by Curmie

I had a post about half-written, talking about the fact that SCOTUS justices are nominated and confirmed (or not) primarily for their adherence to certain political principles rather than for their integrity, judgment, legal expertise, or temperament. 

‘Twas not ever thus.  In my lifetime, five SCOTUS Justices were confirmed by a voice vote and three others received all 100% of the votes. Another seven received at least 80% of the votes.  But of the current members of SCOTUS, only Chief Justice Roberts received majority support from Senators of both parties… and that was by a single vote.  Justice Thomas, who’s been around the longest, is the only currently-serving member of the Supreme Court to have been confirmed by a Senate controlled by the party not in the White House at the time.

This, I was about to argue, makes the process depressingly predictable: liberals over here, conservatives over there, with Roberts as the closest thing to an unreliable vote for “his side.”  I was getting around to talking about the allegations against Justice Alito: did he really do something wrong, or is furor mostly partisan in nature?  Answer to both questions: yes. 

But then, despite the predictable split in the two Affirmative Action cases, we also see Gorsuch writing a scathing dissent on Arizona v. Navajo Nation, Barrett and Kavanaugh voting with the liberal bloc on Moore v. Harper, and Jack saying pretty much what I would have said about the Alito case.  I may want to return to the general outline of my half-written essay at some point in the future… but the timing isn’t right, now.

So let me go off in a different direction and talk about a faculty member dismissed from an elite university for her political statements.  The headline on the FIRE article begins “Yale shreds faculty rights to rid itself of professor…”  Certainly we’ve seen a fair amount of that kind of fare here on Ethics Alarms.  What’s different is what follows in that title: “…who called Trump mentally unstable.”  Well, that sure goes against the whole “universities are cesspools of Woke indoctrination” mantra, doesn’t it?

The case involves the firing—wait, no, Yale wants to be sure it’s called a “non-renewal”—of Dr. Bandy Lee, a voluntary assistant clinical psychiatry professor, for a series of statements to the House Judiciary Committee</a> and subsequent tweets calling then-President Trump “mentally unstable” and his supporters suffering from a “shared psychosis.”

A federal court upheld Yale’s claim that its oft-repeated purported adherence to the “Chicago Principles” wasn’t… you know… a statement of policy, much less “a set of contractual promises.”  In other words, Yale believes unequivocally in freedom of expression, except when it might be inconvenient to do so.

And, of course, they’re equal opportunity censorious asshats (H/t to Ken White, as per tradition, for the phrase), having earned FIRE’s Lifetime Censorship Award in 2022 for a variety of restrictions on free expression, most of which stemmed from a commitment to the squishy ethical values associated with Woke authoritarianism.  It turns out that Yale’s self-image as Guardians of Conformity is non-partisan… or whimsical… or that the med school is run by different censorious asshats than the undergrad and law schools… or whatever.

The court also found that Lee was not entitled to Connecticut’s statutory protection for employees against employer discipline or discharge for 1st Amendment protected activity because, being unpaid, she was not really an employee, despite their acknowledging that Lee received office space, access to library and laboratory facilities, technology, and other forms of “indirect remuneration.”

OK.  So.  Yale is hypocritical in all this, and so far, at least, the courts have allowed them to be so.  Fine.  But there are some nuances here that make the ethical considerations a little more complicated. 

Had I been the one to say what she said in early 2020, I would have been protected not merely by the 1^st Amendment, but also by academic freedom, since I was a tenured professor.  It has been argued that the original intention of tenure was to allow faculty to speak and publish controversial opinions within their area of expertise (e.g. my argument that few of the “groundlings” in Shakespeare’s theatre were really from the working class). 

This is true, but it is now accepted as the norm that tenured faculty are free to express their ideas about a wide variety of issues, including the policies of their university’s administration, and, indeed, politics.  But academic freedom only fully kicks in with tenure, and Lee’s position at Yale was a couple steps down the ladder from anything resembling full protection.

