Ethics Verdicts: The Georgetown Law Professor’s Comments Were Careless But Not “Reprehensible,” And The Law Center Dean’s Statement Implying Her Comments Showed “Systemic Racism” Is Reprehensible…And False

This, I would remind you, is why the emphasis of the first Ethics Alarms post on this mess involving my former employer and alma mater was that GULC adjunct professor Sandra Sellers was culpable for the inevitable results of her unintentionally public candor for incompetently broadcasting her private observations over an online conferencing platform. I predicted that she was a goner once the school’s black student organization saw a grandstanding opportunity (and if it wrecks a lawyer’s reputation and career–so what? After all, she’s just another racist white bitch…), and I was right, in part because I know what the Law Center has become in recent years.

I also predicted a groveling apology from Sellers rather than the ringing defense of her observations that might have been helpful in both clarifying her comments and exposing the Law Center’s spectacular embrace of Rationalization #64, “It Isn’t What It is.” Poor, weak, technologically inept–but not wrong!–Sellers sent the Washington Post a copy of her grovel, which could have been drafted by a computer. She apologized for the “hurtful and misdirected remarks,” carefully chosen words indeed. Her remarks were “misdirected” because they were intended only for another professor, not the universe, and they were “hurtful” because they created a student relations crisis for Georgetown—which it has thoroughly botched. Sellers also said in the letter

“I would never do anything to intentionally hurt my students or Georgetown Law and wish I could take back my words. Regardless of my intent, I have done irreparable harm and I am truly sorry for this.”

Well, I give her some credit for declining to say that she didn’t mean what she said, or that what she said was untrue. Some. In essence she apologized for what I had written was the problem with her statement: it was careless to let it be witnessed by people who would—mostly deliberately— misinterpret it. Her carefully composed non-apology was clever, but it doesn’t help. The school’s statement, through GULC second-in-command Dean Trainor, was despicable—unfair and cowardly. It called the episode indicative of “structural issues of racism” (Translation: Sellers is a racist) and “explicit and implicit bias.”

Yes, a dean of a major law school declared on behalf of that law school that accurate observations involving student education are racist, presumably because they don’t advance a convenient but false progressive narrative. He also suspended the law professor Sellers was talking to because he didn’t meet his “bystander responsibility” and confront her over her non-racist statement as if it were racist.

I did not adequately clarify the full absurdity of this in the brief post late last night announcing Georgetown Law Center’s response to demands that Sellers be fired. Fortunately others with a bigger megaphone than mine did, notably Prof. Eugene Volokh, a nationally recognized constitutional law expert, over at Reason. He wrote in part,

You can draw what conclusions you like about the tone of the conversation (which is of course a casual conversation, not a formally planned presentation). But I wanted to speak to the broader factual matter that the remarks raise—whether a disproportionate share of students at the bottom of the class in top law schools are indeed black.

There appears to be some data on this; here, for instance, is an observation from Yale law professors Ian Ayres & Richard R.W. Brooks in Does Affirmative Action Reduce the Number of Black Lawyers?, 57 Stanford Law Review 1807 (2005):

With the exception of traditionally black law schools (where blacks still make up 43.8% of the student body), the median black law school grade point average is at the 6.7th percentile of white law students. This means that only 6.7% of whites have lower grades than 50% of blacks. One finds a similar result at the other end of the distribution—as only 7.5% of blacks have grades that are higher than the white median.”

This is data from the 1990s, but I have heard no evidence that the results are vastly different today; my colleague Rick Sander tells me that newer data has not been generally made available by administrators. Sander’s theory is that this gap is a predictable consequence of race-based affirmative action:

1. The usual predictors (the LSAT score and the undergraduate GPA) do a pretty good job of predicting law school performance; not perfect, of course, but the correlation is quite substantial.

2. Therefore, if you let in any group with considerably lower predictors, they’ll on average do worse than their peers (including on blind-graded exams, which are common in law schools), and will be particularly likely to fall near the bottom of the class.

3. Race-based affirmative action programs in many law schools tend to let in black students with considerably lower predictors than other students; indeed, such programs are structured precisely to do that.

To quote Sander’s testimony to the Commission on Civil Rights:

It’s important to note that this performance gap has nothing to do with race per se; whites who attend law schools where their credentials are far below most of their peers have pretty much the same types of troubles. The performance gap is a function of preferences [i.e., race-based preferences in the admission. -EV].

