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Monday
Oct142019

Trauma and the Daubert Standard

The following guest post is from Michael Thad Allen. He is a former university professor and left a tenured position at a major research university (the Georgia Institute of Technology) to earn a law degree at Yale Law school. As a university professor, Michael Allen dedicated his scholarship to social justice, researching and writing about the Holocaust and civil rights. His book, The Business of Genocide (University of North Carolina Press) received the 2002 German Studies Association best book award. He is now the principal of Allen Law, LLC and represents both accused students as well as victims in student misconduct hearings at universities and in federal court. Turning to a career in Student Rights Law has enabled Attorney Allen not just to study civil rights but to defend them.

Plaintiffs claiming they were wrongly expelled for false allegations of sexual misconduct in colleges and universities have repeatedly challenged so-called “trauma informed” interview techniques.  Their challenges most often fail: three times in the Federal District Court of Colorado and once each in the Southern District Court of Iowa, the Southern District of Ohio, and District of New Jersey.[1]  Even where students achieve some measure of success, courts have warned, “To the extent that … bias against plaintiff stemmed from a purely ‘pro-victim’ orientation [in methods such as ‘trauma-informed’ techniques], that bias did not violate Title IX or the Equal Protection Clause.”[2]

Trauma Informed Methods and Evidence

“Trauma-informed” interview techniques, also sometimes called “cognitive interviewing techniques” or “forensic experiential trauma interview,” are extremely controversial.  They were widely adopted by the early 2010s in the military, in law enforcement, and among college administrators.  

The champions of these techniques claim that trauma alters human memory:  If you’ve experienced “trauma,” you may not have coherent memories and should be treated differently as a witness.  As a court summarized one social worker’s claims of expertise in this area: 

Faced with trauma, victims go into survival mode and other parts of the brain shut down.  Normal questioning is linear and works on the cognitive part of the brain and is based on cause and effect from the beginning of an event to the end.  When somebody has been traumatized, … [u]nfortunately, when memory is stored in that way, it is being stored in a fragmented fashion.  An initial statement can therefore be fragmented and a victim will fill in the blanks later.[3]

But how to tell “fragmented” memory from evasive, untruthful testimony?  Or “filling in the blanks” from “making stuff up”?

Training slides from the University of Mississippi allegedly instructed Title IX officers: “when Complainants withhold exculpatory details or lie to an investigator or the hearing panel, the lies should be considered a side effect of an assault.”[4]  This is a recipe for transforming evidence of innocence into its opposite.  It is also outright suppressing evidence.  

Major Reggie Yager, an Air Force Judge Advocate who took part in the creation of military Special Victim’s Counsel, argues that this also confuses treatment and justice.  There is a difference when it comes to the task of caring for alleged victims and the task of justly condemning an accused.[5]  Someone seeking help at a crisis center should undoubtedly be met with a presumption of belief.  Every effort should be made to “err on the side of caution and be more inclusive.”[6]  But tribunals of judgment cannot serve as adjuncts to victim support services and treatment.  They must abide by “standards … for punishing people”—among others, the presumption of innocence.[7]  Presuming accusations are true is the opposite.  Excusing or excluding exculpatory evidence has no place.

Critics of trauma-informed approaches take a more straight forward approach.  They simply condemn it as junk science.[8]  

Putting Trauma-Informed Techniques to the Daubert Test

Courts have rarely tested “trauma-informed” techniques under the standards required for expert testimony, known as “Daubert” standards.[9]  These standards are not very rigorous.  Experts usually must be very, very bad for a court to throw them out.[10]

At least one court has expressed skepticism about broad claims made about “trauma” and the human brain.  In a putative class action against a Los Angeles school district, the named plaintiffs had suffered undeniably heart-breaking, violent tragedies, and they alleged additional trauma from “extreme poverty, homelessness, and other socioeconomic hardship; and discrimination and racism” (among other sources).  Trauma, they argued, caused underperformance in school, and they demanded a court order to force their school system to train all teachers and staff about how trauma affected their “ability to learn, think, read, concentrate, and communicate.”[11]  

