More than four years ago, 28 members of the Harvard Law School faculty publicly criticized the sexual-assault adjudication procedures adopted by the university under pressure from the Obama administration. They noted that these were “overwhelmingly stacked against the accused.” The law professors, including some with stellar feminist credentials, said that the university’s goal should “be to fully address sexual harassment while at the same time protecting students against unfair and inappropriate discipline, honoring individual relationship autonomy, and maintaining the values of academic freedom.” Similar expressions of concern about the basic unfairness of the federally dictated Title IX procedures, which most colleges had adopted enthusiastically, would also come from groups of law professors at Penn and Cornell.

Since April 2011, when the Obama administration sent thousands of schools its “Dear Colleague” letter reinterpreting Title IX to mandate guilt-tilting sexual misconduct procedures, colleges and universities have been on the losing side of 117 court decisions in lawsuits filed by accused students; 53 more lawsuits (at the federal level alone) were settled before a court could render any decision. Summarizing judicial concerns about universities’ one-sidedness in a 2016 decision involving a student from Brandeis University, U.S. District Judge F. Dennis Saylor wrote, “It is not enough simply to say that such changes are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning.”

As all of these developments occurred, the American Civil Liberties Union (ACLU) remained silent. For more than seven years, the ACLU never criticized the evisceration of due process and fundamental fairness in campus Title IX tribunals—although it also never endorsed the Obama-era standards. But in case after case, it ignored egregious unfairness to accused students who had strong claims of innocence. The organization finally broke its silence on November 16, after Education Secretary Betsy DeVos proposed new regulations on campus sexual misconduct designed to make campus procedures fairer to both parties. In an inflammatory Twitter thread, the ACLU described the new regulations as “inappropriately favoring the accused.”

It was a broad attack, and the ACLU did not exempt the fundamental protections that DeVos’s effort is designed to restore—the right of accused students to be presumed innocent; the right of accusers and accused alike to cross-examine witnesses through a lawyer or an advocate; and the right of the accused to examine all the evidence uncovered in the campus investigation and all the materials used to train campus adjudicators. The thread closed with a promise: “We will continue to support survivors.”

Ten hours after the tweets (which were surely posted before the ACLU had fully digested all 149 pages of DeVos’s proposed rule), the organization issued a broader analysis by Emma J. Roth, a fellow at the ACLU’s Women’s Rights Project, and Shayna Medley, a fellow at its LGBT & HIV Project. Though their article claimed that the ACLU “is equally committed to ensuring students can learn in environments free from sexual harassment and violence and to guaranteeing fair process for both respondents and complainants,” its tone and contents confirmed the thrust of the Twitter thread. They closed by characterizing the proposed rule as just another in “a long line of actions taken by the Trump administration to attempt to roll back civil rights for some of the most vulnerable students.”

Roth and Medley alleged three specific problems with the proposed regulations, only one of which directly addressed the procedures afforded to accused students: that the regulations would allow schools to choose between “preponderance of the evidence” (50.01 percent) and “clear and convincing evidence” (around 75 percent) as the standard of proof in adjudicating the innocence or guilt of accused students. (It is worth noting that the ACLU has not criticized the existing use of the clear-and-convincing standard mandated by some schools’ union contracts to adjudicate sexual harassment complaints against professors.) The two further problems they adduced are that the proposed regulations use the Supreme Court’s definition of sexual harassment, rather than the far more expansive language of Obama-era guidance, and reduce the number of university administrators legally obligated to act if they receive a Title IX complaint from an accuser. The official ACLU statement, issued by the organization’s deputy legal director, simply summarized the points raised by Roth and Medley.

It is difficult to discern a connection between the wildly inflammatory claim in the ACLU’s tweet—that the proposed regulations would be “inappropriately favoring the accused”—and these three specific complaints.

In practical terms, it’s unlikely that any of the three provisions would have much effect on students who experience sexual misconduct on campus. Since September 2017, DeVos has allowed every college and university in the country the option of using the clear-and-convincing standard of proof in Title IX cases—and, as far as we have been able to determine, not one has chosen to do so. In the current campus climate, any university president who moved in the direction of protecting possibly innocent accused students would almost certainly be subjected to a wave of campus protests and risk losing his or her job.

While it’s possible that a tighter definition of sexual harassment would exclude some Title IX complaints, the ACLU didn’t cite a single campus complaint against an accused student over the past seven years that would have qualified as sexual harassment under the Obama-era standard but not under the Supreme Court’s definition. Colleges, of course, could retain the Obama-era definition in their own disciplinary codes. And the mandatory reporting issue focuses mostly on bureaucratic minutiae rather than broader questions of principle.

In short, after spending seven years ignoring myriad and severe due-process deprivations on campus, the ACLU resorted to unlikely hypotheticals to criticize the proposed remedy.

The ACLU’s position is odd for an organization that purports to be devoted to civil liberties. Roth and Medley argued that for colleges to use the clear-and-convincing standard would “weight the scales against complainants in civil disciplinary proceedings.” But this view imagines the Title IX process as a contest between accuser and accused, rather than what it is: a process in which representatives of the college effectively investigate and prosecute the accused, with the accuser as the chief witness. As the Foundation for Individual Rights in Education (FIRE)—which has become the nation’s preeminent champion of civil liberties on campus and been tireless on the issue of the 2011 guidance—noted, “Given the marked lack of core due process protections in the vast majority of campus judicial systems, the adjudication of such serious, life-altering accusations requires more than our lowest standard of proof.” The American Association of University Professors has made a similar point. So has the American College of Trial Lawyers.

This year, moreover, federal judges hearing lawsuits against the University of Colorado and the University of Mississippi suggested that the preponderance standard in Title IX sexual-assault proceedings is itself unlawful. U.S. District Judge James Browning of New Mexico went further, holding that “preponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to [the accused student’s] expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on [his] transcript.”

Perhaps there are other occasions in the ACLU’s history in which it maintained that multiple federal courts were worrying too much about the rights of the accused. But there can’t be many. The Atlantic’s Conor Friedersdorf observed that ACLU “staffers weighed what most meaningfully excludes someone from equal treatment in education—and they decided new due-process protections are more problematic than expelling someone after a process wherein they were unable to see evidence, or question their accuser, or be judged by a neutral party.”

As to the definition of sexual harassment, schools’ aggressive applications of the Obama administration’s more expansive definition have been denounced by many civil libertarians as infringing on constitutionally protected speech. And for good reason. Federal agreements settling investigations of the University of Montana and the University of New Mexico indicated that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature,’ ” including “verbal” (speech)—even if the allegedly harassing statements of the accused student or faculty member would not be offensive to an “objectively reasonable person of the same gender in the same situation.” It’s hard to fathom a civil liberties organization—especially one that decades ago stood up for the free speech rights even of Nazis—showing such hostility to federal protection of speech.

Roth and Medley provided a final reminder of the ACLU’s newfound indifference to the plight of the accused by asserting that the ACLU is especially concerned about “students of color” and other vulnerable campus populations. Yet there is ample evidence in the reporting of Emily Yoffe, Ben Trachtenberg, Jacob Gersen, and Jeannie Suk Gersen that the Obama-era Title IX guidance has disproportionately harmed accused students of color. At the few universities for which race-based campus statistics exist, such as Findlay and Colgate, men of color are dramatically overrepresented among those punished for sexual assault. “If we have learned from the public reckoning with the racial impact of over-criminalization, mass incarceration, and law enforcement bias,” Suk Gersen wrote in the New Yorker in 2015, “we should heed our legacy of bias against black men in rape accusations.”

