But you'd often be quite willing to start that investigation based on the anonymous allegation, since you expect that the anonymous and possibly unreliable tip may lead you to uncover highly credible evidence.

The same is true, I think, with regard to anonymous (and especially nonanonymous but confidential) complaints about an employee or patron of your establishment. If you run a restaurant, and a patron tells you that a waiter has insulted him but insists that his name be kept confidential (maybe he's afraid the waiter will beat him up, or spit in his food if the patron visits again), what would you do? Would you tell the patron that due process prohibits your taking the complaint?

I take it you wouldn't; you probably wouldn't fire the waiter on the spot (unless you've heard a lot of such complaints, and have little cause to think they're part of a general campaign to unfairly malign the waiter), but you might watch the waiter more closely, or ask the waiter's colleagues if they'd heard the waiter insulting this customer or others. The university context is not quite the same as this, for various reasons; but in both situations, the employer may be acting wisely -- and properly -- in paying attention to confidential or anonymous complaints, and even in encouraging them.

The same, of course, is true of law enforcement. The police naturally prefer nonanonymous and nonconfidential complaints. But in many situations, the complainants are naturally worried about retaliation. To minimize the chilling effect on valuable speech (here, complaints to the police about likely criminals), the police should, to the extent possible, allow anonymous and confidential complaints. They generally shouldn't be admissible evidence at trial; but they can be useful tools for tracking down evidence that is admissible.

5. Severity: Finally, some commenters tried to distinguish systems for encouraging anonymous or confidential reports of possible terrorist planning, or even of street crime, on the grounds that those are serious crimes that justify such measures.

But the crimes also lead to severe penalties, and can involve extremely intrusive investigations. So while the upside of allowing anonymous or confidential complaints as to such crimes (the encouragement of accurate complaints) is greater than the upside of allowing such complaints as to "bias incidents" on campus, the downside (the encouragement of false complaints) is greater, too.

6. The Bottom Line: So, as I've said, the William & Mary policy should be faulted to the extent that it seems to allow the punishment of protected speech. Even to the extent that it aims to punish unprotected attacks, vandalism, or threats, it should generally reject the use of anonymous or confidential evidence in the actual quasi-judicial disciplinary proceeding. And campus authorities should be especially skeptical about anonymous or confidential complaints. But such complaints are a legitimate, and often necessary, part of enforcing campus rules -- or for that matter criminal laws -- just as anonymous speech is a legitimate, and often necessary, means of promoting public debate and whistleblowing.

Related Posts (on one page):

  1. Confidential and Anonymous Speech / Confidential and Anonymous Complaints:
  2. A Bit More on the William & Mary Speech Code:
  3. Anonymous Complaints:
Le Messurier (mail):
I'll repost this here as my point is strengthened by this newest post. It is still a speech code so:


Somebody please enlighten me. Isn't a speech code, however you call it, a restriction of speech by definition? If this is so how can any lawyer worth his JD support the existence of a speech code? But here on this thread they analyze the minutiae of it's wording. It boggles my mind that people here, including EV, are not hammering the existence of this or any speech code instead of reading nuances into its meaning. I'd be interested to know just what good they do and how they further the educational goals of a University.
10.29.2007 2:52pm
Hans Bader (mail):
Speech-based crimes are different from other crimes in terms of what sort of investigatory burdens the accused can be expected to shoulder.

A lengthy and prolonged investigation based on speech can itself violate the First Amendment. White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (fair housing investigation based on protected speech violated the 1st amendment; accord A.H.D.C. v. City of Fresno (9th Cir.) (fair-housing lawsuit based on speech violated first amendment); Pfizer v. Giles (3d Cir. 1994) (lawsuit based on protected association violated 1st amendment).

Allowing anonymous allegations based on speech, when such allegations are thereby encouraged and thus put (conservative campus) dissidents under a prolonged cloud, therefore might violate the 1st Amendment even if allowing anonymous complaints for non-speech-related offenses would not violate any constitutional provision.

Note also that William &Mary's underlying bias policy violates the First Amendment under Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993) (racist, sexist skit was protected speech even though university claimed it fostered a "hostile and distracting learning environment").

