Out of the crooked timber of humanity no straight thing was ever made.
“Institution” sounds like a noun, as something permanent that goes well beyond the humans who populate one. In fact our institutions mostly verbs, people enacting various understandings in a volatile combination of improvisation and ritual.
As such our institutions are only as good as the crooked timber comprising the people who inhabit them. And the more important the institution the more likely it is dependent on the whims of human nature. Take Republics–please! They are only good if you can keep them, and keeping them is pretty much a function of the character of the people who purport to lead them and, in turn, the character of the people as a whole.
(BTW, some people think our Republic is in danger. Others are not so optimistic.)
Higher education is another hugely important institution that depends greatly on the character of the people in it. I wrote here that the self-governing nature of the academy obliges it to take the lead on questions of free speech and its relation to pedagogy and mission. But that if the responsible parties are not up to the task there is no good fall-back approach. And they do not seem up to the task. This is called tragedy, with no happy ending at the close of Act III. The best we can hope for is that we are in a mini-series, and that it will be renewed.
Higher education’s wisdom and prudence is being tested again relative to how it seems to be handling an otherwise exemplary concept: restorative justice, or RJ.
RJ takes many shapes and is an elusive concept. Michigan State says it is based on
an ancient, commonsense understanding of wrongdoing, which says that wrongdoing is a violation of people and of interpersonal relationships, which creates an obligation for the “offender” to make things right, and repair any harm done. RJ focuses primarily on the needs of harmed parties, as opposed to the rights of those responsible for wrongdoing. As such, RJ actively engages affected parties in determining how an issue is resolved.
You can see RJ in the workings of South Africa’s Truth and Reconciliation Commission and in the “community truth-telling” following Ugandan mass killings. While these African incarnations are often held to tie back to African tribal ways of justice the concept also has clear Western roots as well, going back to the West’s own tribal roots–Greece, Rome and Germanic tribes. It emerged as a distinct formal phenomenon in the West in the 1970s, as skepticism grew over the workings of the criminal justice system.
There is a lot of ambiguity in the term and confusion over its multiple meanings. Should it be thought of as an adjunct to a punitive/rehabilitative model or as an alternative to it? Do offenders get “amnesty” under the criminal law if they participate in a restorative process? And what is the proper scope of a restorative process? It can be as narrow as a managed confrontation between offender and victim but it can extend out in concentric circles from there, from friends and family to others directly affected, to the overall community. And relative to that scope, is it about redressing a private wrong, and settling private accounts with recourse to the heart? Or is it about fixing a collective wrong?
The truth is it can be all of these things. No one has been able to distill the idea down because it is by its nature protean. For sure, though, it is at odds with a theory of justice which is rule based and oriented to individual acts. But beyond that it can be many things.
It’s like the concept of nonprofit organizations. People often say these form a “third sector”, filling in the gap between the two main sectors (the public and private sector). But this gets it backwards. The nonprofit world is the residue of the organic way social forms were organized before we created the artificial worlds of government and business. It is the pre-existing thing, and will take whatever shape the underlying culture needs it to take.
So now, with restorative justice, we have a concept capable of taking many forms catching on in higher education. How is that going? How is it adapting to higher education culture?
In some ways well.
In many ways it ought to suit higher education’s self-governing nature. Take the issue of sexual assault. A lot of reasonable observers, alarmed at the hash institutions make of things when they attempt to mimic legal processes, have argued that colleges should just get out of the business of handling sexual assault charges. Just hand them over to the authorities.
That is sensible when dealing with incidents that rise to the level of criminal conduct. But most campus cases just do not rise to this level. Many are he-said she-said situations, complete with alcohol, regrets and fumbled misunderstandings. These cannot and should not be turned over to the authorities. But is it sufficient then to say that institutions should turn a blind eye to such behavior on the part of a population perilously poised between childhood and adulthood?
No, they should not turn a blind eye. Colleges aim to be communities. In so doing they express values and employ processes that are congruent with those values.
