Monday, October 26, 2015

The Campus Crusade against Sexual Assault in the Context of the Ongoing Erosion of the Rights of the Accused

We have witnessed in the United States a steady, if  in some ways subtle, erosion of the rights of the accused in the past 35 years.  To wit:

1.  The so-called War on Drugs has resulted in the highest incarceration rate among all the Western democracies.

2.  The plea bargain has become the procedure of choice in some nine of ten criminal cases.  Combined with the piling on of charges by prosecutors and the prohibitive cost of mounting an effective defense, this trend has replaced the Sixth Amendment right to a speedy trial as the mechanism for moving cases quickly through the creaking criminal justice system.

3.  The so-called War on Terror has resulted in the militarization of state and local police forces.  Meanwhile, the expansion of Americans' rights under the Second Amendment --- proceeding virtually hand-in-hand with the contraction of rights under the Sixth Amendment --- has resulted in battle lines being drawn between our law enforcement agencies on one side and the nearly-as-well-armed organized criminals, radical paramilitary organizations and lone-wolf madmen on the other.

4.  The erosion of America's middle class and the widening gap between the super-rich and the rest of us --- driven by numerous factors, including the decline of manufacturing and the powerful labor unions that had secured workers' fair share of industrial profits; the automating of millions of jobs, now even in the service and retail industries; the reduction of taxes on the rich and super-rich together with Citizen United's lifting of limits on the use of their ever-increasing stockpiles of dollars to buy public offices --- is leading inexorably to a permanent proletarian underbelly.  This divide along economic, and to a large degree racial and ethnic, fault lines can only exacerbate the trends identified in 1 through 3, above.

Enter the (probably well-intentioned) crusade to eradicate sexual assault on America's college campuses, begun by President Obama in a June 2014 speech and taken up with vigor by his Department of Education.   Consider this statement by a university administrator with whom I am acquainted: "In order to remedy the lack of quick and effective resolution of sexual assault cases in our courts, the Department of Education wants colleges and universities to do what the justice system can't... by lowering the standard of proof from 'beyond a reasonable doubt' to 'more likely than not,' and requiring that sexual-assault investigations plus adjudications be completed in 60 days."

Now, consider this comment in the context of my comments on the erosion of the rights of the accused.  Just as the proliferation of the plea bargain has largely supplanted the Constitutional right to a speedy trial, and the militarization of our police poses an unprecedented threat to our Fourth and Fifth Amendment rights, so too does the new DOE regime for the "War on Campus Sexual Assault" erode the rights of the accused in the context of this latest American criminal 'justice' crusade. 

Mind you... much, perhaps most, of what I have described above has occurred with the best of intentions:

1.  The proliferation of drugs and drug trafficking led to the War on Drugs.

2.  The Nine/11 attacks led to the militarization of our police.

3.  The flood of accused in our criminal courts led to the dominance of the plea bargain.

4.  Respect for First and Second Amendment rights by the conservative Justices who control our Supreme Court led to the lifting of limits on campaign contributions and on the prolific possession of fire arms by private citizens.

So, too, does a sincere desire to eradicate sexual assault in those venues where America's young adults are concentrated in their greatest numbers drive the current campus crusade.

In McCarthy's day, the Cold War justified witch hunts for reds in our government, entertainment industry and media.  During the Nixon administration, national security justified Watergate.  We now see how wrong-headed and dangerous these crusades were.

In every era, there is an issue --- drugs, terror, sexual assault - that is seen by its proponents to be so significant as to justify the erosion of our civil liberties.  And, so far, in every era, the arguments favoring these causes ultimately have been discredited.

So too, I predict, will be the current campus crusade.  But this will take some time.  As I discovered earlier this year, when I dared, during supervisory training at a university, to criticize the due-process flaws in the campus-based system imposed by the DOE on sexual-assault investigations/adjudications, the attack dogs remain ready to slip their leashes against anyone with the temerity to come out openly against this latest American domestic 'war.'  But the pendulum, I further predict, will swing in the opposite direction, as the unsoundness of the legal principles underlying the campus investigation/adjudication process are revealed with increasing clarity.

Monday, October 19, 2015

As federal policy turns campuses into court rooms, the statute of limitations becomes an issue.

At the University of California, the former head of the Department of Homeland Security, now the prez, ponders whether there ought to be a time limit on when sex harassment charges can be brought against a prof. 
In this case, a well-known astronomer stepped down from his professorship, after the investigation of belated charges leaked and became international news. Napolitano says there should be a statute of limitations on such charges.  But critics counter that it's hard to charge when you're still a student.

The bigger issue in my mind is how far the fed will push colleges to become courts.  We now must investigate and adjudicate sexual assault charges.  This is "damned if you do, damned if you don't" task... one side or the other will be disappointed with a high likelihood of a lawsuit to follow.  

