Campus Sexual Harassment

Dr. Jacobson at College Insurrection has a complaint about a sexual harassment case at UVA. I happened to have an opportunity to talk to the woman who is in charge of a similar code governing another major Southern university about how these codes developed.
The Office of Civil Rights’ mandated procedures for investigating sexual assault are tilted heavily against the accused party... [and] judge the student according to a 50.00001 percent preponderance of evidence standard, an approach that mocks even the pretense of due process....

It is remarkable, then, that one such accused student at the University of Virginia was exonerated of the charges brought against him. Unfortunately, what happened next was unsurprising.

The accuser hired an outside attorney–none other than controversial victims’ rights lawyer Wendy Murphy–and filed a complaint with the Office of Civil Rights. Murphy’s argument, as expressed to, comes close to saying that a failure to convict amounts to an OCR violation. “The preponderance standard is simple,” she told the newspaper. “When her accusations are deemed credible, and his denials are not described with the same glowing terminology, she wins.” But under the UVA system, the investigators (serving as the equivalent of a grand jury) have the authority to deem an accuser’s claims “credible.” For the OCR even to consider such an absurd claim would be highly problematic.
What I did not understand until my recent conversation was how much our campus sexual-harassment environment is the product of lawsuits rather than legislation. It is true that the OCR sees enforcement of these codes as a kind of civil rights campaign, but the actual mandate they are enforcing was largely produced by court cases where students sued the schools for having inadequately protected them. The courts accepted that the schools were liable, and said that they would need to have clear procedures in place to handle these cases. Then, when schools created such procedures, time and again they were found liable anyway, forcing the procedures to become even more tilted.

The most recent comprehensive guidance from OCR is here. Note that the letter is addressed to the colleges, and is all about what standards the colleges have to adhere to in order to avoid liability. They cannot leave investigations to the police, for example, nor defer to the courts. They cannot defer on issues that happened at private homes, or indeed anywhere off campus. They must take immediate action of some kind on any complaint whatsoever. They are required -- by SCOTUS precedent -- to adhere to the preponderance standard. If they do not do these things, they will be liable in court.

This current complaint is thus one in a long series of lawsuits that have pushed the standards a little further by seeking judgment against the school in spite of their adherence to established procedures. Such lawsuits have succeeded fairly often -- that's how we got here. The next OCR letter may well instruct the schools that, based on the outcome of this case, if they want to be safe from a liability judgment in court they must regard the accusation in itself as meeting the preponderance of evidence standard.

What troubles me about this is that we've built a rather terrifying system in such an ad hoc manner. This is one occasion where some legislation would actually be welcome. It would be wise to take this cobbled-together monstrosity and replace it with a carefully constructed, fully-considered law that included adequate protections for both parties to the conflict.

Of course, for that to happen we would have to have a legislature that was capable of producing a fully-considered law on any subject at all, let alone one so fraught as this. Judging from the recent Presidential and Congressional campaigns, it is impossible to imagine that our political system is capable of that.


E Hines said...

There are two critical points concerning the OCR letter.

1) OCR is an arm of the Department of Education; it has nothing to do with the Department of Justice. Thus, we have "educators" doing the job of Justice.

2) The letter not only "requires" the standard to be a preponderance of the evidence, it directly attacks the defendent's 5th Amendment rights: on a finding of "didn't do it," the accuser isn't required to hire[] an outside attorney...and file[] a complaint with the Office of Civil Rights. She can bring her complaint anew in the original venue--at the school in question--only this time with a different "jury."

On top of this, the letter also says in so many words OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. So much for any right of an accused to confront his accuser.

Eric Hines

Grim said...

Thus, we have "educators" doing the job of Justice.... 5th amendment rights...

