The preservation of individual liberty rests in
part on the modesty of government officials and their willingness to aim
laws at human behavior, not human nature or belief. Explicitly positing
the laudable but Utopian goal of eliminating (not lessening) sexual
violence, the SaVE Act is an immodest bill; it requires school
administrators to address violence by doing nothing less than "changing
Imagine Congress enacting a law dictating social
norms and definitions of healthy relationships, by which we are all
required to abide. The SaVE Act goes nearly this far; it would impose
definitions of healthy relationships, attitudes, and social norms on
undergraduate students through the intermediary of school
administrators, who will be guided, as usual, by highly risk averse
lawyers intent on shielding schools from any remotely conceivable
liability for failing to meet federal standards.
This is not
idle speculation. Colleges and universities have engaged in violence
prevention efforts similar to those required by this bill for years.
Indeed, the basis for SaVE Act findings that only a minority of schools
educate students about sexual violence, including date rape, is unclear,
and my queries about these findings to Casey's staff remain
unanswered. Staffers at the Foundation for Individual Rights in
Education (FIRE), who have long been
monitoring "safe" (and "civil") campus programs, are skeptical.
Empirical evidence is scarce, but considerable anecdotal evidence
suggests that "peer education programs on topics like date rape (are)
common," Samantha Harris remarks. Will Creeley "finds it unlikely that
institutions as highly attuned to risk management as colleges and
universities have committed to these kinds of training and educational
initiatives in such low numbers." But if it's true that a majority of
institutions have not developed sexual violence awareness and prevention
programs, it is also true that existing programs have dramatically (and
often stupidly) infringed on students' individual rights. Still, the
problem of violence persists.
In insisting that violence
prevention programs on campus respect basic individual liberties I feel
compelled to add that I'm neither denying nor dismissing the crime of
sexual violence (I expect to be accused of doing so), nor am I
suggesting that Congress avoid even trying to alleviate it. The SaVE Act
is salvageable; the criticisms I've raised could easily be addressed
without undermining the bill's intent or altering its basic
architecture. It reads like a bill that was drafted with the help of
anti-violence groups (which have officially endorsed it) and little if
any input from civil libertarians.
Where does the ACLU stand on
the SaVE Act? So far I've received no response to my query about the
organization's position on this bill or my invitation to comment on it.
Given the ACLU's image as a vigilant and comprehensive defender of civil
liberty, its silence on legislation like this translates into tacit
support, especially in light of its explicit support
for the Obama Administration's similarly flawed sexual harassment
guidelines for schools. Once the ACLU vigorously opposed anti-harassment
or anti violence measures that gratuitously restricted basic liberties;
these days it's apt to ignore or support them. I mention this not for
the sake of berating the ACLU (a pointless exercise) but to underscore
the need for other civil liberties advocates -- especially liberal civil
liberties advocates -- to step up where the ACLU has stepped back.