A recent AJC front-page story detailed the results of an in-depth investigation of how Georgia’s colleges and universities handle allegations of sexual assault. Here’s the takeaway, as summarized in the article:
A three-month AJC investigation into the secretive world of campus tribunals found that Georgia’s largest universities are pursuing cases that prosecutors won’t touch, offering some accountability for a serious category of student misconduct. But the newspaper also found that campus justice comes with steep trade-offs.
Procedures vary widely and are often poorly understood by both the accused and the accuser. Students, and sometimes their parents, expect the strict rules of a court of law, but instead encounter a looser system where cross-examining witnesses is sharply curtailed and the burden of proof is far lower.
Several students…claim the proceedings in place are deeply flawed and violated their rights to due process. While they haven’t gone to jail, an expulsion, or even suspension, can have dire and long-lasting consequences.
Sexual misconduct on campus is a very real problem, but so is the way colleges and universities, not just in Georgia, but across the nation, are handling it.
A little background is in order here. In 2011, the U.S. Department of Education’s Office of Civil Rights issued a letter indicating that the hostile environment standard heretofore applicable in sexual harassment cases would be extended to sexual misconduct on campus. Here’s the part of the long letter most relevant for our purposes:
In some cases, the conduct may constitute both sexual harassment under Title IX and criminal activity. Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX. Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably.
I’ve highlighted the words that lead colleges and universities into a legal thicket where they have to establish procedures for holding students accountable that don’t necessarily contain the sorts of safeguards for the rights of the accused with which we’re familiar from criminal law.
Many legal experts have found problems with the procedures established in response to this letter. For example, professors from two Ivy League law schools—Penn and Harvard—have raised questions about their university’s (undue) processes. Neither school is exactly a bastion of conservatism and the signatories include some stalwarts of the liberal legal establishment
The AJC article closes with the trade-off Georgia’s colleges and universities face:
Stephanos Bibas, a former federal prosecutor and professor of law and criminology at the University of Pennsylvania, said schools are trapped between competing forces, each of which brings great risk.
“Currently there are dozens of accused, almost all men, suing colleges, and colleges feel like they are whipsawed either way, and there are billions of federal dollars — grants, scholarship dollars — on the line. I think they feel they will get sued whichever way they go,” Bibas said.
They seem to be damned if they do and damned if they don’t.
I’ll leave to the legal experts to craft a fair policy to deal with sexual, but not quite criminal, misconduct on campus. I speak here as someone who has spent more than forty years on college campuses as a student and professor, and as the father of two children, one a college freshman and the other a high school junior. To my mind, there are two problems that the lawyers and student affairs professionals are trying to clean up. The first is the overwhelmingly pervasive presence of alcohol on campus. Everyone has access to it and all too many of them abuse it. Alcohol disinhibits young men and women who would otherwise shy away from the so-called hook-up culture. And it impairs their judgment when they find themselves at close quarters. While I’m dubious of the claim that one in five college women are victims of sexual assault, I have no doubt at all that almost all the cases that fall short of genuine criminality involve the inebriation of all the parties involved.
The second is the hook-up culture itself, based upon the understanding that sex is all about pleasure, not intimacy and procreation. Parents who try to inculcate in their children a traditional understanding of sexual morality are fighting against a strong cultural current, purveyed not just in television, movies, and music, but also in the law that has made marriage itself mostly about adult happiness and personal fulfillment.
But heaven help the educational leader that makes an argument like this. Late last year, Eckerd College President Donald Eastman III sent this message in an email to students:
“Virtue in the area of sexuality is its own reward, and has been held in high esteem in Western Culture for millennia because those who are virtuous are happier as well as healthier,” Eastman wrote to Eckerd’s 1,800 undergraduate students. “No one’s culture or character or understanding is improved by casual sex, and the physical and psychological risks to both genders are profound.”
Eastman, 69, suggested students drink less alcohol because “you know that these incidents are almost always preceded by consumption, often heavy consumption, of alcohol, often by everyone involved in them.”
While I can imagine that many parents were applauding him from the sidelines, the on-campus response was swift and mostly vitriolic.
Our problem is largely one of moral culture, that is to say, it’s an issue of character and character formation. Laws, formal rules, and procedures have a part to play in forming character, but they are blunt instruments, sadly unequal to the task of raising young men and women capable of forming and upholding the intimate bonds necessary for healthy families. When we make a mess of raising our children—as the evidence from campus life suggests we all too often have—we are driven back to these blunt instruments, whose limitations the AJC story makes all too clear.
As a professor, I feel bad for my students. As a parent, I fear for my children.