Well, see, no. It doesn't replace the justice system -- criminal charges can still be brought if appropriate, for example. You have all the ordinary rights there. What it does is require colleges to police the lives of their students, grad students, professors, employees.... anyone associated with them, really. And it requires them to do this in a way that is very different from the criminal justice system. But it's not a violation of your rights, because you still have those rights in the courts. This has nothing to do with the courts. It's a collegiate system.

What's really going on here is that the colleges are trying desperately to stay out of the courts themselves. These systems allege that their purpose is to protect women (and other protected categories, such as racial minorities and so forth) from harassment. What the systems really exist to do is to protect the universities from expensive judgments.

So most of the time what happens, I gather, is that a complaint is made. The college conducts an investigation, finds out nothing much, and issues a "punishment" on the order of requiring you to show up for training on sexual harassment policies (including the rule that you can't retaliate against the person who accused you, if you figure out who it was). And that's about it.

But sometimes they uncover evidence that some real harassment has taken place, and they take stronger measures. These can go as far as expulsion from the school for students, or firing for employees. But if they uncover a crime, they can't do any more than refer it to the police for a separate, criminal investigation according to traditional standards.

William said...

So, Is there a legal understanding that since being party to the academic institution is a voluntary choice on the individual's part, being subject to their internal procedures is contractually binding and not a legal issue? Of course, in many professions, academia is now the only option for entry and advancement... It's a fools game.

William sends.

Cass said...

Allow me to play Devil's advocate here. I happen to think Grim did a great job of outlining the issues here, but still I think there's one point that's worth making.

Do we really want to suggest that private or non-governmental entities have no right to exclude or refuse to provide services to or refuse to endorse or certify people who do things that are reprehensible to them unless the offense can be proved beyond a reasonable doubt (the standard in a criminal case)?

Do we want to do this even if that means they risk being sued themselves (the point Grim made so well) or worse, they are forced to become unwitting accomplices or enablers? Let's use Jerry Sandusky as example. He was accused - several times - of improper relationships with young boys.

Should Penn State have been powerless to fire or sanction him absent a criminal verdict?

Should the charities he worked with have been powerless to disavow him or refuse to work with him absent a criminal verdict?

As a general rule, the worse the penalty the higher the burden of proof is probably a pretty good rule, especially in cases involving accusations of sexual assault where the facts can be difficult to establish.

I've said this before, but I attended a school where students were regularly kicked out of school on no more than a verdict from a student honor court. Do you want the government to pass laws preventing this?

I don't. It's a question of balance.

Tom said...


I agree with your sentiment. However, it seems that successful lawsuits have pushed universities to this; they didn't adopt these rules because they thought they were right. I don't think such lawsuits should have been successful; leaving crimes to the justice system shouldn't be the only option, but it should be an option.

Without knowing more, it's difficult to say how this should be addressed. However, I think I would support legislation that reduced a university's legal obligations to protect students so lawsuits wouldn't be successful if the university chose to let the legal system handle these things and then let the universities decide on their own whether or not they would do more.

MikeD said...


I don't disagree with anything you said. However, I think the troubling element here is that even given the standard of "50.00001 percent", a student was found to be innocent of the accusation. And the loser (who of course didn't like the outcome) hires an attorney and argues that the very fact he was found innocent by the OCR is itself an OCR violation.

I am all in favor of allowing private associations the right to refuse service to any and all they so choose. What I am NOT in favor of is bullying them to remove people at the merest allegation of wrongdoing whether they think there's any truth to the accusation or not. If the standard does become "an accusation is a conviction", then you're going to see witch hunts and retaliations surge. And sure there will be backlash and the pendulum will eventually swing back, but how many lives will be damaged (I won't say "destroyed", but damage WILL occur from being thrown out of a university for sexual harassment) in the meantime?

Grim said...

In addition to the freedom of association issues you all are raising, there was a middle ground between "preponderance" and "no reasonable doubt." This was actually UVA's standard for decades: it was that evidence had to be "clear and convincing," leading to "a high probability or reasonable certainty."