By contrast, note that while actual discipline based solely on an allegation whose maker's identity is withheld from the accused could violate the due process clause even in a non-speech related case, the mere triggering of an investigation in a non-speech related case by an anonymous allegation might not violate due process, if independent evidence from other non-anonymous sources supported any ultimate discipline.
10.29.2007 2:54pm
Eugene Volokh (www):
Hans: Can you tell me a little more about the scope of your proposed constitutional prohibition on "anonymous allegations based on speech"? In particular, let's consider three scenarios:

1. The claim is that certain speech should itself lead to discipline, and the speech, as alleged, is constitutionally protected. "I allege that X said he despises fundamentalist Christians, such as Y [the leader of the local evangelical Christian organization]." "OK, we'll start an investigation." I agree that such speech should be protected, and the investigation should therefore be futile (though I'm not sure that the investigation alone is therefore unconstitutional).

2. The claim is that certain speech is evidence of something unprotected, though the speech on its face, as alleged, is constitutionally protected. "I heard X saying 'I hate kikes'; I wonder whether he might be the one who vandalized the local synagogue." "OK, we'll investigate whether X may have vandalized the local synagogue." Is your claim that this too should be unconstitutional?

3. The claim is that certain speech is unprotected, though there are uncertainties about the content or context of the speech that affect whether it's protected. "I heard X saying 'You Campus Republicans are a bunch of thugs, and one day you'll get a taste of your own medicine.'" "OK, we'll investigate whether in context this is a punishable threat of violence." Is your claim that this should be unconstitutional?
10.29.2007 3:03pm
Hans Bader (mail):
I don't know that 2. or 3. would be constitutional violations, if the inquiries they triggered were not unduly prolonged (e.g., exculpatory evidence, if any, ignored about the context in which the statements were made) and they did not lead to something remaining in the student's university file containing unwarranted damaging anonymous allegations. Cf. Columbus Board of Education v. Columbus Education Ass'n (6th Cir. 1980) (ordering reprimand removed from file on 1st amendment grounds).

It seems to me that the First Amendment places added limits on prolonged or unduly burdensome investigations based on speech, but I am not sure exactly what the boundaries of those limits are.
10.29.2007 3:10pm
Anderson (mail):
I don't pretend to familiarity with the relevant law, but as a practical matter, it seems that the anonymity should not persist up to the point of actual proceedings against the alleged malefactor. Too reminiscent of the Inquisition.

I would distinguish only where there's an anonymous tip-off that leads to the discovery of sufficient evidence that the anonymous source's "testimony" isn't even part of the case.
10.29.2007 3:14pm
Fat Man (mail):
True, there's a risk that they'll be abused, but that's true of most enforcement systems -- the risk alone should not lead us to reject them, though it may lead us to look careful about how they actually operate.


Risk? Slam Dunk certainty. Most colleges run Kangaroo courts (insult to kangaroos, more like Alice in Wonderland) with out even a shred of due process. Giving them anonymous complaints is like giving oxycontin to a drug addict.
10.29.2007 3:41pm
anonVCfan:
I wonder if another concern people have about these sorts of things relates to either conduct that violates some policy but that many people feel shouldn't be punished...

If there are social consequences for reporting, potential complainants may use more discretion in deciding whether to report something that technically violates a school policy but which is mostly harmless.
10.29.2007 3:42pm
Ralph Phelan (mail):
"True, there's a risk that they'll be abused, but that's true of most enforcement systems -- the risk alone should not lead us to reject them, though it may lead us to look careful about how they actually operate."

It's an unaviodable fact that an enforcement system that allows potentially costly investigations to procede on the basis of anonymous reporting gives power to those who operate it.

When evaluating the risk of abuse, one needs to look not only at the enforcement system but at those who will be operating it. If the people or institutions involved have good a record of ethical and responsible behavior and have good internal controls the risk of giving them is probably worth the benefit.

If the people who will be operating the system have a preexisting reputation for rushing to judgement, ignoring due process, favoritism, arrogance, stupidity, bias, and valueing PR over truth or justice, the risk of giving them added power is probably not worth the benefit.

I'd say university faculty and administrators fall into the second group.
10.29.2007 3:58pm
Anthony A (mail):
The two issues appear to be that the "crime" about which anonymous/confidential tips are being solicited is no crime at all, which doesn't directly implicate the use of anonymous or confidential informants, and that there are worries that the confidential or anonymous tip may be used as evidence in a hearing/trial. Organizations which prosecute thoughtcrime may be (rightly) suspected of using unfair means to do so, including the use of confidential or anonymous evidence.

