A generation of litigation has inflicted loss upon loss on public universities, yet the campus climate is still rife with censorship and due-process violations. It turns out that administrators fear their own on-campus ideologues and the progressive education bureaucracy far more than they fear the federal courts. Indeed, the financial penalty for angering a bureaucrat — loss of federal funding — is far greater than any damage award imposed by any court. Judges are proving to be a poor check on campus power.
So it’s time to turn the tables. It’s time to readjust the incentives. Congress needs to intervene in two concrete ways. First, it needs to withhold federal funds from any public university that repeatedly violates the constitutional rights of its students or faculty. If a court of final jurisdiction finds that a public university violated the constitutional rights of a student or faculty member more than once in any five-year span, it should lose all federal funding for at least a year. Moreover, there should be a substantial, fixed financial penalty for each constitutional violation, no matter how infrequent.
Second, universities need to get out of the sexual-assault-adjudication business. Universities are educational institutions, not criminal courts, and they are poorly equipped to decide criminal cases or even civil liability.
I agree entirely.