In the 1985 movie, Back to the Future, Marty McFly travels 30 years back in time to change the future of his parents’ lives. In 2017, President Donald Trump seems intent on reversing certain of the actions of past presidential administrations, most notably those of President Barack Obama, to create a future in America that returns us to the past—hence, Forward to the Past.
I identified 13 threats to higher education and its values poised by Mr. Trump’s election in my essay in The Chronicle of Higher Education on Nov. 15, 2016. Sadly, virtually all of them have either happened, or are in the offing.
Some of these threats have the potential to affect profoundly certain members of the Roger Williams University community. As the University’s president, it is my responsibility to declare our unwavering support of ALL of our community’s members, and I do so now with respect to three distinct threats.
Rumblings out of the Department of Education represent cause for concern. First, the acting head of the department’s Office of Civil Rights, Candice Jackson, said that “90 percent” of campus rape cases involved alcohol and female students with subsequent regrets (a comment for which Ms. Jackson subsequently apologized, describing it as “flippant”). Then, Secretary DeVos scheduled a hearing at which those alleging to be sexual assault victims and those claiming to be wrongly accused of sexual assault each were given equal time to testify (implying that each side was somehow equivalent in numbers and therefore deserving of the same amount of attention).
Second, there are rising concerns that “preponderance of the evidence”—the most commonly used evidence standard on college campuses, and the one enshrined in the famous 2011 “Dear Colleague” letter during the Obama administration— may be replaced by “clear and convincing evidence”, a higher standard that would benefit the accused.
Over the years, campus surveys have consistently shown that about 20 percent of female students claim to have been victims of sexual assault during their college years. Sexual assault is a huge issue on college campuses, but one that, until quite recently, was not given the priority and attention it deserves. Campuses are still struggling to create policies and procedures that incorporate due process standards and that fairly and impartially balance the rights and interests of the parties—but to introduce a new evidentiary standard at this point would not only require rewriting campus protocols but would also (and much more importantly) roll back the rights and protections of female students, and return us to an era we in higher education thought had been permanently relegated to the past.
Until and unless the law is changed, RWU will continue to maintain our heightened protection of female students, and we will continue to use the “preponderance of the evidence” standard in sexual assault cases.
Affirmative Action began in the 1960s as a means of favoring members of underrepresented groups in hiring and college admissions decisions, and in the awarding of government contracts. At the time, the focus was almost exclusively on expanding opportunities for African-Americans.
Over the years, U.S. Courts of Appeal and Supreme Court decisions have severely narrowed the application of affirmative action such that, today, race may not be considered in hiring decisions, although it still is permitted as one of many factors that can properly be used in college admissions.
Recently, The New York Times reported that the Justice Department was seeking lawyers to pursue compliance investigations and federal lawsuits that would target affirmative action programs in college admissions. Interestingly, the report focused on a case involving Asian-Americans at Harvard. The issue was not that their admit numbers were disproportionately low, relative to the overall percentage of Asians in American society (there is actually a much higher percentage of Asian students at Harvard than there are Asians in the broader society). Rather, it was that, on purely meritocratic grounds, less able students of other races were being admitted to Harvard instead of more Asians.
If the Supreme Court were to rule in favor of the Asian students, thereby increasing their numbers at highly competitive colleges and universities across the country, most of the students who would be displaced would be white—and one wonders if white students displaced by Asians would be demanding reinstitution of affirmative action—but this time to favor white students!
The push against affirmative action comes from people who think that no race should be advantaged or disadvantaged relative to another race. Unfortunately, the myth that “all [people] are born equal” is belied by the reality of inequality of wealth and income at birth, to say nothing of continued discrimination based on race or ethnicity. Underrepresented groups are underrepresented in higher education in the first place because disproportionate numbers of them were born poor—and without the means to obtain a college education, they are likely to stay poor.
RWU will continue to consider race among the many factors we use in admissions decisions, but we are particularly focused on finding creative ways of opening our doors more widely to low-income students. Consideration of race or ethnicity may be in peril by the current administration, but at present it is still legal to advantage the poor.
