Yet Two More Reasons for the Structural Illegitimacy of University Criminal Justice
Post 3 of a series on lessons learned since October on campus
In my prior post, I laid out seven factors that seem ‘baked in’ to American university systems for administering justice that render these systems structurally illegitimate, such that especially at times of crisis, we can expect both ‘sides’ of a case to regard decisions as illegitimate.
In further reflecting on the issues as the year has drawn to a close (MIT Commencement was today), I would like to add two additional factors (!!) to the list.
Here they are:
Limited, normatively-inflected tenure
A key assumption in any society’s criminal justice system is that members of that society value their rights and will do what they can to preserve them. And so the threat of facing sanctions that suspend such rights can generally be expected to deter would-be rule-violators, at least insofar as rule violations carry significant sanctions (recall the distinction between felonies and misdemeanors from my last post) and enforcement is clear (again, see last post) and effective.
But what if members don’t care about preserving those rights? Or what if the enforcement regime is reluctant to enforce?
Different story, right?
And in the case of universities, each of these conditions applies, at least at the very end of a student’s time at the university.
This a key way that universities (and schools generally) are different from societies. Students do not have the right to remain students forever. Indeed, no student even wants to stay a student. For every program, there is a defined period during which students are expected to remain. This varies across different classes of students (some PhD students stay forever…). But for every class of student, it is expected that the student will be gone soon and that this is a very desirable thing.
Indeed, it is considered a failure for the school (as well as the student) if the student does not meet the requirements for graduation, and it is a more minor failure if it takes more than the normatively-prescribed time for the student to meet those requirements.
Note finally that unlike the military, there is no such thing here as a “dishonorable discharge.” The student can graduate with a higher or lower GPA, and they can earn more or fewer honors. But basically, you either receive that diploma or you don’t. You can’t mush a suspension and graduation together in some way.
Why does this matter?
Well, it means that as it comes closer and closer to the graduation date, students have a significant amount of leverage over the school. Let’s say they do something that would ordinarily earn them a suspension. If the school applies the suspension and prevents them from graduating with their class, is that really much of a punishment? At the limit, let’s imagine a case where the student has earned all the credits to graduate and then is judged to have committed an infraction that would ordinarily merit suspension. This means the student will presumably still graduate once the suspension is lifted. And so what has the school actually accomplished? And what deterrence would such a suspension accomplish?
Of course, the school could choose to block a student from ever graduating. But if the rule violation is such that it would normally earn suspension rather than expulsion, such an action seems inequitable and disproportionate. And the same goes if the school forces the student to pay tuition for the next semester and graduate then. Now the student has to pay extra $$ that suspended students generally don’t have to pay. The upshot is that impending graduation provides a disincentive for the school to apply the usual sanctions, and it therefore lowers the usual deterrence effect on student rule-breakers.
And this all goes back to the fact that unlike citizens, students’ membership is time delimited and their exits are normatively prescribed. If the game is about to end and you’ll be OK even if you break the rules, why not do so?
The implication of all this is that the system— structurally illegitimate already for the reasons discussed— takes another hit as graduation draws clear. On the one hand, it is harder for it to administer the typical sanctions, and this thereby encourages more rule-breaking. On the other hand, the failure to apply such sanctions will lead those who feel victimized by the rule-breaking to cry foul at the school’s inability or unwillingness to enforce its rules.
Applying Criminal Law When Civil Law is Called For
For the next issue, let’s zero in on the fact that there are community members who feel victimized by other community members’ rule-breaking. Up till now (in the last post and in this one), I’ve been discussing rule-breaking as a ‘criminal’ matter. But is that the right frame, or the only frame? In particular, why aren’t we thinking about current campus rule-breaking in terms of civil law?
What do I mean?
My ideas here are somewhat tentative because they are rooted in the theoretical question of why we have both civil and criminal law. And I am no legal theorist, just a sociologist who can’t stay ‘in his lane’.
But my tentative conjecture is that the reason we have a civil system is that there are certain kinds of violations that aren’t widely recognized as threatening the social order (as e.g., murders do) but are contained to particular parties. This seems to have two important implications.
