1. The Georgetown Law Center scandal, the scandal being that the school has fired a professor as racist for saying out loud what the institution has known for decades (that admitting black students with significantly fewer markers of law school success that the rest of the student body means that a disproportionate number of affirmative action admittees end up on the low end of the grading curves–duh...) has been covered by none of the law profs I usually look to for their timely opinions on such matters. Even Prof. Turley, whose blog has been relentless in defending free speech on campus, has been silent. Ann Althouse, so far at least, has preferred to write about such throbbingly important topics as Eddie Izzard’s preferred pronouns. TaxProf Blog, by Pepperdine Law School Dean Paul Caron, and Prof. Jacobson’s Legal Insurrection have also, so far at least, not weighed in on the firing of adjunct Sandra Sellers and the suspension of adjunct David Batson.
What’s going on here? Please, please tell me they are not afraid of this topic. I am especially surprised at Althouse, who is retired, and has little to fear professionally.
2. At the University of South Alabama, three professors were suspended after a six-year-old photos “resurfaced” showing them in “racially insensitive” Halloween costumes. Then-Mitchell College of Business dean Bob Wood was dressed as a Confederate general, professors Alex Sharland and Teresa Weldy were seen posing with a noose and a whip…
As they bounced around social media, the pictures prompted expressions of great harm. “That makes me feel like since other cultures are starting to come here, that they don’t want us here or we’re unwanted because they want it to stay a PWI or a predominately Caucasian institution,” said student Samantha Longmire. “We have Black students on campus, how do you think that makes them feel? Do you care about your students,” said student Chante Moore.
Seriously? Seriously? A Halloween costume as a Confederate soldier is a threat, but a vampire costume is fine? These rules don’t make any sense at all, and those rules weren’t even outlined vaguely in 2014. Shaland is dressed like an English judge—how does that have racial implications? He’s a hanging judge, presumably. What does the whip mean? I have no idea—it looks like a cat-o-ninetails to me. They used that on ships, not plantations. There’s one in “H.M.S. Pinafore”! Weldy doesn’t even seem to be in costume. Wood and Sharland, both tenured, apologized. They are cowards, and are enabling the erosion of our rights while supporting the rising totalitarian effort to control thought and expression. Weldy, who is not tenured, has refused to apologize.
Good for her.
University President Waldrop, virtue-signalling as fast as he can, called the costumes and poses “offensive” and “contrary to our core principles of diversity and inclusion” in a statement assuring the traumatized students that the university would “address this situation in a manner that demonstrates our unwavering commitment to diversity, inclusion, and a safe and welcoming environment for every member of our community.”
“With that in mind,” he continued, “I am writing to let you know that the University has engaged the services of an independent, highly qualified external attorney to investigate this matter and submit the investigative report to University leadership for further action, pursuant to the University’s policies of non-discrimination and equal opportunity/equal access.”
Ridiculous, and a waste of funds.
Lawyer Hans Bader, who also weighed in on the GULC controversy, pointed out that “Historical depictions, such as dressing in military garb, are protected by the First Amendment even if they offend people on campus.”
“If professors can be disciplined for wearing confederate garb, it is hard to see how historical reenactments of the Civil War can continue, despite their clear educational value.
The fact that something is tied to the Confederacy does not strip it of First Amendment protection. For example, depictions of the Confederate flag are protected by the First Amendment. (See Sons of Confederate Veterans v. Glendening (1997)).
Wearing a Halloween costume is not an endorsement of the character depicted in the costume or that character’s beliefs. The whole point of a Halloween costume is to be scary or eye-catching. A person who wears a costume of Jack the Ripper is not thereby endorsing or threatening to commit murder. Similarly, a person who dresses as a confederate or carries a whip or a noose on Halloween is not endorsing the revival of slavery or lynching, or the revival of the Confederacy.
