7 Reasons for the Structural Illegitimacy of the University "Criminal Justice" System
Post 2 of a series on lessons learned since October on campus
One thing you might have noticed lately is that A LOT of people are complaining about how universities enforce their rules, especially as relates to matters that can be broadly described as the exercise of speech or expression. Like many veteran faculty and certainly like anyone who has spent time in administration (I was a faculty dean for five years and then an associate dean with significant responsibility for running our school during COVID), I’ve had a variety of experiences over the years with university processes that pertain to the enforcement of rules and policies in contested situations (which is pretty much every time enforcement is an issue). So the key question that pertains to any justice system— is justice being meted out fairly and equitably?— has certainly come up before, often in heated ways.
Moreover, over the years I’ve been an interested observer of crises other universities have faced that undermine their legitimacy in administering justice fairly, especially when it comes to matters involving sexual harassment and abuse. From afar, what often seems notable about such crises is that both sides claim that the university has perpetrated a miscarriage of justice. If we pause for a moment, we should note that this is an odd scenario. After all, when hotly debated cases are adjudicated (e.g., the O.J. trial; Bush vs. Gore; Roe; Dodds), we expect the losing side to cry foul. But it should puzzle us when both sides do.
And yet we seem to see such scenarios in universities regularly. And we’ve certainly seen them in the months since October 7th. Both sides— together encompassing a large proportion of campus (at least among those who are dominating the public sphere) are extremely angry at universities, each side alleging extremely vehemently that the university’s administration of justice is incompetent and/or faithless.
This scenario is quite painful for anyone who cares about universities, and certainly for anyone who knows and cares about the senior staff (and faculty) who are charged with leading universities, and especially those charged with managing the particular processes for deciding which students deserve to be sanctioned (and how strongly, perhaps all the way to suspension and even expulsion) for violating rules. One of the main reasons I am writing this post is because from my experience, these people (at least at MIT) are some of the most empathic, caring, thoughtful, and caring people working on behalf of our institution and community, and it absolutely breaks my heart how they have been besieged by charges of incompetence and bad faith from a wide array of onlookers (anyone can find their emails on the internet) let alone from wide swaths of community members. These people, in my experience, are heroes— they do necessary yet thankless work, and they do it well.
Moreover, like the rest of us, this is not what they signed up for; just like the folks in HR want to focus on how to improve the organization’s climate and culture so everyone can be both happy and productive, that’s true for anyone who works in “student life” in organizations. But just as HR is tasked with managing difficult personnel challenges (and in my experience at MIT, manages it well despite no one typically feeling happy about it, certainly not those who are terminated), it is tragic that the people who get up in the morning wanting to help students thrive instead may find themselves— especially in a crisis— having to work on enforcing university rules fairly and compassionately. This, even while they know that rarely will everyone be happy with the outcome and that often everyone involved will be unhappy with the outcome.
Ok, but why is this? My ideas on this are inchoate and amateurish. In particular, I am no legal scholar. And yet I’ve had the benefit of bouncing my ideas off several scholars with relevant expertise. And so from my work on these issues over the past years and months and from dialogue with the aforementioned colleagues, I have developed a list of seven factors that I think are responsible for rendering university processes for administering justice “structurally illegitimate.” By this I mean the following: There’s little or nothing a university can do given how it’s structured to avoid having its adjudication of rules be regarded by many on both sides of a case as illegitimate, especially in a crisis such as this one when the university is riven into competing factions. To be sure, part of what makes my list of factors for structural illegitimacy inchoate is that I haven’t tested any of this out empirically as a good sociologist should. This is theory, one that needs to be tested to be relied upon.
What’s more, my ‘theory’ (too grandiose a word really for a list) doesn’t even specify how significant any of these factors have to be in order to render a justice system structurally illegitimate. My hunch is that a “strong dose” of any one of these factors is sufficient to raise questions about the system’s legitimacy, and that therefore if multiple factors are strong, that should make those questions even more strident. But this is ultimately just a hunch. So I welcome comments from legal scholars and others who have thoughts about how to refine this list of factors into a testable theory, one that would be informed by prior scholarship.
Finally, these points were composed somewhat informally— as part of emails I circulated among colleagues. So they’re basically bullet points. But I’ve been told by a close colleague whose research is closer to this space than mine that they are “precise.” And so I’m sharing them here in case they might be useful— at least for the goal of encouraging some empathy for the senior staff members (and faculty) who are caught in the middle of this impossible crisis.
Here then is a slightly cleaned=up version of that email I’ve been circulating:
Why is there such a crisis of legitimacy in universities? In particular, why do *both sides* in the current crisis see the same university’s processes for adjudicating violations as illegitimate?
I’d argue that it’s overdetermined and that there are at least 7 aspects of university “criminal justice” systems that contribute to making them seem illegitimate. Two notes on these factors:
a) These factors are structural in that they undermine the legitimacy regardless of who’s at the helm
b) They exacerbate crises rather than quelling them
Here are those 7 factors:
Can’t distinguish ex ante between venial & venal crimes (what’s a misdemeanor and what’s a felony?)
They rely on community “reasonableness” standard, but this doesn’t work when the community is split into warring camps as to what’s reasonable
Opaque enforcement system (because of FERPA & limitations of communications media, especially in fast-changing environment), so injured parties are in the dark about how justice is being meted out and pressure groups and protesters take action on the basis of rumor rather than fact
Ambiguous and changing regulations (Title VI & IX as a pillars of the system; but they are ambiguous, subject to “culture war” contestation, and change every time someone new is in the White House!)
Perceived openness of the system to outside influence (e.g,., Congress; pressure and protest groups; faculty who won’t enforce or encourage disobedience) raises suspicion that judgment is biased
Broad acceptance of the idea that many of the rules (pertaining to free expression and academic freedom) may— & indeed should— be suspended when higher principles are at play
No community (student) input into the appointment of judicial decisors (especially if the decisions are taken by the executive as interim measures to address a perceived emergency)
And if these factors— on their own, and certainly in combination— weren’t bad enough, now add into the mix that everyone seems to apply their expectations for the process from the larger judicial system where these norms are met often enough that it’s reasonable to expect they apply everywhere (cf., Ewick & Silbey on “before the law”); this guarantees a legitimacy crisis