Additionally, an investigation can be used to harass, and there is often no recourse or compensation for the harassment of an unfounded investigation.

So the three protections which seem necessary when using confidential or anonymous informants would be:
1) The "crimes" for which anonymous or confidential information is being solicited really are criminal, and not protected activity.
2) Anonymous or confidential information may not be used as evidence at trial (or hearing).
3) Anonymous or confidential information is treated with sufficient skepticism that it cannot be misused to harass the subjects of investigations.
10.29.2007 4:02pm
PatHMV (mail) (www):
Breadth of solicitation for anonymous/confidential complaints.

It's one thing to make an avenue available for submitting anonymous or confidential complaints of significant wrong-doing, such as threats of violence or sexual harassment. But it's something else entirely to solicit such complaints regarding vague "offenses" like "being intolerant" or harboring "improper" sexual/racial/gender/religious thoughts. The exceedingly vague nature of the "offenses," particularly in light of the absence of any requirement (in the advertisement for complaints) that any person have suffered any harm (beyond merely being offended) by the person against whom the complaint is registered, will thus exert an extreme chilling effect on speech.

We all know, from having watched similar scenes unfold in the news, that once someone is identified as suspect or "of interest" to any sort of authorities, their life becomes less pleasant, in many ways. From negative public attention to incurring significant legal fees, there are strong incentives to do everything possible to avoid coming to the negative attention of the authorities in whatever particular institution (school, office, government, etc.) you are a part of.

By all means, make available a mechanism for anonymous or confidential complaints about actual offenses which actually harm someone. But don't promote them for offenses which are merely that... offensive to some other individuals point of view.
10.29.2007 4:04pm
Fub:
PatHMV wrote at 10.29.2007 3:04pm:
By all means, make available a mechanism for anonymous or confidential complaints about actual offenses which actually harm someone. But don't promote them for offenses which are merely that... offensive to some other individuals point of view.
I agree. But I also see good reason to be concerned about even anonymous tips that allege some actual harm or crime.

Radley Balko has reported some recent examples of extreme police actions on anonymous tips:
In 1999, North Richland Hills, Texas (population 55,000; number of murders in all of 2004: one) cops in SWAT gear raided the home of Barbara Davis and her so, Troy. They were acting on an (at the time) anonymous tip from Barabara Davis' brother-in-law -- with whom she'd had an ongoing feud -- that Troy was growing marijuana in a closet.

The first judge denied Sargeant Andy Wallace a middle-of-the-night seach warrant, ruling that an anonymous informant with no track record wasn't enough to justify a paramilitary early morning raid. No big deal. Sargeant Andy Wallace merely moved on to a more compliant judge, and got his warrant.
They killed the guy they raided.

Another:
Police in Lexington, Tennessee forced entry into Walker's home on a drug raid in August of 1999. They brough the raid after an anonymous tip from a "concerned citizen," who claimed to have seen methamphetamine and marijuana inside.

Once inside, Deputy Tim Crowe, who had been on the police force for only a week, saw Renae rise from teh couch with a child in her arms, and discharged his gun. The bullet struck Renae in the back of the head and exited through her mouth, killing her. Police would later say Crowe's gun fired and scored a direct hit because he "tripped."

Police found no drugs or weapons in the home. They later conceded that the entire raid was "a terrible mistake."

More recently:

February 11, 2007 California Takes Down Vicious Gambling Ring

If by "vicious" you mean a $5-per-entry, $50-total-pot football pool at the Lake Elsinore Elks Lodge.

A volunteer waitress and a widowed great-grandmother who tends bar at the Lake Elsinore Elks Lodge are due in court later this month after pleading not guilty to misdemeanor charges of operating an illegal gambling operation.

Margaret Hamblin, 73, and 39-year-old Cari Gardner, who donates her time as a waitress at the lodge, face up to one year in jail and a $5,000 fine for allegedly running a $50 football pool at the facility, the Press-Enterprise reported.