An inordinate amount of debt and unrealistic terms of repayment create numerous barriers for returning citizens, including disproportionate financial pressure, the threat of revocation and re-incarceration, and various penalties for non-compliance.
Mounting Financial Pressure
Having to immediately begin paying financial obligations upon release combined with carrying thousands of dollars in debt puts tremendous financial pressure on returning citizens. Many leave prison with great anxiety wondering where they will live and work, and some possess only what they were given upon release: $25, a change of civilian clothes, and a bus ticket to their release destination.[i] A great number of returning citizens do not have a decent-paying job prior to prison,,[ii] and their prospect of finding one after release is slim.[iii] One study reveals that three-fourths of people released from prison owing child support, restitution, and supervision fees reported having difficulty paying off these debts.[iv] They may be willing to make these payments but simply do not have the means to do so right away.
Threat of Revocation or Arrest
The payment of debts and obligations is a condition of probation and parole in Georgia;[v] therefore, a violation of these conditions by failing to pay can result in a revocation hearing.[vi] While it is not common practice for the Parole Board to revoke a parolee solely for his or her failure to pay financial obligations,[vii] in some jurisdictions revocation hearings are regularly sought for those on probation.[viii] One public defender in Georgia reports that probationers who cannot pay criminal justice debt are often arrested for failing to report to officers who are involved in collection.[ix] This may not result in re-incarceration, but it may cause a person to miss work and subsequently lose his or her job. However, those who fail to appear at a payment hearing can have a warrant issued for their arrest.[x] Further, Georgia law requires a person to remain under probation supervision until all outstanding obligations are paid, or until the termination of the sentence, depending on whichever comes first.[xi]
Penalties for Non-Compliance
For those who do not pay court-ordered financial obligations and debt, Georgia law allows for garnishment, levy, foreclosure, and all other actions provided for the collection of fines, costs, and restitution.[xii] This can be detrimental for a returning citizen who is struggling to make ends meet. Unpaid debt also may lead to the suspension of one’s driver’s license, making transportation to and from work very challenging, since Georgia law allows for the suspension of a driver’s license for any person who has accumulated child support arrears equivalent to or greater than two months’ worth of payments.,[xiii] This barrier can impede a person’s ability to find work and earn income, leading to more and more debt accumulating. In addition, criminal justice debt can be converted into a civil judgment which allows credit reporting agencies access to the information. This in turn damages – or further damages – a returning citizen’s credit, making it more difficult to obtain employment and housing.[xiv]
A combination of these barriers may lead a returning citizen to become desperate and resort to engaging in the underground economy as a means of supporting himself or herself, or paying his or her debts.[xv] As a result, the returning citizen may face re-incarceration for committing new offenses,[xvi] leading to more debt accumulation and increased costs to taxpayers.
 Fifty-nine percent of people detained in jails across the nation in 2002 reported monthly incomes of less than $1,000 prior to arrest.
 Suspending and reinstating driver’s licenses is an administrative process that is handled by the DCSS.
Some of the citations listed below are abbreviated. To view the full citation, see the “Notes” section in our report, A High Price to Pay.
[iii] Devah Pager, Bruce Western, and Naomi Sugie, “Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Records,” The Annals of the American Academy of Political and Social Science 623 (2009): 195-213, National Institutes of Health Public Access, Author Manuscript, available in PMC February 27, 2013, 4, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3583356/.
[xi]O.C.G.A. § 17-10-1(a)(2): “Probation supervision shall terminate in all cases no later than two years from the commencement of probation supervision unless specially extended or reinstated by the sentencing court upon notice and hearing and for good cause shown; provided, however, in those cases involving the collection of fines, restitution, or other funds, the period of supervision shall remain in effect for so long as any such obligation is outstanding, or until termination of the sentence, whichever first occurs.”
[xii] Ibid., endnote 196. See O.C.G.A § 17-10-20(c): “Fines and restitution can be collected through levy, foreclosure, garnishment, and all other actions provided for the enforcement of judgments in Georgia”; SeeO.C.G.A.§ 42-8-34.2(a) “authorizing the collection of ‘arrearage . . . through issuance of a writ of fiera facias’ from defendants for whom payment of fines, costs, and restitution is a condition of probation. However, no one the Brennan Center interviewed knew of wage garnishment or liens being used in practice.”
[xiii]O.C.G.A. § 19-6-28.1(b); Tina Brooks, Parental Accountability Court Coordinator for the Flint Judicial Circuit, email message to the author, July 31, 2014.