The court rejected their request.  An expert in the neurological effects of trauma supported their demand, but the court remarked only that this was “somewhat novel” and doubted whether “trauma-informed” theories could support disability-rights claims.[12]  

On the other hand, the California Court of Appeal affirmed a guilty verdict for crimes arising from spousal abuse and methamphetamine possession after an expert had testified about trauma-informed techniques.  The defendant objected to the expert’s reliance on the “trauma-informed” method known as FETI (Forensic Experiential Trauma Interview).[13]  The court brushed the objection aside but did not endorse FETI.  The victim had “not substantially change[d] her account … did not recant her story, and  … was largely corroborated by her eldest daughter.”[14]  Whatever the expert’s commitment to trauma-informed method, the actual evidence did not support one of its basic premises—that trauma of the victim impairs the ability to tell a coherent truth.  This witness did not need to “fill in the blanks.”

Dueling Experts on Trauma?

Throwing out an expert completely is very difficult.  Usually, most parties therefore rebut dubious expert testimony with an expert of their own.  This is sometimes called “dueling experts.”  One problem, however, is that there is almost no way to challenge the purported expertise that a campus court might invoke.  

At the University of Oregon, college administrators relied on expert reports in a case of escalating and changing allegations of misconduct against the accused.  One expert supposedly explained how “trauma can affect victims' memories in a way that could explain the inconsistencies.”[15]  The campus judiciary did not allow the accused student to see the expert report, let alone refute it.  

An example of dueling experts is a Pennsylvania case currently addressing “trauma-informed” theories of memory and historical sex abuse.  Campers at a Cape Cod summer camp have sued as adults, alleging that the camp permitted them to be sexually abused by an older boy.  The case will turn on the credibility of plaintiffs’ testimony about events from many years in the past.[16]

Both sides are calling experts.  The plaintiffs called a Dr. Pittman, who is expected to testify that sexual trauma may cause Post Traumatic Stress Disorder (which few would find remarkable).  But he is also expected to testify about some of the most controversial “trauma-informed” approaches to evidence, for example that the plaintiffs’ allegedly inconsistent account of events can be explained by their trauma.  

The court refused to exclude Dr. Pittman, but it also strictly disallowed him from opining about the credibility of specific factual allegations.[17]  In addition, the court emphasized that the summer camp could call its own rebuttal expert, who is expected to refute “the idea that traumatic memories may be subconsciously suppressed but accurately recovered many years later.”[18]  The plaintiffs, for their part, moved to exclude him.

The court has set up what is called a “Daubert hearing” to decide the parameters of what these experts may testify to and what they may not in front of the jury.  The court’s eventual decision may be the first to squarely addresses both the exclusion or admissibility of expertise on “trauma-informed” approaches to testimony and evidence.

 