Sander adds to me that, “My work found that virtually all of the black-white grade gap disappeared when one controlled for LSAT scores and undergraduate grades.”

Now others take different views, and point to other possible reason for black students tending to cluster near the bottom of the class in most schools. Ayres & Brooks, for instance, write, “If not mismatch, then what explains black underperformance in law schools? One possibility is stereotype threat [presumably stemming from black students’ being affected by the stereotype of blacks as less academically successful -EV] …. [S]tereotype threat is activated by the … subtle and pervasive mechanism of contending with situations in which one knows one can be viewed through the lens of a negative stereotype. It has little to do with expectations of poor performance and everything to do with the contextual environment that black law students face. ‘Stereotype threat follows its targets onto campus, affecting behaviors of theirs that are as varied as participating in class, seeking help from faculty, contact with students in other groups, and so on.'”

But in any event the phenomenon of black students being near the bottom of the class at many law schools appears to be real. (This is of course an average effect; the actual grades differ by student and by school. Schools that don’t have race-based admissions preferences, or that have smaller race-based preferences, might lack such an effect, or have a much smaller effect. My own UC campuses, for instance, are forbidden by law from offering race-based preferences; to the extent such a prohibition is complied with, one would expect both black students’ predictors and their grades there to be much closer to the overall class median. I don’t know what the actual statistics are for UC law schools, or for my UCLA law school in particular; to my knowledge, such numbers are generally not publicized.)

Thus the headlines I saw last night on “conservative media” were “Georgetown Law Professor Fired For Telling The Truth” or some version thereof Lawyer-commentator Hans Bader, who, he pointed out in an email, “practiced education law for years, including a stint in the federal Office for Civil Rights,” wrote in part,

A law professor at Georgetown University has been fired for pointing out that black students got lower grades in her classes. This was not due to racism. Black students get lower grades at selective colleges because they are admitted with lower grades and test scores than their non-black classmates, due to racial preferences in admissions at schools like Georgetown.

Recipients of non-racial preferences in admissions also get lower grades at the schools that admit them. I received lower than average grades as a student at Harvard Law School. Why? I was admitted with lower-than average credentials than most of my classmates (because I pledged to go into public-interest law afterwards).  So I was less prepared than most of my classmates, and occasionally had to struggle to keep up with my classmates. This did not mean I flunked out of school…

The professor was targeted simply for telling the truth, says Ted Frank, a lawyer who has won over $100 million in lawsuits, and several landmark court decisions: “The only thing reprehensible here is the statement of the Dean throwing his faculty member under the bus instead of telling students unpleasant truths. GU Law grading is blind and anonymous!” So the professor is not saying he engaged in any kind of racism. As Frank notes, “African-American law students good enough to get into Georgetown Law end up going to Harvard and Stanford instead” because of those universities’ racial preferences in admissions.” As a result, “Georgetown Law has to” lower standards for black applicants, and “dive deeper into the pool to get a racially balanced class.” As a result of these lower standards for black and non-black students, “African-Americans attending Georgetown Law are less qualified than average students, and perform worse in school.”

As Frank notes, it is utterly predictable that black students will get lower grades at Georgetown…This firing violates the “academic freedom” that Georgetown University contractually promises its faculty, which implement the “core principles” of academic freedom laid down by “the American Association of University Professors” (AAUP).

Obviously, Bader must be a racist, just like Sellers. Volokh is a racist, I’m a racist…I hear the old Dr. Pepper jingle echoing through my skull…

I’m a racist he’s a racist she’s a racist we’re all racists wouldn’t you like to be a racist too?

…because being willing to make a factual observation and criticism based on facts the political correctness bullies insist must be ignored makes one a racist. Facts don’t matter.

I looked for a critical view of Sellers’s comments on the progressive sites. Here was the best The Root could do:

“Maybe that means you should do a better job of reaching out to those students, perhaps see what factors might be contributing to their perceived underperformance and provide some recommendations on how they can improve. If it really “drives you crazy,” then do something more than just complaining about it over Zoom.”

Now that’s certainly lame:

  • Sellers wasn’t “complaining over Zoom.” She was having what she thought was a private conversation with a single colleague.
  • How does The Root know what kinds of efforts Sellers was engaged in to help her African American students?
  • It wasn’t “perceived” underperformance. It was and is underperformance, just as it was when I was involved in discussion about the problem at Georgetown.
  • Note that The Root doesn’t dispute the substance of Sellers’ complaint. Her offense was daring to mention reality.