Transgender and the Military
Recently, President Trump announced—first in a series of tweets and subsequently in an executive order to the Department of Defense—that he intends to ban transgender individuals from serving in the military “in any capacity.” That action would reverse a policy instituted by the Obama administration in July, 2015, permitting transgender individuals to serve in the armed forces. President Trump has now reversed his own position, stated at last year’s GOP convention, that he would “do everything in my power to protect our LGBTQ individuals.”
The speed with which society changed its position on gay rights to include, for example, same-sex marriage was enough to cause whiplash for individuals who had, in recent years, been pushing (successfully, in several states) for legislation that defined marriage as being restricted to the union of two members of opposite sex. So it may not be surprising that there are people who would very much like to revisit the recent extensions of rights to gays.
But herein lies the danger. A worst case scenario would be for gay rights to be held prisoner to the party in power. History provides a dramatic example: the repeated reversal of religious rights in Tudor England. To obtain a divorce, Henry VIII broke with the Roman Catholic church in the 1530s, in favor of Protestantism. When Henry’s 10-year-old son, Edward VI, became king, Catholicism was banned—but when Edward VI died, at the age of 16, his half-sister Mary assumed the throne, and England became Catholic once again—but only for five years. Upon Mary’s death, Elizabeth I assumed the throne, and, during her reign, Protestantism was reinstituted as England’s official religion. Thus, for over 70 years, the people of England were forced to endure repeated flip flops in the country’s official religion, at times facing charges of heresy for failing to conform to the religion of the day—and a heresy conviction could bring prison, torture, or even a death sentence.
There is certainly no imminent danger of anyone being burned at the stake in 21st-centry America—but there is the very real danger that transgender individuals, having been encouraged by the Obama administration’s willingness to allow them to join the military to “come out” without fear of rejection, now will face discrimination and exclusion once again.
And that outcome strikes me as unfair in the most fundamental way. Our system of jurisprudence is designed to ensure that newly passed laws are applied only prospectively. That is, almost without exception, one cannot be prosecuted for an act that he or she did prior to the passage of the law. But this 180-degree pivot by the Trump administration regarding transgender individuals in the military effectively does just that: having relied on the rules established by the Obama administration, these individuals are now being told that they are no longer able to serve in the military. At present, that means that no additional transgender individuals will be allowed to enlist, but Mr. Trump’s executive order is written in such a way that some transgender people now serving can be discharged, although what isn’t clear is whether that discharge would be honorable or dishonorable.
Being discharged for the “crime” of being transgender would be the equivalent of retroactive prosecution, something our country normally does not allow.
But the harm is not limited to the capacity to serve in the military. Rather, it is the declaration by the government of the United States that transgender individuals have restrictions on certain of the rights enjoyed by all other members of our society—and that declaration will encourage testing the limits to see what additional rights might be taken from them. For example, several states have reintroduced bills to restrict the use of public restrooms to the gender of one’s birth, an action clearly directed at humiliating and discriminating against transgender individuals. And with the Department of Justice’s amicus brief in a civil case involving a gay individual’s discrimination claim, in which the Department of Justice argues that Title VII of the Civil Rights Act of 1964 does not apply to sexual orientation, but only to gender, the rollback of rights recently extended to the LGBTQ community is clearly under way.
As would be true of any community of 4,000 or more, Roger Williams University has some number of students who identify as LGBTQ. We also have a Reserve Officers’ Training Corps program (ROTC), in which some of our students participate (and receive significant financial assistance with their college costs). Finally, we have declared (as have most other institutions of higher education) that we do not discriminate on the basis of race, ethnicity, religion, national origin, gender, or sexual orientation. How, then, under the current set of circumstances, are we to reconcile the presence of ROTC on the campus with the military’s now being ordered to disallow transgender individuals the right to serve? How do we accept that transgender people will be denied the opportunity available to every other student to receive financial support from the ROTC program?
To all of the members of the Roger Williams University community, let me make my position clear: I am not willing to accept discriminatory practices at our university, and if that means having a campus discussion that could lead to the termination of our ROTC program, so be it.