[1] Rossley v. Drake Univ., 342 F. Supp. 3d 904 (S.D. Iowa 2018); Norris v. Univ. of Colo., 362 F. Supp. 3d 1001, 1013 (D. Colo. 2019); Doe v. Univ. of Denver, Civil Action No. 17-cv-01962-PAB-KMT, 2019 U.S. Dist. LEXIS 141523 (D. Colo. Aug. 20, 2019); Messeri v. Univ. of Colo., Civil Action No. 18-cv-2658-WJM-SKC, 2019 U.S. Dist. LEXIS 162010 (D. Colo. Sep. 23, 2019); Doe v. Univ. of Cincinnati, No. 1:16cv987, 2018 U.S. Dist. LEXIS 51833, at *8 (S.D. Ohio Mar. 28, 2018); Doe v. Rider Univ., Civil Action No. 3:16-cv-4882-BRM-DEA, 2018 U.S. Dist. LEXIS 7592, at *29 (D.N.J. Jan. 17, 2018).  Doe v. Syracuse Univ., No. 5:18-CV-377, 2019 U.S. Dist. LEXIS 77580, at*20 (N.D.N.Y. May 8, 2019), Norris v. Univ. of Colo., 362 F. Supp. 3d 1001, 1012-13 (D. Colo. 2019), and Doe v. Univ. of Or., No. 6:17-cv-01103-AA, 2018 U.S. Dist. LEXIS 49431, at *47 (D. Or. Mar. 26, 2018).  In two of those cases, the court clearly warned that showing bias in favor of alleged victims is not the same as gender bias are exceptions (indicating weakness in the plaintiff’s case for any eventual summary judgment).  In Doe v. Syracuse Univ., No. 5:18-CV-377, the Plaintiff on a motion to dismiss had put in his complaint OCR training materials from 2014 promoting trauma-informed techniques to ensure " to ensure "the protection of girls and women"—i.e., not only to protect alleged victims in gender neutral terms.

[2] Doe v. Univ. of Or., No. 6:17-cv-01103-AA, 2018 U.S. Dist. LEXIS 49431, at *47 (D. Or. Mar. 26, 2018).

[3] People v. Gonzalez, 2018 Cal. App. Unpub. LEXIS 2756, at *9 (Cal. App. 5th Dist. April 24, 2018)

[4] John Doe v. University of Miss., No. 3:18-cv-00063 at *19 (S.D.Miss. Jul. 24, 2018)

[5] Reggie Yager, What’s Missing from Sexual Assault Prevention and Response, 68, avail. at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2697788.

[6] Id.  

[7] Id.  

[8] Emily Yoffe, The Bad Science behind Campus Response to Sexual Assault, The Atlantic, September 8, 2017, available at https://www.theatlantic.com/education/archive/2017/09/the-bad-science-behind-campus-response-to-sexual-assault/539211/; Sujeet Bhatt and Susan Brandon, A Review of ‘Understanding the Neurobiology of Trauma and Implications for Interviewing Victims:’ Are We Trading One Prejudice for Another?  http://www.prosecutorintegrity.org/wp-content/uploads/2019/09/Review-of-Neurobiology-of-Trauma-9.1.2019.docx.  

[9] Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993)

[10] The Supreme Court has said that where “experts testimony lies within the range where experts might reasonably differ … the jury must decide among the conflicting views of different experts.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153, 119 S. Ct. 1167, 1177 (1999)

[11] P.P. v. Compton Unified Sch. Dist., 135 F. Supp. 3d 1126, 1130-1133 (C.D. Cal. 2015).

[12] Id. at 1142-1148.

[13] People v. Gonzalez, No. F073128, 2018 Cal. App. Unpub. LEXIS 2756 (Apr. 24, 2018).

[14] Id. at *13, *15.

[15] Doe v. Univ. of Or., 2018 U.S. Dist. LEXIS 49431 *, 2018 WL 1474531 (D. Or. March 26, 2018)

[16] R.D. v. Shohola, Inc., 2019 U.S. Dist. LEXIS 136556 (M.D. Pa. August 13, 2019).

[17] Id. at *19.

[18] Id. at *24.

Tuesday
Aug272019

The ABA Just Rejected “Affirmative Consent” Rules for Sexual Assault. Here Are Three Take-Home Lessons for Campus Sexual Assault and Title IX Cases

The following guest post is from Michael Thad Allen. He is a former university professor and left a tenured position at a major research university (the Georgia Institute of Technology) to earn a law degree at Yale Law school. As a university professor, Michael Allen dedicated his scholarship to social justice, researching and writing about the Holocaust and civil rights. His book, The Business of Genocide (University of North Carolina Press) received the 2002 German Studies Association best book award. He is now the principal of Allen Law, LLC and represents both accused students as well as victims in student misconduct hearings at universities and in federal court. Turning to a career in Student Rights Law has enabled Attorney Allen not just to study civil rights but to defend them.

