Transcript



Trevor Burrus: Welcome to Free Thoughts from Lib​er​tar​i​an​ism​.org and the Cato Institute. I’m Trevor Burrus.

Aaron Ross Powell: And I’m Aaron Powell.

Trevor Burrus: Joining us today is Robby Soave, Associate Editor at Rea​son​.com. Welcome to Free Thoughts, Robby.

Robby Soave: Thanks for having me.

Trevor Burrus: So the first question here, Aaron wrote the first question, and I think it’s a good way of starting out our entire theme of this. For the record before I – Aaron and I went to CU Boulder together at a time that we might have thought this was a pretty crazy place. But things are getting crazier. So what the hell is going on, on college campuses?

Robby Soave: Yeah, we’ve seen over the last few years I think a major upswing in these high profile instances of students answering each other, professors being punished for saying the wrong thing, administrators taking actions against students, students calling on administrators to take actions against people they don’t like. That has been the major change I feel over the last couple of years. It used to be – if you talk to like Greg Lukianoff at Foundation for Individual Rights in Education, he will say the same thing.

It used to be that the administrators were doing this to students. They were violating their rights. They were not respecting their free expression rights. But now the students actually kind of want the censorship that administrators are capable of giving them. That’s sort of – that’s among their demands, among their pressing demands. You’ve seen that at Mizzou and at Yale and the bunch of other places students saying we don’t like this kind of thing. We don’t like maybe offensive Halloween costumes or themed parties on campuses or various organizations that we don’t like or professors that have said something in classrooms that have bothered us and we want – we demand the power for you to punish those people or stop those things from happening.

Aaron Ross Powell: So what has changed? We were at the epicenter of crazy leftism …

Trevor Burrus: Or at least one of the multiple …

Aaron Ross Powell: Maybe Madison.

Trevor Burrus: Or Berkeley, yeah.

Aaron Ross Powell: But I mean – there is none of this. I mean this seems like a fairly –

Trevor Burrus: There was some of it. But nothing like this. I mean there was some PC stuff definitely.

Aaron Ross Powell: But something has happened.

Robby Soave: Yeah. So I have an answer to that, that I think a lot of people aren’t aware of and it’s actually – I blame sort of explicit government guidance that came out in 2011. So I graduated from the University of Michigan in 2010. My college experience was pretty good. There was not – these things have always been happening. There have always been kind of a minority of very active, angry liberal students who kind of want some variety of censorship and are mad at people. That has always existed.

But in the last five years, ever since 2011, these students, they haven’t grown in number. They’ve just gained institutional power on campuses and they’ve done that because the federal government started giving out guidance in 2011, the education department, specifically the Office for Civil Rights, which administers Title 9, which is that gender equity law you hear so much about in the trans‐​bathroom debate, saying that there has to be equality between the sexes in education.

But the Office for Civil Rights interpreted that guidance. It began interpreting it in 2011 to hold that all forms of harassment had to be very vigorously policed on campus, that administrators had a responsibility under Title 9 to protect students from everything that would bother them. They were kind of changing the definition of what constitutes harassment to be. It’s no longer offensive to an objective person. It has to be severe and pervasive. They’re saying this is a subjective standard.

If someone says they are harassed, then you have to do something as an institution. You have to investigate these claims and it has transferred a lot of power I think to the students. I think they get it now. I think this is – this happened five years ago and over that time period, they figured out. They know what Title 9 is. They cite it all the time. They say, “I have this Title 9 right to be protected from things that offend me.” They say that all the time and the administrators kind of think that too, even if that’s not actually what Title 9 really means. They’re worried they’re going to lose federal funding if they don’t take their students’ claims very seriously.

Aaron Ross Powell: You mentioned that – so there has always been the small group of the angry activist students who think no one should ever say anything they think is mean. So they’ve been empowered. But does this mean that the – so one of the things that’s hard from outside, from sitting here not on a college campus is to get a sense of how big this movement is versus just being fairly vocal or being juicy stories in the sense of being ridiculously dumb and so to fun to report on versus this is some sort of growing movement. So is this really – like on the college campuses, are more students buying into this than used to or is it just this empowered always minority?

Trevor Burrus: That question reminds me – kind of like sometimes – my dad – he went to college in the 60s and one of my – I asked him at some point. Weren’t there hippies just everywhere? I had this image of going to college in the 60s. He’s like, “No.” They were actually quite – the image became entire hippies but like they were quite rare. So like on Aaron’s point, is this being overblown or you think it’s becoming more and more widespread?

Robby Soave: Yeah. So these are very difficult things to measure for exactly those reasons because now in today’s world, we have social media. We have someone can do something stupid on campus and all of a sudden we’re all talking about it on Twitter. I’m writing about it. Bigger news outlets than I are covering it and then it seems like it’s a trend that oh, this is getting so much more common, when really this has always been happening.

So in a sense, yes, it is overblown. However, it’s definitely true that the kinds of things that students are complaining about are different. Students are more safety‐​obsessed than ever before. Their concerns come from a place of – the language they use to express their grievances is much different and I would argue much more of a threat to a classically liberal society, to a free speech, a pro‐​speech society.

