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249

The sovereign power [or soft despot] extends its arms over the entire society; it covers the surface of society with a network of small, complicated, minute, and uniform rules … it does not tyrannize, it hinders, it represses, it enervates, it extinguishes, it stupefies, and finally it reduces each nation to being nothing more than a flock of timid and industrious animals, of which the government is the shepherd.

ALEXIS DE TOCQUEVILLE, Democracy in America1

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1. De Tocqueville (1839/2012), book 4, chapter 6.

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Remember the thought experiment in chapter 2, in which you visited your campus counseling center and the psychologist there made you more anxious rather than less?

Now, imagine it’s a few days after your visit, and you receive an email from the associate dean of students with “Conduct Policy Reminder” in the subject line. You open it nervously, wondering why the associate dean would be reminding you about the conduct policy. You can’t remember doing anything that might violate it. The note reads:

I received a report that others are worried about your well-being. I’d like to meet with you to discuss your options for support and see what I can do to help… . Engaging in any discussion of suicidal or self-destructive thoughts or actions with other students interferes with, or can hinder, their pursuit of education and community. It is important that you refrain from discussing these issues with other students and use the appropriate resources listed below. If you involve other students in suicidal or self-destructive thoughts or actions, you will face disciplinary action. My hope is that, knowing exactly what could result in discipline, you can avoid putting yourself in that position.2

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2. FIRE letter to Northern Michigan University, August 25, 2016. (2016, September 19). Retrieved from https://www.thefire.org/fire-letter-to-northern-michigan-university-august-25-2016

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You are confused. You didn’t mention anything about “suicidal or self-destructive thoughts or actions” when you visited the counseling center, and you have no intention of hurting yourself. A thousand thoughts rush through your head: How did the associate dean of students find out about your visit to the center? Isn’t therapy supposed to be confidential? Why is the dean sending you a warning and a threat? And can the dean really tell you what you can and can’t say to your friends?

250

This scenario is not fiction. In 2015, a student at Northern Michigan University (NMU) visited the campus counseling center to get help in the aftermath of being sexually assaulted the year before. She did not mention anything about self-harm or suicidal thoughts during her session, yet the email she received from NMU’s associate dean of students included the exact text we quoted above. And she was not alone; 25–30 NMU students per semester received a version of that letter—whether or not they had expressed thoughts about suicide or self-harm.3

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3. THE “I CARE PROJECT”: Revise NMU Student Self-Destructive Behavior Policy. (n.d.). Change.org [Petition]. Retrieved from https://www.change.org/p/northern-michigan-university-the-i-care-project-revise-nmu-student-self-destructive-behavior-policy

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It was NMU’s policy that students could be disciplined (and even expelled) for revealing these kinds of thoughts to other students. Given that the misguided policy was both stigmatizing and likely to put suicidal students at increased risk, mental health professionals roundly criticized the policy. Nevertheless, in an interview with a local newspaper, the dean defended the practice, claiming that “relying on your friends can be very disruptive to them.”4 Please read that quote again. The dean seemed to believe that if students talked about their suffering, it would harm their friends. It is an illustration of the Untruth of Fragility (What doesn’t kill you makes you weaker) trumping common sense and basic humanity.

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4. Singal, J. (2016, September 22). A university threatened to punish students who discussed their suicidal thoughts with friends (Updated). The Cut. Retrieved from https://www.thecut.com/2016/09/a-school-is-threatening-to-punish-its-suicidal-students.html

Northern Michigan has since revised its policy; it no longer sends that letter, and by January 2016, it stopped prohibiting students from discussing self-harm with peers. See: Northern Michigan University. (2016). Northern Michigan University practice concerning self-destructive students changed January 2016. Retrieved from http://www.nmu.edu/mc/current-mental-health-communication

251

What could compel a university—and, in particular, its associate dean of students—to be so callous? This kind of administrative overkill was what first got Greg thinking about the ways in which universities teach cognitive distortions. When he started studying CBT in 2008, he saw administrators acting in ways that encouraged students to embrace a distorted sense that they lacked resilience—acting as if students could not handle uncomfortable conversations with, or relatively small slights from, their fellow students. In order to fully grasp the success of the three Great Untruths on campus, it’s essential to understand how a growing campus bureaucracy has been unintentionally encouraging these bad intellectual habits for years, and how they still do today. This is our fifth explanatory thread.

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When the federal Office of Education began collecting data in 1869, there were only 63,000 students enrolled in higher education institutions throughout the United States; they represented just 1 percent of all eighteen- to twenty-four-year-olds.5 Today, an estimated 20 million students are enrolled in American higher education, including roughly 40% of all eighteen- to twenty-four-year-olds.6 In the 2015–2016 school year, the most recent year for which statistics are available, combined revenues at U.S. postsecondary institutions totaled about $548billion.7(AcountrywiththatGDP,togiveasenseofscale,wouldranktwenty-first,betweenArgentinaandSaudiArabia.)8Attheendofthe2015fiscalyear,theU.S.universitieswiththe120largestendowmentsheldatotalof$547 billion.9 U.S. elite institutions draw substantial international enrollment,10 and seventeen of the top twenty-five universities in the world are in the United States.11 The enormous expansion of scope, scale, and wealth demands professionalization, specialization, and a lot of support staff.

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5. National Center for Educational Statistics (1993), p. 64.