The fact that some viewers may have been offended by these costumes did not give the university the right to suspend the professors. For example, an appeals court ruled that a university could not punish a professor for writings that denigrated black people, even though his writings drew a very hostile response from some students (See Levin v. Harleston (1992)).
…But these professors likely have due process claims if they are fired, or are disciplined for “racial harassment.” The university president cited the university’s “policies of non-discrimination and equal opportunity/equal access,” suggesting that they are being investigated for racial harassment. But merely wearing a costume does not constitute racial harassment against students or employees.
I regard this analysis as obvious and indisputable, unless the opposing advocate has an agenda, or is—hmmm, how should I put this?—nuts, or in the vise-like grip of The Great Stupid.
3. Surely there must be some equivalent of a statute of limitations on this sort of thing (that is, costumes that are suddenly regarded as racist, sexist, or otherwise offensive). No?
4. Above the Law, predictably, once again exposes itself for the dishonest, hysterical, woke-licking cyber-rag it is and has long been. (I concluded this well before it accused me of being sexist for correctly interpreting a D.C. Bar ethics rule to allow a law firm to accommodate a client who wanted an attorney of a specific gender.) “Shocking Video Of Law School Professors Making Racist Comments Goes Viral” its headline shouts! As is so often the case, ATL’s analysis is biased, illogical, and counter-factual—but progressive!
5. Gail Herriot has a book coming out about the problem of race-preferences at American Universities. From “A Dubious Expediency: How Race Preferences Damage Higher Education,” another tale about Georgetown Law Center and its affirmative action program. (How did I miss this?)…
In early 1991, a third-year law student—I’ll just call him “John Doe” here—took a job as a part-time file clerk in the admissions office. He probably figured it would be a good way to earn some extra money without cutting too much into his study time. If he had only known …. In a few weeks, this former Peace Corps volunteer would be vilified by the Georgetown University faculty, his fellow students, and the editorial pages of some of the nation’s major newspapers. Over the course of the next year and a half, he would be fighting for his right to practice law.
Doe had heard many times that affirmative action was all about putting a gentle thumb on the scale in favor of minority applicants. It was a tiebreaker, nothing more. But the admissions files he was seeing told a different story. The gap in academic credentials between white and African-American admittees was very stark.
He therefore decided to do a test. Taking what he regarded as a random sample of the files, he did a few back-of-the-envelope calculations and found that the average white student accepted to the law school had an LSAT score of 43 and an undergraduate grade point average of 3.7. The average accepted black student, on the other hand, had an LSAT score of 36 and an undergraduate grade point average of 3.2. To put those figures in perspective, an LSAT score of 43 was just a hair shy of the top 5 percent among those who took the exam. A score of 36, on the other hand, was only in the top 30 percent.
To be sure, students in the top 30 percent are good students, all fully capable of becoming, in one form or another, successful lawyers. They are not, however, typical of highly competitive, academically-oriented schools like Georgetown, which holds itself out as a law school for outstanding students, not just for good students. Rightly or wrongly, the admissions office would not have given a white student with an LSAT score of 36 and an undergraduate GPA of 3.2 a second glance: Of over 100 white admittees sampled, not a single one had an LSAT score under 39.
Doe published his findings in the student-run newspaper—the Georgetown Law Weekly—along with an essay critical of the school’s separate and less-demanding admissions standards for African Americans. He called the credentials of white and African-American admittees “dramatically unequal,” and argued that Georgetown was being dishonest in failing to inform its students about the gap.
The failure to disclose the credentials problem made enrolling a racially-diverse class seem easy, he wrote. It made it appear that, if the school didn’t have enough African-American students, it was because the school just didn’t care enough to reach out and encourage them to attend.
The campus went crazy. Within days, students had filed a formal complaint demanding that Doe be expelled. The next week, 600 Georgetown law students crammed into a lecture hall for an emotionally-charged “town meeting,” while others spilled over into another classroom to watch the event on closed-circuit television.
