Anonymous Complaints:

Stanley Kurtz (National Review Online's The Corner) writes:

East Germany Hits Virginia

I've heard of speech codes, but I've never heard of anything quite like this: a mechanism to anonymously report "bias related to race, gender, sexual orientation, religion, or other protected conditions" to the university administration, for possible action against the perpetrator. This system has been set up at William and Mary, and a website protesting it can be found here. Is this something new, or at least rare, or is it perhaps more common than I realize?

InstaPundit seems to echo this concern, as have some readers who have e-mailed me.

It seems to me that these concerns are somewhat overstated, at least absent more facts about how the system is being used. Let me briefly explain why.

1. The College is certainly free to punish biased conduct, such as beatings or vandalism, and even a narrow zone of speech, such as threats. In fact, it should punish such behavior, though I'm not one of those who thinks that bias-motivated beatings, vandalism, or threats should generally be punished more than other beatings, vandalism, and threats. What's more, the College's Web page acknowledges that "because the expression of an idea or point of view may be offensive or inflammatory to some, it is not necessarily a bias-related incident. William and Mary values freedom of expression and the open exchange of ideas and, in particular, the expression of controversial ideas and differing views that is a vital part of civil discourse."

2. The Web page does go on to say, "While this value of openness protects controversial ideas, it does not protect harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities." This leaves open the possibility that the College will punish protected speech as "harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities"; but it also leaves open the possibility that only unprotected speech (such as threats) would be covered.

On first reading, the statement of rights and responsibilities didn't strike me as particularly troubling — the most clearly relevant responsibility there seems to be the duty to obey "the general law," which I take it means no vandalism, assault, threats, and the like. If William & Mary starts punishing protected speech, then it should be condemned for that. And, more broadly, I would condemn it for not being more precise about what exactly constitutes, in its view, punishment "harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities." But on balance the College's Web page and the statement of rights and responsibilities — which do provide pretty broad and specifically worded assurances of speech protection — don't seem extremely troubling.

3. This then gets us to what seems to have triggered the "East Germany" reference: The encouragement of anonymous complaints. I know many of my friends are very troubled by such complaints, and I can see their possible costs. But they also have substantial benefits, and I would not roundly condemn institutions that encourage them, at least until I see the institutions misusing them.

In fact, we almost always allow and often encourage confidential reporting of alleged misconduct — poor performance by a company's or government agency's employees, street crime, corporate crime, and so on. We do this because we realize that without the promise of anonymity, people will often be chilled from speaking about misconduct.

Of course if a school or a police department acts badly based on an anonymous complaint — restricts speech, or punishes someone based on the anonymous allegations — then that's bad. But anonymous tips are often useful for investigation, even if they can't be used in the actual adjudication.

Say, for instance that a student (1) sees evidence that a classmate is cheating, (2) hears a professor say in class "If you express an anti-abortion view on the exam, you'll get an F," or (3) hears some acquaintances brag about how they've beaten up a gay student (or, if you prefer, a Muslim student, a white student, and so on). In any of these cases, the student might well want to alert the authorities without revealing his name, and opening himself up to retaliation. And the anonymous tip may well lead to the discovery of credible evidence (whether tangible evidence or nonanonymous testimony).

It seems to me we should indeed allow and even encourage such anonymous tips, while of course remaining suitably skeptical about such tips, insisting that actual punishment not turn on such tips, and insisting that protected speech (as opposed to violence, vandalism, or threats) not be punished at all, whether based on anonymous tips or on nonanonymous ones.

UPDATE: A bit of further looking led me to a page that might be occasion for more worry:

What is Bias?

A "bias incident" consists of harassment, intimidation or other hostile behavior that is directed at a member of the William and Mary community because of that person's race, sex (including pregnancy), age, color, disability, national or ethnic origin, political affiliation, religion, sexual orientation, or veteran status. A bias incident may be verbal (whether spoken or written) or physical.

If you are not certain whether an occurrence meets the above definition, please report the occurrence under this protocol and allow the College to make the determination.

If you wish to report an incident of bias, you may do so by contacting the Chair of the Bias Reporting Team. Please, if this is an emergency, contact Campus Police at 911.

Certainly some of this "hostile behavior" is properly punishable (e.g., a physical attack or a threat), some is constitutionally protected (e.g., among many other examples, "hostile behavior" in the form of statements condemning the target's religion, political affiliation, sexual orientation, or veteran status), and some may be occasion for further investigation though not itself actionable (e.g., hostile statements that might suggest that the speaker has in the past engaged in other violence or vandalism, and that should lead the College to look further at whether the speaker has indeed done so). And the statements break down into these three categories regardless of whether or not they are submitted confidentially.