6. Fast Facts: Back to School Statistics. (n.d.). National Center for Education Statistics. Retrieved from https://nces.ed.gov/fastfacts/display.asp?id=372

7. Digest of Education Statistics. (2016). Tables 333.10 (Revenues of public institutions) and (333.40) (Revenues of private institutions). National Center for Education Statistics. Retrieved from https://nces.ed.gov/programs/digest/current_tables.asp

8. Gross Domestic Product 2016. (2017, December 15). World Bank Development Indicators Database. Retrieved from https://databank.worldbank.org/data/download/GDP.pdf

9. Digest of Education Statistics. (2016). Table 333.90 (Endowments). National Center for Education Statistics. Retrieved from https://nces.ed.gov/programs/digest/d16/tables/dt16_333.90.asp?current=yes

10. Of the top twenty-five universities as listed by Times Higher Education, the percentage of international students ranges from 16% at the University of Michigan to 45% at Carnegie Mellon. World University Rankings 2018. Times Higher Education. Retrieved from https://www.timeshighereducation.com/world-university-rankings/2018/world-ranking#!/page/0/length/25/sort_by/rank/sort_order/asc/cols/stats

11. World University Rankings 2018; see n. 10. Or perhaps it is nineteen of the top twenty-five. See also: Best Global Universities Rankings. (2018). U.S. News & World Report. Retrieved from https://www.usnews.com/education/best-global-universities/rankings

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In 1963, Clark Kerr, the president of the University of California system, called the resulting structure the “multiversity.” In a multiversity, different departments and power structures within a university pursue different goals in parallel—for example, research, education, fundraising, branding, and legal compliance.12 Kerr predicted that as faculty increasingly focused on their own departments, noninstructional employees would take over in leading the institution. As he anticipated, the number of administrators has climbed upward.13 At the same time, their responsibilities have crept outward.14

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12. Kerr (1963).

13. “Universities’ executive, administrative, and managerial offices grew 15 percent during the recession, even as budgets were cut and tuition was increased.” Marcus, J. (2016, October 6). The reason behind colleges’ ballooning bureaucracies. The Atlantic. Retrieved from https://www.theatlantic.com/education/archive/2016/10/ballooning-bureaucracies-shrinking-checkbooks/503066

14. See, for example, Catropa, D., & Andrews, M. (2013, February 8). Bemoaning the corporatization of higher education. Inside Higher Ed. Retrieved from https://www.insidehighered.com/blogs/stratedgy/bemoaning-corporatization-higher-education

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Some administrative growth is necessary and sensible, but when the rate of that expansion is several times higher than the rate of faculty hiring,15 there are significant downsides, most obviously the increase in the cost of a college degree.16 A less immediately obvious downside is that goals other than academic excellence begin to take priority as universities come to resemble large corporations—a trend often bemoaned as “corporatization.”17 Political scientist Benjamin Ginsberg, author of the 2011 book The Fall of the Faculty: The Rise of the All-Administrative University and Why It Matters, argues that over the decades, as the administration has grown, the faculty, who used to play a major role in university governance, have ceded much of that power to nonfaculty administrators.18 He notes that once the class of administrative specialists was established and became more distinct from the professor class, it was virtually certain to expand; administrators are more likely than professors to think that the way to solve a new campus problem is to create a new office to address the problem.19 (Meanwhile, professors have generally been happy to be released from administrative duties, even as they complain about corporatization.)

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15. “Since 1975, according to a 2014 report from the American Association of University Professors, full-time administrative positions grew by 369 percent, whereas full-time tenure-track faculty grew by 23 percent and part-time faculty by 286 percent.” Braswell, S. (2016, April 24). The fightin’ administrators: The birth of a college bureaucracy. Point Taken. Retrieved from http://www.pbs.org/wgbh/point-taken/blog/ozy-fightin-administrators-birth-college-bureaucracy. See also: Christensen, K. (2015, October 17). Is UC spending too little on teaching, too much on administration? Los Angeles Times. Retrieved from http://www.latimes.com/local/education/la-me-uc-spending-20151011-story.html

16. Campos, P. F. (2015, April 4). The real reason college tuition costs so much. The New York Times. Retrieved from https://www.nytimes.com/2015/04/05/opinion/sunday/the-real-reason-college-tuition-costs-so-much.html

17. Catropa & Andrews (2013); see n. 15. See also: Lewis (2007), pp. 4–5. See also: McArdle, M. (2015, August 13). Sheltered students go to college, avoid education. Bloomberg View. Retrieved from https://www.bloomberg.com/view/articles/2015-08-13/sheltered-students-go-to-college-avoid-education

18. Ginsberg (2011). Chapter 1, section “Shared Governance?” paragraphs 2–6.

19. Ginsberg (2011). Chapter 1, section “Professors and Administrators?” paragraph 16.

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A hallmark of the campus protests that began in 2015 was irresolute and accommodating responses by university leadership. Few schools imposed any kind of penalty on students for shouting down speakers or disrupting classes, even though these actions usually violated their own codes of conduct. Like George Bridges at Evergreen, many university presidents accepted ultimatums from students and then tried to meet many of the demands, usually without a word of criticism of the students’ tactics.20 Critics of this approach have pointed out that this is the way organizations respond when their governing ethos is one of “customer service.”