The lightning rod for much of this storm is the dean of students.  It once must have been fun to be the head of the student-life division of a college.  No longer... now the dean is the likely target of a suit, along with her institution, when for example an accused male student cries "foul" and files a defamation claim.

Being a campus cop, likewise, is no pleasure.  This is brought out in a story today in the Chronicle of Higher Education.

Without a doubt:
  • Too much drinking takes place on college campuses
  • Sexual assault is a shameful fact of life at too many schools
  • Sexual harassment by faculty and staff should never be tolerated, and
  • Violence and crime must be deterred constantly, as in any other town or small city

All this being said, and accepting that the burden is not likely to be lifted from our shoulders anytime soon, we in higher education need to become a lot more savvy on the ways of law enforcement and adjudication... as well as the best practices in risk management to avoid subsequent litigation.

Friday, October 16, 2015

The great experiment is underway: will allowing guns on campus end the slaughter?

Wisconsin seems to be poised as the next state to give it a go:

While, as they say, the jury is still out, the National Review has just posted an article arguing that concealed-carry licensees are less likely to commit a crime than even police officers on average.  The article adds ten instances in which such citizens did indeed prevent a potential mass shooting.

The prestigious Washington Post is the source of this latter claim.

In my hate-crimes class last night, most students seemed skeptical about this idea as a solution.  And at first blush "The solution to bad guns is more guns" hardly seems equivalent to "The solution to bad speech is more speech."  

Still, one of the central ideas of federalism is that every state is a little laboratory where the citizens can experiment with new, even radical, ideas.

As one of my students noted last night, there are just so many guns in this country now that you will never be able to get rid of them.  And, so, to borrow another cliche, perhaps fighting fire with fire (no pun intended) is the best way our of our present quagmire involving the nuts and the lonewolves with their guns.

Thursday, October 15, 2015

The cowboy culture comes to campus at UT-Austin. Will it work?

I'm of an age when everything is now 50 years ago.  For instance, this weekend, my wife and I will celebrate the 50th anniversary of our first date.  A couple of years ago I taught a Law & Justice course inspired by the 50th anniversary of the Kennedy assassination.  And 50 years ago a nut named Whitman went up into the tower at the University of Texas in Austin and shot dozens of people.

The Lone Star State is marking that anniversary with a new "concealed carry" law that allows concealed weapons on the campus. 
As this story attests, lots of people are upset with the new statute.

Here's the chapter from my book, "Al Qaeda Goes to College," that includes the story of the Texas Tower Massacre:

The endless string of mass shootings that occurs in this country, often aimed at schools and colleges, leaves us all scratching our heads.  The concealed-carry laws are one attempt to meet the issue head on.  There is precedent for them in Israel.  Also, I guess, in the Old West, including Austin, Texas.
 As I've noted in this space on other occasions, the American problem is not the number of guns in our country.  Canada can match us on a per capita basis, yet rarely experiences such shootings.  

The number of nuts who can get guns is certainly problematic and tougher laws involving background checks might help.  

It was no help that Congress enacted a law a few years ago that protects retailers from lawsuits for selling the guns to the killers.  That, it seems to me, was a step in the wrong direction.

But the bottom-line issue is our culture.  Fifty years ago (naturally), media guru Marshall McLuhan said that Americans view the world through a rear view mirror  He said we lived in "Bonanzaland," referencing a popular cowboy show on TV at the time.

He was right then and it hasn't changed now.   The myth of the rugged individual permeates our national mindset.  It's one reason we worship the wealthy and famous, while working three jobs to make ends meet, instead of flocking to labor unions to force a more equitable distribution of wealth.  It's why Donald Trump can preach hate and be applauded.

Until that mindset changes --- and remember, it took two world wars and a Holocaust to change the Europeans' warlike mindset --- the shootings won't stop.

That being the case, maybe arming more "good guys" actually is the way to go.  As another guru once said, "We'll see...".

Wednesday, October 14, 2015

Administrators like technology, while faculty don't, says Gallup and "Inside Higher Ed"

Here's where you can get the full survey: 

No surprise here.  Technology threatens faculty's perceived centrality in the educational process.  Nearly 20 years ago a faculty union leader explained to me how the earliest European universities were started by faculty, who then hired administrators to do the grunt work for them.  This is a lovely fairy tale, if you are a faculty member.  But my own research later revealed that the University of Bologna, usually credited as Europe's first and the namesake of the Bologna Accords as a consequence, was in fact founded by students, who then went out and hired the faculty they wanted.

 Tenured faculty often act as if they are the shareholders of their institutions.  But in fact the taxpayers, we the public, are the central stakeholders of higher education.  For-profit corporations aside, universities either were created by taxpayer dollars, if public, or enabled by tax-free status, if private non-profit.  Once again, as with Bologna: student founded and student centered.