That standard meant you could move on removal even with a number of reasonable doubts, if you had a pretty good sense that the claim was probably true. However, that standard is no longer an option, because of some previous lawsuit like this one.

Cass said...

And the loser (who of course didn't like the outcome) hires an attorney and argues that the very fact he was found innocent by the OCR is itself an OCR violation.

And I don't agree with that - clearly, it's nonsense and should be vigorously opposed.

What I'm objecting to is the suggestion that only a criminal standard is good enough, and further that the legislature ought to weigh in and tie the hands of private or non-govt. entities.

Don't we have enough of that top-down stuff going on? People - and justice - aren't clear cut, scientific, or infallible. I get more than a tad alarmed when I hear conservatives get on the individual rights uber alles bandwagon.

It's *balance* that's important, in my mind, and that's a difficult thing to get right. I prefer to err on the side of not having rigid top down rules binding us. we learn by trial and error and that can be really messy.

Cass said...

This was actually UVA's standard for decades: it was that evidence had to be "clear and convincing," leading to "a high probability or reasonable certainty."

Interestingly enough, the private HS I graduated from was modeled on UVA - honor court and all :p

UVA was the #1 destination school for graduating seniors, and the headmaster and a good number of the faculty were Cavaliers.

All of which made me bound and determined not to apply to UVA. Still, it was a good school even if I frequently chafed at it.

Grim said...

Well, obviously enough, for us it was UGA. Every high school around was the "Bulldogs" if they could get away with it -- including mine.

We didn't have honor courts as at that time. Honor was then considered to be a personal matter, not pertaining to institutions as such. Any board that decided it felt competent to question my honor could expect to meet me, individually, on a field appropriate for settling questions of that sort.

But that is the old fashion indeed. We kept to it in many ways, back in the hills of Georgia.

Cass said...

Any board that decided it felt competent to question my honor could expect to meet me, individually, on a field appropriate for settling questions of that sort.

But does that settle the question, Grim?

If you cheat on an exam and your school calls you on it, and you meet on a field and you beat the tar out of them....

You proved you could beat them up. You didn't prove you were innocent, nor did you settle the question of whether you cheated or whether the school should expel you or not.

By this method, good fighters can do no wrong. Might makes right. That's a problem for me.

The other system (the honor court) is also very old fashioned. It is not perfect, but seems much more suited to dealing with that kind of question.

Grim said...

In a way the question you are asking is beside the point. Where I came from -- and it no longer exists, destroyed by the expansion of Atlanta's suburbs -- the issue you are raising would never have come up at all. To question a man's honor was to put him in a position from which he had no choice but to fight. Thus, in a way it's no issue at all: why ask if it was right or wrong if it was necessary?

Still, your point is a point with a respectable lineage. You are raising a point, for example, that Malory makes a lot of in his treatment of Sir Lancelot in Le Morte D'arthur. Lancelot never lost a judicial duel; and, given that he was especially devoted to serving women, that meant that women at the court were essentially liberated by his valor. Some of them used this well, to free themselves from oppression or false accusations; others, like Guinevere, sometimes used it well and sometimes hid behind it.

Still, if one man is willing to fight six or eight over a point of honor, and endure the pain and punishment that comes from doing so, he has endured a great deal over the question of honor at issue. It's a substantial cost to bear over an issue of honor, and a corporal punishment greater in actual severity than any the board could likely issue. That tends to raise the cost of defense to a point that a transgression serious enough to raise a charge is less likely.

The old system -- especially when it was a question of death, and not simply of fighting -- raised matters of honor to a very high place. It didn't always achieve a perfectly just result, but neither does any other system. It did make these matters a serious question, at the very core of what it meant to be alive and a member of that community. That's what we want matters of honor to be.

MikeD said...

I think Cass' broader point is that while Trial by Combat made sense to the people of the time, we generally accept that God does not step in to prevent an unjust man from winning. And strength serves the wicked as much as the just. So while the just man has faith in his might to win the Trial, so too would the wicked man.

