Academic justice and the administrative state, or: How Education Secretary De Vos does not too much but too little

Expanded version of comment published on New York Times blog, in response to news story by Erica L. Green, “DeVos’s rules bolster rights of students accused of sexual misconduct,” May 6, 2020 (for original comment, see link below):

The rule that universities can only find students guilty or liable of misconduct after proceedings that respect their right to due process needs to be extended to all charges of misconduct, not just those involving sexual harassment or violence. That also includes claims of prejudicial remarks, now so contested.

Left-liberals often treat guilt or innocence as a function only of the severity of the offense imputed. Why can't we separate politics and justice here? A great social problem can be combatted without assuming everyone accused is guilty.

The problem here is the administrative state, which has steadily grown at the expense of the liberal constitutional idea of government. Colleges and universities private and public are run as corporations. These are institutions of governance, of a kind to which we are all subject much of the time.

The distinction is as fundamental as that between government by persons who have authority to command, or government by laws. It may seem that we can only either want to go back to more limited and perhaps smaller government, or forward to institutions that are in some way also democratic.

The idea of authoritarian governance that Trump seems to represent, and that was brought to the attention of many people during the “War on Terror” that increased police powers, and the Snowden revelations about surveillance, —
all this is not new, but rooted in the entire administrative state, which ‘liberals’ and ‘left-liberals’ have traditionally directed protests and appeals towards, expecting to use the powers of office and an elite education to promote their progressive agenda. It just happens that this agenda winds up being promoted largely through enforcement and moralistic (and ultimately carceral) thinking that supports it.

In administrative justice, the bottom line is business success and lack of trouble. Thus, universities regularly deny accused persons due process, and substitute communitarian notions for juridical ones. Administrators investigating possible misconduct must combine investigative neutrality with prosecutorial zeal. A "student advocate" will advise but not defend.

Business is getting things done; justice, which should not be exceptional, is something more than that.


https://www.nytimes.com/2020/05/06/us/politics/campus-sexual-misconduct-betsy-devos.html?action=click&module=Top%20Stories&pgtype=Homepage#commentsContainer