As the Washington Post’s Radley Balko observed after the group’s Twitter attack, “The ACLU still does some great work. But damn is it ever disappointing to see this organization, with all its history, use the phrase ‘inappropriately favoring the accused.’ ” Whatever the merits or flaws of the rest of the ACLU’s activities, it has become an adversary of due process and free speech on campus.

The post The ACLU’s J’Accuse appeared first on Stuart Taylor, Jr..

The facts of this he-said, she-said case are that Saifullah Khan, a then-22-year-old Yale senior, and his accuser, also a senior, had Halloween dinner together at the dorm’s dining hall on October 31, 2015, and crossed paths later that night—first at a drinking party and then at a Yale Symphony Orchestra concert—ultimately ending up in her room at 1:11 a.m. and having sexual intercourse.

The trial centered on the credibility of the accuser’s testimony—which was halting, tearful, and contrary to proven facts on some points—and of her claim that she was so drunk that she could barely stand or walk, flitted in and out of consciousness, and awakened in her bed for just long enough to feel Khan on top of her and to try to push him off.

Khan, an Afghan who was recruited to an American prep school (Hotchkiss) and then to Yale because of his academic gifts, testified that the accuser did not seem at all intoxicated to him during the six hours they were in her room, flirted with him at the concert and on the walk back to the dorm, invited him into her room, and initiated both oral sex and, more than two hours later, full intercourse.

Numerous Yale students, journalists, and champions of rape victims’ rights have trashed the trial and especially the defense lawyer’s cross-examination of the accuser as “every survivor’s worst victim-blaming nightmare,” in the words of Jess Davidson, interim director of the advocacy group End Rape on Campus.

The article reporting the verdict in the New York Times, which exhibited bias throughout its coverage of the trial, disapproved of Khan’s lawyers working “relentlessly to discredit the account of the woman. . . . They asked repeatedly how much she had to drink. . . . They showed off her Halloween costume, a black cat outfit, and asked her why she had not chosen a more modest one, such as ‘Cinderella in a long flowing gown.’ ” Time called its piece “A Yale Student Accused Her Classmate of Rape. His Lawyers Asked What She Was Wearing and How Much She Drank.” An online magazine for young women, Refinery29, ran its account of the trial under the headline “Jurors Bought Stale Victim Stereotypes—Just Like the Defense Hoped.”

Yet defense lawyers are required to do their best to discredit accusers who are trying to put their clients behind bars—Khan faced a maximum prison sentence of 46 years and deportation back to Afghanistan, where he believes he would have been executed, stoned, or lashed under the country’s laws. And wasn’t it part of the defense’s duty to probe the accuser’s claim that she had had so much to drink that she was losing consciousness several hours later? The lead defense lawyer, Norman Pattis, called the reaction “a form of mass hysteria.”

His question about the costume that the accuser chose for her Halloween get-together with Khan spurred particular outrage among the accuser’s advocates. “A misogynistic tactic that men habitually use to silence women . . . by blaming them for their own assaults,” raged Amelia Nierenberg, a Yale Daily News columnist. Out of a variety of costumes from a Yale storage closet, the woman had opted for the sexy cat, pairing a sequined black miniskirt with matching tube top and tail. In pointing this out, Pattis stressed that his purpose was not slut-shaming but spurring skepticism about the accuser’s testimony that she was uninterested in Khan sexually and was afraid that he was stalking her and trying to get into her room.

In any event, the jurors appear to have paid little attention to the costume. They were far more interested in the grainy security videos that the prosecution made a focus of its case, claiming that they showed the accuser in such an inebriated state that she was stumbling, with her eyes closed and her left foot dragging behind her (as she testified), and needed Khan to hold her up while walking from the concert to her dorm. She emphasized that she was a dancer and did not normally walk that way.

The jurors had the videos replayed numerous times, and those who have spoken publicly saw nothing of what the prosecution suggested. “We looked at and we looked at and we looked at that video of them walking,” one anonymous juror told the New York Times, but “we could not see her leg dragging. We could not see her eyes shut.” Juror James Galullo told Alice B. Lloyd of this magazine: “We all agreed that she was walking hand-in-hand, arm-in-arm, smiling.” Alternate juror Elise Wiener told Robby Soave of Reason: “She was strolling with him with a big grin.”

This did not prevent news outlets, including the New York Times and the Yale Daily News, from repeating the prosecution’s characterization of the videos. Both papers could have obtained and posted the footage to let readers judge for themselves. They chose not to do so.

Hours after the alleged rape, the accuser told a Yale health center nurse that she needed a Plan B morning-after pill due to having had consensual sex with a regular partner. At the trial, she explained that she was “too traumatized” to tell the nurse of the alleged assault.

After meeting later that day and the next day with several friends—including a former boyfriend who took her phone, dialed Yale’s sexual-misconduct office, and handed the phone back to her—the initially irresolute accuser filed a complaint against Khan with the sexual-misconduct office and then went to the Yale police department.

The details of the process are unclear, but university officials, the university police, and the accuser decided to ask the New Haven state’s attorney’s office to prosecute Khan criminally rather than rely on the internal disciplinary process.

It is rare for the kind of sexual-misconduct accusations that are typically filed by university students to be sent on to a public prosecutor. The only plausible explanations here are that Yale officials felt the accusations in this case (unlike in most) to be serious enough to qualify legally as sex crimes or that the accuser herself, as was her right, decided to press criminal charges.

Yale suspended Khan on an emergency basis on November 9, 2015, a week after the accuser reported him. It also threw the Afghan native, who had few connections in the United States, out on the street on very short notice.

***
Much of the national coverage of the case has suggested that the verdict was a miscarriage of justice, but that belies any review of the trial evidence, little or none of which would have been uncovered and considered in a Yale disciplinary proceeding.

At a time when the accuser testified she was concerned that Khan was becoming aggressive in pursuing her—and had tried to enter her dorm room uninvited and had responded angrily when she told him to leave—she was also sending playful texts to him sprinkled with smiling and giggling emoticons. She even texted him a Shakespeare poem, “From fairest creatures we desire increase,” the first of the so-called “procreation sonnets.”

The accuser’s claim that after the two had met for Halloween dinner, Khan followed her into her entryway and tried to push his way into her room is almost impossible to reconcile with Yale’s electronic dorm card-key system. She swiped into her entryway at 6:47:31 p.m.; he swiped into his just seven seconds later. For her story to be accurate, he would have had to follow her into her entryway, try to push his way into her room while “I was trying to push him back,” and then go off to his own entryway and swipe his card-key, all in seven seconds flat.

The timeline of the evening suggests it was unlikely that the accuser could have been completely incapacitated by alcohol at the time of the alleged rape as she claimed. By her own account, she had five drinks containing varying amounts of alcohol at the party. While friends testified that she was somewhat—one said extremely—intoxicated when she left the party for the concert, it appears clear from the testimony that she stopped drinking between 10:50 p.m. and 11:40 p.m. The timeline is complicated by the fact that clocks were turned back at 2 a.m. due to daylight savings time, but it seems the accuser had her last drink at least four-and-a-half hours before the alleged rape, which apparently occurred after a phone call that Khan placed at 1:55 a.m. from the accuser’s sofa to his longtime girlfriend in Maryland (a call that lasted 141 minutes).

