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Campus Follies Lesson Three

Robert Fogel, an econometric historian, won the Nobel Prize this year for a book he wrote 20 years ago dealing with slavery in the United States. It happens that Prof. Fogel wrote a perfect introduction to this lesson in his very controversial classic of historical revisionism, "Time on the Cross."

"Thus while the existence of slave marriages was explicitly denied under the legal codes of the states, they were not only recognized but actively promoted under plantation codes. That the legal basis for slave marriage was derived from codes which held sway within the jurisdiction of the plantation, points to a much neglected feature of legal structure of the antebellum South. Within fairly wide limits the state, in effect, turned the definition of the codes of legal behavior of slaves, and of the punishment for infractions of those codes, over to planters. Such duality of the legal structure was not unique to the antebellum South. It existed in medieval Europe in the duality between the law of the manor and of the crown; it was a characteristic of the regimes under which the American colonies were governed; and in lesser degree, it exists with respect to certain large institutions today (for example, with respect to university regulations)."

There you have it! A warning by a nobel prize winning historian that American Universities have a separate legal system, unrecognizable to those familiar with American civil and criminal law.

And so it is!

The subject of this lesson is what happens when the "law of the manor" at these Universities falls into the hands of the forces of "multiculturalism" and the "politically correct". What might the typical serf expect?

The first excerpt is a survey of the treatment of our modern serfs by campus star chambers. The second excerpt tells us what can happen even at a relatively "conservative" school with a religious background when ideologues must grapple with a rather odd accusation of "date rape".

The final pair of excerpts are a "moon shot" to the University of Pennsylvania where one of its own, a security guard, is disciplined for apprehending students stealing the entire supply of an alternative student newspaper. The Wall Street Journal, once again, has done a marvelous job of capturing the "rationale" of administrators meting out justice.

Parental discretion advised for readers under the age of 18. You may have to explain how the act of stealing alternative student newspapers to suppress their editorial content becomes subject to a special set of "Open Expression Guidelines" requiring that campus security recognize such acts as "protest" and call in special "Open Expression Monitors."

Yggdrasil recommends that you read the following:

Sep 27, 1993 Wall Street Journal p. A22
A Mockery of Justice on Campus

BY SCOTT GOTTLIEB

With the dawn of a new academic year, college students and their parents should take note of a disturbing trend afflicting America's institutions of higher learning: The rise of powerful student judicial boards.

The boards, often jointly run by students and a smattering of willing faculty members, are charged with meting out everything from whiny disputes between students and infractions of speech codes to allegations of criminal battery and date rape. They are given considerable license to determine guilt or innocence and have no obligation to recognize U.S. civil procedures or legal traditions. But most troubling is that student judiciary boards are rapidly turning into new front groups as campus radicals fight the backlash against political correctness.

At my school, Wesleyan University, a panel of seven students-the Student Judiciary Board--promises to hear all charges brought before it. The board deliberates in secret, provides no explanation of why it reached a particular decision and doles out punishments ranging from letters of reprimand to expulsion. As at most schools, few students at Wesleyan, myself included, have faith in the student-run board. I'm not sure if anyone ever did.

Students are terrified to appear before the board, paying close attention to their own actions lest one false move land them before the SJB.

Trumped-Up Charges

* * *

The current crisis in confidence at Wesleyan can also be traced back to last year, when a professor charged that a Wesleyan student stole her wallet. The evidence? She claimed to have seen this student sneaking around the women's locker room. The local police investigated briefly, but lacking evidence they decided to drop the investigation. The SJB, however, decided to hold a hearing on the matter.

The evidence in the mock trial was scant: the testimony from the walletless professor. The rest was circumstantial as well: The student was seen returning athletic gear near the locker room around the time of the theft. But despite the flimsy evidence, the accused was found guilty and, just weeks away from graduation, was suspended for one academic year. The sentence was eventually overturned, but only after the professor recanted her testimony and the school president intervened.

