It’s not often you hear a sitting judge speak in such dire terms outside a court ruling, but Jose Cabranes is concerned that “our civilization will stagnate and die” the way it’s headed.
What’s the great threat? The sustained attacks on the freedom to “inquire” in colleges and universities, the 2nd U.S. Circuit Court of Appeals Court judge and Yale’s first general counsel writes in The Washington Post.
An appointee of President Bill Clinton who also oversees the nation’s intelligence collection as a member of the Foreign Intelligence Surveillance Court of Review, Cabranes sees a return to Cold War-era campus censorship – led by the political left:
Certainly, today’s critics of academic freedom rarely deny that professors should be able to write and teach freely. But they nonetheless insist that professors should exercise such liberty in the shadow of other values, such as civility, sex equality and social justice. While these are worthy ideals, they can become tools for suppressing free expression — just as anti-communism once was.
No one can doubt that we should strive for civility. But problems arise when we are told that “uncivil” speech has made a campus “unsafe” — and that university officials should make a campus safe again by punishing uncivil speakers.
To combat these threats to “safety,” campus administrators have morphed into civility police. On some campuses, “bias response teams” investigate professors’ online comments. Several universities, including Yale, may soon introduce a smartphone app that lets users anonymously report offensive remarks. These anonymous reports will allow university bureaucrats — and perhaps even the public — to compile a directory of “subversive” professors in the spirit of dictatorial regimes.
Speaking in much the same language as a recent law review article by two Harvard Law professors, Cabranes warns that schools including Yale are setting up their own “centralized bureaucracy” to handle sexual-misconduct reports and “soon, perhaps, other offenses as well.”
These bureaucracies have
the self-appointed obligation to retain [reports] indefinitely — and to sift them for patterns of deviationism. The result is a university in which an unknown percentage of faculty members have been accused of something but don’t yet know it. It’s not hard to see how unscrupulous administrators might come to value the new “surveillance university” as a tool for policing the teaching and research of the professoriate.
He eviscerates how Yale handles allegations against professors now, often depriving them of “basic due process” including the opportunity to question witnesses and “presumption of innocence unless convicted by ‘clear and convincing evidence'”:
Yale now adjudicates sexual misconduct proceedings in secret. The standard of proof is reduced to “a preponderance of the evidence,” the lowest possible bar. And Yale made these changes without the formal consent or approval of its faculty.
Yale already has a 42-year-old blueprint on how to protect freedom of expression and due process, Cabranes says: It’s known as the Woodward report, and it’s being ignored by today’s leaders.
Administrators today must choose between “academic freedom or civilizational decline,” even if the “political alignments may have flipped,” he says.