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20. In one of the very few exceptions we know of, Oberlin president Marvin Krislov refused to accept a list of “non negotiable” demands. See Jaschik, S. (2016, January 21). Oberlin’s president says no. Inside Higher Ed. Retrieved from https://www.insidehighered.com/news/2016/01/21/oberlins-president-refuses-negotiate-student-list-demands

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Eric Adler, a classics professor at the University of Maryland, distilled the argument in a 2018 Washington Post article. “The fundamental cause [of campus intolerance],” he suggests, “isn’t students’ extreme leftism or any other political ideology” but “a market-driven decision by universities, made decades ago, to treat students as consumers—who pay up to $60,000 per year for courses, excellent cuisine, comfortable accommodations and a lively campus life.” On the subject of students preventing certain people from speaking on campus, he explains:

Even at public universities, 18-year-olds are purchasing what is essentially a luxury product. Is it any wonder they feel entitled to control the experience? … Students, accustomed to authoring every facet of their college experience, now want their institutions to mirror their views. If the customers can determine the curriculum and select all their desired amenities, it stands to reason that they should also determine which speakers ought to be invited to campus and what opinions can be articulated in their midst. For today’s students, one might say, speakers are amenities.21

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21. Adler, E. (2018, March 15). Students think they can suppress speech because colleges treat them like customers. The Washington Post. Retrieved from http://wapo.st/2phMwCB?tid=ss_tw&utm_term=.75b5e44fa1d0

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The consumerization theory fits with the trend toward greater spending on lifestyle amenities, which schools use when they compete with other schools to attract top students. From 2003 to 2013, public research universities increased spending on student services by 22.3%, which was far more than the increases for research (9.5%) or instruction (9.4%).22 Many campuses have become less like scholarly monasteries and more like luxurious “country clubs.”23 The trend is exemplified by Louisiana State University’s 536-foot-long “lazy river,” paid for with $85 million in student fees. The slow-moving current gently pushes floating students through a winding pool in the shape of the school’s initials, LSU.24 At the ribbon cutting for the lazy river, LSU’s president explained how his vision of education combines consumerism and safetyism: “Quite frankly, I don’t want you to leave the campus ever. So whatever we need to do to keep you here, we’ll keep you safe here. We’re here to give you everything you need.”25

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22. See figure 5 on page 11 of Desrochers, D. M., & Hurlburt, S. (2016, January). Trends in college spending: 2003–2013. American Institutes for Research. Delta Cost Project. Retrieved from https://www.deltacostproject.org/sites/default/files/products/15-4626%20Final01%20Delta%20Cost%20Project%20College%20Spending%2011131.406.P0.02.001%20…pdf

23. Carlson, S. (2013, January 28). What’s the payoff for the “country club” college? The Chronicle of Higher Education. Retrieved from https://www.chronicle.com/blogs/buildings/whats-the-payoff-for-the-country-club-college/32477 [inactive]. See also: College Ranker. (n.d.). Colleges as country clubs: Today’s pampered college students. Retrieved from http://www.collegeranker.com/features/colleges-as-country-clubs. See also: Jacob, B., McCall, B. & Stange, K. M. (2013, January). College as country club: Do colleges cater to students’ preferences for consumption? National Bureau of Economic Research. Retrieved from http://www.nber.org/papers/w18745.pdf. Forbes poked fun at the practice by comparing colleges and country clubs to “Club Fed” minimum-security correctional facilities. Pierce, K. (2014, July 29). College, country club or prison? Forbes. Retrieved from https://www.forbes.com/special-report/2014/country-college-prion.html

24. A 2013 survey by NIRSA (formerly the National Intramural-Recreational Sports Association) found ninety-two schools with pending recreation center projects totaling $1.7 billion. Cited in Rubin, C. (2014, September 19). Making a splash: College recreation now includes pool parties and river rides. The New York Times. Retrieved from https://www.nytimes.com/2014/09/21/fashion/college-recreation-now-includes-pool-parties-and-river-rides.html. See also: Koch, J. V. (2018, January 9). Opinion: No college kid needs a water park to study. The New York Times. Retrieved from https://www.nytimes.com/2018/01/09/opinion/trustees-tuition-lazy-rivers.html

25. Stripling, J. (2017, October 15). The lure of the lazy river. The Chronicle of Higher Education. Retrieved from https://www.chronicle.com/article/The-Lure-of-the-Lazy-River/241434 [inactive]

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The shift toward seeing students as consumers explains a lot, but it cannot explain what happened at Northern Michigan University, or what administrators are thinking when they restrict the speech of their “customers.” To comprehend those events, we need to understand other forces acting on administrators, including the fear of bad publicity and threats of litigation. Administrators are bombarded with directives (from in-house counsel, outside risk-management professionals, the school’s public relations team, and the upper echelons of the administration) that they must limit the university’s legal liability in everything from personal injury lawsuits to wrongful termination, and from intellectual property to wrongful-death actions. This is one reason they are so keen to regulate what students do and say.

255

In the first decade of the twenty-first century, FIRE was the only organization entirely focused on free speech, academic freedom, and due process on college campuses. The lack of public attention to free speech on campus during that decade is understandable given that the speech at the center of the debate was often rather unsympathetic—like what one professor said on September 11, 2001, when he joked, “anybody who can blow up the Pentagon has my vote.” Eventually he lost his job. From a First Amendment standpoint, however, the cases were clear-cut. The amendment’s bedrock principle is that offensiveness alone is no justification for banning or restricting speech—especially on campus.26

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26. Papish v. Bd. of Curators of the Univ. of Missouri et al., 410 U.S. 667 (1973) (reinstating a student expelled for distributing an underground student newspaper with an offensive cartoon and headline); Texas v. Johnson, 491 U.S. 397 (1989) (flag burning).

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For most of Greg’s career, students were consistently the most tolerant and pro–free speech constituency on campus—even more so than the faculty. Around 2013, however, Greg began to notice a change. More students seemed to be in agreement with administrators that they were unsafe, that many aspects of students’ lives needed to be carefully regulated by adults, and that it was far better to overreact to potential risks and threats than to underreact. In this way, campus administrators—usually with the best of intentions—were modeling distorted thinking.27

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27. For simplicity, we’ll use the term “administrators” to include those who run the university, and all the deans and offices that have anything to do with student life. This includes much (but not all of) the professional staff on campus other than the faculty—generally the people students mean when they talk about “the administration” of a university.

