I lost an ethics training client over the issue now raising its ethically-muddled head in New Jersey. Several years ago, during a day long seminar I taught for a teachers association, I stated that a teacher who taught grade school, middle school of high school students while pregnant and unmarried was harming her students, and that responsible school were ethically entitled to make pregnancy outside of marriage grounds for dismissal. Literally all of the attendees were outraged (even the two men in the group), though none could articulate a valid argument against what I said. (“The right to choose!” is not a valid argument in this context.)
I was right, they were wrong. The controversy now over a Catholic school art teacher who is demanding that she should have been able to keep her job despite being pregnant is much easier, or should be.
Victoria Crisitello was an art teacher at the New Jersey’s St. Theresa elementary school in Kenilworth. In the course of negotiating for a raise, she mentioned that she was having a baby. Weeks later, she was fired by the principal, a Roman Catholic nun, who explained that she was being terminated “because she was pregnant and unmarried.” “Sex out of wedlock violates a fundamental Catholic belief that the school in this instance felt it could not overlook,” lawyers for St. Theresa’s wrote in a petition to the state Supreme Court. Crisitello’s lawsuit was tossed out by two trial court judges, only to be restored each time when an appeals court sided with the ex-teacher. Now the state’s highest court, acting on an appeal by the school, has agreed review the case, which raises the continuing thorny question about the relationship between the government and religion.
One of my college graduating class’s big reunions is next year. Harvard always does an amazing job of throwing a party (having a bank account larger than the treasuries of some countries let you do that , I have many friends and room mates I yearn to see again, and I haven’t been back home to Boston in 17 years. But I’ll be damned if I’ll honor Harvard with my presence. It has been an ethics disgrace consistently for several years, and I am ashamed of my association with the institution, as well as my family’s association (my father and sister graduated from the college, and my mother worked there for over 20 years, culminating in her becoming an assistant dean.)
I could really enlighten NPR’s listeners about the difference between law and ethics in this case, if I hadn’t been blackballed for daring to explain how accusations of sexual harassment against public figures like Donald Trump were not necessarily fair even if they were sincere. Oh, well—NPR can bite me.
With that introduction, be it known that in the case of Barkhordar et al v. President and Fellows of Harvard College, Harvard University won a dismissal today of a lawsuit by students over its decision not to partially refund tuition when it evicted students from dorms and moved classes online early in the Wuhan virus pandemic. Continue reading →
I haven’t read much commentary on yesterday’s verdict yet. I’m assuming that I’ll have more observations later in the day.
1. Ultimately, it appears that the jury just decided that it wasn’t worth it to acquit Derek Chauvin even if there was reasonable doubt. That’s sad, but the calculation can be defended on utilitarian grounds, meaning that, ironically, the arguably unethical decision to discard the law, individual rights, a fair trial and the integrity of the justice system might have been an ethical decision because it will cause less harm in the long and short run. In other words, it can be defended as a decision in which ethics won and the law lost.
I’m not saying that I would defend it that way, but I acknowledge the argument as respectable.
2. It is important to remember that cases where verdicts were based on emotion, human nature, and sociopolitical dynamics rather than the evidence and strict adherence to the law have occurred periodically, and will continue to do so.
The Nuremberg Trials were travesties from a legal standpoint, and the verdicts “ethical” only in the sense that a formal, solemn statement that some conduct is so heinous that civilization has an obligation to reject it was deemed more important than such niceties as avoiding hypocrisy or respecting the law’s aversion to ex-post facto legal penalties. The trial of the alleged conspirators to murder Lincoln was as rigged as a trial can be. This isn’t an “it happens all the time” excuse for the Chauvin trial, but a reminder that the Chauvin case isn’t the cataclysmic scar on the justice system that many will claim it is.
Talented and bold artist? Shameless self-promoter? Hypocrite? Unethical jerk? Arturo Di Modica, the Sicilian-born sculptor who died earlier this year was all of these. He was also a one-man ethics train wreck.
