Why Universities Often Ignore the U.S. Constitution

By Richard Vedder. In the Golden Age of higher education, defined as when I attended school (around 1960), colleges were viewed as oases of free speech with full respect for First Amendment rights. In 1964, for example, the school where I teach, Ohio University, allowed a hateful leader of the American Nazi Party to spill his venom on the campus, believing free and unfettered peaceful expression of ideas is the hallmark of a good university. The American Association of University Professors’ successful fight for tenure was predicated on the proposition that free expression of ideas without repercussions is critical to the functioning of a community of scholars.
How things change. Colleges today aid and abet the suppression of ideas that are not those accepted by the prevailing leftish establishment of intellectuals that dominate Ivory Towers. University speech codes are a prime example, and it is noteworthy that the Foundation for Individual Rights in Education (FIRE) has never lost a lawsuit filed to end these outrageous assaults on freedom of speech and expression.
The latest outrage was prompted by the Obama administration’s assault on due process in campus judicial hearings. The Office of Civil Rights has stated that in campus rape cases, it “strongly discourages” universities to allow the accused to confront and cross-examine the accuser, a basic right of citizenship. If the accused is found innocent, the accuser can appeal to a second panel—double jeopardy, explicitly outlawed in the Constitution in formal legal proceedings.
Worse, the standard used to evaluate claims must be “predominance of evidence,” which roughly says that if a jury is 60 percent sure the accused is guilty, but 40 percent not sure, they should find him guilty anyhow. And, I forgot to mention, the judge and the jury are one and the same, and not randomly selected.
Now, this is not unexpected behavior from an Obama administration so out of sync with the American people, as recent polls show. But as Peter Berkowitz put it brilliantly in a Wall Street Journal commentary, where are the professors, the deans, and the college presidents? Why are they not fighting this outrage, this assault on the rule of law and sacred and long-held Anglo-American legal principles? (By the way, I predict that the courts ultimately will throw out some or all of this foolishness, when groups like FIRE or the Institute for Justice get the right case to litigate.)
I think there are three reasons for university inaction: money, hubris, and institutional independence. College presidents probably would not sell their mothers or daughters into prostitution if the money was good, but I am less sure about cousins, nieces, and nephews. College presidents will abandon principle and fighting for justice if the bribe for their silence is large enough.
As to hubris: Many academics think that they are truly super smart and that this gives them uniquely superior wisdom to make decisions for the good of lesser human beings. The intellectual mind is often an intolerant, closed mind, one that is more authoritarian than democratic in character. Thus if the University Establishment believes that rape is such a horrific crime that the ordinary and, to them, archaic, rules of fair play and due process should no longer apply, so be it.
Finally, to protect universities from intolerant public protests and political interference—in short, to protect academic freedom—society has given them a lot of independence (which really means lack of accountability). Thus to them the regular judicial procedures need not apply. Ironically, it was the Supreme Court, in Dartmouth College v. Woodward (1819) that greatly reinforced this independence (New Hampshire was rebuffed trying to force Dartmouth into becoming a state-supported college).