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Two categories of First Amendment cases on campus encourage this kind of thinking quite directly: overreaction and overregulation.

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We define overreaction cases exactly as the name suggests: they are disproportionate responses to perceived offenses. Almost all overreaction cases model the mental habit of catastrophizing, and communicate that disaster would result without the intervention of the administration.28 Here are two examples:

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Bergen Community College (New Jersey, 2014): An art professor was placed on leave without pay and sent to psychological counseling for a social media post. The post showed a photograph of his young daughter wearing a T-shirt that depicted a dragon and the words I WILL TAKE WHAT IS MINE WITH FIRE & BLOOD, which the school claimed was “threatening.” The professor explained that the shirt referenced the popular TV series Game of Thrones, but an administrator insisted that “fire” could refer to an AK-47.29

Note: same kind of shit that happened to me in 7th grade with that word problem I wrote in math about shooting basketball

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28. Greg’s first book, Unlearning Liberty (Lukianoff 2014), covering campuses from around 2001 to 2012, presents dozens of examples of administrators overreacting.

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Oakton Community College (Illinois, 2015): A professor received a cease-and-desist letter from his college based on a one-sentence email he had sent to a few colleagues. His email noted that May Day is a time “when workers across the world celebrate their struggle for union rights and remember the Haymarket riot in Chicago.” The college alleged that the reference to the 1886 riot was threatening to the college president, because she was one of the recipients of the email. Why? Because the rally “resulted in 11 deaths and more than 70 people injured.”30 Of course, many major American holidays commemorate events that were far more costly in terms of lives lost. But when a reference is made to Memorial Day, Veterans Day, or even the Fourth of July, nobody assumes it is a threat.

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29. After placing the professor on leave and forcing him to undergo a psychiatric evaluation, the college eventually rescinded its punishment. See: Victory: College backtracks after punishing professor for “Game of Thrones” picture. (2014, October 28). FIRE. Retrieved from https://www.thefire.org/victory-college-backtracks-punishing-professor-game-thrones-picture

30. College declares Haymarket Riot reference a violent threat to college president. (2015, June 8). FIRE. Retrieved from https://www.thefire.org/college-declares-haymarket-riot-reference-a-violent-threat-to-college-president. FIRE sent two letters to Oakton, but nothing further occurred in this case; the school didn’t retract its cease-and-desist letter, but no formal action was taken against the professor.

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Overregulation is less about policing actual offenses than it is about preventing potential offense. It is like a continuation of overprotective helicopter parenting: administrators tightly regulate students in order to keep them “safe.” Speech remains a common target of overregulation, even though there have been more than seventy lawsuits against speech codes since the dawn of “politically correct” speech codes in the late 1980s. Almost all the codes challenged in court have been revised, abandoned, or ruled unconstitutional.

Here are two of the most absurd categories of speech regulation that keep popping up on American college campuses:

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Vague and Overbroad Speech Codes: The code that epitomized the vagueness and breadth of the first wave of modern PC speech codes (roughly, the late 1980s to the mid-1990s) was the University of Connecticut’s ban on “inappropriately directed laughter.” The school was sued. It dropped the code as part of a settlement in 1990, but the same code, verbatim, was in effect at Drexel University in Philadelphia fifteen years later. That code was eventually repealed after being named one of FIRE’s “Speech Codes of the Month.”31 Along similar lines, a speech code at Alabama’s Jacksonville State University provided that “no student shall offend anyone on University property,” and the University of West Alabama’s code prohibited “harsh text messages or emails.”32

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31. Harris, S. (2016, September 1). Speech code of the month: Drexel University. FIRE. Retrieved from https://www.thefire.org/speech-code-of-the-month-drexel-university

32. FIRE rates colleges’ speech codes as “red light,” “yellow light,” or “green light.” (FIRE’s speech code ratings are explained in full at https://www.thefire.org/spotlight/using-the-spotlight-database.) The University of West Alabama’s “red light” policies are still in effect, including the ban on harsh text messages or insults. Jacksonville State’s speech codes have changed over the years; most recently in 2017. It now has an overall yellow light rating. You can see which colleges are rated as red, yellow, or green at https://www.thefire.org/spotlight. See also: (n.d.). Spotlight: Jacksonville State University. Retrieved from https://www.thefire.org/schools/jacksonville-state-university. See also: (n.d.). Spotlight: University of West Alabama. Retrieved from https://www.thefire.org/schools/university-of-west-alabama

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These codes teach students to use an overbroad and entirely subjective standard for determining wrongdoing. They also exemplify the Untruth of Emotional Reasoning: Always trust your feelings. If you feel offended, then a punishable offense must have occurred. Speech codes like these teach the Untruth of Fragility as well. They communicate that offensive speech or inappropriate laughter might be so damaging that administrators must step in to protect vulnerable and fragile students. And they empower college administrators to ensure that authority figures are always available to “resolve” verbal conflicts.

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Free Speech Zones: Universities never seem to tire of creating “free speech zones,” which restrict certain kinds of speech and expression to tiny and often remote parts of campus. FSZs seem to have first appeared in the 1960s and ’70s as honored places where students could always engage in free speech, like Speakers’ Corner in London’s Hyde Park. But in the 1990s, many campuses made them the only places students could engage in free speech on campus. Some FSZs were revised after coming under public scrutiny and criticism, such as at McNeese State University in Louisiana, where student groups’ use of FSZs were limited to once per semester.33 Some have been struck down by courts, such as the University of Cincinnati’s FSZ, which covered 0.1% of campus and required speakers to register ten business days in advance.34 And yet schools continue to maintain them.

