John O. Harney: All you can eat — interesting data From New England and beyond
From The New England Journal of Higher Education, a service of The New England Board of Higher Education (nebhe.org)
BOSTON
The ranks of New Hampshire, Vermont and Maine as the least diverse states in America, based on measures of socioeconomic, cultural, economic, household, religious and political diversity: 47th, 48th, 49th WalletHub
Ranks of Connecticut, Massachusetts, Vermont, Rhode Island, Maine and New Hampshire among the most expensive U.S. states to retire in: 3rd, 4th, 6th, 7th, 10th, 14th Bankrate
Increase in lifetime earning associated with lifetime labor union membership: $1,300,000 Parolin, Z., & VanHeuvelen, T., The Cumulative Advantage of a Unionized Career for Lifetime Earnings, ILR Review
Support for labor unions among Gen Zers (defined as being 23 years old or younger in 2020): 64% Center for American Progress
World rank of California’s economy if it were a country: 5th (soon to be 4th) Bloomberg News
Percentage of Americans who rely on autocorrect to correct misspellings: 79% Unscrambled Words
Percentage who say they judge someone who often misspells: 61% Unscrambled Words
Share of New Bedford (Mass.) High School students who were “chronically absent” in 2022, meaning they missed at least 18 days, or 10% of school: 70% The New Bedford Light on NAEP Data
Number of reports of book bans received by the nonprofit PEN America during a nine-month period from July 2021 through March 2022: 1,586 PEN America (PEN American reports 671 additional book bans during that period have come to light. A further 275 more bans followed from April through June, bringing the total for the 2021-22 school year to 2,532 bans.)
Percentage of those banned books that had a protagonist or main character of color: 41% PEN America
Percentage of those banned books that had LGBTQ themes: 33% PEN America
Number of America’s approximately 90,000 school board members who are known to be LGBTQ: 90 Victory Institute
Number of additional LGBTQ school board members who would have to be elected to match the 7% of the adult U.S. population that identifies as LGBTQ: 6,300 Victory Institute
At Harvard Square, in Cambridge, Mass.
From 2010 to 2015, Harvard University’s admission rate for “legacy” applicants with at least one Harvard-educated parent: 34% Jennifer Lee, sociology professor at Columbia University, op-ed in Los Angeles Times
Admission rate for “non-legacy” applicants who do not have a Harvard-educated parent: 6% Jennifer Lee, sociology professor at Columbia University, op-ed in Los Angeles Times
John O. Harney is executive editor of The New England Journal of Higher Education.
Painting of “Still Life with Kitaj’s Death mask,” by Montserrat College of Art (Beverly, Mass.) professor Timothy Harney.
Thomas A. Barnico: Should Feds dictate rules on campus sexual misconduct? Beware
“My Eyes Clear Away Clouds” (collage), by Timothy Harney, a professor at the Montserrat College of Art, in Beverly, Mass.
From The New England Journal of Higher Education, a service of The New England Board of Higher Education (nebhe.org)
BOSTON
The U.S. Department of Education is poised to reverse Trump-era rules governing claims of sexual misconduct on campus. One could forgive weary college counsel for a case of vertigo: The Trump rules themselves reversed the Obama rules, and Biden’s 2021 nominee to enforce the rules—Catherine Lhamon—held the same office at the Education Department under Obama. In three years, the election of 2024 may bring yet another volte-face at the department. Even those who support the likely Biden changes may wonder: Is this any way to run a government?
As they ponder that question, frustrated counsel should note the primary source of the problem: the desire by serial federal officials to dictate hotly contested standards of student conduct for millions of students in thousands of colleges in a nation of 330 million people.
Some issues are better left to the provincials. As Duke Law professors Margaret Lemos and Ernest Young argue: “Federalism can mitigate the effects of [national] political polarization by offering alternative policymaking venues in which the hope of consensus politics is more plausible.” Delegation to state or local governments or, in education, to private actors, can “operate as an important safety valve in polarized times, lowering the temperature on contentious national policy debates.”
Of course, as Lemos and Young admit, “a federalism-based modus vivendi is unlikely to satisfy devoted partisans on one side or another of any divisive issue.” Such conflicts pit competing and compelling interests against one another.
In the Title IX context, parties fiercely debate the adequacy of protections for complainants and respondents alike: Does the respondent have a right to confront and cross-examine the complainant? Does the respondent have a right to counsel in their meeting with student affairs personnel? Do colleges and universities have to abide by a common definition of “consent” to intimacy in their student conduct manuals?
And, in polarized times, many will be unsatisfied with a patchwork of rules that apply state-by-state or college-by-college. Lost in this good-faith debate is the point that, even for issues with national effects, an oscillating national rule can cause more instability than an entrenched array of differing local rules.
Noted diplomat and scholar George F. Kennan aptly described the problem in Round the Cragged Hill: “The greater a country is, and the more it attempts to solve great social problems from the center by sweeping legislative and judicial norms, the greater the number of inevitable harshnesses and injustices, and the less the intimacy between the rulers and ruled. … The tendency, in great countries, is to take recourse to sweeping solutions, applying across the board to all elements of the population.” Central dictates, Kennan said, often show “diminished sensitivity of … laws and regulations to the particular needs, traditional, ethnic, cultural, linguistic and the like, of individual localities and communities.”
Of course, changes in administrations often bring changes in policy. Elections matter, and victors arrive with fresh ideas and an appetite for change. This is a highly democratic impulse; as U.S. Chief Justice William Rehnquist wrote: “A change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency’s reappraisal of the costs and benefits of it programs and regulations.”