Over at Jezabel, which never allows facts to get in the way of woke grandstanding, I read of the Sellers-Batson exchange,

“The vile interaction drew the ire of students past and present who had been in Sellers’ class and felt the impacts of this bias.”

How was it “vile”? There have been no claims that Sellers had been biased in her classes: grading at GULC is anonymous.

The “racism” here, as it often is in The Great Stupid, is the acknowledgment of inconvenient facts.

23 thoughts on “Ethics Verdicts: The Georgetown Law Professor’s Comments Were Careless But Not “Reprehensible,” And The Law Center Dean’s Statement Implying Her Comments Showed “Systemic Racism” Is Reprehensible…And False

  1. Now THIS is a technology fail that exposed a racist.

    https://www.wthr.com/article/news/local/indiana/michigan-city-mayor-facing-calls-for-resignation-after-racially-insensitive-comments/531-bd810db0-f456-41dc-a861-5c9bbda691bb?fbclid=IwAR2q-dj7qka2pkfdZzjoOx3EJcfhrERCGXD7GgY0m4RJHsQhJzxsxB4yRJ0

    I’ve worked in call centers. ALWAYS make sure that phone call is disconnected before saying anything else. But, at least, the citizens of Michigan City know their mayor is a jerk.

    • It doesn’t mention his party affiliation! He must be a Demcorat. Let’s check.

      Google… Michigan City Mayor. Nope… No Wikipedia. Google… Duane Parry…. Nope no Wikipedia. But wait! There’s a voter assistance website! Voter assistance website… No party affiliation. Huh. Past history… Ran for the Indiana State House of Representatives, District 9, in 2018. Perfect. Those keep records! Yup. Lost in the primaries, gaining 20.3% of the vote in a 3 way Democratic Primary.

      I’m a God Damned psychic.

      • “It doesn’t mention his party affiliation!”

        I’m shocked…SHOCKED…said no one.

        That’s a game (Hide The Inconvenient Political Affiliation) with which Lefty has considerable experience.

        To wit:

        Recall when those Bell, CA Lefties got caught with their ‘nads in a ringer?

        (bolds/caps/italics mine throughout)
        09/21/2010 : “Today, eight city council members were arrested in Bell, California for what Los Angeles County District Attorney labeled ‘corruption on steroids.’ Thus far, every major news outlet that has reported on the story has OMITTED the fact that ALL EIGHT INDIVIDUALS ARRESTED ARE DEMOCRATS.

        ”These glaring omissions come only weeks after NewsBusters reported that of the 351 stories on the then-brewing controversy, 350 had omitted party affiliations, and one had mentioned they were Democrats only in apologizing for not doing so sooner.

        ”ABC, CBS, the Los Angeles Times, the Associated Press, Bloomberg, USA Today, CNN, MSNBC, NPR, and the San Francisco Chronicle all reported on the arrests today without mentioning party affiliations.

        ”One commenter at CNN’s online story got it spot on: ‘I notice there is no mention of the party affiliation of the accused. I can find no mention of it in any story on the internet. THIS MUST MEAN THEY WERE ALL DEMOCRATS.’ ”

      • Parry has been both a Democrat and a Republican. He ran as a Democrat in 2012 (City Council – elected), 2016 (Mayor – not elected), and 2018 (Democrat primary for Indiana House – lost). He ran as a Republican in 2019 (Mayoral primary – won) and 2019 (Mayor – elected).
        So, now we get to choose which of those personas caused him to make racist statements.

          • Several sites, Indiana media, mostly. I had Googled the name to get more info and quickly saw an item about the Indiana house race as a Dem. At that point, I suspected two people with the same name. A bit more looking cleared that up.

      • The article says he is a Republican:

        “Those comments by Parry — a Republican — were condemned by LaPorte County Republican Chair Allen Stevens, who spoke at the rally Tuesday.

        “Mayor Parry’s comments were reprehensible and as the newly elected chair of the LaPorte County Republican Party, I want everyone to know that his comments in no way, shape or form reflect the viewpoints of the LaPorte County Republican Party, its officeholders, its members or its candidates,” Stevens said.”

        • I actually did a search for “Democrat” and “Republican” before making my comment, so I think that might have been added in after. Maybe too many people thought he was a Democrat. (Or maybe I just somehow missed it).