The language they use is one of I have a write to be not offended, to be protected, to be – that if I were provoked on this campus, that would be the same thing as threatening my physical safety, that physical safety and emotional safety are the same – I mean they’re on a spectrum. They’re similar things. They’re all things that authority figures have not just a right but a responsibility to create a – this is the safe space idea and it’s easy to mock but it’s very powerful. It is very powerful. There are a lot of students who have bought into that kind of thinking.

Now it’s still just a minority of students I say and I tried to measure whether the vast swaths of students, whether their attitudes about the First Amendment are changing. There are some surveys on this. They’re kind of mixed. There’s some support for the position that yes, their attitudes are getting I would say slightly more hostile to free speech. It’s a really difficult thing to measure. You guys know people can give very contradictory answers to, “Do you support the First Amendment?”

Well, but you support it if people – religious people are offended about a cartoon. You know, people get confused.

Trevor Burrus: So we talked about Title 9 and I know you’re not saying that this kind of sprung out of the government without any backing because the very ideas that the – it was a letter, correct? A guidance letter …

Robby Soave: Yeah, a “dear colleague” letter.

Trevor Burrus: Those very ideas about what constitutes harassment have been percolating for quite a – like a broader, looser definition of harassment for interpersonal harassment, bringing in things like micro‐​aggressions and how language perpetuates a class struggle. Aaron and I took classes about things like this and we learned about – you know, from people claiming that things like – the phallic nature of airplanes was oppressing them in some nature or things – they’re seeing this everywhere.

So that has been around for a while, that it just gets up to the fact that someone in Department of Education decided that it was one of these people who believed that all these things are micro‐​aggressions and problems and therefore put this letter out and then – but also people on campus have been learning this though, correct?

I mean they have been learning things about how oppressive words and attitudes are.

Robby Soave: Yes. If you talk to these students, they think that everyone should basically be required to study that. That’s the thing they want to study. They’ve already made up their minds that that’s the case, that they’re horribly‐​oppressed, marginalized people. In some cases, they are. But in general, college students –

Trevor Burrus: I mean generally if you’re on a college campus …

[Crosstalk]

Trevor Burrus: … oppressed and marginalized is a bit of a stretch but I see your point.

Robby Soave: You’re probably a privileged person who has managed to go to Yale or Princeton or something. But these students think – if you talk to them, they don’t think they’re in college to be changed. They have all their ideas already in their head. They think they’re here to educate you. They’re here to educate their teachers, other students, the world at large about how oppressed and pathetic and marginalized they have been and that there should be more classes. They want more diversity classes. They want more –

Trevor Burrus: By diversity classes, you mean classes about specific groups and races of people.

Robby Soave: They want entire college departments. At Western Washington University, this was one of the demands of students. They wanted a College of Power and Liberation. That’s what they were going to call where everyone would essentially be trained and again, it’s fine to study these issues. Like, I don’t have a problem with that if professors want to teach them, if you should have a wider range of classes in college. That’s fine. But they don’t actually want it to be an educational thing. They want it to be like …

Trevor Burrus: The mission of the universe.

Robby Soave: Yeah, and they want it to be an activist model. They essentially want training. They want everyone to be trained to be a social justice activist, not someone to like dissent or question or kind of think intellectually about social justice and what that means. They have it in their heads, what it means. They want everyone kind of – and they want everybody to live and breathe it even in the residence halls.

They think it’s not just in the classroom where you can actually challenge your professors. Ideally you can challenge your professors if they’re saying something you disagree with. But they want it in the residence halls where it’s much harder to – it appears I think to the average student that well, I have to accept kind of this ideology being forced on me or I’m going to be like kicked out of my dorm or something, which is not a healthy, conducive environment for a dialogue.

Aaron Ross Powell: So the story you’re telling sounds familiar in the sense that in the 90s and the early 2000s in particular, we – there were a lot of stories of conservatives upset, that they would – kids would go to college campuses and they would have to take courses that touched on queer theory or feminist theory and that these things were anti‐​American or in some way disrupted their socially conservative priors. So is this related? Is that a precursor to this and this is kind of the same thing going on, on the left, or are these distinct?

Robby Soave: I would say it’s related but now you can – it’s not just like hyper offended liberal students. There are conservative students bothered about all sorts of things and that are going – that have begun and will in the future. I absolutely believe this is going to be the next big trend is conservatives saying, “Well, we’re actually marginalized on campus. No one shares our views,” and they will actually have a better case because kind of everyone on campus shares the offended left students’ views in some sense. Their entire faculty does.

So the conservative students are going to start saying, “Well, wait a minute. Our ideas are not represented. We don’t have anyone who thinks like us. What about this kind of diversity? We need the coddling, the protection. Our ideas are under assault.” I think there will be no sort of argument against that.

Trevor Burrus: Well, there won’t be a principled – I mean they will just be playing the same game. But Aaron, were you asking about the first wave of the PC stuff or …

Aaron Ross Powell: The first wave seems a bit – we had the political correctness …

Trevor Burrus: And that’s still a word that – I mean Trump – it’s still a word that stands for a bunch of – especially attitudes in conservatives. Like Trump uses it to note this – but I think we’re talking about like Dinesh D’Souza’s Illiberal Education and Shadow University which is what …

Aaron Ross Powell: But that first explicitly PC movement is interesting in light of this second wave PC movement because that one ended. I mean it was a big thing and then it just became a subject of ridicule that we published, like the politically incorrect bedtime stories book. It was a best seller for a while. It just – it became something – you made fun of people for using these dumb PC terms and whatever and it died out. So does that prior PC wave tell us anything about this one in particular, like how this one might play out?