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33. Harris, S. (2009, May 29). McNeese State revises “public forum” policy but still prohibits “derogatory” speech. FIRE. Retrieved from https://www.thefire.org/mcneese-state-revises-public-forum-policy-but-still-prohibits-derogatory-speech

34. Univ. of Cincinnati Chapter of Young Americans for Liberty v. Williams, 2012 U.S. Dist. LEXIS 80967 (S.D. Ohio June 12, 2012).

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If you look at a college student handbook today, you’ll find policies affecting many other aspects of students’ lives, including what they can post on social media, what they can say in the dormitories to one another, and what they can do off campus—including what organizations they can join.35

Note: may also have to do with how some schools are spying on kids through there school laptop cameras

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35. You can see a wide variety of campus codes at: Spotlight Database and Activism Portal. (2018). FIRE. Retrieved from https://www.thefire.org/spotlight

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Overreaction and overregulation are usually the work of people within bureaucratic structures who have developed a mindset commonly known as CYA (Cover Your Ass). They know they can be held responsible for any problem that arises on their watch, especially if they took no action to prevent it, so they often adopt a defensive stance. In their minds, overreacting is better than underreacting, overregulating is better than underregulating, and caution is better than courage. This attitude reinforces the safetyism mindset that many students learn in childhood.

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It certainly did not help that today’s college students were raised in the fearful years after the attacks of September 11, 2001. Ever since that awful day, the U.S. government has been telling us: “If you see something, say something.” Even adults are told to follow their most anxious feelings, as you can see in Figure 10.1. It’s a video sign at a New Jersey train station. New Jersey Transit urges its passengers to embrace the Untruth of Emotional Reasoning: Always trust your feelings. “If it doesn’t feel right, it probably isn’t,” says the sign. But that can’t really be true. In all likelihood, there are millions of moments each year when some American somewhere thinks that something “doesn’t feel right” and worries about an attack. However, there are only a few terrorist attacks of any kind each year in the United States,36 so in almost every case, the feeling is wrong. Of course, passengers on New Jersey Transit should alert someone if they see an abandoned backpack or suitcase, but that doesn’t mean that their feelings are “probably” right.

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36. In the fifteen years between September 12, 2001, and December 31, 2016, there were eighty-five “violent extremist” attacks in the United States, an average of less than half a dozen per year. Valverde, M. (2017, August 16). A look at the data on domestic terrorism and who’s behind it. PolitiFact. Retrieved from http://www.politifact.com/truth-o-meter/article/2017/aug/16/look-data-domestic-terrorism-and-whos-behind-it

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FIGURE 10.1. Video sign in the train station at Secaucus Junction, New Jersey. (Photo by Lenore Skenazy.)

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Young people have come to believe that danger lurks everywhere, even in the classroom, and even in private conversations. Everyone must be vigilant and report threats to the authorities. At New York University in 2016, for example, administrators placed signs in the restrooms urging everyone to take a “feel-something say-something” approach to speech. The signs outline for members of the NYU community how to report one another anonymously if they experience “bias, discrimination, or harassment,” including by calling a “Bias Response Line.”37 NYU is not an outlier; a 2017 report by FIRE found that, of the 471 institutions cataloged in FIRE’s Spotlight on Speech Codes database, 38.4% (181) maintain some form of bias reporting system.38

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37. The webpage listed on the signs explains: “The New York University Bias Response Line provides a mechanism through which members of our community can share or report experiences and concerns of bias, discrimination, or harassing behavior that may occur within our community.” NYU Bias Response Line. (n.d.). Retrieved from http://www.nyu.edu/about/policies-guidelines-compliance/equal-opportunity/bias-response.html

38. FIRE. (2017). 2017 Report on Bias Reporting Systems. [Blog post]. Retrieved from https://www.thefire.org/first-amendment-library/special-collections/fire-guides/report-on-bias-reporting-systems-2017

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Of course, there should be an easy way to report cases of true harassment and employment discrimination; such actions are immoral and unlawful. But bias alone is not harassment or discrimination. The term is not defined on the NYU Bias Response website, but psychological experiments have consistently shown that to be human is to have biases. We are biased toward ourselves and our ingroups, toward attractive people, toward people who have done us favors, and even toward people who share our name or birthday.39 Presumably the administrators running the Bias Response Line are most interested in negative biases based on identity categories, such as race, gender, and sexual orientation. But given the high levels of concept creep on university campuses and the widespread idea that microaggressions are ubiquitous and dangerous, there are sure to be some students who have a very low threshold for detecting bias in others and attributing ambiguous statements to prejudice.

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39. See a review of such biases in Haidt (2006), chapter 2.

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It becomes more difficult to develop a sense of trust between professors and students in such an environment. The Bias Response Line allows students to report a professor for something said or shown even before the lecture has ended. Many professors now say that they are “teaching on tenterhooks” or “walking on eggshells,”40 which means that fewer of them are willing to try anything provocative in the classroom—or cover important but difficult course material. For example, writing about her experience teaching sexual assault law, Professor Jeannie Suk Gersen of Harvard Law School observed in The New Yorker that “asking students to challenge each other in discussions of rape law has become so difficult that teachers are starting to give up on the subject… . If the topic of sexual assault were to leave the law-school classroom, it would be a tremendous loss—above all to victims of sexual assault.”41

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40. See Pappano, L. (2017, October 31). In a volatile climate on campus, professors teach on tenterhooks. The New York Times. Retrieved from https://www.nytimes.com/2017/10/31/education/edlife/liberal-teaching-amid-partisan-divide.html. See also: Belkin, D. (2017, February 27). College faculty’s new focus: Don’t offend. The Wall Street Journal. Retrieved from https://www.wsj.com/articles/college-facultys-new-focus-dont-offend-1488200404