There have also been a number of cases where students were given punishments that in no way approximated the seriousness of their offenses. At Williams College this spring, a male student left a message on the telephone answering machine of a fellow male student with whom he had a dispute. In the message, the student tried to provoke his adversary by pretending he was a well-known gay student and saying he wanted to go on a date with the student who owned the answering machine and engage in homosexual activity. When confronted about the message, the student admitted his role in the matter and apologized. But according to Williams's judicial codes, the caller had violated a rule barring "offensive" speech and was suspended for an entire academic year.

An appeal of the ruling was denied.

There was a similar injustice perpetrated at Brown University this spring, where a male sophomore was accused of stealing food from a campus eatery by a female student. After returning to his room in a drunken state that night, the student left three vulgar messages on the woman's answering machine. (He later had no recollection of the content of the messages, owing to his inebriation.)

The Brown judiciary committee (comprising equal numbers of students, faculty and administrators) found the student guilty of "behavior which shows flagrant disrespect for the well-being of others." The punishment for this minor, admittedly juvenile, transgression netted the student a whopping 4 year suspension. The implication was that the student's drunken barbs were so offensive that the female student could not study in such an environment and the presence of the caller was thus a barrier to learning. The student will not be eligible to reapply to Brown until 1997, when the woman he telephoned is scheduled to graduate.

These incidents and many others make it clear that student judicial boards have become increasingly politicized to punish those who dare to stray from the prevailing ideological hegemony. Schools create powerful judicial boards by codifying lists of very harsh and specific penalties for violations of their internal codes and combine them with offenses kept as generic as possible. The vagueness of the offenses and the possibility of ominous, complicated proceedings before the mock courts have created the desired air of uncertainty and intimidation, in writings by students, in oral presentations in class, in physical relationships, and even in private dealings with another student who might report to the speech police.

* * *

In one publicized case this spring at Yale that makes a mockery of standard American notions of justice, the College Executive Committee expelled a male undergraduate for the alleged rape of a female student, though he denied the charge and there was no medical evidence supporting the accusation. Lacking the proper qualifications to handle criminal accusations, the Yale committee disregarded standard Western legal procedures and traditions. As at most schools, the accused was denied full representation by outside legal counsel during his hearing and was prevented from questioning his accuser, or even hearing her testimony. He was also required to give testimony that could be later used against him in a real court of law (in most cases students are not read their Miranda rights). This is not uncommon. Wesleyan tapes the testimony given in all of its hearings and saves the recordings. Not surprisingly, in one case a few years ago, tapes from the hearings were subpoenaed as evidence in a real criminal trial.

In many cases, the results of allowing facile accusations to be adjudicated by mock tribunals is that innocent people are certain to be targets of censorship and character assassination at the hands of a zealous squadron of thought and speech police. In other cases, when the student members of these boards make politically unpopular decisions, such as exonerating accused rapists, campus activists are often outraged. Protests erupted four times' in the past two years at Wesleyan when male students accused of rape were found' not guilty by Wesleyan's SJB. It is significant to note, however, that in all four of these cases not one of the accusers took her charges to the local police department.

Shirking Responsibility

* * *

In the meantime, there are other things that can be done. Both the Williams and Yale students, for example, have filed lawsuits against their respective schools. If the fracas continues, one can be certain other aggrieved students will follow their example. How college officials square all this absurdity with their claim to teach students about truth, freedom and justice should be an interesting revelation.

Mr. Gottlieb is a senior at Wesleyan University in Middletown. Conn., and editor of the Wesleyan Review.

Apr. 12, 1994 Wall Street Journal p. A1
Campus Dilemma

The Risk of Lawsuits Disheartens Colleges Fighting Date Rape
Measures to Assist Victims Lead to Bitter Wrangles Over Rights of Others
Amateurs on Hearing Panels

BY EDWARD FELSENTHAL

Staff Reporter of THE WALL STREET JOURNAL

VALPARAISO, Ind. - Set in a quiet town whose biggest activity is an annual popcorn festival honoring native son Orville Redenbacher, Valparaiso University is almost quaintly old- fashioned. It still imposes curfews on freshmen. Male and female students can't visit each other's rooms after hours. Despite vigorous campus protest two years ago, the health center won't distribute condoms.