The American Bar Association just rejected a proposal to incorporate “affirmative consent” into American criminal law.  There are three take away points for campus rules regulating sexual assault and Title IX enforcement:

  • “Affirmative consent” rules lie far outside the mainstream of American justice, despite their almost universal adoption by the university and college campus quasi-judiciaries.
  • Campus sex rules increasingly separate colleges as a world apart from mainstream understanding about consensual sex.
  • Advocates of “affirmative consent” are unabashed utopians.  In last week’s heated debate within the ABA, “affirmative consent” advocates proposed to create new social values by making more common understandings of consent to sex illegal.

The ABA Overwhelmingly Rejected “Affirmative Consent” Rules for Sexual Assault

Last week the American bar Association overwhelmingly rejected a proposal that, if passed, would have aligned the United States’ leading professional organization for practicing attorneys behind an “affirmative consent” standard for the criminal law of rape.  This would have aligned the criminal law with higher education conduct codes enacted to end rape on campus. 

The ABA, however, overwhelmingly rejected “affirmative consent” by a vote of 256 delegates to 165.  The ABA’s Criminal Justice Section also unanimously withdrew support for the measure.

In 2016, the American Law Institute had already rejected a similar proposal for the Model Penal Code.  The Model Penal Code is an influential model statute for criminal law that the ALI has published and updated since 1962 as a guide to state legislatures.  It represents the codified thought on criminal law by countless judges, practicing lawyers, prosecutors, defense attorneys, and law scholars over the course of over half a century.

Activists have promoted the “affirmative consent” standard since the early 1990s.  This younger movement still claims quite a pedigree.  It arose first on liberal-arts college campuses.  Its origin is usually attributed to a student group called the Womyn of Antioch at Antioch College, who successfully petitioned their school to amend its code of conduct in 1991.

The Womyn of Antioch wanted a requirement of “sexual consent,” defined by, among other things, asking for and obtaining an unambiguous “Yes.”  They placed the burden on the person initiating sex to ask for the unambiguous “Yes.”  Previously, Antioch focused on sexual misconduct based on whether someone said, “No.”  Antioch adopted the 1991 rule to insist on a “yes-means-yes” standard.  The eventual rule had no fewer than 14 elements defining the unambiguous “Yes.” 

The ABA proposal was not so complex.  It defined affirmative consent as “the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact … expressed by words or action in the context of all the circumstances.”  And the proposal also expressly rejected “any requirement that sexual assault victims have a legal burden of verbal or physical resistance.” 

Under this standard, where an accused cannot show evidence of affirmative consent, he is guilty of rape. 

Many argued, including the National Association of Criminal Defense Lawyers and eventually the Criminal Justice Section of the ABA, that this unfairly placed the burden of proof on the accused, which is antithetical to American criminal law.  The burden of proof in a criminal case is on the state, not the defendant, who is presumed innocent until proven otherwise. 

This should also hold for the campus context.  The burden of proof is supposed to fall on the university’s quasi-judiciary, not on the accused student to prove innocence. 

The Difference Affirmative Consent Makes in the Rules of Sexual Misconduct

Consent is not a newly discovered concept.  “Consent” remains definitive in the crime of sexual assault, even where “affirmative consent” rules do not apply.  In my state of Connecticut, for example, sexual assault is defined as compelling another person to engage in sexual intercourse by the use of force or by the threat of force – that is, against the person’s will and consent.  Likewise, engaging in sexual intercourse with an individual who is mentally incapacitated “to the extent that such other person is unable to consent” (e.g. through drugs or alcohol) is also 1st Degree Sexual Assault in Connecticut.  These are mainstream definitions of rape and consent has always been a part of them.

But advocates of “affirmative consent” want to go further.  Under their definition, it would be sexual assault unless there is evidence of an affirmative expression of consent given by the alleged victim, either through unambiguous actions or express words. 

