Society seems to be moving the age of majority from 18 to 21 or 22. We are increasingly treating college-age students as quasi-children who need protection from some of life’s harsh realities while they complete the larval stage of their lives. Many critics of these codes discern this transformation but misinterpret it. They complain that universities are treating adults like children. The problem is that universities have been treating children like adults...[Blahblah brain science says]...High schools are accustomed to dealing with the cognitive limitations of their charges. They see their mission as advancing the autonomy of students rather than assuming that it is already in place. They socialize as well as educate children to act civilly by punishing them if they don’t. Universities have gradually realized that they must take the same approach to college students.Miss Self-Important has written against the infantilization of adults before, but must disclaim that, as far as minors go, she has no objection to exercising all the authority over them. Over time, this is increasingly unlikely to be successful, since as Locke points out, in “that boiling boisterous part of life,” adolescents “think themselves too much men to be governed by others.” But, you know, give it a try if you want. However, for the same reasons that Locke extends adults complete authority over minors, he argues for the strict observation of the legal age of majority: liberty hinges on the presumption (excluding "lunatics and idiots") of a capacity for self-rule, since if we had to individually prove our maturity to the government before being admitted to full citizenship, the government would soon discover its very great interest in denying our competence (for our own good, of course). So the first difficulty with Posner's provocation is that a vague, socially-determined age of majority set at "21 or 22" is precisely the kind of ambiguous rule that opens the door to the paternal authoritarian state that Locke feared.
But this is actually not the main difficulty. Some college students are legal minors in addition to Posner's "social" minors, though more are semi-minors in terms of parental responsibility for tuition*, but, as Posner points out, private universities may make more or less whatever rules of conduct they wish, a right which is unrelated to the ages of those who are subject to those rules. Private firms may enforce speech codes over unambiguous adults, which is why the faculty and staff at universities are just as much subject to all these regulations as the students. That right, and not the ages of students, is what Posner's argument turns on. No question about the extent of free speech on campuses can be answered by appealing to the childishness of students. Determinations about what can be taught, researched, and written at universities don't have anything to do with how mature or immature kids-these-days are. They're made to advance the purposes of the institutions themselves, and these purposes do not include baby-sitting.
This is why the argument collapses when Posner justifies speech restrictions by appealing to students' supposed immaturity:
While critics sometimes give the impression that lefty professors and clueless administrators originated the speech and sex codes, the truth is that universities adopted them because that’s what most students want. If students want to learn biology and art history in an environment where they needn’t worry about being offended or raped, why shouldn’t they? ....
The modern speech and sex codes have surfaced as those waters recede back to sea. What is most interesting is that this reaction comes not from parents and administrators, but from students themselves, who, apparently recognizing that their parents and schools have not fully prepared them for independence, want universities to resume their traditional role in loco parentis.But wait, why do we care what "students themselves" demand when we've just expended many words to demonstrate that their demands and preferences shouldn't matter because they are children. Only mature adults are in a position to decide for them what they should learn and under what conditions. And if those adults think it's in the children's best interest to have disciplinary procedures with high burdens of proof or exposure to offense, then who's to say they're wrong?
And moreover, which adults? The secondary school model which Posner extols here for its salutary pedagogical sensitivity to adolescent immaturity also permits parents and non-experts a great deal of say in school governance. In public schools, boards of (often) parents and (even more often) non-academics govern school curricula and procedures, and other parents can be very effective in adjusting these curricula and procedures if they object. Private schools are not run by elected boards, but there too, parent associations are very powerful. Now, would Posner also like the curriculum and policies of UChicago to be substantially determined by the parents of current students? And why not? Why should faculty, who after all study obscure equations and ancient Mesopotamian holes in the ground and know nothing about their children's developmental needs, get to determine the rules under which these tender babes are to be educated?
And what is this nonsense-in-a-box about the noble desire to be "in an environment where they needn't worry about being offended or raped"? As if anyone has ever longed to be in an environment where they had to worry constantly about being raped. But no such worry-free environment has been created by the new rules, which have only proliferated investigative and punitive measures. Posner consistently conflates irrelevant problems like politicizing the classroom with the actual aims of speech and sex codes. These have very little to do with professors who "blab on about their opinions," but aim to regulate the personal relationships among students and between faculty and students by determining how they should interact with one another. Professor Leftist Revolutionary can continue to bloviate all he wants about his glorious time in the Central American guerrilla movement of his choice so long as he refers to his students by the correct pronouns, doesn't mention any jungle activity that might recall their traumas, and maybe permits his syllabus to be determined by students' identities. (Partisans of the other side may feel free to replace this scenario with a Professor Reactionary.)
Posner concludes that he has solved the culture wars:
Libertarians should take heart that the market in private education offers students a diverse assortment of ideological cultures in which they can be indoctrinated. Conservatives should rejoice that moral instruction and social control have been reintroduced to the universities after a 40-year drought. Both groups should be pleased that students are kept from harm’s way, and kept from doing harm, until they are ready to accept the responsibilities of adults.Problematically, however, "diverse ideological cultures" won't keep students "from harm's way" or "from doing harm." They will deal with the problem of harm diversely and with diverse results. If students are minors in need of protection, we cannot leave them to the mercy of "ideological cultures" that reject the very premise that it is their job to protect students, or those that have unorthodox ideas about what "protection" entails. What will really keep these crazed and impulsive but simultaneously risk-averse and terrified students of Posner's description from doing harm and out of harm's way is locking them up in single monastic cells with all sharp objects removed for four years so that they can do nothing but their schoolwork. Safety first.
*Thanks to Phoebe for noticing my brain melt.