The question is what the College will do with the reports: Will it punish just the constitutionally unprotected behavior, or will it try to punish the constitutionally protected speech as well? As I noted above, the College should be faulted for not being more precise in its definitions. But the East Germany comparisons, it seems to me, should wait until there's more tangible evidence that the College is indeed punishing, or even attempting to punish, protected speech.

A Bit More on the William & Mary Speech Code:

On reflection, I think I should have faulted William & Mary more for what sounds like an unconstitutional speech code (quite independently of whether it is to be enforced using confidential complaints).

The college's "What is Bias?" Web page defines as a "bias incident" all "hostile behavior", including "verbal (whether spoken or written) [behavior]," "that is directed at a member of the William and Mary community because of that person's race, sex (including pregnancy), age, color, disability, national or ethnic origin, political affiliation, religion, sexual orientation, or veteran status." The "Bias Reporting" page acknowledges that expression of even offensive ideas is generally protected, but concludes that "harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities" is not protected — this seems to suggest that all the statements that are labeled "bias incidents" are indeed punishable.

Thus, for instance, condemning a particular student's or professor's religious or political views in any way that is "hostile" — even if it isn't threatening or "fighting words" — would seemingly be punishable, if it's "aimed at" or "directed at" the person. This might be limited to statements said to a particular person; but it might also be read as covering statements said to the public at large in a newspaper or a Web post about a particular person (depending on how "directed at" and "aimed at" is read). The Statement of Rights and Responsibilities seems considerably more speech-protective, and the "Bias Reporting" page restricts its statement about unprotected speech to speech that violates the Statement of Rights and Responsibilities. But the Statement is not crystal clear about what is protected, and the "Bias Reporting" page may be seen as an elaboration on the Statement that makes certain speech punishable.

So William & Mary should, I think, be faulted for seemingly instituting a speech code that potentially forbids a wide range of protected and important speech — or, at best, leaving students unclear about what speech is allowed. I continue to think that the William & Mary initiative's solicitation of confidential complaints is sound, and I'll try to elaborate a little more on this shortly; investigating properly punishable conduct (such as physical attacks, vandalism, and threats) often requires considering confidential complaints. But constitutionally protected speech ought not be punished whether based on confidential complaints or otherwise.

Note also Stanley Kurtz at the National Review Online has some interesting posts in response to my earlier post on this matter, here, here, and here; they're much worth reading. Kurtz also argues that the current William & Mary administration is untrustworthy in other (but related) contexts; I agree that if this is so (I don't know enough about it to be sure), then observers might justifiably be skeptical about how the college's policies are likely to be implemented.

Confidential and Anonymous Speech / Confidential and Anonymous Complaints:

People are often troubled when the government and universities solicit confidential or anonymous complaints; the William & Mary Bias Reporting system controversy is the latest example. I think such systems are principle necessary and legitimate, so long as they are properly run. True, there's a risk that they'll be abused, but that's true of most enforcement systems -- the risk alone should not lead us to reject them, though it may lead us to look careful about how they actually operate.

1. Anonymous Speech: To begin with, note the similarity between anonymous speech in public (such as on blogs) and anonymous speech to the government. Requiring that people reveal their identities may deter them from saying things that will open them to retaliation. Allowing anonymous speech will diminish this "chilling effect." It will encourage people to blow the whistle on what they see as misconduct, whether they're revealing (a) government misconduct to the public, (b) nongovernment misconduct (say, by their corporate employers) to the public, (c) government officials' misconduct to the government (for instance, if they are complaining about alleged misbehavior or poor performance by their public university professors), or (d) nongovernment actors' misconduct to the government.

At the same time, anonymity encourages falsehoods as well as accurate whistleblowing. This is why we as readers should be extra cautious about charges levied by anonymous speakers (though we should be cautious about charges levied by named speakers, too). Likewise, government officials should be extra cautious about charges levied by anonymous complainers.

2. Confidential Speech: The William & Mary system seems to be encouraging confidential complaints -- which is to say complaints for which the complainers' identity will be shielded from the target, and even from many of the investigators -- rather than purely anonymous complaints. (Of course, one can always submit even purely anonymous complaints to any agency, and William & Mary seems likely to consider them; but its system, which requires a William & Mary user name and password, is intended to solicit confidential complaints, not anonymous ones.)