Private colleges are somewhat more free than public colleges in this regard, since public colleges are compelled to follow Constitutional principles–i.e., the values they express must align with our public values more neatly than is the case with private entities. But in all cases colleges and universities can create codes that express community values and hold students to them.
This is one of the reasons restorative justice has caught on in higher education. It is protean there, too, and can take the shape of a formal disciplinary process in the campus judicial area, or an informal round table to discuss a conflict in a dormitory. It also helps that it can slip by free speech concerns, especially in public institutions.
In theory even charged issues like sex and race might be handled better under a restorative justice approach than other alternatives. Consider the decision by Oklahoma University President David Boren to expel students involved in a singing a racially charged song on a bus, captured on video. It can be argued he overstepped here, and that free speech applies. And that the chant does not come close to meeting the “fighting words” test under (currently) settled law.
But even if the act were strictly legal there are other things the university could do in response, and restorative justice might have been suitable. The idea of having the boys on the bus face those who have been offended seems perfectly appropriate under the circumstances, and might even have a good effect.
The fact that such an encounter would itself be charged is no reason to say it cannot be effective. That depends on how it is handled.
In that regard here is a video from Michigan State on its success with restorative justice. It recounts a situation in which two African-American females spotted a large confederate flag past the open door of a dorm room on campus. They wanted to know how the two white male students who had the flag on display could be compelled to take it down. The staff explained to them that under free speech the white students were free to display the flag, but they suggested a restorative justice conference if the male students were willing.
This could have been a disaster but appears not to have been. A conference ensued in which the black students explained why they were offended by the racial connotations of the flag and the white students explained why the flag was important to them from a heritage point of view. To hear the staff tell it, the conversation was an open and honest one in which each side told its own truth, and the facilitators did not presume one side to be the offender and the other the victim. In the end, the white students agreed to replace the large flag with a smaller one. But they kept one on display. Both sides concluded that they were satisfied with the outcome, and both sides felt able to speak and be heard.
So all is well in the land of restorative justice on campuses? Here I am not so sure. I see at least three areas of concern.
First let’s consider the proper use of restorative justice if a statement can reasonably said to be offensive in ways that compromise the community value of civility. In that context, we may support asking the boys on the OU bus to confront those who felt offended by their actions. But how likely would restorative justice be if the races were reversed? Whites no doubt sometimes feel offended or even intimidated by black behavior. Would campus authorities call for restorative justice in such situations, or would they argue that it is not relevant because racism is prejudice plus power?
Then there is the problem of making too much of too little. I can see why a black student would be offended by a racist chant on a bus or why a white student would be intimidated by a black student calling him a filthy white sh*t when he is trying to study in the Dartmouth library. But is there no limit to what might cause offense?
Here is an article from the Chronicle of Higher Education lauding restorative justice and highlighting several cases of its successful use. One of the cases involved the student newspaper at the University of Iowa, which
published a comment that was interpreted as a slur against Asian-Americans. Mr. Hill (The Dean of Students) brought together newspaper staff members and Asian-American students, who then talked about their experiences and why the comments had been offensive. Mr. Hill said it was a poignant meeting.
“Voices quivered, heartbreaking stories were told, and it became obvious that this Iowa State community that we all call home does not feel at home to everyone in it,” the editor in chief, Jake Lovett, wrote in the newspaper’s apology.
According to another follow up article in the student newspaper:
Trembling bodies. Quivering lips. Tear-stained cheeks. This is what racism looks like, and it is here at Iowa State.
Sounds powerful, no? Take a closer look. You have to Google some to get to the other layers of this story, and it is an odd one.
As it turns out, the student newspaper has a column called “Just Sayin'” that posts small submissions from the campus community. These are mostly just passed through without much editorial scrubbing since they are essentially just cute observations aimed to pass the time of day.
The paper waved through, and then published, two small snippets about “squinties” on campus. One read “Just had a staring contest with a squintey. They are fearless” and the other read”I just saw a squintey inside a building. … They have started the invasion.”
These were taken to be slurs against Asian-Americans and the restorative justice bandwagon rode on from there.