Robby Soave: I think it tells us that this is kind of cyclical on its own and were I think maybe at a high watermark for this current phase or will be soon hopefully. But …

Trevor Burrus: But then what are you going to write about?

Robby Soave: Yeah, no. I have perversions …

Trevor Burrus: Is it cyclical in the sense that people are paying attention to it or that there’s actually – the student outcry itself is cyclical, like the actual …

Robby Soave: I think the student protest movement is kind of cyclical. There are more student protests now and it’s certainly the case that they’re having a more pronounced impact on the university. They’re actually getting people to resign. They’re actually – administrators are at least pretending to try to meet their demands.

I mean they do have a bit of power at this moment and they can invoke investigations of faculty members. That’s a big power. I mean the balance between what students can do and what professors can do is really shifted in the last I would say like two years with the kind of Laura Kipnis stuff. That’s just the most well‐​known but there are so many …

Trevor Burrus: Can you tell a little bit about –

Robby Soave: Sure. Northwestern University professor Laura Kipnis had written some article actually complaining about Title 9. She had written it for The Chronicle of Higher Education, talking about how Title 9 just kind of messes up normal relationships between students and faculty or the kinds of relationships that existed between students and faculty when she was a student.

She talked about kind of some of the Title 9 cases. Title 9 also compels sexual assault investigations in the universities and very liberal ones. Her students, students of the campus were so outraged by the article. They disagreed with it. They filed a Title 9 complaint against her, that she had violated Title 9 by talking about it essentially.

Even though that’s absurd, the university still has to appear like it’s taking this seriously. So it has to do something. So it subjects her to an investigation where she can’t have a – it flies in a team of lawyers. She doesn’t get a lawyer. She gets a support person. Her support person, that person’s advocacy on her behalf also caused people to file Title 9 complaints against that person. So he had to be removed and …

Trevor Burrus: So she can’t defend herself against Title 9 claims without violating – or like some people believe.

Robby Soave: Right. It’s totally like a catch‐​22 of – it’s the modern catch‐​22 of higher education that what it – everything that falls under it makes it so you can’t even talk about it or discuss it and eventually she’s cleared. Nothing bad happened to her but that was after weeks of uncertainty.

Certainly if you had followed this, you would – and were a professor, you would take away from it. Well, I should just shut my mouth about this – other things that could bother my students and I hear this from professors all the time, professors who are afraid of trying to teach their students.

Trevor Burrus: The interaction there is interesting and it goes back to what you were saying at the outset about Title 9 or at least the current deal, this interpretation of – through the “Dear Colleague” letter.

But in interviews and research you’ve done in terms of the administration itself, how much have you found like that kind of – is this just extreme risk‐​averseness like we – might get sued by the government or is there actually communication going on between people in the DOE and on university campuses saying you need to investigate this? They seem to go gung‐​ho on this. But are they just afraid or are they zealots or is it a mixture of both?

Robby Soave: It’s three things. First of all, they really don’t mind doing this because they’re administrators and they like to run people’s lives. I mean it’s just sort of bureaucratic mission creep. We can do more stuff. We can prevent more people. We can interfere in more people’s –

Trevor Burrus: And often their title is like the administrator in charge of diversity and inclusion on campus.

Robby Soave: Dean of the Office of Inclusive Excellence and Diverse Sustainability. What else is this guy going to do?

Trevor Burrus: I could just see him like clapping his hands, being like, “All right, here we go. We finally got something on you boys.”

Robby Soave: Yeah. So it’s that. It is also extreme risk‐​averse. Universities just are that way. They’re big institutions. They’re always afraid of their brand that somebody is going to cause them a public relations disaster. The students are going to do that and then also – but also it is, yes, very explicit guidance from the government. The government is investigating more than 100 – I think it’s nearly 200 at this point, universities for violating Title 9. It just tells you we’re investigating you for violating Title 9. It tells everyone it’s a public list, that you’re under investigation and that you could lose federal funding. I don’t think it actually has deprived anyone of federal funding. It may be very – almost never at least.

But as part of your settlement for the investigation, it says, OK, you must implement all these things and then the university agrees to change its harassment procedures, its sexual misconduct procedures. The Office for Civil Rights has said for instance that you have to use a preponderance of the evidence standard when you’re having a sexual assault dispute.

Trevor Burrus: Which is 50 percent plus one – like a small thumb – one percent, yeah.

Robby Soave: Right. And the defense of that is that – well, that’s a standard you would have in like a civil procedure. But they don’t mandate any other aspect of the civil procedure. So for instance, you don’t necessarily have cross‐​examination rights and in fact, in several of these settlements, at least two of them, the Office for Civil Rights has said you may not allow cross‐​examination.

Aaron Ross Powell: What would the reasoning be for that?

Robby Soave: That’s traumatizing to a survivor of sexual assault.