The effects, both good and bad, of confidential speech seem likely to be moderate versions of the effects of anonymous speech: The system encourages both accurate and false complaints more than a your-name-will-be-revealed system but less than a purely anonymous system. (The system could discourage false complaints more if William & Mary takes aggressive steps to investigate whether a complaint is not just unproven or mistaken but a deliberate lie, punishes the liars, and publicizes such actions; but I doubt that William & Mary is likely to do this. Unfortunately, such a system would also discourage true complaints to some extent, though if the system is trusted, it will discourage false complaints more than true ones.)

3. Anonymous/Confidential Speech Systems in Practice: Because of this, many institutions routinely rely on anonymous or confidential evaluations. Most universities, for instance, have student evaluations be anonymous. Likewise, most universities assure outside tenure reviewers that their names will be kept confidential from the person being reviewed, and while this assurance isn't ironclad -- there's always the risk of leakage, and of the rare subpoena.

Naturally, the anonymous evaluations are treated with some extra skepticism because of their anonymity. But the sense is that the university will get far fewer accurate criticisms of the professor if the students knew that their names will be revealed; and the risk of some extra inaccurate criticisms is seen as being worth running, especially given that the anonymous evaluations are read skeptically.

A few states, by the way, expressly require by statute that evaluations of government employees not be based on anonymous criticisms, and thus require that students sign the evaluations. I don't know of any empirical comparisons between such systems and the anonymous evaluation systems. Still, my tentative sense is that the anonymous evaluation systems are better, despite the slightly higher risk of unfairness to the person being evaluated. What do you think?

And note that these confidential and anonymous evaluations are directly used in deciding whether certain employees are to be promoted, hired, or even dismissed. My sense is that confidential and anonymous complaints are even more commonly used when it comes to looking into something, and seeking tangible or nonconfidential evidence.

4. Investigating Based on Anonymous/Confidential Speech: Let me elaborate a bit more on this, and bring in point 1 above. Say that someone e-mails you some anonymous allegation about a politician. You'd often be reluctant to believe the allegation, and act (even if it just means publicizing the allegation with your endorsement) without further investigation. But you'd often be quite willing to start that investigation based on the anonymous allegation, since you expect that the anonymous and possibly unreliable tip may lead you to uncover highly credible evidence.

The same is true, I think, with regard to anonymous (and especially nonanonymous but confidential) complaints about an employee or patron of your establishment. If you run a restaurant, and a patron tells you that a waiter has insulted him but insists that his name be kept confidential (maybe he's afraid the waiter will beat him up, or spit in his food if the patron visits again), what would you do? Would you tell the patron that due process prohibits your taking the complaint?

I take it you wouldn't; you probably wouldn't fire the waiter on the spot (unless you've heard a lot of such complaints, and have little cause to think they're part of a general campaign to unfairly malign the waiter), but you might watch the waiter more closely, or ask the waiter's colleagues if they'd heard the waiter insulting this customer or others. The university context is not quite the same as this, for various reasons; but in both situations, the employer may be acting wisely -- and properly -- in paying attention to confidential or anonymous complaints, and even in encouraging them.

The same, of course, is true of law enforcement. The police naturally prefer nonanonymous and nonconfidential complaints. But in many situations, the complainants are naturally worried about retaliation. To minimize the chilling effect on valuable speech (here, complaints to the police about likely criminals), the police should, to the extent possible, allow anonymous and confidential complaints. They generally shouldn't be admissible evidence at trial; but they can be useful tools for tracking down evidence that is admissible.

5. Severity: Finally, some commenters tried to distinguish systems for encouraging anonymous or confidential reports of possible terrorist planning, or even of street crime, on the grounds that those are serious crimes that justify such measures.

But the crimes also lead to severe penalties, and can involve extremely intrusive investigations. So while the upside of allowing anonymous or confidential complaints as to such crimes (the encouragement of accurate complaints) is greater than the upside of allowing such complaints as to "bias incidents" on campus, the downside (the encouragement of false complaints) is greater, too.

6. The Bottom Line: So, as I've said, the William & Mary policy should be faulted to the extent that it seems to allow the punishment of protected speech. Even to the extent that it aims to punish unprotected attacks, vandalism, or threats, it should generally reject the use of anonymous or confidential evidence in the actual quasi-judicial disciplinary proceeding. And campus authorities should be especially skeptical about anonymous or confidential complaints. But such complaints are a legitimate, and often necessary, part of enforcing campus rules -- or for that matter criminal laws -- just as anonymous speech is a legitimate, and often necessary, means of promoting public debate and whistleblowing.