The first is the matter of the visibility of the violation. When one person violates another person’s rights, the rest of society often cannot see that this has happened. For such harm to be appreciated by the neutral third-party charged with adjudicating, the injured party must bring it to this “court’s” attention and lay it out clearly. In particular, the injured party must act as complainant/plaintiff and demonstrate that the accused/defendant has indeed inflicted material harm that is deserving of redress.1
It is just such a scenario that has unfolded on American campuses this past year. In particular, many Jewish community members (at least those who are not anti-Zionist) feel strongly that their rights have been violated by other community members (I tend to agree and am shocked and dismayed at my fellow liberals’ inability to see this). In the fall, this harm was often couched in the language of “safety.” This made some sense given that the protestors adopted slogans associated with violence against Israeli Jews, in the aftermath of an horrific massacre. But little or no physical violence actually occurred, and as the months passed, it became clearer— at least to many Jews— what the key harm was: delegitimization/ostracism/shunning/exclusion of Jews who did not proclaim themselves to be “anti-Zionist.” In a future post, I’ll offer more of my thoughts about this. For now, see the letter penned by Columbia Jewish students or the preliminary report by the Harvard University Presidential Task Force on Combating Antisemitism.
Here’s the key thing for the purposes of this post:
If the harm is delegitimization/ostracism/shunning/exclusion of Jews who did not proclaim themselves to be “anti-Zionist,” the usual university procedures seem wholly inadequate to the task. In the first instance, the issue is an example of the first reason for civil law I mentioned above: It’s hard for third parties to truly appreciate the nature of such harms without plaintiffs standing before them and taking the time to document and explain this damage to them. Indeed, I have talked to a good number of liberals— people who are not “anti-Israel,” “anti-Zionist,” or antisemitic by anyone’s definition— but who can neither see the delegitimization/ostracism/shunning/exclusion nor appreciate its significance.
This problem is related to factor 2 in my last post: that reliance on a community “reasonableness” standard won’t work if the community is bifurcated into warring subcommunities that have opposing views as to what is reasonable. Here I’m making a different point, which is that neutral third-parties (i.e., judges and/or juries) cannot be expected to appreciate the nature of the alleged harm incurred by one of those warring parties if the victim cannot bring their complaint before the court and argue their case.
To be sure, university adjudicatory bodies can interview victims/complainants. I’m not sure how often they do. But that still would not be sufficient. In particular, let’s now consider a second reason why civil law is a crucial complement to criminal law: criminal sanctions do not compensate victims.
If a university '“court” suspends a student for violating a rule, how does that address the harm done to another student who was harmed by such rule violation? Consider further a scenario where a student apologizes to the university “court” for breaking the rule; how does this do anything for that student’s victims? And indeed, this harm is potentially quite real. I’m aware of many cases of students who had a hard time completing their studies this year and even more who suffered great distress. Student suspensions do little to compensate them for what they lost.
Finally, another crucial element in civil law seems missing from university justice: class action. The alleged victims of the campus protest movement are a diffuse set of community members. Class action suits provide a mechanism for such a diffuse group to get a court to recognize the harm done to them and to gain compensation for this harm. But there is nothing equivalent in university jurisprudence.
To conclude, the absence of civil law seems to be a crucial factor engendering the sense that university jurisprudence is illegitimate. This raises the question of whether it’s possible for students (and other community members) to seek redress through civil courts.
My sense is that this option is very limited. One reason is that since the harm is so diffuse, it would require a lot of legal firepower to make the claims stick. A second reason is that unless the defendants are very wealthy, there may be no way to fund the litigation. The latter is probably a key reason why the lawsuits that have cropped up since the fall have targeted universities. And it’s also why the Greenberg Trauring lawsuit seems to be trying to go after the bodies that are funding the protest movement rather than students. But even if this lawsuit is successful, it cannot really do much to compensate the many students who have had a terrible year this past year because (like me) they are Jewish but refuse to denounce the State of Israel (however critical they/I may be of its government).
Notably, it tends to be problematic for an uninvolved third-party to bring the complaint since it’s not clear they’ll do a good job representing the victim’s experience or interests; hence the doctrine of “standing.”