The two have an open relationship, and the girlfriend testified that she already knew the accuser from a summer physics class at Yale. She and Khan both stated that he handed his phone to the accuser at one point and the two women spoke briefly. “I said, ‘Hi,’ and she said, ‘Hi,’ ” the girlfriend told the court. She recalled the complainant used the girlfriend’s name when saying “Hi” to her. She said this was the extent of their conversation, and that she and Khan then continued talking for another hour and a half. Khan testified that the accuser had already given him oral sex before the phone call and asked him to “come to bed” after it ended.

One friend, Josh Clapper, initially told university police that the accuser “did not seem intoxicated” at the concert, which came after her final drink. At trial, his recollection had changed and he, like other friends of the accuser, said she needed support walking.

The apparent passage of those four-and-a-half hours, during which the accuser said she vomited two or three times, casts doubt on her assertions such as “I tried to say ‘stop’ but I’m not sure if anything came out. I couldn’t communicate because I was that inebriated.”

The accuser testified “he was pinning my legs and arms so I couldn’t move.” But Pattis noted that in her 61-page statement to police, she had never suggested that Khan pinned her arms.

After the alleged rape, the accuser awakened with Khan in her bed and told him she was embarrassed and disgusted by her behavior, by his account. After he departed, leaving two condoms that bore his DNA in her room—not the sort of oversight one might expect from a man who feared he might be accused of rape—he sent her a text at 6:14 a.m. She texted back “LOL.” Then Khan responded with a winking emoticon and she replied, “Go to sleep and this will stay between us that goes for you too.”

Jurors also took notice when a prosecution expert witness had to admit that the DNA found in a swab of the accuser’s anus the day after the alleged rape had come from a male other than Khan. This was particularly relevant as the accuser had told police that she had not had sex in six months. The news media completely ignored this crucial fact.

The accuser also claimed that she discovered after Khan left that he had taken her phone and used it to send messages declining her friends’ invitations to meet up after the concert. If true, this would be direct evidence that Khan was trying to isolate the accuser. But he denied taking or using her phone. This was a he-said, she-said standoff—and the jury clearly believed that he was the more credible witness.

***
What happens now? Saifullah Khan’s lawyers have requested that Yale readmit him and allow him to complete his last semester as a cognitive-science major. There is also an online petition circulating that demands “that Yale University continue to follow the guidelines laid out by the Obama administration, and continue to uphold Saifullah Khan’s suspension.” It had nearly 50,000 signatures as this magazine went to press.

It seems most likely that Yale’s University-Wide Committee on Sexual Misconduct (UWC) will employ a secretive campus proceeding to pass judgment on Khan with minimal due process, no speaking role for defense lawyers, no meaningful cross-examination of the accuser, and no transcript of the proceedings.

The UWC defines “sexual misconduct” as “a range of behaviors including sexual assault (which includes rape, groping and any other non-consensual sexual contact), sexual harassment, intimate partner violence, stalking, and any other conduct of a sexual nature that is non-consensual, or has the purpose or effect of threatening or intimidating a person or persons.” The policy adds: “Much sexual misconduct includes nonconsensual sexual contact, but this is not a necessary component. For example, threatening speech that is sufficiently severe or pervasive to constitute sexual harassment will constitute sexual misconduct.”

Any reasonable penalty would have to take account of the fact that Khan’s education has already been derailed for two-and-a-half years by an unwarranted accusation and a criminal proceeding.

It can fairly be said that Khan was insensitive in having sex with a woman he did not know well a few hours after she had downed a lot of alcohol and vomited repeatedly and in placing a 141-minute phone call to his girlfriend in the accuser’s presence, in between having oral sex and sexual intercourse with her. But by his account, the accuser was eager to have sex. And Yale’s rules do not mention insensitivity or any other violation of its policy less damning than “sexual misconduct,” a vaguely defined phrase that surely requires more than insensitivity and in many circles carries a connotation of sexual predation.

Some longtime observers of Yale’s process consider it possible—even probable—that despite the verdict of the criminal trial, the UWC will still find Khan responsible for “sexual misconduct” and expel him.

Indeed, his lawyers have appropriately called the UWC “a political entity draped in the presumption of guilt” that “rushed to judgment in this case” and that has more broadly “embarked upon a secretive Jacobin-style crusade in which complainants were pressured to come forward, procedural due process was ignored, and exculpatory evidence was casually and conveniently displaced.”

They have also pointed out that the chief of the Yale Police Department, Ronnell Higgins, recently told the Yale Daily News that his officers “are trained to ask the right questions . . . placing emphasis on a victim advocacy approach.” That sounds inconsistent with our legal culture’s hallowed presumption of innocence—which is nowhere mentioned in the UWC’s procedures. Not one of the sexual-misconduct complaints filed by female Yale students against males since the university’s current reporting system started in 2012 has been found to be false.

Asked by email for comment on the verdict and on what Yale might do now, Yale spokesman Tom Conroy responded: “It would not be appropriate for Yale to comment on the verdict in a criminal case, especially one that involved two Yale students. In regard to internal adjudications, Yale’s ability to comment on individual cases is limited by federal privacy law and Yale’s confidentiality policies. The University believes that confidentiality is critical to the integrity of our processes, and, for that reason, it does not confirm or deny that a specific allegation has come before the University-Wide Committee on Sexual Misconduct.”

Defending Yale’s overall handling of sexual-misconduct allegations, Conroy said that critics do “not take into account the process that Yale provides, which includes written and specific notice of the charges; the right to an adviser, who may be an attorney; the opportunity to present evidence and suggest witnesses; a written investigative report prepared by an impartial fact-finder; a hearing before a trained panel of members of the Yale community; the opportunity to submit questions through the panel to witnesses and the opposing party; a written panel report; the opportunity to respond in writing to the panel report; a written decision by a decision maker separate from the panel; the right to submit a written appeal to a second decision maker; and a written appeal decision.”

Judge José Cabranes, a U.S. circuit judge and Yale’s first general counsel, expressed another view in a devastating 2017 article in the Yale Law & Policy Review. While focusing mainly on threats to freedom of expression at Yale, he also assailed the university for its handling of sexual-misconduct accusations. “Today,” Cabranes wrote, “as a matter of Yale University law . . . in a sexual-misconduct proceeding, even for an allegation of non-criminal conduct. There is:

• No right to a public hearing, or even to a complete record of the private hearing;

• No right to have counsel speak on one’s behalf;

• No right to call friendly witnesses, much less confront and cross-examine adverse witnesses; and

• To top it all off, no assumption of innocence until proven guilty—merely a finding of wrongdoing that rests on a preponderance of the evidence (the lowest standard of proof known to American law).”

Conroy did not mention these aspects of Yale’s process. And while touting the “trained panelists” who pass judgment on accused students, he also failed to mention the fact that Yale (like many other universities) has taken great pains to keep secret the materials it uses to train them.

Why so secretive? As KC Johnson and I detailed in these pages last September, the training regimes are designed more to put a thumb on the scales toward guilt than to ensure a fair inquiry. The programs we were able to review were permeated with unsupported assertions about how false complaints are rare and that an accuser who contradicts her own prior accounts or established facts should be seen not as deceptive but as a victim of “trauma.”