In many ways, the wicked man has less to lose from such a Trial. He knows he is guilty, and a fair hearing would probably reveal his guilt. But since he can use his native strength to defend himself, he need not suffer the consequences of his guilt, only the consequences of engaging in the Trial.

The just man, however, knows he is innocent, but suffers still because (as you point out) he must "endure the pain and punishment that comes from doing so". So the innocent man is unjustly punished, even were he to win the Trial. And if he were to lose, he is also falsely found guilty. Is that justice?

Cass said...

Well said, Mike.

By the way, honor courts are a centuries old convention. Honestly, I see no place for trials by combat in a school setting.

If a teacher accuses a student of cheating, the answer is NOT for the student to challenge the teacher to single combat.

Now to Grim's comment:

Where I came from -- and it no longer exists, destroyed by the expansion of Atlanta's suburbs -- the issue you are raising would never have come up at all. To question a man's honor was to put him in a position from which he had no choice but to fight.

So teachers couldn't accuse students of cheating? That doesn't sound right to me.

Fighting is not a one size fits all solution to every problem. Islam is an honor culture and we've seen the mess that results from people thinking that violence is the solution to any perceived insult.

I just don't understand that way of thinking at all. If we assume everyone is good and honorable, maybe it works. But people are not all good and honorable. Sometimes the good are physically weak and the bad are physically strong.

Grim said...

I'm not telling you what's right or what's wrong. I'm telling you how we did it where I grew up. If you want to say it was a bad society, well, maybe it was. But there are aspects of it you like well enough; and if there are aspects you don't like, well, it was a society of human beings. I don't reckon anyone has ever gotten it right in every respect.

One thing I know, though, is that there is something valuable in the idea that a man's honor is his. Louis L'amour wrote about this sometimes, usually in the form of someone explaining to someone from out East why a man would kill another man who called him a liar. 'You can't live alone,' he'd say. 'Out here, all you have is your honor. If you get the reputation of being a liar or a cheat, you'll die alone because no one will help you. It's a life or death matter. So, naturally, it's the kind of thing people will kill or die to preserve.'

Well, that's how we felt about it too. I knew a man who wouldn't fight, but he was a man of courage. He'd look his tormenters in the eye, even if he wouldn't fight back. Nobody doubted that he thought he was right, even if he didn't feel that fighting was the answer. And that earned him my respect, and with it whatever protection I could extend. Respect, even if had come with nothing else, was something that mattered.

Tom said...


The same is actually true of our present system. If he is sued, the innocent man must pay for his own defense and take time away from work and etc., so he is punished whether he wins or not; the punishment is merely less if he wins. This system favors the rich, not the innocent or just.

Also, in some ways we have merely substituted non-physical combat for physical combat. A law degree, high intelligence, and a charming smile all serve the wicked just as much as the good.

Finally, when you say 'a fair hearing,' you assume a great deal.

To Cass: It is also true that sometimes the evil have better lawyers, or that, as in apparently numerous actual cases, district attorneys are more interested in winning cases than justice.

I'm not arguing for a return to trial by combat, but I do believe to a significant degree we have merely substituted trial by money, intellect, ambition, charm, etc., without improving the odds of justice being done.

Cass said...

I do believe to a significant degree we have merely substituted trial by money, intellect, ambition, charm, etc., without improving the odds of justice being done.

What is that belief based upon? There's no real way to evaluate such a claim - it's based upon emotion and (I would guess) availability bias. You can easily bring to mind abuses of our current justice system because the sensational makes news while the ordinary goes unremarked and unnoticed. That doesn't mean the sensational is commonplace - just that it's easy to bring to mind.

You can't bring any abuses of the trial by combat system to mind because we don't live under that system. Oh wait... actually poor neighborhood still do. In DC kids are killed (and so are innocent bystanders) all the time because someone thought their "honor" had been questioned. It's just that these stories - which are legion - are not classified as honor killings.