The charges stem from a Nov. 20 investigation by state Department of Alcoholic Beverage Control agents into an anonymous tip that lodge members bet on NFL games. ...
Too often I think, police reactions to anonymous tips are not even close to rational. Sometimes when that happens, innocent people die.
10.29.2007 4:32pm
PatHMV (mail) (www):
Fub: regarding the first example you cite, I wonder if there is room in qualified immunity law to disallow immunity when you judge-shop a warrant application like that.

We should also consider imposing a workman's comp-like system for wrongful searches, regardless of whether they were legal or not. In other words, you search a house and injure the occupants or their property, and don't find what you're looking for in the warrant, then the police have to pay a set fee schedule, period, regardless of "fault." Whether the SWAT team member shot the innocent man on purpose or because he "tripped," there must be a hefty payout, which must come out of the police budget (through a risk pool or insurance of some sort, ultimately). This gives the police hierarchy a financial incentive to reduce the number of such raids and use them only when truly justified.
10.29.2007 4:41pm
John McCall (mail):
Fub's stories are misleading; there are plenty of such anecdotes based on non-anonymous complaints. The problem is the paramilitary police tactics, not the anonymity behind the complaints.
10.29.2007 5:06pm
John (mail):
The problem is not so much with anonymity or confidentiality as it is with the bona fides and common sense of the enforcement agency. If the enforcement agency acts in good faith in its investigation, and is guided by something other than rampant PC-ism, then all will be well.

The problem is that when the agency does go off the reservation, and FIRE and its friends come to the rescue, there is no instigator to be identified who is to blame for the miscarriage of justice, except the agency itself. Maybe that's enough.

But it remains the fact that the problem will lie in enforcement policy much more than in whether some tipster is anonymous or not.
10.29.2007 5:19pm
MDJD2B (mail):
Earlier this month, the (arguably) most important biologist since Darwin was forced to resign his job as head of a research institute for which he had worked for almost 40 years and had developed into a world class outfit.

The reason? He speculated publicly that African populations might, on average, have lower cognitive function than European populations.

This is not as bad as Lavoisier (the founder of the science of chemistry) being guillotined during the French revolution, but it shows that it is impossible to even speculate on certain matters in academia without fear of reprisal.

Do we really think that an anonymous reporting system is likely to be used responsibly under the Wm. &Mary circumstances? And who should get the benefit of doubt?
10.29.2007 5:20pm
MDJD2B (mail):
Prof. Volokh: Anent your previous post, consider the following hypothetical conversation--

Carol Christian: Judy, your religion is passe. If you don't accept Jesus as your personal savior you'll go to hell, and I'll get to watch you suffer from my balcony in heaven.

Judith Jew: I really hate the way you Christians have been persecuting us for the last two millenia.


Maybe I'm mistaken, but this seems to violate the W&M speech code. Do you agree? Should these students really be punished for this? Do we really want to encourage confidential reporting of stuff like this?
10.29.2007 5:26pm
PatHMV (mail) (www):
MDJD2B, I'm normally quite suspect of attacks from the P.C. police. However, I think the reaction to Dr. Watson's remarks was quite appropriate. He did not get in trouble for, as you suggest, engaging in any type of scientific research. No, he gave an interview to the Sunday Times, saying, among other things:

"people who have to deal with black employees find this [black intelligence being equal to that of "us"] not true"


He was not "speculating in academia." He was making ill-founded general observations in the public press. Precisely because of his august reputation, he has a greater responsibility than most to speak cautiously, based only on actual science. Had he been crucified for a research paper published in a scholarly journal, I would defend scientific inquiry. But he wasn't doing that, and it was appropriate to loudly criticize him for it.
10.29.2007 6:39pm
Anderson (mail):
If you don't accept Jesus as your personal savior you'll go to hell, and I'll get to watch you suffer from my balcony in heaven.

Judy is evidently a reader of Tertullian, or at least of the passage quoted from him by Nietzsche in the Genealogy of Morals. "More pleasing than the racetrack and the circus," thought Tertullian of contemplating the tortures of the damned.