Cynthia Garrett, a lawyer who is co-president of Families Advocating for Campus Equality, a group supporting students who say they were falsely accused, sat through the whole Khan trial and spent much time giving moral support to the defendant. She came away from New Haven, she says, “with the disturbing realization that, as a whole, the Yale community is insular, dogmatic, and intolerant of diverse perspectives. It became apparent from my interactions with at least one Yale Daily News reporter that any who dare expose alternate viewpoints are quickly shamed into silence.”

Saifullah Khan himself is far more upbeat. I asked him about the trial, and he wrote, “As dark as this experience has been so far, the foundation of this democratic republic kept my beliefs strong. And as divided as this country may seem online, I have found love and hospitality at every corner of this country.”

Stuart Taylor Jr. is co-author, with KC Johnson, of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities

The post The Yale Rape Trial Isn’t Over Yet appeared first on Stuart Taylor, Jr..

The post The Trump administration should force colleges to disclose data on race in admissions: Let’s see how preferences work appeared first on Stuart Taylor, Jr..

One might have expected an aggressive response by House Republicans to such gross abuses of power — including subpoenas, tough oversight hearings, and corrective legislation. Instead, most of them have been mute. In the Senate, meanwhile, presidential candidate Marco Rubio of Florida, Judiciary Committee chairman Charles Grassley of Iowa, and rising star Kelly Ayotte of New Hampshire have teamed with Democratic demagogues Kirsten Gillibrand of New York and Claire McCaskill of Missouri in co-sponsoring a bill that would make matters even worse.

[Full text for story on National Review behind paywall]

The post Until Proven Guilty: The vanishing of due process in campus rape tribunals appeared first on Stuart Taylor, Jr..

The reasons are of course multifaceted. But one deserves far more attention than it has gotten: Many or most of the African-American student protesters really are victims — but not of old-fashioned racism.

Most are, rather, victims of the very large admissions preferences that set up racial-minority students for academic struggle at the selective universities that have cynically misled them into thinking they are well qualified to compete with classmates who are, in fact, far stronger academically.

The reality is that most good black and Hispanic students, who would be academically competitive at many selective schools, are not competitive at the more selective schools that they attend.

That’s why it takes very large racial preferences to get them admitted. An inevitable result is that many black and (to a lesser extent) Hispanic students cannot keep up with better-prepared classmates and rank low in their classes no matter how hard they work.

Studies show that this academic “mismatch effect” forces them to drop science and other challenging courses; to move into soft, easily graded, courses disproportionately populated by other preferentially admitted students; and to abandon career hopes such as engineering and pre-med. Many lose intellectual self-confidence and become unhappy even if they avoid flunking out.

This depresses black performance at virtually all selective schools because of what experts call the cascade effect. Here’s how it works, as Richard Sander and I demonstrated in a 2012 book, Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It:

Only 1 to 2 percent of black college applicants emerge from high school well-qualified academically for (say) the top Ivy League colleges. Therefore, those schools can meet their racial admissions targets only by using large preferences. They bring in black students who are well qualified for moderately elite schools like (say) the University of North Carolina, but not for the Ivies that recruit them. This leaves schools like UNC able to meet their own racial targets only by giving large preferences to black students who are well qualified for less selective schools like (say) the University of Missouri but not for UNC. And so on down the selectivity scale.

As a result, experts agree, most black students at even moderately selective schools — with high school preparation and test scores far below those of their classmates — rank well below the middle of their college and grad school classes, with between 25% and 50% ranking in the bottom tenth. That’s a very bad place to be at any school.

This, in turn, increases these students’ isolation and self-segregation from the higher-achieving Asians and whites who flourish in more challenging courses. At least one careful study shows that students are more likely to become friends with peers who are similar in academic accomplishment.

Put yourself in the position of manyHispanic and especially black students (recipients of by far the largest racial preferences) at selective schools, who may work heroically during the first semester only to be lost in many classroom discussions and dismayed by their grades.

As they start to see the gulf between their own performance and that of most of their fellow students, dismay can become despair. They soon realize that no matter how hard they work, they will struggle academically.

It is critical to understand that these are not bad students. They did well in high school and could excel at somewhat less selective universities where they would arrive roughly as well prepared as their classmates.

But due to racial preferences, they find themselves for the first time in their lives competing against classmates who have a huge head start in terms of previous education, academic ability, or both.

Researchers have shown that racial preference recipients develop negative perceptions of their own academic competence, which in turn harms their performance and even their mental health, through “stereotype threat” and other problems. They may come to see themselves as failures in the eyes of their families, their friends, and themselves.

Such mismatched minority students are understandably baffled and often bitter about why this is happening to them. With most other minority students having similar problems, their personal academic struggles take on a collective, racial cast.

Consider the case of a student whom I will call Joe, as told in Mismatch. He breezed through high school in Syracuse, New York, in the top 20 percent of his class. He had been class president, a successful athlete, and sang in gospel choir. He was easily admitted to Colgate, a moderately elite liberal arts college in rural New York; no one pointed out to Joe that his SAT scores were far below the class median.

Joe immediately found himself over his head academically, facing far more rigorous coursework than ever before. “Nobody told me what would be expected of me beforehand,” Joe later recalled. “I really didn’t know what I was getting into. And it all made me feel as if I wasn’t smart enough.”

But just as surprising and upsetting was the social environment in which Joe found himself. “I was immediately stereotyped and put into a box because I was African American,” he recalled. “And that made it harder to perform. People often made little derogatory comments.…There was a general feeling that all blacks on campus were there either because they were athletes or they came through a minority recruitment program.… That was just assumed right away.”

It was also, unfortunately, quite true. That’s why racial preferences are an extremely powerful generator of racial stereotypes about intellectual abilities. Joe was forced by bad grades to drop out after his freshman year, though he eventually returned to Colgate and obtained his bachelor’s degree.

Not many mismatched students complain — even if they figure out — that the root of their problems is that they are not well-qualified to compete with their classmates. The universities, the media, and others do their best to conceal and deny this connection. And it is human nature to seek less humiliating, more sinister explanations.

The grievance-prone college culture offers ready targets for these frustrated students to blame for their plight: wildly exaggerated and sometimes fabricated instances of racism, trivial perceived “microaggressions,” and the very real racial isolation that is largely due to racially preferential admissions — all leading to a supposedly hostile learning environment.

Another common reaction is to withdraw into racial enclaves within the campus. Many universities encourage this by creating black dormitories and even by assigning entering students to them.

Racial, intellectual, economic, social, religious, and political diversity can greatly enrich the educational experience — but not when engineered through large preferences that do more harm than good to their supposed beneficiaries, not to mention to the stronger students who are passed over to make room for racial-preference recipients.

All this goes a long way toward explaining the over-the-top demands now roiling our campuses for still more racial admissions preferences; more preferentially hired, underqualified professors; more grievance-focused courses and university bureaucrats; more university-sponsored racial enclaves; and more apologies for “white privilege.”

The university leaders who cravenly coddle the racial grievance lobby, such as Yale President Peter Salovey and Princeton President Christopher Eisgruber, are only aggravating academic mismatch, racial isolation, and unhappiness among minority students — and degrading their own universities.

Pessimistic observers of such meltdowns conclude that our most prestigious universities are committing suicide. Where are the leaders who will set things straight?

