Bioethics Blogs

Gentle Regulation May Be More Effective

Law professor Samuel Bagenstos argues that recent Title IX excesses follow the pattern of IRB horror stories: the feds threaten drastic action, so university administrators hyper-regulate. He offers disability rights as an example of a less punitive regulatory effort that has produced good results.

[Samuel R. Bagenstos, “What Went Wrong With Title IX?,” Washington Monthly, October 2015.]

Bagenstos (my wife’s first cousin) laments the incidents at Northwestern, where university administrations forced one professor to endure hours of questioning, and Lousiana State University, which fired a professor for using profanity in class. He also concurs with the Harvard Law faculty who warned that a proposed sexual misconduct policy lacked due-process protections. Yet he notes that “There is nothing in Title IX, its implementing regulations, or the recent government pronouncements that purports to require universities to do what the universities did in those cases.” Rather, university administrations are acting on what they think they must do to avoid federal penalties. As he explains,

To blame are two bureaucracies, one at the federal level, the other within individual colleges and universities, each emphasizing compliance over communication and common sense. Universities, perhaps stung by being called out on their prior inaction, overreached by allowing a class of professional campus administrators, insulated from the classroom, to pursue a maximally risk-averse strategy that went way beyond what the federal government was calling for and that put important values of academic freedom and fair process at risk on their campuses.

He notes the parallel with other forms of university regulation:

Because compliance administrators do not come from the faculty, they are unlikely to fully appreciate the academic values of independent inquiry that challenges—often aggressively—the certitudes of students and others in the academic community.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.