"As a Christian institution," explains student Anne Shepler, "this place has always tried to avoid dealing at all with sexuality."

But school officials haven't been able to avoid contending with the national outcry about date rape, and with the perception that it is rampant. Two years ago, officials at the Lutheran- affiliated university began working on a policy to combat sexual assault.

Last spring, at a "Take Back the Night" antirape demonstration, about 100 students wore armbands to signify that at some time in their lives they had been assaulted. After the rally, several women stood before a microphone at the campus coffeehouse and told of being raped at Valparaiso.

Redress for Victims

The school's president, Alan Harre, quickly convened a meeting with a group of administrators at which he asked some of the women to discuss their experiences. The gathering lasted until about 3 a.m. and left some of the administrators close to tears, says Kirsten Lee, a student who helped organize the event. Among the students' aims: to help victims get some redress without having to endure the emotional trauma of a criminal trial.

* * *

Mr. Harre says he was "touched by the poignancy of the issues"; by the start of the current school year, Valparaiso had a sexual- assault policy in place. In addition to providing for disciplinary procedures, the school posted in every dormitory room a list of suggestions on how students could avoid being accused of assault or avoid being assaulted themselves. Valparaiso also set up a special counseling office for victims, housed in the same building as the home-economics department.

Leading To Lawsuits

* * *

But in the age of litigation, helping one group often leads to lawsuits by another.

* * *

It was to be much the same at Valparaiso. When the new sexual- assault policy was invoked last fall, the aftermath severely tested the university's resolve to deal with date rape. Shortly after the semester began, a woman accused a man she had known since high school of raping her. In late August, she told campus authorities, she asked the man to dinner at the student union because he had been making advances toward her and she wanted to explain that she wasn't interested in a romantic relationship. Later that week, assuming she had made the message clear during the dinner, she accepted the man's invitation to a fraternity drinking party where, she said, the man led her into a small room, locked the door and raped her.

Conflicting Versions

The man told a very different story. He said that the woman had been flirting with him and that she had participated voluntarily in a fraternity-party drinking game. Around 3 a.m., he said, the two of them had sexual intercourse. He maintained that the sex was consensual and that she accused him of rape after having "second thoughts and guilt" about betraying her boyfriend, according to the man's lawyer, John Bushemi.

* * *

If a student chooses to press charges, a campus date-rape case may wind up in criminal court, where sorting through conflicting stories with little independent evidence is daunting even for professional law enforcers. In campus proceedings, school officials find the task still more complicated as they try to follow university policy exactly and avoid making any missteps that could hold legal implications.

* * *

"The kind of amateurism that is inevitable in the proceedings makes you very vulnerable," observes Thomas H. Wright Jr., vice president of Princeton University.

The Disciplinary Process

The Valparaiso disciplinary panel convened to hear the case in a small classroom in Christ College, home of the university's academic-honors program, according to Students who were participants. The panel, composed of four administrators, listened to testimony from several students and eventually ruled that the man had violated Valparaiso's sexual-assault guidelines and would be suspended.

Defending the disciplinary process, which is similar to that of other colleges, Valparaiso spokeswoman Pat Downing emphasizes that "these procedures have nothing to do with whether a student is guilty or not guilty at civil or criminal levels."

But two weeks later, in federal district court in Hammond, Ind., the male student sued the school and the panel members, calling the hearing a sham and seeking $12 million in compensatory and punitive damages. The man charges that, in the school's zeal to assuage campus concerns about date rape, it violated his rights by refusing to allow testimony from several students he wanted to speak on his behalf. The school also unreasonably refused to delay the hearing for a week so that the man could prepare his case, he contends.