The post A Little-Understood Engine of Campus Unrest: Racial Admissions Preferences appeared first on Stuart Taylor, Jr..

The post A Smoking-Gun E-mail Exposes the Bias of ‘The Hunting Ground’ appeared first on Stuart Taylor, Jr..

Now the Washington Post has joined a race to the bottom among the legacy media, in a June 12 package of two very long front-page articles and a third inside the paper that includes both the results of a Post-Kaiser Family Foundation poll and detailed interviews of some respondents. The main headline: “1 in 5 women say they were violated.” The articles and the poll purport to confirm claims by the administration, its congressional supporters, most of the media, and campus activists that around 20 percent of female college students are sexually assaulted while at school. In this portrayal, the nation’s campuses are hotbeds of violent crime.

But like many other advocacy polls on sexual assault, the Post-Kaiser poll misleads readers—most of whom surely will assume that “sexual assault” means criminal sexual assault—by using that criminally charged phrase for shock value in the articles while deliberately avoiding it in the survey questions. As detailed below, those questions are so broad as to invite survey respondents to complain about virtually any encounter that they later regretted, including many that were not sexual assault or rape as defined by law.

According to the Post’s accompanying articles, the “survivors” of these sexual encounters experienced enormous pain and suffering. But it’s not entirely clear how the Post determined that the students with whom the paper spoke are in fact “survivors” of sexual assault, although some clearly were. Virtually none of these students went to the police, nor did most report any incident to their colleges, whose adjudication procedures are all but designed to find the accused student guilty. Instead, the Post reporters simply assumed the truth of most of their sources’ claims and thus the guilt of the accused.

Details from the few subjects who did report matters to police reflect badly on the Post’s credibility. Take, for instance, the student with whom one of the Post’s front-pagers leads, Rachel Sienkowski. Reporters Emma Brown, Nick Anderson, Susan Svrluga, and Steve Hendrix say in their second paragraph that a few weeks after arriving on the Michigan State campus, Sienkowski “had become a survivor” after an afternoon of tailgating ended with a man she didn’t know in her bed. She went to the police, the Post reported, because she awoke not only having been violated, but with her head bloodied.

But the end of the article lets slip that in fact this, the paper’s lead example of a campus sexual assault, seems instead to have been a regretful, but not atypical, drunken hookup that neither party remembers well. The scary bleeding was apparently self-inflicted when Sienkowski fell out of her loft bed onto the floor, while the male was asleep. The person she brought back to her room wasn’t a Michigan State student (and might not have been a college student at all). And, the Post disclosed in the last 120 words of a 2,870-word article, even Sienkowski conceded that “she doesn’t know for sure whether she had wanted sex in the moment.” She said this after seeing the police report, including photographs of the hickeys that the accused said her lips had branded on his neck as evidence that she “was very into everything that was happening.”

If she hadn’t been drinking, Sienkowski tells the Post, the hookup was “not something I would do.” There’s no reason to doubt this. But there’s also every reason to doubt that any serious prosecutor in the country would see what Sienkowski experienced as sexual assault—although, unfortunately for civil liberties, many colleges would see it as just that.

Some of the Post’s most harrowing “survivor” stories, meanwhile, have nothing to do with the issue of campus sexual assault. A student from Eastern Michigan, visiting New York City, got drunk and separated from her friends, and then was raped by a stranger in the Port Authority. A student from Wisconsin-Eau Claire was found passed out in a Minneapolis bar and thought he was drugged and raped, though he never went to the hospital for tests. Both of these experiences are awful, and raise disturbing questions as to why neither of these seeming victims of violent crime reported the offense to law enforcement. But from either a public policy or a journalistic perspective, do offenses allegedly committed hundreds or thousands of miles away from campus, by perpetrators who were not fellow college students, have any relevance to the question the Post series hopes to address?

And Post journalists also offered a most unusual description of the claims of unnamed “survivors.” In the second paragraph of the second June 12 front-pager that some interviewees “say they were coerced into sex through verbal . . . promises.” In normal English usage, a promise cannot be coercion of any kind, let alone sexual assault.

These “survivor” stories form the background for the Post’s highly misleading analysis of the poll results.

For example, the Post asserts that “[t]wenty percent of young women who attended college during the past four years say they were sexually assaulted.” But the survey questions (the specifics of which are buried in the coverage) ask respondents whether they had experienced a much broader category of sexual behaviors. Indeed, a researcher whose views are consistent with the poll’s questions is quoted deep in the Post package explicitly stating that those questions are designed to get “‘dramatically’” higher positive answers than would “‘terms like sexual assault and rape.’” This is, effectively, a journalistic bait and switch.

What do the Post’s biased figures actually say? Of the supposed 20 percent of college females who are “survivors,” more than half claimed to have experienced sex while “incapacitated,” explicitly defined as “unable to provide consent or stop what was happening because you were passed out, drugged, or drunk, incapacitated, or asleep.” In other words, the poll invites respondents to say they were unable to consent even if they were just a little bit drunk. But “drunk” is very far from incapacitated in the usual, legal sense of the word—or, for that matter, in the longstanding cultural understanding of what constitutes sexual assault.

As David French has observed, the poll—apparently with the intent of reporting the largest percentage of “survivors” possible—also uses an exceptionally broad definition of what constitutes sexual assault. The Post defines “forced touching of a sexual nature” to include “forced kissing . . . grabbing, fondling, rubbing up against you in a sexual way (even if it is over your clothes),” and other vaguely described behaviors many of which cannot seriously be called sexual assault.

The Post doesn’t even try to deal with the argument made most consistently by AEI’s Mark Perry: At some point, the disparity between polls like the Post’s and reported sexual assaults becomes too wide to bridge. The implicit justification for figures like the Post’s so exceeding FBI and Justice Department statistics is that most rape victims don’t report their assaults; according to the administration, only 12 percent, or around one in eight, of campus rapes are reported to law enforcement. But accepting the administration’s figure and multiplying the number of reported rapes by a factor of eight would yield nothing close to 20 percent of college women being assaulted.

In sum, the Post misleads its readers by counting as “sexual assaults” numbers that are deliberately inflated to greatly exceed the legal definitions of “sexual assault” and to sweep in virtually all regretted sexual or even semi-sexual experiences, such as close dancing that a “survivor” later decides was unwelcome.

This may help explain why only 12 percent of students considered sexual assault a “big problem at their school”—while a separate Kaiser survey featured 57 percent of the general public deeming the issue “a big problem.” Students, it appears, have a far different perspective from those whose primary view of campus life comes through alarmist statements by leading politicians or equally alarmist news reports from publications like the Post.

For example, the Post tells readers that “in recent years the number of reports of forcible sexual offenses on campus has surged.” But in fact the number of campus sexual assaults per capita plunged by half between 1997 and 2013, according to the 2014 report of the Bureau of Justice Statistics’ National Crime Victimization Survey, which has long been the most respected and reliable source of crime statistics. The Post unconvincingly contends that the annual BJS survey’s finding that 6.1 of every 1,000 students are sexually assaulted understates the numbers of victims. But even if the Post’s argument were valid, it would cast no doubt on the BJS finding of huge decreases since 1997.