They're classified as crimes.

In a trial by combat system, it is left to each individual to decide what "honor" is. There is no common definition. So, as with the inner city or Islam, "honor" can be defined simply as "you did something I don't like and I feel insulted". And that justifies violence.

Under our legal system - a system of agreed-upon laws and precepts, with safeguards against abuse built right into the process - a question is submitted to neutral 3rd parties. You can't sue someone because your tender feelings or pride are wounded. That's not a recognized offense. You can't sue to be allowed to murder your own daughter b/c she had the temerity to want to date w/out your approval b/c society hasn't recognized that as a legal right it will defend.

It's no process against some process. Is the legal system perfect? Of course not, but the rich have LESS power under our system than they would under a trial by combat system. Remember, the rich rarely fought for themselves under the old system. They could afford to hire champions.

Cass said...

I should have added: the rich can afford to hire (better/stronger) champions under our system too, but at least the contest is public, monitored, and takes place under a set of rules that have protections, however imperfect, against abuse.

Tom said...

What is that belief based upon? There's no real way to evaluate such a claim - it's based upon emotion and (I would guess) availability bias.

I would argue that, rather than emotion, it's based on both reporting I've read / seen / heard as well as my own admittedly limited research and experience with the system. You're right that it would be very hard to evaluate this claim. That's why I prefaced it with 'I believe' rather than making it a flat statement of fact.

I want to reiterate that I'm not suggesting we go back to trial by combat. I certainly don't think it was a better system.

That said, in a trial by combat system, there are agreed-upon rules, the combats are public, and I would argue that honor is fairly well defined. That is, people know what will get them into a fight, so they know what behavior to avoid. Historically, we see good examples of this in medieval Europe and in post-medieval Western dueling. There were rules that governed when violence was justified: It wasn't just because you felt like it. There were also rules about how the fight was conducted.

When I talk about 'trial by combat,' that is what I am talking about. Historically, some systems were more implicit than others, but if there is no system of rules governing it, it's not 'trial by combat.' The trial by combat was designed to avoid the exact kind of random violence you are talking about.

Tom said...

Also, for some of the kind of evidence I'm talking about:

Go Directly to Jail: The Criminalization​ of Almost Everything

Arbitrary Justice: The Power of the American Prosecutor

Three Felonies a Day: How the Feds Target the Innocent

One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty

Tom said...

Meh. All of those books are about how messed up the system is, a case I haven't made here yet (thought I do believe to be true).

Friday before the caffeine status bar has filled out in my head.

Happy Friday, everyone!

Grim said...

Tom makes a reasonable point about the powerful always having extra tools available in any system; I think Cass makes some reasonable points also.

However, there's a distinction that needs to be recalled between systems of law and systems of defense of honor. The duel had two entirely separate forms: the judicial duel, which was part of a system of law, and the private duel, which was not a tool of law at all.

It's probably my fault that the distinction isn't defended here, because I referred to Malory -- who is talking about judicial duels -- in likeness to the purely private system we had when I was a boy. I think that same problem can crop up in both systems, but nevertheless the private system doesn't affect (or, if you prefer, contaminate) the law. As Dumas said, those who fought private duels did so especially because it was illegal, and thus it took twice as much courage to fight them.

I'm not at all convinced that an 'honor court' can really resolve issues related to honor as I grew up with it. The thing about that kind of honor is that it is not about submission, but about defiance: it is about the fact that, if nothing else, you can at least die fighting for what you believe is right. A court to which one must submit is really doing something different entirely; it's not invested in the same code at all. They're using the same word, honor, but in two entirely different senses.

That's why the examples of issues honor courts might resolve are things like 'cheating on exams.' That's not honor in the sense of 'you called me a coward,' but honor in the sense of 'how honest are you?' As we have often discussed, though, the case of John Randolph shows that honesty as such isn't really what's at issue with honor. It's easy to see why people often think it is, but there's something else at work.

