Tuesday, August 25, 2015

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. When that lack of grounding in academic values is combined with the tunnel vision that arises whenever an office is designed with the sole aim of maximizing compliance with a particular mandate, it is a prescription for a bureaucracy that prefers to sanitize the classroom, and override fair-process interests, in order to avoid any risk of being found to have violated the applicable regulations. A very similar dynamic has led institutional review boards to metastasize at American universities, as Zachary Schrag recently pointed out in these pages (“You Can’t Ask That,” September/October 2014).

(Thanks for the cite, Sam.)

But not all regulatory efforts end so badly, and Bagenstos offers the more hopeful example of the Department of Justice’s Disability Rights Section (DRS), charged with leading universities and other institutions into compliance with the Americans with Disabilities Act (ADA):

Many of the DRS’s staff—including its longtime career chief, John Wodatch—had experience working at the [Office of Civil Rights]. But they never allowed the work of the DRS to be dominated by individual, adversarial complaint processing. Rather, from the beginning the DRS focused on policy, training, and technical assistance to translate the broad and revolutionary promises of the ADA into digestible and achievable directives for implementation. Through extensive letter writing, presentations to industry groups, and a continuously updated technical assistance manual, the DRS let regulated entities know both what the new statute required and, crucially, what it did not require. And the communication was not one way. Rather, the DRS’s directives were informed by extensive input from disability rights advocates and the regulated entities …

Sometimes that meant requiring less, or going slower, than advocates urged. And that approach hardly avoided all fights over the ADA’s requirements. But Wodatch and his staff had built up so much credibility on all sides of these fights that most knowledgeable observers, most of the time, regarded their compromises as Solomonic. The DRS’s approach led to widespread voluntary compliance, particularly among large businesses and organizations.

Might that be a model for human subjects oversight?

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