Given that no accusation of rape is brought unless the alleged victim claims that the sex was non-consensual, this is why opponents object that “affirmative consent rules” automatically place the burden on the accused to prove innocence.

Advocates of “affirmative consent” rules share an obviously laudable goal: they want to support everyone’s right to have sex only when they want to.  Few would deny that many women as well as men have been victims of sexual assault but have not received justice.  Advocates object to laws that require evidence of coercion, incapacitation, or use of force for there to be a criminal prosecution of “rape.”  The universe of sexual contact that is genuinely unwanted includes much more behavior than violently coerced sex or the full incapacitation of the victim.

Advocates would therefore significantly lower the threshold for rape:  For example, if someone alleges that they did not consent to sex but what was said was misunderstood, this would be a viable claim of rape under affirmative consent statutes despite the absence of any coercion and even if the alleged victim remained sober, in full control of the power to say, “no.” 

Take Away #1: “Affirmative Consent” Rules Are Not Mainstream

But the “affirmative consent” movement is outside the mainstream of American law. 

No states have adopted affirmative consent as criminal law.  Almost all criminal law lies in the sovereign authority of the states, not the federal government.  It is decentralized.  But neither “red” states or “blue” states have adopted the affirmative consent standard.

Now both the ALI has rejected this standard for the influential Model Penal Code and so has the American Bar Association.  It therefore appears unlikely that states will change their mind in the foreseeable future. 

A small minority of states have adopted affirmative consent rules, but in only one context, namely exclusively for college campuses.  These states include Connecticut as well as California, Colorado, Illinois, and New York. 

This rejection of “affirmative consent” in the criminal law makes clear that campus rules governing sexual assault are not the norm.

Of course, colleges and universities, especially private ones, are fee to adopt their own rules of student conduct independent of the criminal law.  Across the country they have almost uniformly adopted some form of affirmative consent through student codes of conduct or other policies, handbooks, and honor codes.

The practical effect is that sex on campus—but nowhere else—is subject to completely different rules.  Higher education has set up new sex rules that apply only to college students (and in some cases to faculty).  These rules apply nowhere else and to no one else, but they do not conform to widely accepted definitions of sexual assault and rape in the rest of society. 

Take Away #2: Higher Education Has Become a World Apart for Sex

Higher education is the only domain in which “affirmative consent” rules have taken root.  The university has always been a world apart for the pursuit of truth and learning.  Now it is becoming a world apart for private sexual relations. 

It is easy to understand how this basic impulse arose.  Few would disagree that the mission of universities is to educate young men and women from all backgrounds with the knowledge they will need to push forward the frontiers of science and learning and drive the great American project forward.

It seems less clear, however, that universities should be regulating the intensely private realm of sex via quasi-criminal rules over which administrators in campus judiciaries sit in judgment.

For one, federal courts are signaling that the separate university sex rules are not accepted as a legitimate function of higher education.  The campus quasi-judiciaries are now being sued everywhere by experienced higher education law attorneys, and the plaintiffs are winning. 

As only one example, a judge just ruled against Harvard University, arguably America’s most prestigious university with the greatest, world-wide name recognition.  In that case, Harvard proposed to end same-gender fraternities, sororities, and other social clubs.  It saw these as undesirable institutions encouraging unwanted sexual behavior among male students and encouraging unwanted acquiescence among female students.  Harvard argued for the necessity to end backwardness in sexual relations and cast opponents of the new policies as proponents of misogyny, bigotry, and other social ills. 

The policies were targeting—not criminal behavior that everyone abhors and recognizes as sexual misconduct—instead Harvard was purportedly aiming for a lofty goal to “produce individuals who … act as modern men and women should” with regard to sex. 