In mid-December of 1989, the artist illegally dropped his “Charging Bull,” a 3.5 ton bronze sculpture (that’s a similar model he had mounted in China above), in Lower Manhattan one night in 1989. He claimed it was a gift to his adopted country, the United States, urging courage and defiance after its 1988 financial collapse. Maybe. Or he just wanted to grandstand and get publicity. Either way, you cannot put a giant statue in a public place without permission, permits, owning the property involved, little things like that.
This was a planned crime. Di Modica spent weeks prowling the Wall Street area after midnight, noting when and where police officers walked by. He had about forty accomplices waiting at around 1 a.m. when he loaded his sculpture onto a flatbed truck and drove to Broad Street, next to the Stock Exchange. But it was nearing Christmas, and the Stock Exchange had put up a huge Christmas tree where he had planned to drop “Charging Bull.”
And the Court is right! But this is a really stupid law. According to Minnesota law, “‘mentally incapacitated’ means that a person under the influence of alcohol, a narcotic, anesthetic or any other substance, administered to that person without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.”
Wait, what? Does that really mean that a woman who is incapable of thinking straight or fighting off an amorous creep intent upon getting some cheap sex is mentally incapacitated and incapable of consent if she has been made blotto by a date who kept telling her she was drinking non-alcoholic punch that was really laced with vodka, but if she drank the exact same amount knowing what was in the punch, she isn’t “mentally incapacitated” even if she can barely speak or move to defend herself?
Well, let me clarify that a bit. Anger, frustration, outrage at the open attack on democracy and a level playing field in the marketplace of ideas are all legitimate reasons for someone to default to “there ought to be a law!,” but there is no excuse for elected officials like Abbott and Texas legislators displaying such ignorance of the Bill of Rights.
Stipulated: what Big Tech and the social media platforms are doing right now, deliberately and brazenly attempting to slam their fists down on the scales of democracy to make it as difficult as possible to communicate opinions, news and other expression that our rising woke dictators find inconvenient, is a genuine threat to the nation’s values and existence. However, those same values will be weakened if laws mandating companies to be fair and ethical undermine the First Amendment. As the giddy AUC and my Trump Deranged Facebook friends immediately reply to any criticism of the growing censorship of conservatives and especially President Trump, a private company has a nearly absolute right to decide who has access to its free services. As the social justice crusaders don’t say, but prove every time they make this kneejerk observation, they are thrilled to see their fellow citizens muzzled this way, since it advances their own interests. Big Tech and the social media companies have the right, but it is not right for them to abuse it this way when they have so much control over public debate and information.
I always like to look at the law, and at the charges, to see if they are particularized and actually allege a violation.It seems to me the particular law at issue is 18 U.S. Code § 241 – Conspiracy against rights. The relevant text would seem to be paragraph 1:
“If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; orIf two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—“
What the government is alleging here, apparently, is essentially a conspiracy to cyber-bully. Attempting to convince others to vote a certain way or not to vote at all is called “electioneering” and is not only legal in the United States, but protected speech under the First Amendment, as well as widely practiced by all political parties 24-7-365, legally and peacefully. The law criminalizing conspiracies to deprive persons of rights was passed during the civil rights era and was plainly directed at the Klu Klux Klan and similar organizations.
As we all know, those groups would intimidate voters of all races, but primarily black people and their sympathizers, by burning crosses, lynchings, threats, and other violent actions to suppress or affect voting against the groups’ interests. Most of their methods were illegal under state and federal law to begin with, but the law in this case provided an additional tool to attack those who plannedlawless actions against the rights of others as well as those who carried them out. It is a bit like the Civil RICO laws, which were primarily aimed at those who directed corrupt mob actions but almost never participated in overt criminal activity.
Federal prosecutors accused Douglass Mackey, 31, described in news reports as a “Twitter Troll,”of coordinating with co-conspirators to spread misinformation on Twitter in 2016 that Hillary Clinton’s supporters could vote by sending a text message to a specific phone number.