[xv] Kirsten D. Levingston and Vicki Turetsky, “Debtors’ Prison – Prisoners’ Accumulation of Debt as a Barrier to Reentry,” Clearinghouse Review Journal of Poverty Law and Policy 41 (2007): 188, http://www.clasp.org/docs/ 0394.pdf.
Today, poor children in America have a limited shot at moving up the economic ladder into the middle or upper class. A study in 2012 by the Pew Charitable Trust shows that “[t]hose born at the top and bottom of the income ladder are likely to stay there as adults.” Further, “More than 40 percent of Americans raised in the bottom quintile of the family income ladder remain stuck there as adults, and 70 percent remain below the middle.”
In terms of economic mobility, America is losing its identity as the “land of opportunity.”
In January 2014, Raj Chetty, Nathaniel Hendren, Patrick Kline, and Emmanuel Saez, economists from Harvard and Berkeley, released a study with interesting insights regarding this issue of upward mobility. Their study explores community characteristics that foster upward mobility for lower-income children. The study measures two outcomes: absolute mobility, or the way children progress up the income ladder into adulthood, and relative mobility, or the income disparity between children who grew up rich and poor in the same community as they reach adulthood.
The researchers in the study looked at households in “commuting zones,” or what are basically metropolitan areas, in order to compare the economic mobility of children in various communities. Interestingly, they found that kids who grow up in certain metropolitan areas are far more likely to climb into the top two-fifths of American household income distribution than kids from families with the same relative income from other metropolitan areas. This led them to look into what the specific community factors are that foster opportunity. Their research reveals some very telling patterns:
The single most important factor in communities that foster economic mobility is family structure. Chetty et al. found that children raised in communities with high percentages of single mothers are significantly less likely to achieve both absolute and relative mobility. As such, “[c]hildren of married parents…have higher rates of upward mobility if they live in communities with fewer single parents.”
What makes this finding particularly significant is that this is the first major study showing that rates of single parenthood at the community level are linked to children’s economic prospects over the course of their lives. Previous research has shown that children raised by two married parents are significantly more likely to climb the income ladder, but this is the first serious study to show that lower-income kids from both single and married-parent families are more likely to flourish if they are in a community with high shares of two-parent families.
2. Racial & Economic Segregation
Second, they found that children raised in communities that are racially and economically segregated – that is, communities that cluster lots of poor kids together – are less likely to achieve economic mobility. In fact, segregation and family structure are the only two community characteristics that had a consistent correlation with upward mobility in their study.
It is helpful to think of racial and economic segregation as isolation – that is marginalization from both the mainstream economy and the norms that allow middle-income people to flourish. These norms are often contagions that go unnoticed and unmentioned in middle-to-upper-class communities. What is missing for so many children stuck in cycles of poverty is social inclusion, which overlaps with the third factor.
3. Social Capital
Social Capital often goes unmentioned in conversations about economic mobility because it is so difficult to capture in social-scientific terms. Moreover, social capital highlights how complex and connected poverty is because it cannot be separated out from other community factors. The methodology of social scientists encourages that complex problems be broken down into distinct elements to make it easier to analyze and tweak through targeted programs. But to address the problem of social capital is to enter into the complexity of poverty and see how approaches that ignore social capital actually rob disadvantaged groups of the coherence of their experience.
Here is why social capital is so important: You could have two people with exactly the same income who actually live very different lives based on the different social networks they have. For some, achieving upward mobility is a perfectly compatible, even expected, progression within their networks and lifelong relationships. Being a part of their family and maintaining strong relationships with loved ones basically means moving up the economic and social ladder. When hard times hit, they have the support structure they need to get back on their feet. For others, achieving upward mobility means separating themselves from family and loved ones, which may cause them to lack the connections and support they need to withstand an economic crisis.
The breakdown of the social bonds in American communities actually hurts the poor the most. Many people talk about inequality, but this study shows that the problem is not inequality but a lack of economic and social inclusion. Social capital is intertwined with family structure since adults in two-parent families have a much easier time devoting themselves to the kinds of activities that build social capital in a neighborhood. Social capital is also closely correlated to access to quality schools, which leads to the fourth community factor that fosters upward mobility.
4.Access to Quality Schools
Though it is certainly not a new finding, Chetty and his colleagues found that poor kids are far more likely to succeed if they have access to high quality education. Though the study does not mention the need for school choice, it is clearly a necessity by the fact that too many schools are providing a poor education to children who have no other options available to them.
GCO believes that the best and most effective way to provide access to high quality education for children from low-income households is through a variety of school choice initiatives, particularly Education Savings Accounts (ESAs) and Tuition Tax Credit Programs. Throwing more money at failing schools that lack competition and the ability to innovate is not the solution.