[Crosstalk]

Aaron Ross Powell: … which of course assumes that they are actually …

Robby Soave: Well, the language they use always assumes it because they say survivor. They say …

Trevor Burrus: Potential survivor. I mean it assumes the accuracy –

Aaron Ross Powell: So the procedure assumes the outcome in its structure, the outcome that that procedure is meant to determine.

Robby Soave: You’re not guaranteed a hearing. Actually OCR’s kind of preferred method now is a single investigator model where – so there’s a dispute. It is handled by one administrator who investigates it, who decides which witnesses to interview if any, who to talk to, decides whether there’s a finding – not a finding of guilt. It’s a finding of responsibility and then determines the suitable punishment and one person does this instead of a panel or a hearing of like three people.

Trevor Burrus: Do they have to inform the person accused that he – probably usually he but not always – is under investigation or give them an opportunity to present evidence to …

Robby Soave: They don’t have to do anything. They’re the investigator. Actually, I covered one case. I think it was Colorado State University Pueblo I think.

Trevor Burrus: What is it called in …

Robby Soave: Yeah, that’s what I remember.

Aaron Ross Powell: Yeah, CSU Pueblo.

Robby Soave: Yeah, it’s CSU Pueblo and this was a sexual misconduct dispute between two students who are basically dating. There was no actual – so someone else reported that she had been assaulted by him. She was a trainer. He was an athlete. Trainers and athletes aren’t supposed to date but like I mean you can. It’s a free country. But someone else found out about the relationship and said he had assaulted her.

When she was asked, she said, “No, no, no. I was not raped.” Those were her literal words. “I was not raped. We’re just trying to keep our relationship secret.” She told her coach. There’s nothing to report here. Everything is fine. They said, well – so you say the Title 9 people will sort that out and the person – so they were forbidden from seeing each other while this investigation was proceeding. Again there’s no dispute between them, none whatsoever.

Trevor Burrus: So this is just like almost like the government coming in and being like we’re going to investigate your relationship and decide whether or not we think it has …

Robby Soave: Yeah. We will let you know whether you were raped or not.

Trevor Burrus: Yes, exactly.

Robby Soave: And …

Trevor Burrus: And it was a friend of hers who reported it as …

Robby Soave: It was some other trainer, yeah. There might have been some jealousy component or something or just wanted to get them in trouble. He was found responsible and I’m not clear whether they actually interviewed him or her because it’s – and he had other people who wanted to be interviewed. But the investigator said to him, “I am the investigator. I will decide who gets interviewed for this procedure.” He was found guilty. He was – I believe it was a two‐​year suspension from the university.

Trevor Burrus: In some of these, there are some lawsuits that have been …

[Crosstalk]

Trevor Burrus: How are these played out? Have any of these been resolved?

Robby Soave: In recent months, there had been a number resolved in favor of the student alleging that he was wrongfully disciplined, either because the cause was farcical or his due process was violated. Now there’s actually going to be a case that was just filed alleging actually that they – the education department as the defendant because it has advised these universities. It has forced them to do things that violate the due process rights of students. It’s a University of Virginia law student who has filed suit and his suit says – it’s kind of an interesting little argument that the – are your familiar with the Administrative Procedure Act?

Trevor Burrus: I am, yes. We’re both lawyers, kind of.

Robby Soave: Right, right.

[Crosstalk]

Robby Soave: You actually probably know it better than I do. I’m trying to read this lawsuit and understand if it makes sense based on this. So the new OCR guidance that came out in 2011 was never –

Trevor Burrus: It was never …

Robby Soave: Right. It was never subjected to this law that says if you’re going to do a totally new rule, you have to have the public weigh in. The preponderance of evidence standard is a totally new rule. At least you can argue it was never acquired before and this is kind of sizable different thing. Because the preponderance of evidence standard was used in this UVA student’s case, he was found responsible. Actually the person, the single investigator who did it, said, “I would not have found you responsible if under a higher evidence standard.” So he has a good argument.

Trevor Burrus: But in the past, we’ve had concerns or there are concerns about sexual assault on campus and there are concerns about people feeling marginalized on campus. I mean this has been going on for a while and they’re not completely unfounded.

Robby Soave: Not at all.

Trevor Burrus: So what should we be doing about this if not investigate everything to the absolute fullest degree?

Robby Soave: I think this Stanford case, the rape assault at Stanford, Brock Turner was the …

Trevor Burrus: The swimming kid.

Robby Soave: Yeah, the swimming kid. As horrific as this case was, he committed a terrible crime, this is a good model for how these things should be handled and his punishment was too lenient. I think that argument makes sense. But he is going to be punished and he has been publicly branded a rapist. He’s going to be on the sex offender registry. He is being punished even though he should technically serve more jail time.

But this is how these things should be handled, these sexual assault cases. This is – he was – the police were called. He gave an incriminating statement to police that he later contradicted. It went before a jury. A jury decided, a 12‐​person jury decided beyond any reasonable doubt that he was absolutely guilty, because he was guilty.

Now we have faith in the outcome. We don’t need to question – he’s not – if this had been handled by Stanford, he would be suing Stanford for depriving him of due process and would be hearing now how he’s the victim of this process. He would be. Stanford uses that procedure for handling these things.