Seth DuCharme, the acting United States attorney in Brooklyn, whose office is prosecuting the case, said, “With Mackey’s arrest, we serve notice that those who would subvert the democratic process in this manner cannot rely on the cloak of internet anonymity to evade responsibility for their crimes.” The alleged crime is a conspiracy to “oppress” or “intimidate” anyone from exercising a constitutional right, such as voting. The charge carries a maximum sentence of 10 years in prison. Prosecutors allege that 4,900 really gullible and lazy Hillary Clinton supporters were fooled by Mackey’s scheme into trying to vote for her using a phone number publicized on social media. Mackey and his co-conspirators joked online about about tricking “dopey” liberals.
There is no question that what Mackey et al. did was unethical, dishonest, unfair and sinister. However, I find it hard to understand how he can be prosecuted while the deceptions of others whose efforts to mislead voters and either dissuade them from voting or get them to vote for a candidate they otherwise would not have were far more widespread and had far more impact on election results. My guess is that this charge is harassment, and harassment based on partisan intimidation.
The one constant recommendation by critics of police brutality and those trying to find ways to mitigate the problem without, you know, rioting, looting and burning every time a black man is killed by police is to eliminate or sharply curtail qualified immunity. Taylor v. Riojas, handed down in November by the Supreme Court in a 7-1 decision, might do just that.
A government officer sued for damages on a claim of violating the Constitution, such as violating an individual’s civil rights, must overcome the defendant’s claim of immunity. Judges (and Presidents) have absolute immunity for their conduct in the pursuit of their duties, no matter how outrageous or incompetent. Legislators cannot be sued for their decisions as lawmakers. Prosecutors cannot be sued for prosecuting. Other government officers, like police officers, have qualified immunity if they are sued for money damages for harming individuals in the course of their duties.
The Supreme Court has set up a tough standard for plaintiffs to meet in order to establish liability. Overcoming qualified immunity requires that the defendant officer acted in violation of law and Constitutional principles that any reasonable government official should know, and that the civil right allegedly breached has been established beyond question.
In a 2018 case, District of Columbia v. Wesby the Court stated:
“Existing law must have placed the constitutionality of the officer’s conduct ‘beyond debate.’ This demanding standard protects ‘all but the plainly incompetent or those who knowingly violate the law.’ To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent. The rule must be ‘settled law,’ which means it is dictated by ‘controlling authority’ or ‘a robust consensus of cases of persuasive authority.’ It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.”
This extreme hurdle has proved nearly impossible to clear. From 1982 to 2020, the Court reviewed 30 qualified immunity cases. Plaintiffs prevailed in two.
Yet in the per curiam opinion issued last year (that means there are no signed majority opinion or concurring opinions) the Court signaled a major shift, and ruled that prison guards had no qualified immunity even though there was no precedent that would have alerted them that their conduct was illegal or unconstitutional.
It is generally regarded as a sign of ethics, courage and character to take action “on principle.” In theory, this means that non-ethical considerations (like enrichment, power and popularity) are not the actor’s goals; making a statement for the enlightenment of society is. However, actions on principle can often be quixotic and even silly, causing greater damage, as well as wasting time and money, “on principle” than the message is worth. The folly was nicely illustrated in the ancient burlesque skit above known as “Pay the Two Dollars.”
The issue of how far it was reasonable to go “on principle” was recently explored, of all places, in the U.S. Supreme Court in the oral argument of the case Uzuegbunam v. Preczewski.
Chike Uzuegbunam, a student at Georgia’s Gwinnett College in Lawrenceville, was threatened with discipline under the school’s speech code that violated his and other student’s First Amendment rights. He sued the college but it quickly backed down, eliminating its speech restrictions and replacing them with one that allows students to “speak anywhere on campus and at any time without having to first obtain a permit.” State officials said the change made the case moot. A trial judge agreed, and the United States Court of Appeals for the 11th Circuit, in Atlanta, affirmed her ruling.
Uzuegbunam and his student supporters, however, felt strongly that an official declaration that their rights had been violated was important, and they appealed on the grounds that they should be able to pursue their case for nominal damages. This was the issue that got the case before SCOTUS.