41. Suk Gersen, J. (2014, December 15). The trouble with teaching rape law. The New Yorker. Retrieved from https://www.newyorker.com/news/news-desk/trouble-teaching-rape-law

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To show just one example of how bias response systems discourage risk-taking: University of Northern Colorado adjunct professor Mike Jensen was called to multiple meetings after a single student filed a “Bias Incident Report” following a discussion of controversial topics in a first-year writing class.42 The first reading assigned in the class was our Atlantic article, “The Coddling of the American Mind.” The professor asked the class to read the article and then engage in a discussion of a controversial topic, to be chosen by the class. The topic that the students chose was transgender issues. (One of the biggest stories that semester had been the revelation of Caitlyn Jenner’s identity as a trans woman.) Jensen suggested that students read an article about parents objecting to a transgender high school student using the girls’ locker room. He explained that although most of the students might not agree with these skeptical views, in academia, grappling with difficult and controversial perspectives is expected, so it was important that even these viewpoints be discussed. Jensen later recalled the conversation as “a very nice discussion of seeing other perspectives.”43 He was surprised when he learned that a student had filed a Bias Incident Report against him.44 He was advised to avoid the topic of transgender issues for the rest of the semester and was ultimately not rehired.45

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42. Steinbaugh, A. (2016, July 7). University of Northern Colorado defends, modifies “Bias Response Team” as criticism mounts and recording emerges. Retrieved from https://www.thefire.org/university-of-northern-colorado-bias-response-team-recording-emerges

43. Melchior, J.K. (2016, July 5). Exclusive: Transcript of bias response team conversation with censored professor. Heat Street (via Archive.org). Retrieved from https://web.archive.org/web/20160805130848/https://heatst.com/culture-wars/exclusive-transcript-of-bias-response-team-conversation-with-censored-professor [inactive]

44. Note that this is very similar to the case of Lindsay Shepherd at Wilfrid Laurier University in Canada. Shepherd showed a clip from a televised debate without condemning, in advance, one of the sides of the debate. It can be risky to stage a debate in class if any student feels strongly that one side is correct. See: Grinberg, R. (2017, November 23). Lindsay Shepherd and the potential for heterodoxy at Wilfrid Laurier University. Heterodox Academy. Retrieved from https://heterodoxacademy.org/lindsay-shepherd-and-the-potential-for-heterodoxy-at-wilfrid-laurier-university

45. As FIRE’s Adam Steinbaugh notes, “academic freedom chilled politely is still academic freedom chilled.” See: Steinbaugh, A. (2016, July 7); see note 2.

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The bureaucratic innovation of “bias response” tools may be well intended,46 but they can have the unintended negative effect of creating an “us versus them” campus climate that results in hypervigilance and reduced trust. Some professors end up concluding that it isn’t worth the risk of having to appear before a bureaucratic panel, so it’s better to just eliminate any material from the syllabus or lecture that could lead to a complaint. Then, as more and more professors shy away from potentially provocative materials and discussion topics, their students miss out on opportunities to develop intellectual antifragility. As a result, they may come to find even more material offensive and require even more protection.

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46. Or sometimes not well intended. Given the political dynamics of many campuses, which we described in chapters 4 and 5, bias response tools can easily be used in malicious ways. In the early days of these systems, in 2009, one of the students who worked on the Bias Response Team at California Polytechnic State University admitted in an interview that one target of the system would be the “teacher who isn’t politically correct or is hurtful in their actions or words.” In a case at John Carroll University, several students used the school’s bias response apparatus to target one student in what appeared to be a prank. See: Cal Poly suspends reporting on “politically incorrect” faculty and students. (2009, June 1). FIRE. Retrieved from https://www.thefire.org/cal-poly-suspends-reporting-on-politically-incorrect-faculty-and-students-2. See also: John Carroll University. (2015, December). Bias reports 2014–2015. Retrieved from http://webmedia.jcu.edu/diversity/files/2015/12/2014-2015-Bias-Report-web-version.pdf

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Universities have an important moral and legal duty to prevent harassment on campus. What counts as harassment, however, has changed quite a lot in recent years. Modern conceptions of discriminatory harassment have their origins in Titles VI and VII of the Civil Rights Act of 1964. Title IX of the Education Amendments of 1972 expanded these statutes, prohibiting colleges that receive federal funds from discriminating against women with respect to educational opportunity. This protection was overdue and includes discrimination via harassment.47

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47. 20 U.S.C. § 1681 et seq. (1972).

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Under these statutes, the bar for what counts as harassment is high: a pattern of severe behavior that “effectively denies access to an educational opportunity or benefit.”48 The pattern of behavior must also be discriminatory—that is, directed at someone who belongs to a protected class named in the statute, such as gender, race, or religion.49 In practice, however, the bar has been lowered; many universities use the concept of harassment to justify punishing one-time utterances that could be construed as offensive but don’t really look anything like harassment—and some don’t have anything to do with race or gender.

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48. See Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999); Bryant v. Indep. Sch. Dist. No. I-38, 334 F.3d 928, 934 (10th Cir. 2003).

49. Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e-2 (a)(1) & (2) (1964) (prohibiting discrimination in hiring or workplace on the basis of “race, color, religion, sex, or national origin”); Education Amendments of 1972 § 9, 20 U.S.C. § 1681(a) (1972) (prohibiting discrimination in education “on the basis of sex”).

