Lock ’em Up?

A few years ago, when my son was 12 years old, he painted on a wall at a public school. He got caught immediately, confessed his guilt, and after serving 52 hours community service, paying restitution, taking a victims rights class, and staying out of trouble for six months his suspended sentence was expunged. To this day he can barely talk about it because the mortification is overwhelming. Someday he will probably be able to acknowledge that the whole experience made him a better person–he became far more responsible, and to this day he is the most empathetic teenager I have ever known.

I have been thinking about that experience a lot lately as I read about the “campus sexual assault crisis” and the various dramas at universities trying to deal with the intersection of young adults, alcohol, sexual freedom, predatory behavior, bro culture, and on and on and on. I will not wade into the question of whether there really is a sexual assault crisis on America’s university campuses or whether we have redefined sexual assault down to incorporate normal behavior–I don’t know nearly enough about the data or the methodologies to even have a valid opinion.

What has struck me instead is the disconnect between my son’s experience and the experience of young men on college campuses accused of sexual assault. The question that nags at me is, why are colleges dealing with the aftermath of sexual assault allegations at all? Certainly universities are responsible for the environments they create. They are responsible for policies about on-campus behavior that foster a safe learning and living environment. The ways that they deal with sponsored activities, Greek culture, athletic teams, and alcohol in dorms are all matters for open and probing discussion–prevention is their business. Investigation and prosecution are not. Or they should not be.

In today’s New York Times, Jennifer Weiner leans heavily on the idea that justice is applied to young men disproportionately based on race, and that is no doubt true, but my son’s case indicates it is not the only variable. He was an upper middle-class white kid standing before a judge facing a possible one year jail sentence when he was twelve–for painting on a wall. Why are universities adjudicating allegations of serious crimes in any way except to refer them to legal authorities?

I have a hypothesis, but I’m not sure how you would test it. Public K-12 schools are mandated government institutions. They are battling budget pressures, ever growing and shifting mandates, demanding parents, neglectful parents. They have a legal obligation to take just about every kid and provide a vast array of services. If they are too lenient with trouble-makers they face public backlash from parents whose kids suffer. If they are too harsh, they face public backlash from privileged parents, activist parents, the press, etc. I challenge you to find a public school teacher who does not have a story about some parent whose child could do no wrong and who made it his or her life’s mission to coach the teacher in the proper care and handling of the little darling. Trying to mete out discipline in such an environment is an invitation to angry parents, public accusations in the press, and even litigation. There’s not much upside except for the proper development of our children. I suspect most educators would prefer to handle discipline issues rationally but not at the risk of their jobs, their pensions, and their reputations.

Universities are operating in a different environment. In The Death of Expertise Tom Nichols delivers an impassioned but convincing argument against the idea of the student as consumer. In a nation of vastly expanded higher education options, universities compete ruthlessly for the best students. As budgets shrink, public universities are under ever-increasing pressure for tuition, grants, donations, and incidental income. The results have not been good–excessive spending on administration and amenities, inappropriate deference to students’ feelings and prejudices, an erosion of the authority relationship between students and faculty, just for starters. In that environment, schools are walking a tightrope on sexual assault allegations. Do too little and you risk an explosive scandal and substantial liability. That danger would seem to motivate the sort of maximalist approach we see in the public K-12 schools, but there is an additional variable. Public prosecution will put your university in the news, and not in a good way. How many of those helicopter parents who drove the 10th grade English teacher crazy will choose not to send their little darling off to Big State U as a result of a highly publicized sexual assault trial? We know that human beings in general are not very good at assessing risk. We know they are even worse at it when the news media distorts their perceptions by fixating on certain telegenic (but not very common) crimes. I can attest personally that parents are inclined to vastly overestimate risk to their children–it’s part of why we have survived as a species. Parents are not well equipped to evaluate or even gather the evidence regarding variable sexual assault risk between universities. One spectacular trial could constitute a public relations and recruiting disaster.

I suspect the dynamic above accounts for at least some of the inequity we see in treatment of discipline issues between various levels of education. Universities have a perverse incentive to quiet accusations while taking sufficient action to inoculate themselves from litigation and scandal. The risk of scandal from doing too little is greater than the risk of scandal from denying due process to the accused. Universities’ tradition (now largely defunct) of acting in loco parentis provides a framework and a level of comfort with the in-house disciplinary approach. That is all understandable, but it is not the proper solution. If we want to protect students from sexual assault (and other serious crimes) and ensure the due process rights of students, who after all are almost all legal adults, then we should subject them to the same criminal justice system that would apply if they did not pay $25,000 tuition and ace the SAT. Treat alleged sexual assault by a 20-year-old with at least the same seriousness we apply to minor vandalism by a 12-year-old.

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