(Note towards my forthcoming essay, "Christofascism - A Religion of Hate." Not.)
10.29.2007 7:32pm
Fub:
PatHMV wrote at 10.29.2007 3:41pm:
Fub: regarding the first example you cite, I wonder if there is room in qualified immunity law to disallow immunity when you judge-shop a warrant application like that.
I don't know. Never practiced in that area. I would hope so. But the guy would still be just as dead even if his family got some compensation.
We should also consider imposing a workman's comp-like system for wrongful searches, regardless of whether they were legal or not. ...
I agree that would be a step in the right direction. Personally, I would go further, to laws that would make mandatory criminal prosecution of the bad actors. As long as there is insurance to pay for money damages, the bad actors will feel free to act badly.

John McCall wrote at 10.29.2007 4:06pm:
Fub's stories are misleading; there are plenty of such anecdotes based on non-anonymous complaints. The problem is the paramilitary police tactics, not the anonymity behind the complaints.
I intended to point out examples where anonymous tips have led to horrifically bad results, possibly the results the tippers desired. Anonymous tips compound the problem of overuse of paramilitary tactics.

Police apparently are free to engage paramilitary tactics based on anonymous tips with virtually no further investigation. In such an environment, anonymous tips themselves become dangerous weapons. Bad faith tippers likely are aware of that, and may rely on it.

Part of reining in police paramilitary tactics is making ironclad law that no such action can be based primarily on an anonymous tip, with severe criminal penalties for police or other officials who violate it.
10.29.2007 7:56pm
Smokey:
Right now there is a real-world case, in which the long serving head of a County Board of Education is being cashiered from her job because of exactly the type of complaints that are being solicited at W&M: click

Check out the link above, and see if you can find any actual wrongdoing [I know nothing of this person, I only the putative 'crimes' she is accused of committing - by anonymous underlings who have already gone ballistic when a redacted report was issued; they're very afraid that someone might figure out who they are].

This is the same kind of character assassination that will result if this Big Brother approach is implemented at W&M. Where is it written when an accused may face his/her accuser? After the damage to their professional reputation has been accomplished?
10.29.2007 8:35pm
gasman (mail):
Whether the complaint is anonymous or confidential it strikes at the heart of our sense of fairness. While the constitution only guarantees the right to confront an accuser in state run criminal proceedings, most people expect this to be true of every day life.
We tend to read anonymous complaints with a great degree of skepticism because the accuser cannot be cross examined or suffer any consequence for false reporting. Confidential complaints are subject to the filtering bias of the investigating agency. They might even be more dangerous than anonymous information because of the perceived credibility the investigating agency might give to information they swear has been checked out. If it seems that the investigator was duped by the confidential informant, then the investigator has a personal motivation to keep the falsehood under wraps lest they themselves appear foolish.
10.29.2007 8:43pm
Moneyrunner43 (www):
PatHMV:

If I may paraphrase your comment, you believe that someone can make a case for a theory but cannot reflect on it's practical application if it breaks a cultural taboo?
10.29.2007 9:54pm
PatHMV (mail) (www):
No, Moneyrunner, that's not what I said. I was responding to a statement suggesting that the Watson affair was an attack on academic freedom and our ability to conduct scientific studies. Watson was not attacked for academic work. The specific quote of Watson's which I cited was not in ANY WAY based on any scientific study or data.

Given the terrible history in this country, and around the world, with racism, and with the false pseudo-science which has in the past been used to justify racism, I do think that scientists such as Watson have a special responsibility to not make public statements like that without STRONG scientific evidence to support them.
10.29.2007 10:44pm
Mr X:
A few comments on the matter of discussion here.

(1) If you take a look at the W&M fax form for reporting bias, you will observe that it allows for totally anonymous denunciations in which the accuser is completely unidentified. It is unclear whether or not the on-line form forwards the reporter's ID to the College's administration or whether the userid/password is simply a matter of access control.

(2) W&M is currently considering a revision and expansion of the rules governing its faculty that is germane to this topic. (You can find the proposed changes by following the Reports &Resolutions link off of http://www.wm.edu/facultyassembly.) The changes constitute an expansion and modification of the current rules governing sexual harassment to the more general issue of bias that is under discussion here.

Here is a brief summary. Once an administrative officer has decided that the reported actions would constitute bias, if substantiated, then:

(i) An accuser can choose to remain completely unknown to to the accused, even to the point that the accused is not even made aware of the complaint. In this case a record of the complaint is filed but no further action is taken.

