In this month’s Harvard Law Review, Harvard Professor Janet Halley writes about a male student at an Oregon liberal arts school who was essentially banned from campus for looking like a man who had raped a female student in the past. The assault had not taken place on campus and the male student had nothing to do with the original incident. Still, campus administrators thought it best to ban him. Halley records the incident below:
I recently assisted a young man who was subjected by administrators at his small liberal arts university in Oregon to a month-long investigation into all his campus relationships, seeking information about his possible sexual misconduct in them (an immense invasion of his and his friends’ privacy), and who was ordered to stay away from a fellow student (cutting him off from his housing, his campus job, and educational opportunity) — all because he reminded her of the man who had raped her months before and thousands of miles away. He was found to be completely innocent of any sexual misconduct and was informed of the basis of the complaint against him only by accident and off-hand. But the stay-away order remained in place, and was so broadly drawn up that he was at constant risk of violating it and coming under discipline for that.
When the duty to prevent a “sexually hostile environment” is interpreted this expansively, it is affirmatively indifferent to the restrained person’s complete and total innocence of any misconduct whatsoever.
Halley then goes on to discuss how the above was a simple administrative action on the part of the institution and a decision quickly made regardless of the rights violations such a decision may commit.
These cases are becoming increasingly easy. Interim measures and environmental security provisions are justified as “merely administrative,” the equivalent of determining that more lights should be installed on campus walkways or that food safety certificates should be required for all vending machines. And like merely administrative acts conducive to public safety, they follow a strict liability model. But ending or hobbling someone’s access to education should be much harder than that. It may well be that the only effective way to convince people that this tendency is dangerous is to point to the rights they invade: rights to privacy, to autonomy, to due process. But the tendency itself is due for scrutiny. Assuming danger, risk, and holistic environmental contamination ensures that restrictions will go into effect even where the facts don’t justify them. Will decisionmakers — and in particular governance feminist decisionmakers — be able to resist this trend?
What if this trend was extended to any other crimes? What if it became just about reminding a person of a traumatic experience in general?