Thursday, November 22, 2012

Problems with university bias policies and attempts to improve campus climate

So far, we have examined how universities restrict speech by mandating "civility," improperly broadening the definition of "harassment," restricting students' online expression, and placing undue restrictions on campus postings and on student protests and demonstrations. Today we wrap up this series with a discussion of overly broad policies on "bias" and "intolerance."

Universities frequently have the best of intentions when they enact policies on bias and intolerance. But since most speech that people would consider "biased" or "intolerant" is protected by the First Amendment, schools must find ways to improve the campus climate and provide support to affected students without infringing on other students' free speech rights.

At some schools, any "biased" or "intolerant" speech is prohibited, which is a clear and substantial First Amendment violation. At many other schools, the problems are more subtle. Some schools, for example, chill protected speech by encouraging students to report any "biased" expression to the university and promising to investigate all reports. Even if protected speech is ultimately not punished at these schools, the potential of being subjected to an official investigation will be enough to deter many students from expressing controversial or dissenting opinions, leading to an impermissible chilling effect on speech.

Scripps College in California, for example, defines bias incidents as "expressions of hostility against another person (or group) because of that person's (or group's) race, color, religion, ancestry, age, national origin, disability, gender or sexual orientation," and states:

"If you witness or experience conduct that discriminates, stereotypes, excludes, harasses or harms anyone in our community based on their identity (such as race, color, ethnicity, national origin, sex, gender identity or expression, sexual orientation, disability, age or religion) please report it to the College."

Although the policy notes that bias incidents do not include speech protected by the First Amendment, college students are unlikely to be familiar enough with the specifics of First Amendment law for this "savings clause" to have any meaningful effect on their willingness to speak out. As a federal judge wrote in holding that San Francisco State University's speech codes likely violated the First Amendment:

"We must assess regulatory language in the real world context in which the persons being regulated will encounter that language. The persons being regulated here are college students, not scholars of First Amendment law.... What path is a college student who faces this regulatory situation most likely to follow? Is she more likely to feel that she should heed the relatively specific proscriptions of the Code that are set forth in words she thinks she understands, or is she more likely to feel that she can engage in conduct that violates those proscriptions (and thus is risky and likely controversial) in the hope that the powers-that-be will agree, after the fact, that the course of action she chose was protected by the First Amendment?"

Other bias policies are so vaguely written that they could well be enforced to include protected speech. The U.S. Supreme Court has stated that a law or regulation is unconstitutionally vague when it does not "give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). 

At Furman University in South Carolina, "acts of intolerance" are prohibited. The university defines acts of intolerance as "malicious behaviors that can be motivated by prejudice towards a person or group," including "verbal attacks" that "cause harm." Since "attack" and "harm" are not defined, they could presumably include anything from actual harassment to a harshly worded expression of opinion that leaves someone with hurt feelings. Since students have no way to know how the university will interpret the provision, they will more than likely err on the side of caution and refrain from anything that might run afoul of the policy.

Similarly, Duke University policy states that:

"A bias incident is an act or behavior motivated by the offender's bias against the facets of another's identity. Bias occurs whether the act is intentional or unintentional. Bias may be directed toward an individual or group. Bias may contribute to creating an unsafe/unwelcoming environment."

The policy provides a wide range of possible university actions in response to a bias incident report, ranging from promoting campus dialogue to referring to the student conduct office. There are no guidelines as to when a bias incident constitutes a conduct violation as opposed to when it is simply an occasion for the university to respond with more speech, so students have no way to know what is actually prohibited under the policy.

Universities can successfully maintain policies that strike an appropriate balance between protecting student speech and maintaining a positive campus climate. The University of Virginia, for example, encourages student reporting of "bias complaints," but makes clear that its definition "is used for reporting and statistical purposes only" and "carries no independent sanctioning authority." It also states that protected speech is not only not subject to punishment, but is not even grounds for "formal investigation." Similarly, Michigan State University's bias incident reporting policy provides that "A bias incident that is not an act of discrimination or harassment prohibited under the Anti-Discrimination Policy may only be recorded for internal monitoring purposes in order to target resources and support to specific areas within campus."

The University of New Hampshire's policy not only states that constitutionally protected speech is not punishable, but also provides clear examples of protected speech (such as "offensive and hurtful expressions that are vague and do not convey a specific and imminent threat of harm" and "parody, ridicule, and satire") rather than assuming that students will simply know what is and is not protected.