Alarmism in coverage such as the Post’s already is having a deeply disturbing impact on attitudes toward civil liberties. The most shocking result from the Post-Kaiser poll was the finding that college students see a “person who commits sexual assault getting away with it” as “MORE unfair” than an “innocent person getting kicked out,” by a margin of 49 to 42 percent. As often occurs in periods of hysteria, these future citizens are accepting the fundamentally illiberal message that convicting the innocent is a price to pay to achieve the greater good.

This illiberal spirit is likely to intensify. It’s hard to escape the connection between the biased reporting and the Post’s just-announced decision to convene a “thought provoking conversation” on the issue of campus sexual assault. The seven presenters all appear to come from only one side of the argument; the paper did not, for instance, invite even a token defense attorney, civil libertarian, or any of the growing number of falsely accused students who have proved their innocence. The most prominent speaker will be Senator Kirsten Gillibrand (D-New York), the foremost congressional champion of degrading campus due process. Another invited speaker will be victims’ rights advocate Dana Bolger—an Amherst College student who formed part of a cohort of campus activists demanding that the college change its procedures to increase the chances of guilty findings. The school did so, and is now being sued after a colleague of Bolger’s in the campus movement leveled what appears to be a false accusation of sexual assault against an innocent man.

The Post’s manipulation of campus surveys and statistics, moreover, should cause Congress to think long and hard about enacting the Campus Accountability & Safety Act. A central component of the measure, whose lead sponsor is none other than Gillibrand, is to require colleges to have an “adequate, random and representative sample size of students” complete biannual “campus climate” surveys—whose questions, no doubt, will be designed to trigger the kind of results that can be used to justify a further weakening of campus due process, and a further spreading of off-campus alarmism. And the Post, it appears, will feed the distortions instead of speaking truth to power.

The post More College Rape Hype — This Time from the Washington Post appeared first on Stuart Taylor, Jr..

The conservatives. Chief Justice John Roberts’s plurality opinion for the four-man conservative bloc oversimplified the Court’s precedents in order to veer close to a "colorblind Constitution" absolutism that has never been the law. Roberts declared broadly that the integration programs before the Court — in Seattle and metropolitan Louisville, Ky. — "are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate." But no Supreme Court majority has ever condemned the pursuit of racial balance in public schools as illegitimate.

To the contrary, countless judicial decrees mandated race-based student assignments as a remedy for official segregation during the decades after Brown v. Board of Education. More to the point here, the justices said repeatedly during that era that communities with no such history of official segregation could pursue integration if they chose. Many lower courts said the same. This reflected a widespread view that racial isolation of minority students — especially poor blacks — hurts their educations and that proximity to children of other races can benefit all students by fostering interracial understanding and empathy.

Roberts unpersuasively brushed aside this body of precedent as though it had been silently overruled by the general language of more-recent decisions in the very different context of racial preferences in awarding government contracts and seats in selective universities.

But unlike such preferences, race-based student assignment programs, if well designed, neither give minorities a systematic edge over whites nor displace merit selection by favoring less-qualified over better-qualified applicants. Two of our most thoughtful federal appellate judges — Michael Boudin of Boston and Alex Kozinski of Pasadena, Calif., both Republican appointees — have stressed these distinctions. In Kozinski’s words, school integration "gives the American melting pot a healthy stir without benefiting or burdening any particular group."

The Roberts opinion also minimized the vast gulf between the race-based measures at issue in these cases and the racial caste system that once oppressed descendants of slaves in the segregated South. And the chief justice exuded eagerness to block local and state officials around the nation, by judicial decree, from promoting school integration.

If this is judicial modesty, what would conservative judicial activism look like?

The liberals. The in-some-ways-apt critique of the decision from the four liberal dissenters was marred by apocalyptic rhetoric, mostly written by Justice Stephen Breyer, exaggerating what was at stake while hysterically accusing the conservatives of seeking to "break [the] promise" of "true racial equality" made by Brown.

To the contrary, the incremental integration produced by the two race-based student assignment plans before the Court was slight. More broadly, the justices’ power to advance, or retard, progress toward "true racial equality" is modest in today’s world. A broad social consensus against legal subordination of minorities coexists with stubbornly persistent racial inequalities in education. These inequalities have outlasted decades of liberal Supreme Court decisions, of forced busing (which led to white flight), and of other integration programs far more aggressive than those in place now.

The dissenters nonetheless seemed eager to give local officials wide latitude to tell school children, in effect, "You can’t come to this school because you are the wrong color." More broadly, their approach would perpetuate into generations yet unborn the system of racial preferences for certain minorities that pervades much of American life.

The balance-tipper. Justice Anthony Kennedy, the centrist conservative who cast the deciding vote, wisely whacked the Roberts plurality for implying "an all-too-unyielding insistence that race cannot be a factor" in government decision-making, for being "too dismissive" of the governmental interests in promoting "equal opportunity regardless of race," and for complacency about "de facto resegregation in schooling." On the other hand, Kennedy noted that the dissenters’ embrace of racial classifications and preferences had no "principled limit."

But Kennedy’s effort to identify the circumstances in which "pernicious" race-based assignments could be justified as a "last resort" opened him to the charge (by Benjamin Wittes, writing in The New Republic Online) that he "announces no coherent rule that any school system could apply with confidence that it will garner Kennedy’s vote in the future by doing so."

This is not just a failure of imagination on Kennedy’s part. I doubt that anybody could come up with a very clear rule for steering between the conservatives’ view that all race-based student assignment plans are unconstitutional and the liberals’ broad approval of such programs.

So what’s a moderate to do? Focus on the facts, in my view, and hope that a reasonably coherent rule will emerge through case-by-case adjudication.

Under the precedents requiring that even the most benignly motivated racial classifications be "narrowly tailored" to advance a "compelling interest," Kennedy was probably correct to strike down Seattle’s crude use of race. But he should perhaps have sent the Louisville program back to the lower courts to clarify the record rather than striking it down based on confusion about exactly how it worked.

The dissenters accurately stressed that Seattle had reduced its reliance on race over time, ending up with a program that allowed all students to choose among 10 high schools but denied some their choices in order to engineer a prescribed racial mix. But the result was a program that produced only marginal increases in integration.

The program did not even touch elementary or middle schools, where the benefits of integration would be most profound. It barely touched Seattle’s two poorest, nearly all-black high schools. And when it was suspended because of lawsuits, the racial composition of Ballard High School (for one) barely budged. Between 2000, when race-based assignments were used, to 2005, when they were not, Ballard went from 10.8 percent to 9 percent black; from 10.7 to 11.7 percent Latino; from 17.5 to 14.2 percent Asian; and from 56.4 to 62.3 percent Caucasian.

For such tiny gains, officials adopted a program with glaring flaws:

•It imposed serious burdens on individual children in pursuit of a social-engineering goal that did no other child much good. An honor student named Andy Meeks, for example, asked to be placed in and was qualified for Ballard High’s special Biotechnology Career Academy, which seemed the best place for him to thrive despite his attention-deficit hyperactivity disorder and dyslexia. But because he was white, he was denied his first choice (and his second, and his third) and assigned to a school that he could reach only by taking three city buses, with a round-trip commute of more than four hours a day.

•The district "has failed to explain why, in a district composed of a diversity of races, with fewer than half of its students classified as ‘white,’ it has employed the crude racial categories of ‘white’ and ‘non-white’ as the basis for its assignment decisions," as Kennedy stressed.