But it’s just – it’s so obvious to me that you have to have the normal works and all, the normal criminal justice system deal with these things, because that’s the only way we can be certain of the outcome, that we can be confident that this person actually did it, that justice is being served and that it’s not going to be overturned in one of these lawsuits.

Aaron Ross Powell: Let me push back a bit on the criticism. Not so much the sexual assault issues but the speech and trigger warnings and safe space concerns. So one way you could approach that is to say, look, these students are being charged an extraordinary amount of money to go and spend for however many years, getting their undergraduate degree.

This is a market and the provider should be providing what the customers want. So there’s – what’s wrong with the students saying, “Look, I came to college for reasons X, Y and Z,” and we as outsiders or old people who went to college before this stuff was hip, think those are stupid reasons but the customer is always right? So the college is just meeting market demand.

Robby Soave: Sure. That is an argument that is not totally wrong. I think the sort of tremendous – I mean universities are public but sort of private. They operate independently but they have – even the private ones have all this public funding and then it’s sort of – but like taxpayers are on the hook for this institution that is then violating the rights of most of the students who go there just because some students want it.

So it’s so divorced from a true consumer “you deserve what you pay for” kind of model that I think that breaks down. I mean most of the students at these institutions just want to go there and get a good education and take advantage of their First Amendment rights and hear interesting speakers and then you have this small minority of students that are shouting down everyone they disagree with and getting people like disinvited from the college. I mean what if you’re – this is going to be your only opportunity in life to hear controversial, interesting people. Like I remember when Bill Ayers came to my campus, the University of Michigan. I got to interview him for the paper. This was a really exciting experience for me as someone who wanted to be a journalist.

What if he was disinvited from campus because these offended students didn’t want someone like him there? This would have hurt my education. I’m paying. I want a good education. So I don’t – so that’s kind of my problem with that.

Trevor Burrus: Well, Aaron raises an interesting point because it’s with the Title 9 influence. You think of schools like Hillsdale and Grove City, which I believe are the only two schools that take no federal funding of any sort.

Robby Soave: Yeah.

Trevor Burrus: They’re both very conservative of course.

Robby Soave: Right.

Trevor Burrus: They don’t even take student loans from – that are subsidized by the government because I think if you do that, that’s the trigger that pulls you in.

Robby Soave: Yeah.

Trevor Burrus: And that’s two out of however many institutions of higher learning there are in America …

Robby Soave: There are places like Liberty University which say to you, “We put some other value on a higher pedestal than free expression. Our Christian identity comes first.” They’re letting you know that! So don’t go there if you want kind of your garden variety, classically‐​liberal maximum free speech kind of post‐​Enlightenment education.

Trevor Burrus: In an education funding system, I think all of us would support or do something with – with so much of the government’s foot on the neck of these universities, you could start a school that advertised itself as a safe space. You’re not going to hear – I mean Hillsdale kind of says you’re going to get a conservative libertarian education. You’re not going to hear any of those neoliberals or anything. It’s just going to be Marxism and – but of course that’s not the case. Which is the interesting question of what they’re trying to do here because your discussion about the sexual assault prosecutions – I put that in air quotes. They’re not criminal on this level. But it’s like they flipped the entire Blackstone better than – what is it? One guilty …

Robby Soave: Yeah, absolutely.

Trevor Burrus: Ten guilty men go free, then one innocent man is jailed. I mean I feel like that they’re actually substantively arguing against – tacitly if not explicitly, that they actually think it’s better if they convict people erroneously as long as they can change the fundamental institutions of society, because a lot of this in terms of the sexual assault is about a social construction theory of society, how we need to change the way people view sex. Men in particular and few women.

We can only do that with extreme force and prosecuting how they deal with women sexually and all this sort of situations.

So it’s actually better if we convict people, innocent people accidentally because we’re trying to change society fundamentally.

Robby Soave: Right. And I just thought that was sort of a bedrock liberal – classically liberal view that no, it’s – it’s better to let however many people go – well, whatever it is! Why is that so hard to say?

Trevor Burrus: Ten guilty men go free and then one innocent man jailed.

Robby Soave: But I’ve been shocked by how many liberal commentators, liberal activists, people who – otherwise you would expect them to say no, to be opposed to like torture or Guantanamo Bay or presuming people are terrorists. All that sort of good stuff that I agree with have kind of thrown that out the window when it comes to these sexual misconduct disputes. They imagine that the person is always guilty and if they’re not, they might as well be guilty and we should proceed like that.

People like Ezra Klein wrote articles saying that the affirmative consent standard, the different consent standard that requires that you have like a verbal yes to each and every sexual activity, is necessary even though it makes no logical sense and would be bad.

Trevor Burrus: Because it’s so widespread, because rape is such a problem.

Robby Soave: Even though this is going to result in people who really didn’t do anything wrong getting punished, even though this is going to have – likely have a disparate impact on communities who already suffer from excessive rules and regulations and criminal codes – when I talk to law professors, they say more of the accused students are students of color, which is not surprising because we know that these kinds of systems of justice mistreat these people.

The leftist is often correctly outrageous about these things and other contexts, but not in this context. The left community I guess is much more divided.