So as you can see, universities need not choose between protecting students' free speech rights and supporting an inclusive campus environment; they simply must craft narrowly tailored policies that make clear to students that they will not face discipline or investigation simply for engaging in protected expression.


Dumbing down for dollars: A tale of two Floridas

Florida students in government-run schools are being challenged to improve their math and reading performance significantly over the next six years. But some students are being held to higher standards than others depending on their race.

The State Board of Education recently voted that by 2018, 74 percent of black students, 81 percent of Hispanic students, 88 percent of white students, and 90 percent of Asian students need to be reading at grade level.

Those new standards are in response to the U.S Department of Education’s requirement that the percentage of student sub-groups that are not proficient in reading and math be halved.

“As a matter of philosophy … I think we should have the same goal for all categories of our citizenry,” said board member John Padget. “Are we happy with the signal that this sends?” Board member Roberto Martinez added, “Should an Asian child and an Hispanic child be held to the same standard down the road? The answer is, yes”

This is the preferred vision of politicians and bureaucrats, and not just ones in Florida—equal opportunity and expectations for some but not others. But another vision of equal educational opportunity for all exists in Florida now—not some point down an undefined road.

The state of education in Florida in the late 1990’s is reminiscent of the status quo in too many states today. “A decade ago, Florida schools were failing and ranked near the bottom in nearly every national survey. More than half of the state’s public school students were not reading or performing math at grade level,” according to former Governor Jeb Bush. “Mediocrity was tolerated and excuses were more common than accountability. Back then, schools tracked library books better than students’ progress and poor performance in schools produced a round-robin of blame.”

A combination of reforms beginning in 1998 make up what is commonly referred to as the “Florida Formula,” namely, high academic standards, grading schools on an A to F scale, standardized assessment and measurement, data-based accountability, effective teaching, outcome-based funding, and school choice.

Florida’s corporate tax credit scholarship program is currently helping more than 40,000 low-income students statewide attend non-government schools of their parents’ choice. Another 24,000 students with special needs are also attending non-government schools that meet their needs through the McKay Scholarship Program. Students in failing government-run schools can also transfer to better ones through the Opportunity Scholarship Program. Parents of students in failing schools who prefer a non-government option can use the tax credit scholarship program.

Allowing all children, regardless of their address, family income, or race, to attend schools that work best for them…well…just works overall.

The transformation in achievement across student sub-groups in just one decade “ranks as perhaps the greatest public policy success story of the past decade,” as the Foundation for Florida’s Future explains: “Once near the bottom of the pack on national tests, Florida‘s students are racing to the top, proving that all children can learn when given the right opportunity. In 1998, Florida students scored at the bottom of the nation in student achievement. 47 percent of Florida’s fourth-grade students were functionally illiterate.” (See p. 1). By 2009, the fruits of the Florida Formula were evident. Florida’s fourth grade Hispanic students were reading as well or better than the statewide average of all students in 21 states. Meanwhile, African-American fourth graders were reading as well or better than the statewide average in eight states. (See p. 2)

Florida politicians blame new U.S. Department of Education achievement mandates for their decision to institutionalize achievement gaps. Leaving aside the fact that they could just say “No,” the same education department singled out Florida as one of only three states in 2009 that successfully narrowed the black/white achievement gap in reading and math—and it has remained one of the few states to do so since with Hispanic students as well. (See here and here, for example.)

This is what happens when parents are in charge of their children’s education. Dumbing down standards for dollars is what happens when politicians and bureaucrats run the show.


Poll: 63 percent of college grads think the American Dream is dead

Sixty-three percent of college graduates believe that the American Dream is dead, leading some to consider moving out of the country, according to a survey conducted by a discount coupon company.

“We all have heard about the ‘American dream’ and we were curious to discover whether or not current graduates were still optimistic about their future,”  said Mark Pearson, chairman of “We were shocked to discover that the majority of the graduates polled believed that the American dream was dead and with increased debt, inability to find work and trouble finding affordable housing, it is no wonder they are quite pessimistic about their future.”

Seventy-one percent of respondents “felt that the difficulty finding jobs in the present day was a contributing factor, while 67% cited problems with debt as a main reason and 53% said being unable get onto the property ladder was an issue.”

President Obama famously appeals to youth voters, but these graduates are pretty pessimistic about his ability to turn things around — ” When asked whether or not they were hopeful for the future, even with the re-election of President Barack Obama, just 39% said ‘yes,’” the company said.

The survey featured 2,101 recent graduates around the country.


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