(ii) An accuser can choose to remain anonymous but allow the accused to be informed of the complaint. In this case the accused is allowed to file a response. If the accused wish to remain anonymous at this point, no further action is taken other than a record of the complaint.

(iii) If the accuser is willing to disclose their identity, then the fur starts to fly. In this case any previous charges of discriminatory behavior (anonymous or not) can, with the permission of the Provost, be released to the people investigating and trying the accused faculty member. (Presumably this is prima facie evidence of a pattern of behavior?)

Except for the last bit about releasing previous accusations, these proposed changes are comparable to the existing procedures concerning sexual harassment. I would be curious to know the extent to which the current procedures are shaped by case law on sexual harassment, and whether such law forms a sound basis for W&M's treatment of its more nebulous question of "bias". (I ask in perfect ignorance.)

(3) In the current policy in the W&M faculty handbook governing faculty and sexual harassment it is expressly stated that the accuser has the burden of providing proof of the alleged harassment (at least at the initial report). This language is absent in the proposed revision and extension to bias. Again, is there any legal significance to this?

(4) I again appeal to the lawyers (an alarming notion!!): Faculty are employees, on the one hand, but W&M is also a state university. What bearing, if any, does this have on the discussion? E.g., at what point do the rights of the Commonwealth of Virginia as an employer stop, and First Amendment protections begin? (My apologies if this is well-trodden ground in connection with speech codes for employees.)

(5) Finally, it is unclear how the new bias reporting system
affects students who, as I understand, enjoy much broader
First Amendment protections at public universities.
10.30.2007 1:18am
Ralph Phelan (mail):
"If the accuser is willing to disclose their identity, then the fur starts to fly. In this case any previous charges of discriminatory behavior (anonymous or not) can, with the permission of the Provost, be released to the people investigating and trying the accused faculty member."

At which point the completely anonymous reports you were previously totally unawaure of are transmitted to the people you work with every day who will sit on tenure review committee someday, and very possibly leaked to the press. At this point the Provost becomes a dictator, with unchecked power to smear.
10.30.2007 8:59am
Wm Schurman (mail):
The twist at W&M is that while they were writing this Bias Reporting Process that allows anyone to delegate the decision on whether they are offended to the Administration, this same Administration was hiring prostitutes and strippers to perform graphic sexual acts to the tune "Ave Maria." So while the Administration seeks to reduce bias in some areas, they are actively promoting in in others.
10.30.2007 9:03am
MDJD2B (mail):

No, Moneyrunner, that's not what I said. I was responding to a statement suggesting that the Watson affair was an attack on academic freedom and our ability to conduct scientific studies.


I never said that someone was impinging on Watson's opportunity to conduct scientific studies. though if he applied for a grant to study the genetics of cognitive ability, I wonder how his institution would react. I understand that the study of cognitive idfferences is something of a third rail in academia.

Given the terrible history in this country, and around the world, with racism, and with the false pseudo-science which has in the past been used to justify racism, I do think that scientists such as Watson have a special responsibility to not make public statements like that without STRONG scientific evidence to support them.

Does that mean that scientist who engage in such speculation should lose thier jobs? Does it matter whether they are scientific or adminstrative jobs?
10.30.2007 9:29am
MDJD2B (mail):
Judy is evidently a reader of Tertullian, or at least of the passage quoted from him by Nietzsche in the Genealogy of Morals. "More pleasing than the racetrack and the circus," thought Tertullian of contemplating the tortures of the damned.

Judging from my undergraduate days, it is the sort of exchange that might take place among undergraduates late at night the week before finals by people saner and less malignant than Tertullian. Should they be disciplined?

BTW, When I was a freshman, an obsessive anit-Semite who lived on the floor went down the hall with a tape measoure demanding to measure everyone's nose. It was some sort of rough and ready anthropological study. I don't think that showed great character on his part, but I wouldn't discipline him for it.
10.30.2007 9:34am
Eli Rabett (www):
MD, what both girls need is some counseling, and I rather suspect that that would be the first move of the administration at W&M
10.30.2007 11:39am
MDJD2B (mail):
Eli,

Are the mentally ill?
10.30.2007 12:31pm
Richard Aubrey (mail):
Ralph Phelan.