The court disagreed and answered, “No.”  The policy violated Title IX.  It was Harvard, not its opponents (at least on the facts presented in the complaint), that presumed archaic stereotypes of male and female behavior based on gender.  And this is an illegal violation of the law of Title IX.

Advocates of new campus procedures and sex rules have also attacked fundamental due process rights such as the right of cross-examination and the presumption of innocence.  The position seems to be that centuries old, bedrock traditions of American law endanger the mission of schools like Harvard and many others to create a new regime for campus sex, which proposes to protect students with campus sex rules. 

These advocates may certainly be correct in that due process rights may well impede the social change they so passionately desire.  But changing social values is a messy business, and many, including many prominent feminists, do not see the law’s traditional stickiness in the face of change as an undesirable outcome.  The increased number of lawsuits against universities and colleges throws into stark relief that campus judiciaries not only operate in a world apart, but that the larger world does not necessarily accept their authority over individuals’ private sex lives.

Take Away #3: New Women and New Men

The proponents of “affirmative consent” are utopians.  As Harvard’s justification for eliminating same-gender organizations suggests, the affirmative consent movement aims to create new sexual norms, new men, and new women.  Its advocates are unabashedly utopian in this sense.

This was made clear by the labor and employment attorney Mark Schickman.  He was the Chairman of the ABA Commission on Domestic and Sexual Violence and led the “affirmative consent” movement within the ABA. 

In promoting “affirmative consent,” Schickman wrote to all ABA delegates in an email, since made public through a criminal defense blog.  He vehemently disagreed with any and all who opposed the affirmative consent standard, because, he asserted, they hold the view that “the law is not a vehicle to change social mores.” 

“We think it is,” he trumpeted.  There has rarely been a franker statement that the purpose of “affirmative consent” is to fundamentally change Americans’ sexual values and practices.

Undeniably, advocacy movements promote social change.  They seek, sometimes successfully, to form broad public coalitions around new values.  Social progress is scarcely conceivable without this process.  But Schickman and his allies have a different strategy: that want to make illegal mainstream standards for consent and responsibility in ordinary, private sex, standards widely accepted and practiced by both men and women. 

In the face of resistance, he accused his opponents of being “anachronistic,” standing on the wrong side of history, degrading women as “spoils of war,” treating women as property, and many other things.  The gist (as relayed by one observer): people, including many women, who disagree with Schickman and his fellow advocates are considered the moral equivalent of knuckle-dragging troglodytes. 

This hardly seems likely to make friends and influence people, let alone change mainstream expectations about consent in something as private and freighted with conflicting emotions as sex.

Wednesday
Aug142019

Police Presence on Campus: Examining Safety for Students of Color 

In recent years, there have been several critiques on the use of force by campus law enforcement officers, also called campus police. These reports range from claims of excessive forceand claims of lack of force. In 2015, the Bureau of Justice Statistics released a 2011-2012 academic year analysisthat compares campus law enforcement statistical data to the 2004-2005 academic year. The findings show the following: 

  • 75 percent of campuses used armed campus law enforcement officers during the 2011-2012 academic year while 68 percent of campuses used armed campus law enforcement officers in 2004-2005;
  • Out of the campuses using campus law enforcement officers, 92 percent of public campuses used sworn police officers, and 38 percent of private campuses used sworn police officers;
  • 94 percent of the sworn officers used were authorized to use a sidearm (oftentimes a firearm) and pepper spray, and 93 percent were authorized to carry a baton.

It is important to note that campus police typically have jurisdiction that extend beyond campus parameters. With this in mind, consider what happens when you have locked-and-loaded officers who can wield power on and off campus and who are ill-trained to interact with people. A likely and dangerous end result is police enforcing their authority on non-students on the campus. Even with technology, such as body cameras, police behavior can be and often is upheld because “[people will] have to make [their] own determination about that [they] saw in the video because we can clearly see one hand – we can’t see the other.” Whenever this is the case, officers will always be given gift of presumed innocence, so even if there is nothing in the other hand, the victim still must prove that there was nothing in that hand. Even after proving that there is nothing in the hand, the victim still falls short for making the officer feel like something was in the hand. All in all, that presumption of innocence for officers trumps all else.