Doe had obviously touched a raw nerve. One student called the article an attempt to chill Georgetown’s “commitment to legal education for African-Americans.” “The central issue is racism,” said another. “I think the article is assaultive. People were injured. I think this kind of speech is outrageous.”
While they were not numerous, a few students defended Doe, who had made the decision not to attend himself. A third-year student told the crowd that affirmative action had been “swept under the rug before, because white people were afraid to say anything and black people felt threatened.” Doe was thus performing a service of sorts by getting the issue into the open. “Are we really going to say that because we don’t like what [Doe] said we are going to throw him out of school?” he asked.
The question may have been intended as rhetorical, but it was not treated as such. Shouts of “Yes!” rang up from some in the crowd. Tempers were flaring.
All during the meeting, the dean blandly assured the crowd that Doe had gotten his facts wrong. The gap was not what he suggested it is—or so she implied. She steadfastly refused, however, to provide the actual figures or to provide any details whatsoever as to Georgetown’s actual affirmative action policy. This caused even supporters some unease.
As the story leaked out to the mainstream press, the dean kept up her assurances that Doe had gotten it wrong and that his “random sample” was not random at all. Doe had evidently taken a large pile of admissions files, representing students who had been admitted, but he had no way of knowing whether that pile was really a random sample.
Following her lead, the New York Times editorialized that Doe was “without the scarcest hint that he knows what a random sample is.” Even if true, this was harsher than necessary for the Times editors to make their point. This was a law student they were attacking, a law student writing in a school newspaper who was no doubt astonished to find himself suddenly thrust onto the national stage. Surely the editors of one of the world’s leading newspapers could pick on someone their own size.
But the editors showed no mercy. They went on to ridicule Doe, accusing him of writing “pretentiously” and stating that “he has learned very little” and that “he hasn’t a clue about the broad purpose of a great law school.” The raw nerve Doe had touched evidently reached into the editorial offices of the New York Times.
As it turned out, Doe was more likely understating the gap than overstating it. Shortly after the controversy exploded, an internal memorandum surfaced, the authenticity of which was confirmed to the Washington Post by university sources. Authored by the Georgetown admissions director, it stated that the median LSAT score for full-time African-American students at Georgetown in 1989 “increased to 33, up from 32 last year and 30 two years ago.” According to the memorandum, the median for the entering class as a whole in 1989 was 42, which would make Doe’s figure of 43 for white students in particular about on target.
A score of 33 was not quite in the 56th percentile, and score of 32 was in the 52nd percentile. Both scores were thus quite ordinary among test takers nationally. Among actual law students, however, they were below average, since low scorers on the LSAT frequently do not attend any law school. A score of 30 was in the 41st percentile—below the average for test takers and much below the average for actual law students.
In the midst of the fury over his article, Doe was charged by the school with violating confidentiality (although he had disclosed no individual information and had published only the kind of information found in the admissions director’s memorandum and reported to the American Bar Association and U.S. News & World Report). The case was to be tried by a panel of two professors and one student, where possible sanctions included expulsion. Fortunately for Doe, his lawyers were able to negotiate a settlement with Georgetown. Rather than being expelled, he was issued a letter of reprimand and allowed to graduate.
This did not sit well with everyone. An unhappy faculty group accused the administration of “a panicked reaction” that failed to “celebrate and vigorously defend” affirmative action. On graduation day, approximately a month and a half after the offending article was published, a number of students wore green ribbons to protest the settlement. A few carried placards, like the one that read, “Ethics … A Meaningless Word.”
But unfortunately for Doe, the story didn’t end there. After graduation, he took and passed the bar examination. But he was found to be unfit for the practice of law by a panel of the committee that passes on applicants’ character. Only after protracted litigation was he able to practice the profession he had trained for.
After such a story, no one can claim surprise to learn that there are only a small number of intrepid souls who are willing to bring facts about affirmative action to public light or even to debate it.