Aaron Ross Powell: Well, that seems to raise another potential way to get – to defend this – what we would call a liberalism, which is – so you’ve got the college professors who are on campuses now or are largely the product – they were on the universities in the late 60s, early 70s. They were part of very large student movements that were important and successful in meaningful ways and came out of society where the young people changed the world or at least they perceive it that way.

They’ve identified maybe these problems. Like, one of the things that has happened at universities over the last half century or so is groups that had been marginalized have more access to the university. And sometimes that’s for very good reasons and sometimes that’s for reasons that we might think are not so good. But there are more of these marginalized groups, whether that’s women who now often make a majority –

Trevor Burrus: I think by – that’s substantial, like 58 percent or something.

Aaron Ross Powell: But racial minorities, ethnic minorities and that these groups have been, over the course of US history, systematically disempowered compared to the elites who still largely run things and make up the bulk of the stuff that you learn on campus. It’s like the perspective of these elites or at least the story goes. So you can say like this marketplace of ideas is great. Like, you ought to hear controversial things. You know, the answer to bad speech is more speech sort of argument. But that that only really works when the sides have some equality and power.

When your voice has been marginalized for so long, then the powerful people speaking their speeches significantly more weighty than yours. So what we need to do to correct these things and the way we correct them is at this young people student level who are going to be the future leaders of America, is to put a thumb on the scale to push out the speech of the powerful, so that the speech of the marginalized which is just as true, if not more true than what the powerful is saying, can be elevated.

Robby Soave: Yeah, this idea – you’re absolutely correct. This idea is very popular among students. It’s a punching up, punching down dichotomy as another way of putting it that, yes, we don’t have – even if – if we all had equal free speech, it wouldn’t be equal free speech because some people have more institutional power or have more wealth, have more privileged status by virtue of their birth.

So their speech is counting for more and so, yeah, First Amendment is not all that great because that’s just giving more power to the people who already have it, if we’re just all going to have equal free speech. So it’s just as you say. They want some kind of – so that is one of the arguments they use to combat the idea that free speech by itself is so great.

Trevor Burrus: So what’s wrong with that? I mean it’s interesting because – I mean I think you have to get down to the core. I mean first of all, these people are not liberals.

Robby Soave: Yeah.

Trevor Burrus: They have no meaningful sense of liberal and they’re basically collectivist puritans. They’re adopting – the puritans would say, “Oh, I believe in liberalism,” like in the classic sense. They would know – the pilgrims would have been like – they were not places of religious tolerance. They’re like no, there’s like – we’re going to socially engineer society because of one – there’s one thing that matters here and that’s relationship to God for example and we’re going to socially engineer sexual relations. We’re going to make sure women don’t show their ankles, all these things, have heresy, micro‐​aggressions, whatever. They’re all the same.

Robby Soave: Yeah.

Trevor Burrus: It’s a tendency of human society. So first of all, say like – so they have this idea. But now what’s wrong with it?

Robby Soave: Well, I would say what’s wrong with it is that it’s not – it’s never neat, who has the power in the situation and they’re kind of very warped about who is the powerful. I mean in some – someone who has the power to like crucify you on social media might actually have more power than someone who’s ostensibly wealthy and works for an important organization but doesn’t have the same social media following or you could have – I mean even on these campuses. Like I’m thinking of Gawker attacking that – like Gawker used to think of itself as talking truth to power. Gawker is incredibly powerful although now they’ve …

Trevor Burrus: Yeah, yeah.

Robby Soave: It’s post‐​dated. Let’s pretend I’m talking about this like one year ago. But – so it’s not always clear like who is actually the punching up, punching down party to me. In these campuses, a lot of the times, the people who are claiming to be the most marginalized, most oppressed, most traumatized, most emotionally‐​turmoiled people are the like wealthiest, most privileged people and keeping in mind that everyone already on the campus usually is filtering through some degree of privilege.

But the students who have a much better case to say that they’ve had – they’re marginalized. They’ve had very difficult experiences. Maybe they’re students of color. Maybe they’re some other identity group. I hear. I’ve seen cases where these students are actually the ones who are being censored or who are – whose speech is causing the more privileged students to say, “I’m offended. You shouldn’t …”

I’ve heard of students being run out of like anti‐​war meetings. A student who had said like, “We need to man up and confront this war,” and he didn’t – he was a less privileged student and didn’t understand why that was politically incorrect language.

Trevor Burrus: Are we talking about “man up”?

Robby Soave: Yeah, yeah, yeah.

Trevor Burrus: I have to continually update my dictionary of what’s not OK. So “man up” is not OK I guess.

Robby Soave: Here’s another one for you. I just saw on Colby College’s bias incident spreadsheets that a student reported another student for using the phrase “on the other hand”.

Trevor Burrus: Huh?

Robby Soave: It was filed under disability. So I must presume –

Trevor Burrus: Are they just – I mean that is like …

Robby Soave: I don’t think so. I don’t think so.

Trevor Burrus: That was the thing that was the joke.

Aaron Ross Powell: Well, that was – yeah, when the first political correctness …

[Crosstalk]

Trevor Burrus: … and all those like jokes were coming out.