  2. Obviously, Bader must be a racist, just like Sellers. Volokh is a racist, I’m a racist…I hear the old Dr. Pepper jingle echoing through my skull…

    “I’m a racist he’s a racist she’s a racist we’re all racists wouldn’t you like to be a racist too?“

    This kinda says it all, just like my now former secretary’s comment to me that “You white people all racist, just some of y’all better at hiding it.” What can you say in response to something like that? The answer is you can’t say anything. If you do, you’re just a racist defending racism. The left stumbled into the perfect political weapon.

    • “You white people all racist, just some of y’all better at hiding it.”

      I would have said, “What a racist thing to say.”

      • In private practice I would have said, “I’m going to pretend I didn’t hear that. Say it again and I’ll report you to the partners.” However, in the public sector, good luck. This was far from the first outrageous thing this person said. However, the powers that be only would punish her if she swore or started an altercation, which happened either three or four times, however, they never gave her major discipline, since that would have meant a hearing in administrative court and probably a labor grievance. She was planning to retire this year anyway, and, because of the pandemic, she got to take advantage of a buyout which let her walk out the door with a lump sum of $25K in her pocket.

      • Unfortunately I did not have that power. Even if I did, I’m not sure I’d exercise it then and there. This is the kind of person who would be back within a week with a loudmouth lawyer filing a wrongful discharge suit and prepared to hold me up in the media as a racist old(ish) white guy who fired a black woman who stood up for herself and wouldn’t take the white system’s racist garbage anymore. She’s also the kind of person who’d make some phone calls, and then those people would make some phone calls, and the next thing you know, there’s a black mob outside your office with murder on their minds.

  3. And it was Eric Holder who said whites were cowards for avoiding talking about race. The cowaradice appears to be an unwillingness by minorities to do some self-reflection.

  4. Now, I have to flip-flop a bit from my previous position:
    The problem with much of the analysis is that we don’t really know that what she said was true.

    But, as many have pointed out, exams at GU are anonymous. I presume that is true; it was true at my law school.

    So, where do Sellers’ opinions come from? My only supposition would be from in-class interactions. Law school is notorious, perhaps, for using the “Socratic Method.” People are put on the spot with questions about the class readings. Sometimes, they know they will be called upon; sometimes they don’t. Whether you are prepared to speak in front of a class about a case is not secret and your work is not anonymous.

    But, at the same time, it is not necessarily indicative of the way one might perform on an exam.

    One can answer poorly in class for at least two possible reason: 1) lack of preparation; or 2) self-consciousness about public speaking. The former would correlate with poor exam performance more than the latter. By the time I got to law school, I was quite capable of spouting off in class about pretty much anything; that ability did not help my grades much.

    So, from what little I know about this, it would seem to me that Seller’s would have to be talking about the way students respond in class to the readings. I could easily see that some black students may not do well with participating along with a large group of white students (I think that is what was meant by “stereotype threat”). That would not necessarily translate into bad grades. Nonetheless, poor performance in class would certainly be cause for concern by any educator.

    So, while I am unwilling to decry her comments as “racist,” we don’t have sufficient evidence to proclaim that what she said was “true.”

    -Jut

    • Well, once you have submitted exam grades, it is extremely easy to find out what any individual student received. I gave credit for in class participation, and could raise or lower a grade for the semester. I assume a GULC prof could as well.

      • Wow. Class participation counts? Unheard of when I was on the paper chase. The exams grades went up on a bulletin board next to your number. End of story.

  5. Trying to speak with Sparty always wears me out. But I think yesterday was a Eureka moment for me. The Coke missive to its law firms and the Georgetown debacle led me to realize what the heck is going on. So here goes:

    I’ve been a little unsure of the description of the BLM movement, so-called, as Marxist. I never really knew what that meant. But this morning, it clicked. Critical race theory and BLM have basically taken the Marxist critique of post-Industrial Revolution, modern society and changed the players and the vocabulary. Change “capitalism” to “the modern economy.” Change “the proletariat” to “people of color.” Change “land owners” and “royalty” to “white people.” Change “counter-revolutionaries” or “reactionaries” to “conservatives” or “racists.” Change “revolutionaries” or “Bolsheviks” to “the woke” or “progressives.” Change “oppressors” to “white people.”