The study by Chetty et al. has a lot of other interesting findings worthy of consideration, but the four community characteristics that have been mentioned – two-parent families, racial and economic integration, social capital, and access to quality schools – are the ones with the strongest and most consistent correlation with upward mobility. These factors help to set those cloistered and marginalized from mainstream norms on a pathway to opportunity.
At GCO, we are committed to addressing limited social mobility in Georgia. We seek to identify barriers to opportunity and promote legislative, policy, and community solutions that allow people to achieve middle class by middle age. Our hope is that Georgia and America at large will once again become a “land of opportunity” for all people.
I recently attended a conference that included a number of participants who have thought deeply about religious freedom and have acted effectively in its defense. Naturally, everyone was talking about the high-profile legislative battle in Indiana. That got me thinking about what might and should happen in Georgia, during next year’s legislative session, when protecting religious freedom will once again be on the table.
In the unlikely event that you’ve forgotten, here’s what a typical religious freedom bill—modeled on the 1993 federal legislation that Congress passed virtually unanimously—purports to do. In the first instance, it reestablishes a standard the Supreme Court employed to deal with a number of cases under the First Amendment: if a plaintiff can show that his or her religious freedom is substantially burdened by a generally applicable law, then the government has to demonstrate that the law is intended to carry out a compelling state interest and show that it is the least restrictive means to achieve that interest. Contrary to what its opponents claimed, the law does not give anyone a license to discriminate on the basis of religion; rather, it reinstates a time-honored judicial balancing test. Judges decide whether religious freedom—our “first freedom”—or the state interest prevails. No responsible advocate of religious freedom thinks that it ought to prevail against every possible countervailing claim, that every state interest ought to give way before it. We simply insist that religious freedom is an important consideration that ought to be taken into account.
The substance of the law
In the light of what happened in Indiana, Arkansas, and here in Georgia, it seems highly unlikely that any state legislature will pass a simple and straightforward version of the 1993 federal legislation. Opponents were all too effective in tying religious freedom to discrimination, even in the absence of any evidence that the federal law or its many state counterparts had ever effectively been used to license or justify discrimination. Unfortunately, the “fix” that lawmakers adopted to respond to these objections tends to sweep much too widely, making state and local anti-discrimination rules in effect trumps against any religious freedom claim. While certainly a permissible (if, I would argue, inadvisable) declaration of a compelling state interest, it appears to leave no room for certain sorts of religious freedom claims. Thus, for example, a church or other faith-based organization might wish to engage in mission-based hiring, employing only those willing to live up to certain creedal or behavioral standards. These religious hiring rights have long been acknowledged or accommodated in law, but could be described as “discrimination” by those unsympathetic to the standards or practices at issue. Without explicit provision for them in the law, these traditional religious hiring rights could be deprived any any sort of religious freedom defense.
Then there is, of course, the wedding industry, where some practitioners have absolutely no objection to serving gays in ordinary circumstances, but cannot in good conscience provide their services to a same-sex wedding ceremony. Their critics treat their services as public accommodations, akin to restaurants and hotels, and insist that there is absolutely no difference between the photographer who is happy to do a portrait of any individual or family, but not of any wedding ceremony, and the racist hotelier or restaurateur who refuses to serve African-Americans under any circumstances. In the first instance, this argument stretches the notion of public accommodation far beyond its traditional bounds. Furthermore, while the experience of African-Americans in the Jim Crow South certainly made it clear that the traditional right of a businessperson to serve whomever he or she pleases (an aspect of freedom of association) has to give way to the norm of non-discrimination in matters of race, it is far from clear that gays who seek wedding services are similarly seriously discommoded by the few bakers, photographers, or wedding planners who have religious scruples about same-sex marriage. Common sense tells you that there is a difference between being unable to find a place to stay or eat, or having to go around the corner or to the next town to find a wedding photographer. What’s more, many wedding-related businesses are, to say the least, “closely-held.” That means that exempting them from anti-discrimination laws in this limited instance—not, to repeat, in ordinary circumstances—rests on the solid constitutional ground of the recent Supreme Court decision in the Hobby Lobby case; the Court there held that family businesses, at least, enjoyed the protection of the First Amendment and the federal RFRA. Finally, at the very least both baking and photography can be treated as arts, hence as forms of expression. It has long been the understanding that the First Amendment prohibits government (or individuals using governmental authority) from compelling people to say what is not on their minds.
