Almost one hundred years ago, America embarked upon its greatest failed experiment in social “betterment”: Prohibition. Today, American academia is running headlong towards making the very same blunder by treating adults like children.
Rarely does one read as forthright an embrace of this infantilization as University of Chicago law professor Eric Posner’s recent column in Slate, in which he argues that “students are children. Not in terms of age, but in terms of maturity. Even in college, they must be protected like children while being prepared to be adults.” Posner proceeds to wave away concerns about speech restrictions on students and new, highly controversial and problematic campus “sex codes” by asking, “If students want to learn biology and art history in an environment where they needn’t worry about being offended or raped, why shouldn’t they?”
Posner’s column gets it wrong in two profound ways. First, he falls into the same trap that the temperance crusaders did in the early 20th century. He assumes that if government bans a social ill, that problem will actually be reduced or eliminated. But will it?
Rape, of course, is already banned and outlawed. Despite huge amounts of experience, fairly trying such cases is not an easy task, even for experts and courts of law. Yet when it comes to campus courts, too many advocates seem convinced that we can get better results by trading hundreds of years of Anglo-American jurisprudence for a politically driven mishmash of mandatory training, weak protections for the accused, wholesale redefinition of the crime, and federal regulation. This is a fantasy. Even a person who believes every one of these new steps to be completely warranted can’t reasonably believe that campus disciplinary systems, widely acknowledged to be amateurish and terrible, are competent to administer them.
Second, when it comes to “being offended,” we should, if anything, be relieved that universities are unable to prevent it from happening. Posner labels efforts to prevent offense as simply “catering to demand in the marketplace for education.” But if colleges are to deliver a meaningful and useful “product,” they can’t guarantee an offense-free education any more than they can guarantee that every paying student get straight As. A truly liberal education is virtually guaranteed to “offend” students by challenging their preconceived notions.
That doesn’t mean colleges haven’t tried to cater to the feelings of the most sensitive students on campus, though. Most college students already live under the strictures of broad, vague, and often laughably unlawful speech codes. And yet, somehow, students continue to utter offensive speech! This is just as predictable as was the rise of bootlegging under Prohibition, and campus efforts to police speech are just as unfair and arbitrary as was enforcement of the Volstead Act. Yet despite both their ineffectiveness and undesirability, colleges and academics seem bewildered as to why any right-thinking person would be bothered by restrictions on campus speech.
Indeed, Posner calls on scientific research to bolster his case for treating college students like children, arguing that “research confirms that brain development continues well into a person’s 20s.” U.S. Commissioner for Civil Rights Michael Yaki made a similar argument about college speech in a public hearing last year, weirdly citing the Supreme Court’s ban on the juvenile death penalty as evidence.
One can’t help noticing that this is an argument for the repeal of the 26th Amendment, which gave 18-year-olds the right to vote. If 18-year-olds can’t even be trusted even to speak their minds, surely it’s foolish to allow them to make political decisions for the rest of us—especially after we have banned them from freely discussing politics! And what about the 38% of undergrads over the age of 25, not to mention all those grad students and professors? Why are their rights curtailed too, despite their presumably complete brain development?
Posner is hardly alone in his apparent nostalgia for a more paternalistic time. Colleges across the nation are embracing various forms of prohibition in their attempts to rein in students’ supposed frivolity. Dartmouth is going the Carrie Nation route, flat-out banning hard liquor on campus. (Can raids on dorm room liquor stashes be far behind?) At UVA, in the wake of the Rolling Stone debacle, sororities have ordered sisters to stay in their houses instead of partying with the men. Wesleyan and Trinity College have banned students from joining unapproved social groups, apparently unaware of why such groups are commonly referred to as being “underground.”
Bans and regulations on speech or behavior are eternally tempting because they represent an easy way out of vexing social problems. Yet their record is largely one of failure. (Famous bootlegger George Cassiday estimated that two-thirds of Congress, which sent the 18th Amendment to the states, was among his customers.) One could be forgiven for holding out hope that college educators, with all their knowledge and resources, would be the most likely to have learned the lessons of Prohibition. Unfortunately, it looks like academia is doomed to repeat this particular historical lesson.
Robert Shibley, an attorney, is Executive Director of the Foundation for Individual Rights in Education (FIRE).