In court papers disputing the charges, Valparaiso responds that the man missed the deadline for changing his lineup of witnesses and that students who were on his list before the deadline got to testify.

The woman who made the rape accusation hasn't sued anybody, but she is bitter about the disciplinary process. She says "the backlash was so bad" that she considered leaving Valparaiso.

* * *

July, 26, 1993 Wall Street Journal p. A10
Penn: The Report

Not long ago, during the memorable Water Buffalo trials at the University of Pennsylvania, we also reported on the concurrent suspension of Donald Fitzgerald, director of security for Penn's University Museum of Archaeology and Anthropology. Mr. Fitzgerald, it appeared, had run afoul of the Penn administration -- which has some markedly peculiar notions about the duties of security officers -- because he tried to apprehend two women students running out of the museum carrying three large plastic bags.

It turned out that the women were not, as Mr. Fitzgerald worried, running off with museum pieces. Part of a group of black activist students aggrieved by the views aired in the student paper, the women had confiscated all the copies of "The Daily Pennsylvanian" at the museum, as their friends were doing elsewhere around campus. On April 15, virtually the entire press run of the paper was appropriated and carted off.

The administration, headed at the time by President Sheldon Hackney (who recently won confirmation as head of the National Endowment for the Humanities), determined at once that Mr. Fitzgerald should be suspended from his security duties. He would remain on suspension many weeks, while a "blue ribbon panel" appointed by the Penn administration deliberated over the events of April 15.

Those deliberations have at last come to an end. With that end has also come a report on the panel's findings -- one so remarkable for the depths of its fastidiously argued nonsense that we thought it only fitting to reprint portions nearby (see related editorial: "Doublethink at the University of Pennsylvania" -- WSJ July 26, 1993). The document is a pure specimen of political cravenness. But such cravenness is hardly limited to the University of Pennsylvania.

The unhappy fact of university life today is that there are many Penns and many administrators who thought they were purchasing peace by accommodating political zealots.

The degree of that effort to accommodate is reflected in the central pronouncement of the Penn panel's report -- namely the judgment that the theft of the newspapers was a "form of protest" and therefore not criminal behavior. Apparently, then, any assault -- including, presumably, the removal and destruction of library books some group considers offensive -- might be held immune from prosecution if it's a "protest."

The report goes on to say that rather than taking action, the police should have contacted entities at Penn called "Open Expression Monitors" to study the students actions. Think we're making that up? Read the nearby excerpt. The panel concludes that the Museum security director's pursuit of the women with the shopping bags was "inappropriate" once those students had left the property of the Museum and was not in "accordance with . . . his job functions." Presumably, then, any thief who wishes to appropriate some invaluable museum piece can now consider himself immune from pursuit, if he can get past the door and grounds.

The report recommends that for his inappropriate behavior, security director Fitzgerald's superiors should review his role for possible disciplinary action. Mr. Fitzgerald -- who has been returned to active duty -- received a letter of reprimand and will, along with other security personnel, have to attend sensitivity training classes.

* * *

George Orwell had the word for this sort of reasoning -- and for the entire tenor of the Penn panel's report. That word is "doublethink" -- a description unfortunately as relevant today as it was in the 1930s.

* * *

July, 26, 1993 Wall Street Journal p A10
Doublethink at the University of Pennsylvania

Following are excerpts from the report of a panel of University of Pennsylvania administrators appointed to study the theft of one entire press run of the student newspaper. The papers were seized all over campus by black activist students opposed to The Daily Pennsylvanian's editorial content.

The report, which criticizes security guards, absolves the students of any wrongdoing -- except failure to show I.D. cards. The panel analyzed what supposedly transpired at each of the campus sites involved.

A related editorial appears today {see related editorial: "Review & Outlook (Editorial): Penn: The Report" -- WSJ July 26, 1993}.

Individual Incidents on April 15, 1993

1. Biomedical Library/Johnson Pavilion (6:52 a.m.): Incident involving two students and two officers responding to a call from a School of Medicine security guard.