    The underlying assumption of both Communism and Critical race theory and its spawn, BLM, is that the modern economy (denominated by Karl Marx as “capitalism” but lets just call it “the modern economy”) has two immutable features: First, it is a self-sustaining, largely incomprehensible, contraption that runs of its own accord and spews out wealth continuously and in an ever increasing volume. It requires no care and feeding, it’s impregnable. A perpetual motion machine. All you have to do is gain control of it. Anybody can operate it. Second, and more important, the true purpose of the modern economy is to “oppress the proletariat” (Marxist) and crush people of color (BLM). The modern economy exists for no other reason than destroying workers/people of color. Therefore, it must be destroyed to free the proletariat/people of color.

    Now, if you’re a “revolutionary” or “a person of color” and feel you are entitled to control this wonderful juggernaut and the people who are benefitting from the modern economy aren’t willing to let you just take over, what do you do? You declare the means by which those people benefit from the modern economy to be immoral and the root of the problem. In Russia, people who benefitted from the system were declared “capitalists” and “enemies of the people.” Now, people who have the gall to benefit from the modern economy are declared “racists.”

    For example, the revolutionaries/critical race theorists/BLM advocates at the Coca-Cola company legal department have determined that the large, prestigious law firms they employ are large and prestigious simply because they are white. In fact, the entire legal system is based on the false premise of “the law.” This is wrong. The only reason white guys are partners in big law firms is because big law firms are part of the modern economy. They purport to be selected by merit, but they are just part of the big juggernaut that is the modern economy. Anybody can be a partner in a large law firm. It’s just they haven’t let black guys become partners because the modern economy’s only reason for being is to crush black guys. So, just make thirteen percent of partners in big law firms black, and the problem is solved. To object to this project is to be a reactionary, a counter-revolutionary or … “a racist.”

    For the adjunct professor at Georgetown to observe that students of color are not flourishing in her class room is irrefutably “racist” because it dares to question the entire project of destroying the modern economy as it is manifested in the legal profession. Black kids should make up thirteen percent of students at all law schools. They should get as good grades as the white kids do. They should get thirteen percent of the associateships and partnerships at every law firm in the country. If they don’t, it’s because the legal industry is immoral and corrupt and meritocratic and reactionary. And … racist. That is, capitalist.

    And, as is always the case with Communism, there are useful idiots like Sparty and the administrators at Georgetown, who are unwittingly, all in on this effort to reconfigure the modern economy and the legal industry.

    But as we’ve seen in Russia, Maoist China (and who knows what will happen in current day China), Castro’s Cuba, Vietnam, Cambodia, Venezuela, Bolivia, etc., modern economies don’t just run themselves regardless of who is at the controls and regardless of whether they are well designed to they actually WORK. If we start appointing judges based on their fidelity to “The Party” or “the tenets of Black Lives Matter — Say it Loud,” over time, the legal system will begin to misfire. If King and Spaulding has to have thirteen percent black senior partners and thirteen percent black lawyers working on Coke files, fine. You know what they’ll do? They’ll staff up with people of color in all those positions and pay them handsomely. But those lawyers won’t do any of the work unless they’re competent. They’ll just sit in their offices and constitute additional overhead. Billing rates will be increased across the board to allow the lawyers doing the work to get their usual distributions or salaries. And Coke’s bills will go up by thirty-five or forty-percent or whatever it takes. And the cost of Coke will go up accordingly. So the poor people who drink too much Coke and are obese and diabetic will fund the revolution.

    To conclude, the Georgetown adjunct professor, you know, a working lawyer who has gone out of her way to teach at a law school in her spare time even though she’s a working lawyer, has to be silenced because she’s a reactionary. She’s a counter-revolutionary. She’s not a racist. It finally makes sense. Here I thought a racist would be someone like George Wallace or Lester Maddox. I expected her to have said, “Lordy, these nappy-headed little pick-a-ninnies are all the same. They can’t read or think or write their way out of a wet paper bag. They’re all just dumber than a box of rocks. What the hell are they even doing here? Why aren’t they at Howard, where they belong?” No, what she said was worse than that. She had the audacity to dare to call into question the entire project of removing merit from the modern economy. This is a threat to the revolution. This can’t be tolerated. Hence, she’s branded a “racist.” But she’s not. She’s a reactionary, a counter-revolutionary. And she must be silenced.

    All I can say to the current day Bolsheviks is “be careful what you wish for.” If you succeed, you’ll bring the entire modern economy down on your heads and its wreckage will indeed crush you.

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