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For example, in 2005, at the University of Central Florida, a student was charged with harassment through “personal abuse” for creating a Facebook group that called a student government candidate a “Jerk and a Fool.”50 Perhaps you find that wrong or offensive, but should administrators be standing by, ready to step in whenever anyone feels offended?51 Or consider the case in which a student who worked as a janitor at his college was sanctioned because he was seen reading a book called Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan, a book that celebrates the defeat of the Klan when they marched on Notre Dame in the 1920s. (The image on the cover was upsetting to the two people who reported him.)52 Lowering the bar that far trivializes the real harm that true harassment can do—and frequently does—to students’ education.53 The purpose of these laws is to protect students from unlawful acts, not to empower censors.

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50. Student wins Facebook.com case at University of Central Florida. (2006, March 6). FIRE. Retrieved from https://www.thefire.org/student-wins-facebookcom-case-at-university-of-central-florida

51. Note that a school can and should use a very low threshold for making support or counseling services available for anyone who feels harassed. The bar for punishing speakers accused of saying something harassing should be higher. Under Title IX, for example, a reported victim is entitled to ameliorative steps before, and even without, a determination of wrongdoing by the accused. The mistake, we believe, is to conflate the two, such that if one person feels offended by a one-off speech act, another person should generally be charged with harassment. A school that makes such a conflation is codifying and teaching the Untruth of Emotional Reasoning and encouraging moral dependence.

52. Janitor/student Keith John Sampson received a letter informing him that he had been found guilty of racial harassment for “openly reading the book related to a historically and racially abhorrent subject.” Lukianoff, G. (2008, May 2). Judging a book by its cover—literally. Retrieved from https://www.thefire.org/judging-a-book-by-its-cover-literally-3

53. For examples, see Gluckman, N., Read B., Mangan, K. & Qulantan, B. (2017, November 3). Sexual harassment and assault in higher ed: What’s happened since Weinstein. The Chronicle of Higher Education. Retrieved from https://www.chronicle.com/article/Sexual-HarassmentAssault/241757; Anderson, M.D. (2017, October 19). How campus racism could affect black students’ college enrollment. The Atlantic. Retrieved from https://www.theatlantic.com/education/archive/2017/10/how-racism-could-affect-black-students-college-enrollment/543360/; Berteaux, A. (2016, September 15). In the safe spaces on campus, no Jews allowed. The Washington Post. Retrieved from https://www.washingtonpost.com/news/acts-of-faith/wp/2016/09/15/in-the-safe-spaces-on-campus-no-jews-allowed/?utm_term=.2bb76389a248

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Nonetheless, in the 1980s, colleges defended the earliest codes as antiharassment codes. Courts had no trouble seeing through this kind of explanation and routinely struck down the codes of this era,54 beginning in 1989 with the University of Michigan’s speech code, which prohibited creating a “demeaning” environment through speech that “stigmatizes or victimizes an individual.55 Yet even after numerous court defeats, universities claimed that the Department of Education required speech codes in order to comply with Title IX and other civil rights laws.56

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54. Silverglate, H. A. (1999, January 26). Memorandum to free speech advocates, University of Wisconsin. Retrieved from https://www.thefire.org/memorandum-to-free-speech-advocates-university-of-wisconsin

55. Doe v. University of Michigan, 721 F.Supp. 852, 865 (E.D. Mich. 1989).

56. Corry v. Leland Stanford Junior University, No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip op.).

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In 2013, the Departments of Education and Justice issued a sweeping new definition of harassment: any “unwelcome conduct of a sexual nature,” including “verbal, nonverbal, or physical conduct.”57 This definition was not limited to speech that would be offensive to a reasonable person, nor did it require that the alleged target actually be offended—both requirements of traditional harassment claims. By eliminating the reasonable-person standard, harassment was left to be defined by the self-reported subjective experience of every member of the university community. It was, in effect, emotional reasoning turned into a federal regulation.

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57. Bhargava, A., & Jackson, G. (2013, May 9). Letter to President Royce Engstrom and University Counsel Lucy France, Esq., University of Montana. U.S. Department of Justice, Civil Rights Division, & U.S. Department of Education, Office for Civil Rights. Retrieved from https://www.justice.gov/sites/default/files/opa/legacy/2013/05/09/um-ltr-findings.pdf

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The best example of how Title IX’s expanded notions of harassment have come to threaten free speech and academic freedom comes from the case of Northwestern University professor Laura Kipnis. In a May 2015 Chronicle of Higher Education essay, Kipnis criticized what she saw as “sexual paranoia” on her campus, arising from changing attitudes toward sex, and new ideas in feminism that she found disempowering. She wrote:

The feminism I identified with as a student stressed independence and resilience. In the intervening years, the climate of sanctimony about student vulnerability has grown too thick to penetrate; no one dares question it lest you’re labeled antifeminist.58

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58. Kipnis, L. (2015, February 27). Sexual paranoia strikes academe. The Chronicle of Higher Education. Retrieved from https://www.chronicle.com/article/Sexual-Paranoia-Strikes/190351

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Kipnis’s essay criticized Northwestern’s sexual misconduct policies—in particular, the prohibition on romantic relationships between adult students and faculty or staff. She also mentioned a graduate student’s Title IX complaint against a professor. After her article was published, Kipnis was the target of protests from student activists, who carried mattresses across campus and demanded that the administration condemn the article. Then two graduate students filed a Title IX complaint against Kipnis, claiming that her article created a hostile environment. This resulted in a secret Title IX investigation of Kipnis that lasted seventy-two days.59 (It ended after she published another article in the Chronicle, titled “My Title IX Inquisition.”) When she wrote a book about her experience, she was subjected to yet another Title IX investigation, this time stemming from complaints by four Northwestern faculty members and six graduate students, who claimed that her book’s discussion of both Title IX and false sexual misconduct accusations violated the university’s policies on retaliation and sexual harassment.60 This second investigation lasted a month. She was asked to respond to more than eighty written questions about her book and to turn over her source material.61 While both of these investigations were eventually dropped, from beginning to end, the process took more than two years.62