The panel found that one officer behaved in a discourteous manner toward the students by ordering them to leave before determining who they were or giving them an opportunity to explain their presence.

The panel found that his actions violated Section 8.4.02 of the "UPPD University of Pennsylvania Police Department Policies and Procedures Manual" and should be reviewed by his supervisor for possible disciplinary action.

The panel found that the Medical School security guard behaved appropriately by contacting the UPPD.

The panel recommended that all security personnel receive training on working and interacting with people from diverse backgrounds. This training should include information about the diversity of the Penn community and the expectation that all members of the community should be treated with civility and respect regardless of race, color, sex, sexual orientation, religion, national or ethic {sic} origin, age, disability, or status as a disabled or Vietnam era veteran.

2. Blockley Hall/Johnson Pavilion (7:48 a.m.): Incident involving two students, one Medical School security officer, one Medical School Supervisor of Security, one security officer . . . and four police officers responding to a call to UPPD that "A black male at Blockley Hall tried to take all the DP's {Daily Pennsylvanians}."

The panel found that one officer behaved in an unprofessional manner in violation of Section 8.4.02 of the "UPPD Policies and Procedures Manual" by cursing at the student and used excessive force . . . by striking the student with his baton. The panel also found that the officer failed to conduct a proper and thorough investigation because he neglected to interview the security personnel who were in pursuit.

3. David Rittenhouse Laboratories (8:20 a.m.): Incident involving two students, four officers, and the UPPD dispatcher. When two officers stopped the students carrying a large trash bag outside of DRL, they were informed by the students that this was a protest action.

The panel found that the responding officer . . . violated Section 5.22.0 of the "UPPD Policies and Procedures Manual" by not requesting that a supervisor be dispatched to the scene in response to a demonstration.

The panel found that the dispatcher violated UPPD Divisional Directive 92.08 by making a command decision without consulting a supervisor.

4. University Museum/Sports Medicine (8:16 a.m.): Incident involving two students, a Museum security guard, a Museum administrator and two officers. The Museum administrator pursued the students, who took the DP's from Kress Gallery, and caught up with them in Weightman Hall, where he made a "citizen's arrest" and detained the students.

The panel found that the Museum administrator's actions in pursuit of the students were inappropriate after they left the property of the University Museum and not in accordance with the authority and responsibility of his job functions. His actions should be reviewed by his supervisor for possible disciplinary action.

The panel found that the students should have shown their Penn cards.

- - -

In summary, the panel concluded that once the incident occurred at DRL David Rittenhouse Laboratories, the UPPD should have recognized that the removal of the DP's from at least three different locations was a form of student protest and not an indicator of criminal behavior. According to the University's "Emergency Procedures Protocols" . . . the UPPD should have contacted the Office of the Vice Provost for University Life as soon as it recognized that the students were involved in a form of protest. Once the VPUL was notified of the protest, Open Expression Monitors would have been dispatched to observe and monitor the students' actions, in compliance with the existing Open Expression Guidelines. Since this act was a form of protest and not a criminal offense, it would have been more appropriate for Open Expression Monitors, not police officers, to mediate and attempt to resolve any further conflicts that resulted from the removal of the DP's. The Open Expression Monitors could have informed the students about the Open Expression Guidelines, notified them if their actions violated the Guidelines, and identified students who violated the Guidelines.

Recommendations

It is vital that all UPPD personnel receive additional training about appropriate responses . . . to student demonstrations and protests. This training must include extensive information on the University's Open Expression Guidelines and the role and responsibility of Open Expression Monitors.

The UPPD Policy on handcuffs, Section 5.7.06, should be reviewed . . . to ascertain if there are circumstances when it may be inappropriate to handcuff detainees. . . . The application of any newly implemented policy should be monitored . . . to ensure that the policy is applied consistently, is non-discriminatory, and has no adverse impact on any group of people. After the policy is implemented, data should be maintained by the Department on the race and sex of individuals handcuffed, nature of offenses, and reasons for handcuffing.

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