The list above contains data that is especially concerning for people of color. Even in spaces, such as college and university campuses, where students are supposed to be safe, students of color are still not able to be safe because there are officers who may shoot them for the wrong moves. The Clery Actrequires that all colleges and universities report data pertaining to campus safety and security. The 38 percent of private institutions, though, as indicated in the short list of data above, may not always follow these reporting guidelines. Note that private police are not obligated to respond to FOIA(Freedom of Information Act) requests, and because of this, there may be difficulty with verifying information reported, if was reported. Further, because jurisdiction is not limited to college/university campuses, this means that people in the community are also in dangerbecause they may encounter campus law enforcement officers. 

The ideas of safety and protection have to be re-evaluated. Trusting the police to protect all students when only 40 percent of Black Americans (compared to 68 percent of White Americans) have favorable perceptions of policebecause they feel unprotected by them is a flawed system; arming police officers and letting them run loose in presumably safe spaces without proper training and effectivity assessment further endangers students and the community. Reporting data—as required under the Clery Act—is not going to bring back lives, end harassment, or improve the learning experience for students of color. It is clear that there is no uniformity in the expectations on addressing student concerns, and that is grossly dangerous (Word to University of Utah). All in all, officers need more training, not more weapons. Because they’ll already be on the college/university beat with readily available classrooms, they are already in the place with style and grace. Let’s sign them up! 

Sharanda Norman is a mother, a faculty advisor for Oregon State University’s student government, and a PhD student at OSU studying Adult and Higher Education with a concentration on Leadership in Higher Education. Her areas of research and interests are Black women scholars, college success narratives, and equity in student affairs.

Sunday
Jul282019

Uncharted Waters: Using Social Media in Educational Institutions’ Decision-Making

The Internet has drastically changed the way individuals in society interact with each other. As social media sites are evolving, they are increasingly used around the world, and millions of individuals engage in online activity daily. While some use social media to stay connected with world news, others use social media as a platform for expression, sharing photos, videos, and communicating ideas with others. Social media has become so integral to society that the US Supreme Court ruled unanimously in 2017 in Packingham v. North Carolina that access to social media is a fundamental right protected by the First Amendment under the free speech clause. As one of the first cases that addressed the connection between the Internet and the First Amendment, the Justices claimed that cyberspace, and specifically social media sites, are public spaces where ideas should be communicated and freely exchanged. More recently, the United States Court of Appeals for the Second Court, ruled unanimously that the First Amendment prohibits officials using social media for official government purposes cannot exclude people from online dialogue. 

With the rise in social media use, especially among teenagers and young adults, more educational institutions are requesting access to social media usernames and passwords. While the majority of college staff and prospective students believe that using social media in admissions decisions is “fair game,” many others claim viewing students’ social media and using the information to rescind acceptances is an invasion of privacy. In the name of privacy protections, at least sixteen states have created and passed social media privacy laws to protect students from educational institutions requesting access to their username and/or password for personal social media accounts. Students using social networking sites may “expose them to legal liability or the loss of a degree, job or scholarship” and can cause complications if universities attempt to discipline based on social media postings.

While accessing social media may be a fundamental right as ruled by the United States Supreme Court and privacy of online content is protected in some states, posting online has not proven to be free of consequences. Most recently in June 2019, Harvard University used information obtained from online and social media sites to review and rescind an admission offer to a well-known Parkland school shooting survivor citing racist posts as the rationale to rescind admission. The prospective student claimed he changed, and what he posted a year prior does not indicate who he is as a person as he looks to transition to college. This is not the first time an admissions office has used online posts to rescind offers. Harvard has previously withdrawn acceptances from other students based on online behavior. Additionally, another student’s admission was revoked when a social media postexposed a web of lies used to gain acceptance to the University of Rochester. 