Or, rather, it would have been, except that Yale so exuberantly touts its commitment to academic freedom in a way that does indeed suggest that all members of the Yale community are entitled to these protections, even though the university now argues the contrary in court. 

More centrally, I am not a psychiatrist, and don’t claim to be.  If I, or Jack, or any of the vast majority of the people who read this blog, called President Trump (or his successor) mentally unstable, it would be regarded as essentially a figure of speech, filtered through the speaker’s own biases and political predilections.  We might mean exactly what we said, but no one would think it was other than a personal opinion.

If, hypothetically, I say “Anyone who believes in Trump’s innocence is insane,” there will be a variety of (perhaps unspoken) responses.  Most would be a variation on “What Curmie really means is that he believes firmly in Trump’s guilt on this particular issue; he’s simply over-stating the case.  It’s clear that his statement shouldn’t be taken literally.”  Other responses would be metaphorical applause or brickbats, depending on the perspective of the reader.  What that reaction would not be is a belief that I have psychoanalyzed Trump’s defenders and rendered a professional judgment.

Dr. Lee lacks that escape path, especially when her twitter profile highlights her advanced degrees, and she certainly suggests that her opinion ought to carry more weight than other people’s because she’s a psychiatrist.  There’s a real ethical question about whether she should be using professional terminology to describe, publicly, people she has never even met.  There’s something called the Goldwater rule , which may or may not be a rule, per se, may or may not still be in effect, etc.  The idea is that no one in the profession should make public diagnoses of public figures they have not personally examined.

I won’t claim to be an authority on the ethics standards of the psychiatric community—Lee says she adhered to existing policy; others, including several on that Twitter chain linked above, would argue that point.  I’m not taking a side in that dispute except to describe her actions as probably well-meaning (the good of the nation) but definitely partisan and provocative.  Is that enough to get fired?  Under normal circumstances, probably not.  But there was no little furor about her tweets, and it’s not entirely unreasonable to think that the Yale administration decided that keeping an unpaid faculty member around wasn’t worth the controversy.

Curiously, I can find nothing to suggest that was Yale’s thinking.  I find no mention of “unprofessional conduct,” for example.  Rather, they seem to have relied on arguing that the promises they made and continue to make to faculty and students are so much puffery, and none of us should expect them to keep their word. 

“O brave new world / That has such people in’t!”  I’m more with Huxley than with Shakespeare’s Miranda on this one.

***

[This is your host. I apologize for breaking in here on Curmie’s space, but WordPress is going through one of those stages where it prevents me from commenting on my own blog. What follows should be considered just that, a reader’s comment, but I wrote it, it wouldn’t post, and I don’t want to forget it]

I’m always thrilled when a participant here relieves me of the responsibility of writing a post I was planning on writing, and Curmie’s second column went one better, relieving my conscience of regret from having failed to post on Bandy’s fate when it was on my version of Koko’s little list for a more than a week. I never considered the academic freedom aspect of the firing. I wrote about Lee here several times, and I viewed her firing as both welcome and justified, because she was, I felt and feel, exploiting a minor position at Yale to get anti-Trump media gigs, was embarrassing the institution, and, whether Yale used the term or not, was extremely unprofessional by the standards of her own profession (The Goldwater Rule just formalized basic common sense).

Of course, my view on this issue was also informed by my conclusion that the “Trump is mentally unfit” was absolute partisan garbage, one among the long list above of the bogus “Get Trump!” strategies employed by the Axis of Unethical Conduct.

I don’t agree with Prof. Turley regarding the sanctity of academic freedom when a professor or lecturer or anyone who teaches causes fair and objective people to wonder, “What kind of people are they hiring in that place?” or to conclude, “I can’t trust those people, and I’m sure as hell not going into hock so my kid can be warped by them.” I think teachers of any kind should be made to understand that they always represent the university or college that employs them, and that they have an obligation to behave and speak in public accordingly.

But as Curmie points out—and I didn’t consider this either—Yale clearly is employing the King’s Pass here.