•The program invited manipulation by allowing families to change their self-selected racial designations in order to go to the head of the line for assignment to their preferred schools. And some schools clearly had academic programs that others lacked.

•The school district has blessed a K-8 "African-American Academy" that is designed to be almost all-black so as to "increase academic achievement." As Justice Clarence Thomas noted in a concurrence, "Of course, if the Seattle school board were truly committed to the notion that diversity leads directly to educational benefits, [this] would be a shocking dereliction of its duty to educate the students enrolled in that school."

•One "desegregation and diversity" bureaucrat provided a taste of the political correctness that pervades the Seattle school system by posting on the schools’ website (until a few months ago) assertions that only whites can be racists and that "cultural racism" includes "emphasizing individualism as opposed to a more collective ideology," "defining one form of English as standard," and "having a future time orientation."

•This PC mind-set may help explain why Seattle has never seriously explored the most promising — and legally bulletproof — way to promote integration without discriminating based on race. That is to give underprivileged students, who are disproportionately black and Hispanic, the opportunity to transfer to (mostly white) middle-class schools. (See my December 9, 2006, NJ column.)

All nine justices seemed equally uninterested in this socioeconomic-integration alternative, which is now used by some 40 school districts that educate about 2.5 million students. I hope that this does not reflect the complacency of some conservatives about the isolation of poor children in inferior schools. I also hope that it does not reflect the preference of some liberals for making politically correct gestures about race over finding solutions that work.

The post Opening Argument – Is There a Middle Ground on Race? appeared first on Stuart Taylor, Jr..

Indeed. That is the main reason why so little learning takes place at Anacostia, a part-time teacher there tells me. And nationwide, every year, some 30 students die of homicides committed on public school grounds; 10 percent of all teachers are physically threatened by students; and 4 percent are physically attacked. Student disruption of classes and defiance of teachers is routine at many schools. And such disorder is not confined to urban schools. Discipline is the biggest worry for suburban parents, too, surveys show. More than 40 percent of teachers nationwide agreed in one survey that "student behavior interferes with my teaching." Many complain that administrators don’t back them up on discipline. Some leave the profession in frustration. Cheating is rampant almost everywhere, and serious punishment rare.

An idealistic young English teacher named Richard Arum began studying the breakdown in school discipline sometime after one of his students was shot three times in 1991, in the courtyard next to his classroom at Castlemont High School, in East Oakland, Calif. Arum had been drawn to the overwhelmingly black school by sympathy for the civil-rights struggle.

Now an associate professor of sociology and education at New York University, Arum has produced a new book that lays much of the responsibility at the doors of the Supreme Court, of other judges who thought they understood education better than the educators, and of the idealistic "liberal advocacy lawyers" who pushed for students’ rights to challenge school discipline beginning in the 1960s. Such well-intentioned "adversarial legalism" has, Arum writes, led to "the intimidation of school personnel faced with an ambiguous legal terrain, and an undermining of the school’s moral authority," all to the detriment of "the ability of public schools to socialize youth for productive roles in society." These baleful trends were not "an inevitable byproduct of change in cultural mores" or demographics, Arum adds in Judging School Discipline. Rather, "liberal public school advocates" must face the reality that liberal judicial decisions unique to the United States have made our schools uniquely disorderly.

First came Tinker v. Des Moines School District, in 1969, in which the Supreme Court upheld public school students’ First Amendment rights to wear black armbands at school to protest the Vietnam War. The justices understandably saw the suspension of these students as an overreaction. But the justices displayed their grandiosity when they suggested that telling students to do their protesting elsewhere would make the schools "enclaves of totalitarianism."

Then came Goss v. Lopez, in 1975, which ruled in favor of (among others) students suspended for a few days for brawling in a school lunchroom and for attacking a police officer in a school auditorium, in Columbus, Ohio. All public school students have constitutional rights not to be suspended even for a single day without notice and a due process hearing, the justices held.

However reasonable Tinker might seem on its facts, and however informal might be the due process hearings demanded by Goss, the consequences have been far more profound than allowing some sartorial protests and requiring some hearings. They have inspired hundreds of lawsuits attacking schools’ authority over hair length, grades, dances, student-body elections, school newspapers, alcohol, drugs, violence, and weapons. And even though subsequent Supreme Court decisions sought to set limits to students’ litigiousness — by upholding corporal punishment, for example — the genie was out of the bottle.

What’s a principal to do if a gang of skinheads shows up wearing swastikas or T-shirts emblazoned with "WHITE POWER"? Are swastikas analogous to black armbands? Are shaved heads protected by precedents upholding students’ rights to wear their hair long? "The principal wants to send the kid home to change, but he’s not sure it’s within his authority to do so, so he calls the superintendent," wrote Kay S. Hymowitz in City Journal. "The superintendent is also unsure, so he calls the district’s lawyer. The lawyer’s concern, though, isn’t that the child has breached the boundaries of respect and tolerance, and needs an adult to tell him so, but whether disciplining the student would violate the First Amendment. Is this, in other words, literally a federal case?"

This legal uncertainty, which clouds every disciplinary decision with doubt and clogs educational systems with complex due process administrative rules, is only the tip of an iceberg of social instability. As consensus over once-unquestioned moral norms has broken down, judicial decisions have, for many, become the default source of moral instruction. So when the Supreme Court gives violent or disruptive students the constitutional right to sue their schools, it also gives them a sense of empowerment against all authority and saddles teachers and administrators with "hesitation, doubt, and weakening of conviction," in Arum’s words.

"The mere potential for a lawsuit shrinks the adult in the child’s eyes," as Hymowitz puts it. "The natural relationship between adult and child begins to crumble." Educators "hesitate to assert the most basic civic and moral values that might pose a challenge to the crude and status-crazed peer culture." And the language of right and wrong gives way to the language of legalisms, interspersed with therapeutic psychobabble.

Even when disciplinary decisions are upheld, the hearing process grinds down school officials and makes them gun-shy. "I’ve been named now three times in lawsuits," one principal recalled in a recent Public Agenda survey. "You go to these depositions and they’ll ask you about a conversation I had three years ago in the hallway. ‘Who was there? Who else heard? What exactly did you say? Did you keep any notes?’ I think it’s devastating."

Since the best defense to a complaint by an angry student or parent is rigorous compliance with "due process," teachers focus on documenting their reasons for even the mildest discipline of the worst actors, rather than on how best to teach the students who want to learn. And many teachers and administrators take the path of least resistance by condoning disruptive conduct rather than risking legal battles. One teacher told Public Agenda that he has become hesitant to break up student fights. In the old days, he said, "I was thinking about the kids," and about preventing injury. Now, he’s "more thinking of litigation."

Has all this made school discipline more fair? No. Comparative analysis shows, according to Arum, that in states where the courts have been most supportive of student rights against school authority, "students reported that school discipline was both less strict and less fair" (emphasis added).

Congress has also done much damage, beginning with its adoption in 1975 of the law now known as the Individuals with Disabilities Education Act. While justifiably vindicating the rights of wheelchair-bound and other disabled kids (including a onetime client of mine) to free public education, that law has also made it impossible to expel, and extremely difficult to discipline, any student diagnosed as having "serious emotional disturbance" — a concept broad enough to include just about any chronically disruptive child. Even kids who have sexually assaulted their teachers have been returned to their classrooms.