Questions concerning individuals’ First Amendment rights in concern with social media continue to rise. As courts have yet to face issues all-encompassing of free speech and social media, a review of previous court rulings will be important. Bradenburg v. Ohio confirmed that speech that does not present a clear danger should not be prohibited or penalized. Open dialogue, including social media postings, even with those that one most disagrees with is within the spirit and protection of the First Amendment’s freedom of speech clause. While many school officials may not find online social media posts in good taste or supportive of a welcoming campus environment, students’ have a right to access social media and speak freely. However, while prohibiting or punishing individuals’ based on speech for public institutions is not allowed, private educational institutions, as are the institutions above, have different abilities to preclude individuals from enrolling based on moral character established in social media posts. Public or private, educational institutions should craft clear policies on social media and students’ behavioral expectations to prepare for a new era of online public forums, the First Amendment, and challenges to campus civility. 

This guest post was authored by Jamie Storey, Interim Associate Director of Academic Advising and Assistance and doctoral student in Educational Leadership at Central Michigan University. 

Friday
Jul262019

Should free college be a legal right in the United States?

Free college tuition is a hotly debated topic especially as we edge toward another election.  In many states, community colleges have already become tuition free. Some politicians have argued that this is not enough.  Senator Bernie Sanders and Elizabeth Warren, both 2020 presidential candidates, have included tuition free higher education as part of their presidential platform. This post will explore some of the current political arguments for free higher education including some specifics of the proposals, look at the legal argument for making changes to current tuition policies, and conclude by examining how the proposal of free higher education lines up with prior rulings on education.      

Warren and Sanders are not the only ones proposing free higher education, but they have had loud voices in the fight.  Both have proposed legislative changes to make free higher education possible.  According to a piece in the Atlantic, Warren is calling for universal free public college which will be paid for with an “‘ultra-millionaire tax’ - an annual 2% tax on families with $50 million or more in wealth.” She particularly points to higher education and the subsequent debt that it results in for many families as being a burden on black Americans and sees current tuition as undercutting civil rights. As described on Sander’s webpage, he has also proposed a need for higher education, saying it is essential to compete in the global economy.  He has proposed legislation that would provide $70 billion a year in assistance for higher education tuition.  Two-thirds would come from the federal government and one-third from states.   

Some legal scholars have also taken up the argument for changes to current college tuition policies.  Heidi Gilchrist, an Assistant Professor of Legal Writing at Brooklyn Law School, has written a law review article saying that higher education is a human right.  She argues that “although the right to higher education may sound lofty or like a luxury at first glance, it is not. To deny someone with capacity access to higher education is to deny them their full dignity and potential as a human being.” She sites international law as well as civil rights and education laws including Brown v. Board of Education(1954)Plyer v. Doe(1982), and Tayyari v. New Mexico State University(1980) as support for free higher education.  In each case, the decisions included an argument that education was a right that should not be denied. 

John R. Brooks, an Associate Professor of Law at Georgetown University Law Center calls higher education “quasi-public good.” He makes a case not for free higher education but for subsidizing it through taxes and creating more income-driven repayment plans.  He argues higher education is now essential and has a direct connection to social mobility, so therefore needs to be attainable and currently is not for many people.  

As discontent grows over the cost of higher education in the U.S., the words of the U.S. Supreme Court Justices in Brown v. Board of Education, “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms,” will need to be further examined. The new question proposed by politicians and legal advocates seems to be is K-12 education enough anymore or is higher education essential? Most seem to agree that current tuition trends mean that the opportunity of higher education is not equally available to all.  

This is a guest post from Leah Arambel; she has been a professor of English for the last fourteen years and coordinator of the Reading Across the Disciplines program for the last six years at American River College in Sacramento, California, and a doctoral student in the Higher Education Leadership program at Oregon State University.