Cass said...

Well Grim, I finally had the time to read all the linked articles (and the ones they linked to, and a few others I Googled up besides).

Did you know that the accused student was accused by ANOTHER student the very next year? The initial hearing went against him. He appealed and got it overturned.

There's a lot more to this story than was presented by the highly misleading article it's based upon.

This really bothers me. You have a law professor blogger who knows (because I know and I'm not even an attorney) that a not guilty verdict is NOT the same as being exonerated (proven not to be guilty, as DNA evidence might do). It simply means there wasn't enough evidence to render a guilty verdict.

It's appalling to me that such a misleading quote would be passed along by someone who ought to know better, unchallenged.

I have written many, many posts about false rape accusations. So I think my record is pretty clear on the matter of women getting drunk and then crying rape after what at best was unclear consent.

From what I've read about this case, that is not at all what we're talking about here.

I think we need to be careful not to find what we're looking for on these stories.

Grim said...

Did you know that the accused student was accused by ANOTHER student the very next year?

No, but I know from the conversation this post was about that multiple accusations by different people are one of the factors that are considered -- not just in determining the probability of the charges being true, but in determining severity of punishment.

There's an interesting distinction between UVA and UGA, though, which is that UGA -- I gather -- doesn't have a court or even a panel. It assigns cases to a single arbiter who determines probability and punishment.

So there's some room even under OCR's court-informed guidelines. What concerns me about the system is the way in which it was built: most of the things that bother us about it are outgrowths of the ad hoc mode of construction, rather than reasoned decisions about how these matters should be treated. That point isn't much tied to this particular case, except insofar as it will also establish a precedent that will narrow the lane.

William said...

Court of Law, Court of Honor, Personal Defense of Honor... They are all overlays for violence. The primary difference is in who has the socially acceptable license{?} to commit violence upon others. Some systems are more indirect than others. All can be manipulated by those with the means to do so. All will be corrupted after one fashion or another by the very humanity that lives within the system. Is one "better" than the others? I would say that depends on what you're used to and what your individual strengths and weaknesses are...

William sends.

Cass said...

Violence? Or simply enforcement of community or institutional standards?

I don't think expelling a student from a school can properly be classified as violence. And that's part of what bugs me about the underlying suggestions in some of these arguments: that institutions have NO right to insist upon some minimum standard of behavior as a condition of accepting/endorsing members or allowing access to facilities or services offered by the institution.

That idea is probably far more corrosive than anything being complained about here.

Have we seriously become so infatuated with the individual that we're no longer willing to allow people to cooperate in collective ventures and determine the terms under which they will or will not deal with or accept others?

If so, we might as well kiss civilization goodbye.

The system isn't nearly as "terrifying" to my mind as the idea that we want government passing laws that keep people from saying, "Sorry, but I'm not willing to endorse this or tolerate it".

And the proper burden of proof for matters of free association is NOT a criminal burden. The higher burden in criminal cases is there because the punishment - jail - is far worse than simply being expelled from a school. That's a civil remedy and so a civil burden of proof seems appropriate even if we don't like the outcome.

Words like "terrifying" and "monstrosity" don't seem at all appropriate to what I've read about this case. Certainly, "exonerated" turned out to be a misrepresentation of a very material fact. He was NOT exonerated. I don't know if this guy was guilty or not. What I do know is that a fuller examination of the story leads me to suspect - strongly - that this guy was a bad actor and danger to other students.

Maybe you all want schools to have to press criminal charges - something I would guess they have no standing to do - and obtain a conviction in a court of law before they can expel or suspend a student accused of *rape* (NOT sexual harassment, which is a far less serious accusation).

My husband joined the Marines b/c they are one of the few remaining institutions in American life that is willing to defend a rigorous standard. Marines are routinely kicked out of the Corps for offenses that wouldn't cause the rest of society to bat an eyelash.