But what was really going on?
Here’s one take:
Despite the fact these statements are nonsensical if one takes “squintey” as a term for a person, and that “squintey” is not a common American racial slur, many students and professors took offense, believing the word to be a racial slur against people of southeast Asian descent denoting the shape of their eyes.
Sorry to burst your self-righteous bubbles, but “squintey” — pronounced sometimes as “squinny” due to the Midwestern tendency to drop Ts — is the nickname of the chipmunks that we see all over campus. Reread those comments using the correct definition of “squintey” and those comments immediately make more sense.
The eliding from squinny to squintey looks real enough. This from 2007:
Upon moving to the Des Moines area some twenty years ago, I was delighted to find a variety of new terms and expressions used here that I’d never heard elsewhere. . . Let’s begin with the word, “squinty.” The online Miriam-Webster dictionary refers to the term as an adjective, but in central Iowa it is often a noun used to describe ground squirrels.
It is not as though the squirrel thing was not known at the time of the restorative justice session. The paper’s employees raised the squirrel defense but to no avail.
“Even if you were talking about a ground squirrel, why would you publish it?” (one of the students) asked. “If you could see that it could offend someone, then the Daily shouldn’t publish the comments.”
So apparently the staffers were held to be creating a diversion with the squirrel argument
and the paper ended up capitulating and apologizing.
-Two snippets are included in a student newspaper, written not by staff but by readers, and are passed along without a lot of editorial thought, as is the practice.
-The snippets use a term that is almost certainly not intended in a racial context (consider the sentences).
-The term itself is not a commonly used racial slur. I can’t find it readily on the internet.
-Despite the paper’s highly limited role, the context relative to the use of the term, the likely non-offensive meaning to the writers and the lack of evidence that the word is a common perjorative, it is the paper that must apologize. The story becomes one of racism.
And then this is held out by the Dean of Students and the Chronicle as an exemplar of restorative justice. But might there be a struggle session quality to this as well?
Last, there is the issue of using restorative justice not to address offenses but as a proactive tool by which desired values can be spread. There is danger in this, too.
The main body of student affairs professionals has run an article for staff about things they need to keep in mind in any restorative justice encounter. It starts and ends with race.
I realized the overwhelming challenges we, student affairs professionals, face to provide a broad account of RP. In fact, I would argue, we unconsciously secure a colorblind approach and presume whiteness to be the norm. . . As we begin an RP intervention and student conduct response, how do we assess our role and sanctions? Do we at any point recognize the presence of People of Color in a context where the privileged identity is White? (hooks, 2003,p. 37). During facilitations, it is important to recognize our biases, how we perpetuate racist stereotypes, and how we may play into securing a dominant narrative.
Or, in the words of a scholar whose work on this subject is cited by a number of university programs:
Beyond my attempts to disentangle both claims with my students, I realized the overwhelming challenges we, student affairs professionals, face to provide a broad account of RJ. In fact, I would argue, we unconsciously secured a colorblind approach and presumed whiteness to be the norm (Bonilla-Silva, 2006; Sue, D.W., 2006). The questions raised by the students challenge us, student affairs professionals, to begin a principled examination of the links etween the reproduction of whiteness, colorblind approaches, and praxis by considering race as to not reproduce racism, but more importantly, to engage in anti-racist, social justice work.
Proactive, indeed, and with a distinct point of view.
I do not really doubt that this worldview is in fact the worldview of most campus administrators. And I suppose you can argue that when in Rome do as the Romans do. If any given culture is truly committed to “praxis by considering race as to not reproduce racism” and engaging in “anti-racist, social justice work” so be it. The Truth and Reconciliation Commission took an active position on apartheid, and it is inevitable that restorative justice will reflect the values of its sponsors.
If this progressive view prevails historians will laud the bravery of these advocates. I think it more likely that this kind of balloon is bound to deflate.
So bring on restorative justice. But 1) apply it fairly, 2) keep some perspective on what is important and 3) be wary of proactive ideological use.