Sometimes, such reappraisals will follow a reversal in the public current of the times. Where the new current runs strong and fast—and newly elected officials carry a decisive electoral mandate—a sweeping national solution may reflect a consensus view. But when electoral margins are slim, dangers lurk. When national executive and legislative power repeatedly changes hands by slim margins, policy changes may reflect not strong new currents but more of a series of quick, jolting bends.
The shifting procedural rights of the complainants and respondents in the Title IX misconduct hearings more resemble the latter. The abruptness of such changes grows when the commands flow not from a congressional act but by “executive order,” administrative “guidance,” or “Dear Colleague” letters that lack the procedural protections of a statute passed by both houses of Congress. Moreover, too-frequent changes in rules—whatever their procedural sources—have long been seen to create uncertainty, undermine compliance and lessen respect for law.
The options for beleaguered college counsel are few. Education Department rules apply to colleges because colleges desire federal funds. Few colleges wish to turn off the spout of the federal Leviathan. The masters they acquire are both the sovereign Leviathan of Hobbes and the whale dreamed by Herman Melville in Moby-Dick: a giant of the deep that pulls colleges to and fro, as if dragging them in a whaleboat on a “Nantucket Sleigh Ride.”
In our modern form of the tale, the whaleboat is the college, and the harpoon is its application for federal funding. The harpoon hits its rich federal target, but the prize brings conditions, represented by the attached rope. “Hemp only can kill me,” Ahab prophesizes. “The harpoon was darted; the stricken whale flew forward; with igniting velocity the line ran through the groove;—ran foul.” The rope—initially coiled neatly in a corner of the whaleboat—runs out smoothly until spent. Then it tangles, converting itself to a weapon more deadly than the harpoon. Bound by the rope—the conditions on federal funding—the college descends into the vortex.
Biden’s likely Title IX rules on student misconduct will pull college administrators to and fro again, whalers on a new, hard ride. The day that the federal government withdraws from the field seems distant; like Ahab, Education Department officials of both parties seem “on rails.” In the meantime, college counsel should brace for the latest chase and hope that they—like Ishmael—will live to tell the tale.
Thomas A. Barnico teaches at Boston College Law School. He is a former Massachusetts assistant attorney general (1981-2010).
“Nantucket Sleigh Ride”: Illustration of the dangers of the "whale fishery" in 1820. Note the taut ropes on the right, lines leading from the open boats to the harpooned animal.
John O. Harney: News and random thoughts from the region
“If Wishes Were Horses (For Dad)”, by Timothy Harney, a professor at the Montserrat College of Art, in Beverly, Mass. He’s the brother of John O. Harney.
From The New England Journal of Higher Education, a service of The New England Board of Higher Education (nebhe.org)
FICE-y conditions. MIT recently alerted its staff that federal immigration officials would be checking the status of foreign postdoctoral students, researchers and visiting scholars in the sciences, and urged them to cooperate. … Meanwhile, an Iranian student, returning to study at Northeastern University, was detained at Boston’s Logan International Airport then deported, despite having a valid student visa and court order permitting him to stay in the U.S. The stories reminded me of Politico’s report on “5 ways universities can support students in a post-DACA world” by Jose Magaña-Salgado, of the Presidents’ Alliance on Higher Education and Immigration. And of own NEJHE piece by Harvard attorney Jason Corral, whose job is advising undocumented students in the age of the Trump administration.
Caste away. Brandeis University announced it will include “castes” in its non-discrimination policy. Discrimination based on this system of inherited social class will now be expressly prohibited along with more familiar measures such as race, color, religion, gender identity and expression, national or ethnic origin, sex, sexual orientation, pregnancy, age, genetic information, disability, military or veteran status.
Institution news. Massachusetts approved new regulations on how to screen colleges and universities for financial risks and potential closures. … The University of Maine System Board of Trustees adopted a recommendation from Chancellor Dannel Malloy to transition the separate institutional accreditations of Maine’s public universities into a single “unified institutional accreditation” for the 30,000-student University of Maine System through the New England Commission on Higher Education (NECHE). One institution the UMaine System is likely to collaborate with according to Malloy’s office: Northeastern University’s planned Roux Institute for advanced graduate study and research to open in Portland, Maine. … In Connecticut, meanwhile, Goodwin College became Goodwin University. Such rebranding has been something of a trend in recent years. … In other institution news, monks at Saint Anselm College challenged the New Hampshire Catholic college’s board of trustees over a move the monks say could lead to increased secularization. The college’s charter dictated that the monks have the power to amend laws governing the school. Saint Anselm College President Joseph Favazza said in a letter that the board was not trying to change the mission of the college, but rather aiming to meet the standards set by NECHE, the accrediting body.
Cold War chills. Primary Research Group Inc. has published its 2020 edition of Export Controls Compliance Practices Benchmarks for Higher Education with this grim reminder: “Increasingly, U.S. universities and their corporate and government research partners are under pressure to demonstrate compliance with U.S. export control and other technology transfer restriction and control policies. The deterioration of U.S.-relations with China and Russia threatens the return of export control philosophies common during the Cold War. Major universities in the U.K., Australia and Canada, among other countries, are experiencing similar changes.”
Media is not the enemy, but … The free Metro Boston newspaper ended operation after 19 years, following the sale of the New York and Philadelphia Metro papers. One explanation offered by a columnist at The Boston Globe, which is a part-owner of the Boston Metro: more commuters using their phones to catch up on news.
Latest from LearnLaunch. Watch NEJHE for reports from the 2020 Learn Launch Across Boundaries Conference, including an exclusive Q&A with the new LearnLaunch president, former Massachusetts Gov. Jane Swift.
John O. Harney is executive editor of The New England Journal of Higher Education.