What is to be done? The mindless "zero-tolerance" policies produced by the backlash against disorderly schools have only made matters worse, by further undermining school officials’ discretion to use their common sense. Take the case of the 6-year-old who brought a pocketknife that her grandpa had given her to school in response to her teacher’s suggestion that kids bring something special that they cherished. "I had to suspend her for several days," a rueful administrator told Public Agenda.

Arum asserts that giving school officials completely unchecked power over students is not the answer. It is for the courts to make clear that they will intervene to ensure fairness only in "situations involving long-term exclusion or suppression of student First Amendment rights."

But it will not be easy to undo the damage. In a dissenting opinion, Justice Hugo Black warned that Tinker would subject "all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students." At the time, it appeared to many that the great civil libertarian had become an old fuddy-duddy. Now he seems more like a prophet.

The post Opening Argument – How Courts and Congress Wrecked School Discipline appeared first on Stuart Taylor, Jr..

Such stories form the human backdrop to Zelman v. Simmons-Harris, perhaps the most momentous case pending before the Supreme Court and certainly the most important church-state case in many years. In a lively 80 minutes of arguments on February 20, the four more-conservative Justices and the perennially pivotal Sandra Day O’Connor seem inclined to uphold an Ohio law that provides tuition vouchers for Ebony and more than 4,000 other Cleveland children, most of them poor and black, to attend private schools.

The outcome is no sure bet, but O’Connor and the four other Justices were sharply skeptical of arguments by voucher opponents that because the vast bulk of the state voucher money goes to religious schools, the program amounts to an unconstitutional endorsement of religion. If the Court does uphold the Cleveland program, then it will remove the legal cloud over similar programs in Milwaukee and Florida, will clear the way for voucher programs elsewhere, and will put the focus on the large policy questions posed by these pioneering efforts to provide inner-city children with alternatives to failed public schools. There are two central questions: Are school choice programs good for the children whose parents so desperately seek vouchers? And are vouchers bad for those who remain behind in the public schools?

A growing body of evidence, while disputed and not yet conclusive, suggests that the answer to the first question is yes, and-more surprisingly-that the answer to the second is no. This calls into question the widespread assumption that voucher programs will make failing public schools even worse by draining their budgets and skimming off the most-committed students and parents. In fact, public schools in cities with well-designed voucher programs end up with more resources per pupil, because each voucher costs far less (a maximum of $2,250 in Cleveland) than the per-pupil cost of the public schools (more than three times as much). And several studies suggest strongly that the danger of cream-skimming is greatly exaggerated and-most important-that competition from voucher schools provides powerful incentives for failing public schools to improve.

A study of the Milwaukee voucher program "suggests that public schools have a strong, positive response to competition from vouchers," Caroline M. Hoxby, a respected Harvard economist, has written. She added that the "schools that faced the most potential competition from vouchers had the best productivity response." Accounts in the Milwaukee press suggest the same, as do studies of some other urban school systems facing competition from various school choice programs. Indeed, Spence Korte, superintendent of Milwaukee’s public schools, said in a television ad: "Like many other monopolistic operations, you get a little complacent when you’re the only game in town…. We needed to be able to compete, to really get better."

Even if closing off all escape routes for poor children had some chance of preventing inner-city schools such as Cleveland’s from becoming even more dreadful, it would be morally indefensible to deny decent educations to low-income children for the sake of the school system. Would you sacrifice your own children to dilute the dreariness of the worst public schools?

The strongest evidence that voucher programs benefit the children who use them comes from their parents. Most "tend to be much more satisfied [than public school parents] with their child’s school," says Kim Metcalf, a researcher evaluating the Cleveland program. The three Cleveland parents I interviewed-Eulanda Johnson, Roberta Kitchen, and Christine Suma-seethe at suggestions by voucher opponents that they are not smart enough to decide what’s best for their children. The voluble Kitchen, a gainfully employed college graduate who has raised five children abandoned by their mother, speaks eloquently of how private (religious) schools have taught her children more, given them more individual attention, made them safer, and exposed them to more racial diversity than the public schools, which are mostly black.

Empirical studies of voucher recipients’ academic progress, while mixed, offer some validation for the parents’ enthusiasm. "Although controversial, research generally shows positive effects for students using vouchers to attend private schools," the Brookings Institution concluded in a report last September. Voucher opponents attack such analyses and stress evidence suggesting that kids learn no more in voucher-supported schools than they would in public schools. But seven studies that seem fairly reliable have all found statistically significant academic progress for at least some subgroups of the voucher students, particularly African-Americans.

The Cleveland voucher program grew out of a 1995 ruling by a federal judge transferring control of the city’s school system-one of the nation’s worst-to the state of Ohio with instructions to remedy deficiencies amounting to a state of "emergency." One of the state’s earliest initiatives was to pass a law offering vouchers to low-income parents who wanted to move their kids to participating private schools or suburban public schools. The state has also sought to re-energize regular and magnet schools; has encouraged the formation of independently chartered "community schools"; has offered special $500 "scholarships" for private tutoring; and has pumped more money into the school system.

The vouchers cover 75 percent to 90 percent of the tuition at participating private schools, which can charge no more than $2,500 in all. Any participating suburban public school would get $6,544 from the state for each student from Cleveland. But none has ever agreed to participate. And only a small and shrinking number of nonsectarian private schools have participated, in part because it’s hard to cover costs with $2,500 per pupil and in part because the two largest nonsectarian schools dropped out of the voucher program to become community schools. (That made them eligible for about $4,500 per pupil.) The result is that since 1998, the percentage of voucher students and state money going to the religious schools has risen from 85 percent to more than 99 percent.

A federal district judge and a divided three-judge federal appellate panel stressed these percentages in striking the program down as a forbidden subsidy for religious instruction. This despite the history clearly showing that the program was created not for the sake of religious schools, but for low-income students; despite the availability of alternatives, including the community schools and money for private tutoring; despite the voucher program’s openness to nonsectarian schools in Cleveland and suburban public schools; and despite the fact that not a dime of state money goes to any religious school excepting those independently chosen by parents for their children.

The Bush Administration and a coalition of conservatives and centrists have urged the Justices to uphold the voucher program. On the other side, an array of liberal-leaning groups, spearheaded by the teachers unions, wants the Court to brand it an establishment of religion. Such a ruling would, in effect, drive thousands of poor kids back into failing public schools unless their low-income parents could come up with another $2,500 a year for tuition. Eulanda Johnson, for one, vows to take a second job if it comes to that.

The main legal hurdle for Justices inclined to uphold the voucher program is that they would have to mangle (or overrule) a 29-year-old precedent that voided a voucher plan in New York City. At least five Justices may be ready to do just that. They can cite a more recent line of decisions taking a benign view of government funding of programs that have the incidental effect of subsidizing religious activity, if the programs treat religious and secular groups neutrally and avoid any appearance of "endorsing" religion.

The Cleveland program easily passes the neutrality test. And it’s a stretch to see how this effort to help poor children becomes an endorsement of religion merely because almost all of the private schools currently willing to participate happen to be religious. Indeed, to cite that happenstance as a basis for snuffing out one of the few glimmers of hope in the desolate landscape of inner-city education would look a lot like discrimination against religion.

The post Legal Affairs – Nothing in the Constitution Bars Helping Inner-City Kids appeared first on Stuart Taylor, Jr..