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Thursday, June 29, 2023

What's Funny About Compliance(?)

For different reasons than mine, Steve points to a Washington Free Beacon story describing the First Amendment training implemented for students at Stanford as "a campus joke." The training, according to the story, consisted of watching five one-hour videos and then signing a form attesting that the students had watched them. "The videos could be played on mute," the story says, "and the form—which could be accessed without opening the training—did not ask any questions about their content, letting students tune out the modules or skip them entirely." 

Steve is concerned, with justification, about students unethically lying and signing the attestation form without watching the videos. My interest lies elsewhere, with what Steve calls the "vapid requirement" itself. Let me be clear that I think the Free Beacon, an openly conservative paper, is valuable, and Aaron Sibarium, who wrote the story and did much of the original reporting on Stanford, performs a useful function, doing real reporting on stories that would have been covered by the legacy papers if they had a different spin and sometimes forcing those papers to cover them. But of course the paper, which is openly and often puerilely political, always has a spin (not uncommon, these days, in fairness; God help us, people seem to want it), and in this case Sibarium's spin of choice is that Stanford's First Amendment requirement, which was much praised when it was announced, is in reality a big joke. 

I would ask, a joke compared to what? The attestation mechanism is certainly badly arranged and subject to easy abuse. But five hours of First Amendment "training" is pretty serious! (I'm not sure the students actually needed that specific training. Five hours of civility training, accompanied by clear instruction in campus disciplinary rules, would have been much more to the point. Naturally, students would be free to challenge the notion of civility; but then, they're free to challenge the value of the First Amendment too.)

In reading the story, surely the mind of every professor, and indeed every employee of a large institution, turns to his or her own "training" in various matters. Every year my university requires me to learn and relearn basic facts about sexual harassment, hazardous materials, Internet safety and security, mandatory reporting requirements, and so on. Some of those videos can probably be muted; who bothers to remember? Many of them can be played at accelerated speeds. Most of them can be at least half-ignored; even the ones that require you to answer questions along the way are, shall we say, undemanding of one's attention. All of them signify and embody the deepest, most strongly held value of universities and other major institutions in our changing world: that such institutions should loudly announce their virtuous compliance with whatever is legally or socially required, and that every member of that institution should do his or her utmost to establish on the record that the institution is blameless for whatever happens next.

It seems to me that Stanford very seriously performed its duty here. If students (or Sibarium) think that training is a "campus joke," they should spend some time watching professors and staff receiving university-mandated "training" in other core topics. Or the law students could get an advance peek at the kinds of things that can count as continuing legal education for purposes of the California bar's gargantuan CLE requirement. (They will have to go further than the nearby faculty offices, since California exempts full-time law professors, for reasons that escape me.) I'm not a member of that bar but, based on what I have seen up close, one can accomplish an enormous amount of paperwork and cook several elaborate meals while receiving further legal education comporting with that state bar's requirements. Of course I would look unkindly on a lawyer literally lying about having watched a training video or other CLE unit. But--as with judicial ethics requirements, I would add, in light of other conversations--there can be a long gap between technical compliance and honorable, attentive compliance. The wonderful thing about most compliance requirements is that you don't have to lie, because you barely have to do anything in the first place.

I'm not quite knocking CLE requirements. I'm not quite knocking other compliance regimes. I'm not quite saying such regimes blur the line between having a value--such as concern with equity, sexual and other forms of harassment, and other things trumpeted by the kinds of institutions many of us belong to--and performing that value for purposes of PR and legal indemnification, in a way that renders those repeated institutional statements about their strongly held values rather hollow. I would say that any humor lies not in Stanford's reasonably serious effort, but in the larger universe of compliance rituals of which it is just a small part. We, in particular, ought not be surprised, given that "compliance studies" and "compliance certificates" have become a major source of law school income. 

Posted by Paul Horwitz on June 29, 2023 at 03:23 PM in Paul Horwitz | Permalink


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