Robby Soave: Yeah, they’re not really jokes anymore. Also on this list, a funny one was someone had apparently carved a swastika into a pumpkin, but then there was an asterisk. Upon further evaluation, it was not a swastika.

Trevor Burrus: So – is that what you do every morning is you read the instant – you have a few colleges you like –

Robby Soave: Yeah, I search for – yeah, you can just search for these – these biased incident reports by the way are terrible. This is – these are panels of administrators who are just – like their job is to wait for somebody to complain that somebody said something else they don’t like and then they hold a conversation with that person and consider additional disciplinary measures, for professors, for students, for – and these are in place in a hundred different campuses.

Trevor Burrus: But maybe what we need to be doing after Aaron’s question about power relationships and what we’re really working with here – because we’ve all – if you’ve grown up since the 80s, we’ve all kind of grown up in the sort of emerging power narrative. I would just recall it. We had it at Boulder and it’s something you can’t totally disregard.

Aaron Ross Powell: Post‐​Foucault world.

Trevor Burrus: Post‐​Foucault world. Yeah, for me – and even for libertarians, like that idea of class warfare and – proto‐​libertarians sort of came up with that power matters. But maybe – I mean it seems what we need to be doing is A, realizing these people are not liberals. I mean – and not let them use that word and B, defending liberalism like for what it means, because they’re pretending they’re doing it but they’re completely not.

Robby Soave: Well, yeah, and I would argue that they’re wrong about power and free speech. I would still argue that absolutely maximum free speech on a place like a college campus is an advantage to the less privileged, is an advantage to the people who don’t have power. The people who have power actually don’t need these kinds of protections because they can get their way regardless. They can gain the system. They already have advantages. They have other advantages.

So I would still say even though free speech gives them the right to offend you, the right to bother you, it’s still the best tool that the relatively disadvantaged have to speak up.

Aaron Ross Powell: So then in light of that, what do you think of the kind of non‐​administrative counterpart to these restrictions on free speech, which is the public shaming that we see so often? So you’re not – like, OK, we’re not going to restrict your speech. We’re not going to prevent that person from coming to campus. We’re not going to institute these procedures to investigate you and discipline you. But what we are going to do is talk about how awful you are on Twitter. Is that kind of a fair way to address this without being as bad or is that as bad?

Robby Soave: Yeah. I think the actual dedicated principled classical liberal has to be very careful here because publicly shaming someone is a form of free speech. I mean protesting is a form of speech. You can protest a speaker you don’t like when they come to campus. That’s fine. You should do that if you don’t like them.

So I try to be very careful not to discourage speech. Speech that I don’t like still is – and even speech calling for less speech is still speech, right? So I must assert that you have this right even to call on free speech to be restricted. So yeah – and public shaming is obviously a better tool for bringing about desirable social change than prohibiting people from doing something you don’t like.

So I – yes, I would not – I think we have to walk a fine line when we criticize these students who are saying they’re offended. You can say you’re offended. Things are offensive. That’s not necessarily a bad thing.

Aaron Ross Powell: How much has social media played a role in this movement? You placed it at – what was it? 2011 you said so?

Robby Soave: Yeah.

Aaron Ross Powell: So in the last five years, social media has exploded as well and often if you’ve got these small activist groups on campus, they used to be fairly isolated. But now they can feel like they’re an enormous nationwide movement. So has social media accelerated this?

Robby Soave: Yeah, it has made it much easier for activist students to find other activist students, to organize under hash tags, to identify people who agree with them on other campuses, to appear like they really have something going for them, like they’re in the zeitgeist. Things are going their way. So I think it has definitely helped spread and like I had mentioned earlier, it has also made it easier to pick on them, to kind of identify the outrage incidents. So it’s having – it might be having a distorting effect on how much of a factor this actually is on college campuses.

Trevor Burrus: When it comes to the shaming incidents, I mean I agree. You have to support people’s right to even talk about not supporting your rights or other people’s rights. That is what it means. But I mean should we at least be encouraging the students to listen to the other side?

I mean that’s the thing here that’s terrifying and to me is that I think that liberalism in the correct definition of the word rests on a pretty thin reed quite often. In most of history, people are not liberal. Most people in the world today are not liberal. Supporting the freedom for the idea you hate is not a common thing. There are little bubbles throughout history. But most people tend to – some sort of totalitarianism control collectivism of some other people and they’re all learning this now, embracing it, and going to go out and live in the real world. I feel like this should be terrifying to us.

Aaron Ross Powell: It is terrifying and I think it’s too late to address it by the time they’re in college. I think – actually what I think is a big problem is that a lot of these college students are just demanding the same kind of coddling and emotional protection and sort of illiberalism they’ve grown up with in 12 years of public schooling where – I mean these things are little police states now. These elementary schools are – people are disciplined for nonsense. There are police in every – in half of all public schools now.

So every disciplinary matter is immediately – becomes a police matter. You can’t – if you punch someone on recess, it used to be you get like detention or something for a week. Now you might be going to juvenile because there’s a police officer in the school and they’re going to – so these kids – I think a lot of them have been conditioned in a growing up – going to school in a post‐​Columbine country where everything is dangerous and there’s going to be mass shootings all the time and we take safety, safety first, safety first. Schools are so unsafe.