There is, in other words, a reasonably strong argument that the “fix” proposed in Georgia trenches on traditional freedoms of religion, association, and expression. While no one would argue that these freedoms are or should be absolute, they should not be casually or thoughtlessly trampled in an effort to conciliate the demands of one intense constituency. I leave it to the legislative drafters to find language that affirms both compelling norms—religious freedom and non-discrimination—and finds a way to combine them coherently. Surely we are not so unreasonable and inept that we cannot come up with language that accommodates religious liberty and assures gays and lesbians that they will neither be denied service in ordinary circumstances nor be too inconvenienced In their search for wedding services. (Indeed, there are “conscience clauses” from the medical field that may offer a good model here: those who have conscientious objections to, say, abortion, can be excused from participating in a medically necessary abortion, so long as someone else stands ready to help with the procedure.)
Making the case for a reasonable religious freedom law
This year, I think advocates of religious freedom legislation were taken somewhat by surprise by the scope and character of the opposition to them. Since religious freedom had almost always been an “apple pie” issue, they may have thought that, especially in a state that is generally both conservative and religious, opposition would be either nominal or relatively easily overcome. They didn’t reckon on the vociferousness of those who frequently misrepresented the proposal, on the almost complicitous supineness (or was it alacrity?) with which the media gave them a megaphone, and on the unwillingness of the business community to protect religious liberty, not to mention the enterprises and livelihoods of their much smaller brethren. Next year promises to be worse, not only because opponents of religious freedom legislation will be emboldened by their success this year, but because it is very likely that a narrowly-divided Supreme Court will hand down a decision finding a constitutional right to same-sex marriage, raising passions even higher.
Proponents of religious freedom can’t afford merely to be reactive. We have to start right away to lay the groundwork for success in next year’s legislative session. That means making a winsome case in public for the necessity of such legislation, not simply to protect those who conscientiously dissent from same-sex marriage, but also all those—especially members of minority religions—who in carrying out their religious duties find themselves on the wrong side of an otherwise neutral law. Those in the media who cover this issue must also be educated, again in a setting where the stakes are not high and they can feel free to ask questions and engage in the give-and-take of a conversation. That also means sitting down with legislators when things are relatively calm and patiently explaining the importance of religious freedom and the nuts and bolts of protecting it. Finally, that means putting business leaders on notice that if they criticize religious freedom legislation as unwelcoming in our state, they will be pointedly asked about the business they do in countries all over the world that do not respect human rights, let alone the rights of gays and lesbians.
Once the session begins, proponents of religious freedom legislation have to be prepared immediately to answer distortions of the bill’s provisions and purpose. They also have to be prepared to call out zealots on their side, demanding the same responsible behavior of their opponents.
I remain confident that a bill can and will pass, but it is unlikely to be a cakewalk. The arguments are on our side, but critics of the legislation command the high ground in the media.
The future of religious freedom
Abraham Lincoln once said, “In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed. Consequently he who moulds public sentiment, goes deeper than he who enacts statutes or pronounces decisions.” Laws can be enacted, and then repealed. Even constitutional provisions can be repealed or reinterpreted. We cannot rest content that by the enactment of a law, we have genuinely and for the long term protected religious freedom.
More important than any law is “the culture,” by which I mean not only the arts, media, and education, but also the complex web of organizations and relationship that constitute “civil society” and the deeper sources in history and principle for public opinion. If these institutions, understandings, and “habits of the heart” do not support religious freedom, then no law purporting to protect it will stand for long.
Our long-term task is thus one of cultural restoration and reconstruction, in which politics plays only a small part. To be sure, laws and political controversies can offer so-called “teachable moments,” when lots of people are paying attention, but most of the teaching will be done in other, often more intimate and less fraught settings, like schools, churches, families, neighborhoods, and workplace relationships. And most of the teaching will not, strictly speaking, be about religious liberty.
Some have suggested that cultural and religious conservatives should be prepared for a “Benedict option,” a time of withdrawal from “the world” in order insularly to protect themselves, their families and communities, and their understanding from an inveterately hostile culture. I’m not yet prepared to urge my fellows down that path. I have more confidence that truth and nature will assert or reassert themselves. (I could make such an argument using the language of Christian theology, but would prefer in this venue not to talk about creation, evil, and God’s sovereignty.)
What we have to do is be attentive to building healthy families and communities, to be vigilant about telling the truth about ourselves and our relationships, to be open to respectful engagement with those who disagree with us, and to tell and promote stories in art, film, music, and literature that teach moral truths without being overtly “preachy.” Great art and great literature command the attention of those who encounter them. They nourish our minds and our souls. They provide the bases for fruitful conversations and friendships, even among those who happen at the moment to disagree.
This isn’t a “quick fix,” but rather the work of many lifetimes. We didn’t lose our way overnight. We won’t find our way back tomorrow.