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59. During the investigation, Kipnis was told she could not involve a lawyer; she could not record her meetings with investigators; and, initially, she was told she would not even be informed of the charges against her until she attended the meetings. Cooke, R. (2017, April 2). Sexual paranoia on campus—and the professor at the eye of the storm. The Guardian. Retrieved from https://www.theguardian.com/world/2017/apr/02/unwanted-advances-on-campus-us-university-professor-laura-kipnis-interview

60. Title IX Coordinating Committee response to online petition and ASG resolution. (2014, March 4). Northwestern Now. Retrieved from https://news.northwestern.edu/stories/2014/03/title-ix-coordinating-committee-response-to-online-petition-and-asg-resolution

61. Suk Gersen, J. (2017, September 20). Laura Kipnis’s endless trial by Title IX. The New Yorker. Retrieved from https://www.newyorker.com/news/news-desk/laura-kipniss-endless-trial-by-title-ix

62. A defamation suit filed against Kipnis by a student continues. Meisel, H. (2018, March 7). HarperCollins can’t escape suit over prof’s assault book. Law360. Retrieved from https://www.law360.com/articles/1019571/harpercollins-can-t-escape-suit-over-prof-s-assault-book

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Kipnis noted after her ordeal:

My sense was that all of these protections were not making people less vulnerable, they were making people more vulnerable… . [Students are] going to be impeded when they leave university and go out into the world, and nobody is going to protect them from the multitudes of injuries and slights and that kind of thing that we all have to deal with in the course of daily life.63

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63. FIRE (Producer). (2016, April 6). In her own words: Laura Kipnis’s “Title IX inquisition” at Northwestern [Video file]. Retrieved from https://youtu.be/vVGOp0IffOQ?t=8m58s

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In a prescient essay in 2014, two sociologists—Bradley Campbell and Jason Manning—explained where this new culture of vulnerability came from and how administrative actions helped it to grow.64 They called it “victimhood culture,” and they interpreted it as a new moral order that was in conflict with the older “dignity culture,” which is still dominant in most parts of the United States and other Western democracies.

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64. Campbell & Manning (2014). See also their expansion of this work in Campbell & Manning (2018).

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In an optimally functioning dignity culture, people are assumed to have dignity and worth regardless of what others think of them, so they are not expected to react too strongly to minor slights. Of course, full dignity was at one time accorded only to adult, white men; the rights revolutions of the twentieth and twenty-first centuries did essential work to expand dignity to all. This is in contrast to the older “honor cultures,” in which men were so obsessed with guarding their reputations that they were expected to react violently to minor insults made against them or those close to them—perhaps with a challenge to a duel. In a dignity culture, however, dueling seems ridiculous. People are expected to have enough self-control to shrug off irritations, slights, and minor conflicts as they pursue their own projects. For larger conflicts or violations of one’s rights, there are reliable legal or administrative remedies, but it would be undignified to call for such help for small matters, which one should be able to resolve on one’s own. Perspective is a key element of a dignity culture; people don’t view disagreements, unintentional slights, or even direct insults as threats to their dignity that must always be met with a response.

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For example, one clear sign of a dignity culture is that children learn some version of “Sticks and stones will break my bones, but words will never harm me.” That childhood saying is of course not literally true—people feel real pain as a result of words. (If no one felt hurt by words, the saying would never be needed.) But “sticks and stones” is a shield that children in a dignity culture use to dismiss an insult with contemptuous indifference, as if to say, “Go ahead and insult me. You cannot upset me. I really don’t care what you think.”

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In 2013, Campbell and Manning began noticing the same changes on campus that Greg had been noticing—the interlocking set of new ideas about microaggressions, trigger warnings, and safe spaces. They noted that the emerging morality of victimhood culture was radically different from dignity culture. They defined a victimhood culture as having three distinct attributes: First, “individuals and groups display high sensitivity to slight”; second, they “have a tendency to handle conflicts through complaints to third parties”; and third, they “seek to cultivate an image of being victims who deserve assistance.”65

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65. Campbell & Manning (2014), p. 695.

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Of special relevance to our concerns in this chapter is the second attribute. Campbell and Manning pointed out that the presence of administrators or legal authorities who can be persuaded to take one’s side and intervene is a prerequisite for the emergence of victimhood culture. They noted that when administrative remedies are easily available and there is no shame in calling on them, it can lead to a condition known as “moral dependence.” People come to rely on external authorities to resolve their problems, and, over time, “their willingness or ability to use other forms of conflict management may atrophy.”66

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66. Campbell & Manning (2014), p. 697.

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This is the concern that Kipnis voiced when she said that overprotective policies make students more vulnerable instead of less, and that schools are creating a culture of vulnerability. This is the concern that Erika Christakis expressed when she wrote that “the growing tendency to cultivate vulnerability in students carries unacknowledged costs,” and asked students to talk to each other rather than relying on administrative interventions.67 And it’s the same concern about overprotection that prompted Lenore Skenazy to start the Free-Range Kids movement.

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67. Read the email from Erika Christakis here: FIRE (2015, October 30). Email from Erika Christakis: “Dressing Yourselves,” email to Silliman College (Yale) students on Halloween costumes. FIRE. Retrieved from https://www.thefire.org/email-from-erika-christakis-dressing-yourselves-email-to-silliman-college-yale-students-on-halloween-costumes

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It is also the concern that Steven Horwitz raised (and we discussed at the end of chapter 9) about oversupervision impeding the development of the art of association. A university that encourages moral dependence is a university that is likely to experience chronic conflict, which may then lead to more demands for administrative remedies and protections, which may then lead to more moral dependence.

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Notes