WRT anonymous complaints:

Would the admin contact the supposed perp and tell him that there are complaints against him, no action is proposed "at this time", but he'd better watch his step?

Can anybody say, with a straight face, that nobody has thought of that as a useful tool?
10.30.2007 12:35pm
MDJD2B (mail):
IMHO they should get a lesson in manners. they should avoid each other.

The don't need counseling.

And they certainly don't need to be subjects of anonymous complaints. Especially if their statements are agaisnt the rules. The school should basically leave them alone to work out their issues with people who are not like them. There is no reason to believe that one will poison the other, steal the other's class notes, or do something else that reasonably would be actinable by the school.
10.30.2007 12:40pm
PatHMV (mail) (www):
Does that mean that scientist who engage in such speculation should lose thier jobs? Does it matter whether they are scientific or adminstrative jobs?


Yes. Depending on the particular circumstances, they should lose their jobs. No, it doesn't matter what their particular job is.

There are many people still alive today who have personal memories of legally segregated water fountains and of wide-spread hostility and violence towards a large group of people because of their skin color / race. The examples of "scientific" efforts to justify racism extended into quite recent times, based on Stephen Jay Gould's book, Ever Since Darwin.

Scientists should not avoid studying certain subjects just because they are unpopular, but if they undertake to make very public comments on something like racial characteristics, then they certainly should face social consequences if what they say is not backed up by very solid science.
10.30.2007 4:33pm
Richard Aubrey (mail):
pat.
The cognitive functioning of Africans is the same as ours because that's good. The cognitive functioning of Asians is better than whites' because that's better and not a bad thing.
That the cognitive functioning of Africans might be worse than whites' or Asians' is not allowed. Not that it isn't true. But not allowed. Data showing it's the same as other races' is lacking, while data showing it's not as good is all there is.
But, I suppose the question is, how do we get money to do solid science when it has the possibility of destroying our faith?
The equality of cross-racial cognitive functioning is a matter of faith and there aren't many people who are going to look carefully at it for fear of what they might find.
I hope it's equal. Controlling for pre-and-post natal nutrition deficits would be a big step in the data.
But I don't KNOW it's equal.
Nobody's proved it, probably from fear that the attempt might backfire.
10.30.2007 5:46pm
Moneyrunner43 (www):
Richard Aubrey and PatHMV,

First let me respond to PatHMV. The anti-scientific bias in your position is literally staggering. You actually sound like a medieval cleric defending the position of an earth centric universe because to their minds, the mere discussion of another system would destroy the Christian faith. Truly staggering and truly monstrous for the modern age.

Second, I have no idea if Watson has any scientific basis for his statement, and it appears that no one on this thread has either. He may have been talking from some personal racial prejudice or he may have been talking from some study he has conducted. I don't know which it is. But the rabid desire to shut off the debate on this subject reveals a more pernicious issue. It is that there is a belief -- not just among the usual suspects but also among the Liberal and oh-so unbiased community that there may be differences in cognitive abilities among the races. That would explain the death grip that Liberals have on affirmative action via lower entrance exams to universities, the elimination of certain math tests in communities for new hires to police departments, and other similar demands.

One politician has stated it in a kinder, gentler way: it's the soft bigotry of low expectations. The expectations people have for children or adults who are not quite … what?

Of course, Aubrey, it's perfectly fine for another racial group to score, on the whole, higher than Caucasians. But it's not OK for some group to score lower. Which brings us to the dilemma. If Asians are -- on the whole -- smarter than Caucasians but Africans are -- by definition - just as smart as Caucasians can we draw any conclusions about whether Asians are smarter than Africans? Or is that also not allowed?
10.30.2007 10:58pm
Eli Rabett (www):
Counseling can include stay the F away from each other. That might be a good counsel.
10.31.2007 1:05am
Richard Aubrey (mail):
Money.
You use too much logic. A group can be better than another group. But no group can be worse than another group.
Get the difference?
Oh, yeah. And it gets more complicated when more than Asians and Whites are involved.
That's why writing a grant app for a study in the area could be difficult.
10.31.2007 11:49am
anonymous2 (mail):
The following article seems to illustrate some of the pitfalls in over-encouraging anonymous reporting, albeit in the context of terrorism:

How We Won the War on Thai Chili Sauce
11.1.2007 7:12pm