That being said, all that matters is that we the public are served by these institutions of higher learning... whether by face-to-face faculty encounters or by technology on line.

Clay Christiansen of Harvard's B-School argued a couple of years ago that his theory of innovation by disruption applies to higher ed and that the disrupter was online tech.  His "disruption" theory has been under attack of late.  See:
His prediction that half of all universities will be bankrupt in 15 years seems unlikely to come true.

Still, a revolution is in the wind in this, the Fifth Great Wave of American higher education.  And faculty will no longer enjoy the favored status they did during the previous half century.  No wonder many dislike technology.

Read more about the new wave here:


Tuesday, October 13, 2015

Everybody has a sad story.

That's what Rick told Ilsa in "Casablanca."  And it's the point I made 11 years ago in an op-ed published in the St. Paul Pioneer Press at one of those times when some African-American organizations were making their periodic plea for reparations for slavery. 
The Jews have their Holocaust, the Cambodians their Killing Fields, the Russians their Gulags.  The Armenians can point a finger at the Turks.  Japanese-Americans can blame Earl Warren for their ancestors' internment during WWII; after all, he was the California governor who signed the order.  Should we, therefore, expunge Warren's name from our history books?

Of course, no one would suggest that.  It seems silly.  But a growing number of people don't seem to find it silly when, each October 12th, there are cries to tear down statues of Christopher Columbus... as if he were the equivalent of Stalin or Hitler.

The genocide of Native Americans is a tragedy and a crime.  No fair white man can deny that.  It is, as I suggest above, one of many notable tragedies in the tragic-comic history of the human race.

Rick, though he was referring to prostitutes, was right in a much broader sense.  Everybody has a sad story.  My father, whose birthday also fell in early October, was one of 16 children of Italian immigrants.  Only seven ever grew to adulthood.  What killed them?  I could name Spanish Flu and whooping cough and other maladies.  Or I can sum it up in a word: poverty.  That was my Old Man's sad story.  But he never dwelled on it.  He looked to the future and his hopes for his own two sons.  I like to think my brother Leo, a bank VP, and I have in our way fulfilled his dreams.

So... for those who want to expunge American history of Columbus and pay reparations to the descendants Indians and Africans, I say, let's get past these divisive notions.  Let's look to the future and try together to take on its daunting challenges.  If our country was built on blood, it was also built on rights and hopes and dreams.  Nursing history's sore teeth serves neither our nation nor ourselves.

Just get over it.

Thursday, October 8, 2015

Who would have thunk it?

I never thought that a school as prestigious as MIT would become the leader in credentialing the masses.  But the Cambridge super-U, which led the way into the land of MOOCs is now offering a Mini-Masters for those who complete those MOOCs but choose to stop short of earning the full-fledged credential.  Additionally, stacking career experiences onto those MOOCs may now be enough to gain a full-fledged MIT Master's degree. 
 This comes at a time when college students increasingly are concluding that, as  the BA becomes the 21st century equivalent of a high school diploma in the last century, they must amass as many certifications and internships as possible, and even do a 4+1 master's program to stand out.

Tuesday, October 6, 2015

Guns, Isis, Oil... a Tuesday morning rant...

Let's start with this outstanding op-ed by retired Supreme Court Justice Stevens about how we could cure the Second Amendment's ambiguity with just five little words:
Then let's take a moment to remember John Lennon, who would be 75 this month, if he hadn't been murdered by a crazy fan 35 years ago.
 And lastly this morning, let's ask what we ought to be doing in the Middle East.  My view:  let the Russians have at it.  With our energy reserves, we Americans no longer need the Middle East.  I have always believed that the Iraq War was about oil, not terror.  The U.S. made a complete hash of it.  Only Dick Cheney and his Haliburton friends made out on the adventure.   Now we no longer need to support the hopelessly corrupt regime in Iraq.  Nor do we need to care what happens to Syria.  Fortress Israel can remain our foothold in the region, should we need a base camp from which to act in the future.  Let's turn inward and solve the seemingly intractable problems we have here at home.

Then let's stop wasting energy (quite literally) and focus on the real problems confronting us domestically.  Laws alone won't solve the gun problem.  We need a sea change in American culture from the Wild, Wild West mentality that still dominates our society to a 21st century view that more closely resembles the civilizations of Europe.  The Europeans had to endure two world wars and a holocaust in order to achieve genuine, compassionate civil societies.  Having suffered none of that agony, and in fact having profited mightily in wealth and power from the wars of the last century, ours has remained a violent, reckless Dodge City of a society.  It's a long pull, so we should start now to change hearts and minds.  (But, meanwhile, it wouldn't hurt to do what we can to separate the nuts from the guns.)