What you're arguing here - subtly - is that you want laws passed to prevent institutions from setting standards and enforcing them. It's a big-government argument because you don't like the outcome in the instant case.

That strikes me as extremely unwise.

Cass said...

... most of the things that bother us about it are outgrowths of the ad hoc mode of construction, rather than reasoned decisions about how these matters should be treated.

What is the evidence behind this assertion?

Grim said...

I don't think anyone at all is arguing in favor of the point you're vehemently resisting, Cass. Nobody has said that no school should be able to have any standard of behavior. Certainly no one is suggesting that no school should be free to adopt a code of conduct, or to enforce it. That's all freedom of association stuff, which I think we all agree is a general good.

What's going on here is something rather different: the schools are being forced to adopt a particular code, and enforce it in a particular way. That's not freedom of association at all, and it's not a decision by a school or a community. When the schools have tried to adopt their own code, or their own standards, they've been pushed back and back and back again by liability judgments -- not by legislation.

That's where I am getting the point you were asking about (the evidence, properly speaking, is that this is the explanation the lady gave me about how the code was formulated). It's not that anyone decided that "preponderance" was a universally better standard than "clear and compelling," but that a SCOTUS ruling (you can see the citation in the OCR letter -- search on 'preponderance') found liability in other sorts of cases.

So it's ad hoc in this sense: the kind of considerations put in place out of a concern for the reputation of the accused (and, indeed, their honor if they are falsely accused) have been washed away by liability rulings. It's not that colleges around the country have agreed that the standard they want to apply is this standard.

I think any set of laws that grows up in this way is a monstrosity, in the sense that we might use the term to describe the way that cancer disrupts an organism's natural functions. The natural functions exist to preserve the animal; the cancer destroys it. Here, too, the systems set up for particular ends are now bent to other ends.

For example: what you want is for institutions to have freedom to establish their own standards; this started out as that, but has become a mechanism for them to be forced to adopt someone else's standards. What you want (you said a few comments ago) is for there to be adequate protections in case of false accusations; what we have here is a system that requires schools to abandon already-extant systems of protections.

That's what I mean when I say it is a monstrosity, and that the monster has come about in an ad hoc way. A more reasoned approach would be a better way of preserving the real ends we would like to see these systems support.

Grim said...

I'm going to save JW some finger-exercise and go ahead and raise the obvious counterargument to the point I just made: the system of English common law, and indeed any system of common law, arose in a very similar way. Often common law systems are able to reach an equilibrium at which point they capture a community's general sense of what is right (e.g., common-law marriages capture both the sense that we don't want to interfere too much in whether people conform to the ideal of getting married; but on the other hand, we recognize that after a while you really do owe each other something practical that a court might enforce).

So there's a general problem with these systems, which is that precedents and legislation are formulated in different ways. A legislator sits down and asks, "What rules should govern cases of this type?" A precedent is generated, however, by considerations related to a particular case. Legislators get into trouble because they didn't think of every issue that might come up in any particular case. But precedent-based systems get into trouble because considerations really important in one particular case may badly imbalance a generally-applicable rule. Because our precedent-based system brings back the precedent from the particular case and applies it as a general rule, we sometimes get problems.

When there really is a community standard that the common law system can apply, over time a very just system can be created. I think here we have two problems, one of which is that (a) there isn't a clear community standard governing all of America, and (b) there probably are clear community standards governing given university communities, but they aren't being respected by this approach.

So what we ought to want the law to do is to address (a) and (b) by restoring more liberty for the colleges to create and enforce their own standards -- and that means not legislation that keeps them from writing or enforcing standards, but rather legislation that protects them from liability more broadly than they are currently.

In other words, the solution is to increase their capacity to have and enforce their own standards. The protection desired isn't for the students to be free from standards, but rather protection for the colleges -- who are being pushed around on their standards by liability issues.