Punish the kid who chewed his Pop‐​Tart into the shape of a gun because he’s probably some deranged mass killer. This is the environment they grow up in and then they go to college and then they have actual freedom for the first time and I think that is terrifying to some of these kids.

I think they’ve been taught that the purpose of education is to protect you emotionally, physically and it’s kind of hard to say, “No, you’re here to be exposed,” to things that are uncomfortable. You’re here to be unsafe. Lack of safety can be good. It can challenge you. It’s healthy to your growth and they – but that’s not how they’ve been raised. That’s institutionally and formally not how our education policies have worked over the last dozen years.

Aaron Ross Powell: So the answer to this might be that it’s – this movement is too new to know. But do we have any data on what they do once they graduate? Like, do they go on to their first jobs and demand similar coddling and complain to bosses when a co‐​worker says something mean?

Robby Soave: So I can only answer that like anecdotally. But there have been – I think it was a New York Times article or something about, yeah, them entering the work force and kind of thinking they have the right to sort of critique higher up people’s like imperfect speech or sort – yeah, it is kind of a – it should be a safe space environment and it’s kind of funny.

But I can imagine that sort of being a sweeping trend because I just can’t imagine that working out very well for most students who try that. A lot of them – I mean then there’s some who just probably adapt to the entrepreneurial world of being a – out of college. Others I think kind of want to stick around college like as long as they can and sort of …

Aaron Ross Powell: Nothing wrong with that.

Trevor Burrus: Yeah. Well, do you see that – in my experience and Aaron’s too I think, in Boulder, I was libertarian there and Aaron was eventually too. I was aware of what was around me and I did speak out. I mean it’s me. I have spoken out more. But I knew people around just sort of like – you just sit and watch the people yelling and saying – OK, well, they’re doing this. But like the silent majority is actually against them or is this more liberal kind of mindset? Could that be the case here?

I know that some groups have been starting creating pro‐​free‐​speech groups on campus. That has been growing and things like this. Could there be a kind of silent majority right now that is – that we don’t have to be terrible worried about?

Robby Soave: Well, it’s interesting because a lot of the opposition to this kinds of craziness going on is that – well, it’s partly – it’s libertarian‐​based. In a lot of sense, they’re libertarian student groups who are admirably fighting this kind of environment and conservative student groups. However, I can’t – sad to report that it’s also taking on like a pro‐​Donald Trump bent because Donald Trump is the person – like the high profile person most addressing this, with his invectives against political correctness, that I think are stupid and totally wrong in like every sense except the campus sense.

College is the only environment where you can make a solid case that there is like left wing censorship punishing people institutionally. Like, that’s true. That is happening in a lot of college campuses. That’s not true for society at large. It’s not – the rest of it is all nonsense.

But I think a lot of Trump people, they send their kids to these places. They see what’s going on. Maybe they read my articles at Reason Magazine. Maybe it’s my fault and they go, “Man, this is nuts,” and he’s the one denouncing it. Then there have been lots of kind of semi‐​ironic but I wonder how ironic pro‐​Trump student groups now. They’re chalking Trump 2016. They’re saying “build the wall” and again, they’re doing it – part of it is just a free speech stunt. I’m OK with free speech stunts but it’s a little – it’s not ideal for making a – like a philosophically‐​sound, pro‐​speech, classically liberal argument when like Trump is your spokesperson for that.

Trevor Burrus: I so wanted you to say yes to my question and you just made me even more – I wanted you to go like, “Yes, Trevor. There is a silent majority of free speech …”

Then you just had to say it. You had to say the “T” word. We haven’t banned it from Free Thoughts, but I’m thinking about it.

Aaron Ross Powell: Well, then, so how do you see this playing out over the next five, ten years?

Robby Soave: I think the legal regime is going to face serious challenges. I think the sort of Title 9 enforcement is going to come under additional scrutiny if not because of this lawsuit I just alluded to, other ones. I still think they will have a lot of time to kind of – especially assuming that Hillary Clinton is president. I expect her appointments to this office to – because she has made more explicit promises to the activist community who wants to kind of bonkers Title 9 enforcement than the Obama administration or anything.

President Obama is actually kind of – at least says the right thing, good things about safe spaces being bad and all that even though his administration has – I think he’s just probably not aware of what this undersecretary is doing. I think Hillary Clinton is aware or is more aware and has made promises and I think it could actually get a lot worse from a formal government administrative standpoint for a while. But like I said, it’s cyclical. Do I think this is the end of American education? I don’t know. Maybe it might be the end – American education might be ending – might become so expensive, everyone is going to take online courses or something. People might be waking up to the fact that it’s not a guarantee of a job and if you have to take out all this money just to study like oppression studies, there’s no point.

So I’m not a pessimist about the long term future of education or even free speech. But certainly in the short term – and by short term, I mean the next couple of years – this madness might subside but it seemed – there are many reasons that they might get a lot worse.

Trevor Burrus: Thanks for listening. If you enjoy Free Thoughts, please take a moment to rate us on iTunes. Free Thoughts is produced by Mark McDaniel and Evan Banks. To learn more about libertarianism, visit us on the web at www​.Lib​er​tar​i​an​ism​.org.