More and better jobs for more Americans and a more equitable distribution of the nation's vast wealth might go a long way to quelling some of the endemic violence in our cities.  I often wonder when my fellow citizens on the right will wake up and realize that every Republican president in my lifetime has favored tax breaks for the rich.  How can you not get that?  Why aren't you people with your crappy retail jobs sans benefits flocking to unions?  Do you really think Jesus is going to take care of everything for you?

As for climate change, I doubt anything we do will make a major difference... not while Asia and Africa are developing and demanding the same rights to development that we in Europe and America enjoyed.  So let's develop solutions aimed at dealing with the effects of climate change... whole new industries with thousands of jobs could be the outcome of such an effort.

Meanwhile, energy independence could get us out of the overseas-adventure cycle and enable us to deal with the problems that beset us here at home and block us from being the Great Society (don't knock it) we could have been and still could be.


Friday, October 2, 2015

My daughter wrote to me this morning:

Did you guys watch Obama's speech on the most recent shooting? I thought it was really excellent, if not infuriating (because it really is all so damn obvious).

Obama and my daughter are not alone in their frustration.  I'm sure million share it and I certainly am one.  

But what is the solution... when the chances of getting the guns out of circulation approach zero?  I have been wrestling with this for years:

Jim Castagnera: The Firearms Dilemma

Roundup: Media's Take 

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[Jim Castagnera is the Associate Provost and Associate Counsel at Rider University.]

After the U.S. Constitution was completed, some of the founders felt that the document --- devised after the predecessor Articles of Confederation failed to provide sufficient central authority to keep the newly liberated colonies from one another’s throats --- gave the federal government too much power. The upshot of this fear was the Bill of Rights, i.e., the first ten amendments. During the ensuing 200-plus years, each of the ten has produced volumes of court decisions and scholarly comments. The Second Amendment is no exception.

Amendment number two says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” What these few words really mean has been the source of considerable controversy, most recently on June 26, 2008, when a majority of U.S. Supreme Court justices declared a District of Columbia gun-control law unconstitutional. Justice Antonin Scalia, writing for the majority, stated, "In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense....”

One of the dissenting justices in this 5-4 decision, Justice John Paul Stevens, retorted that the court's judgment was "a strained and unpersuasive reading" which overturned longstanding precedent, and that the court had "bestowed a dramatic upheaval in the law." Stevens added that the Second Amendment was notable for the "omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense,” such as is present in the Declaration of Rights in Pennsylvania.

Observers on both sides of the gun-control debate contend that the decision will stimulate a lot more legislation and litigation. Some prosecutors express concern that wily defense attorneys will find ways of reopening cases, where personal possession of weapons was an important issue. Gun-control advocates predict that the decision will energize gun-rights advocates to challenge more and more federal and state gun-control laws. One police officer commented on NPR that with this decision America has entered the Age of Rambo.

The National Rifle Association argues that “guns don’t kill; people do.” True… but most people who kill, kill with guns. Living on the edge of a city which logs some 400 homicides a year, mostly deaths by gunshot, I often wish that Philadelphia had the laws in place to somehow get the guns off the streets. But, like every attorney worth his salt, I see the other side of the case.

Since Nine-Eleven, America has become increasingly more security conscious. In the face of the excesses of Abu Ghraib and Guantanimo, the Supremes have shown themselves to be on the side of due process of law, handing the Bush Administration one defeat after another regarding prisoners’ rights to fair and speedy trials. Meanwhile, airports have become fortresses and boarding a plane can involve stripping oneself of laptop, liquid toiletries, belt, shoes, jacket, metal prosthesis, and pocket change. The federal government has begun the building of a billion-dollar fence along our southwestern border to keep the Mexicans out. And we are embroiled in two wars, one of which undoubtedly was entered in the midst of a fog of lies, e.g., that Hussein had weapons of mass destruction and was in league with Al Qaeda. Last but not least, Congress appears about to enact legislation giving retroactive immunity to phone companies that cooperated in federal wiretaps since Nine-Eleven. All of the above suggest that on the scales of justice, civil liberties concerns currently are outweighed by national security considerations, and the Supreme Court may be the individual’s only true champion.

In “Casablanca” a German officer asks Rick if he can imagine the German army in New York City. Rick replies that there are some New York neighborhoods that are too dangerous for the Nazis to dare to invade. In “Armageddon: A Novel of Berlin” (1963), novelist Leon Uris made a similar point. He had one of his characters wonder out loud about how long the round up of Germany’s Jews by the Gestapo would have persisted had every Jewish man met his oppressors at the front door, pistol in hand, and taken at least one down with him. Echoing this point, some commentators on last year’s massacre at Virginia Tech have suggested that students and faculty should be encouraged to arm themselves.

While I don’t endorse that latter view, I can’t dismiss the Humphrey Bogart/Leon Uris argument that an armed populace might be a potent counterforce against government abuse of civil liberties, as well as --- ala Justice Scalia’s majority opinion in District of Columbia v. Heller --- a source of self-defense against criminals.
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