Balkinization  

Monday, September 01, 2014

Steven Salaita and the Modern University

Mark Graber

When I speak, I speak as Professor Mark A. Graber (my eldest daughter, now Professor Naomi Graber, correctly observes that “Dad does not speak, he lectures”).  Many academics wish professors had more authority in our society.  Some wish professors had less authority.  Whatever the authority of academics in an ideal world, in this world a university decision to confer upon us the title of “Professor” increases our authority to some degree, like it or not.

Having conferred authority upon us, a university might insist that we speak as professors even when we are outside the classroom and not in a professional setting.  Of course, we often speak in ways that no one thinks “professorial.”  No one takes my Super Bowl picks seriously.  Nevertheless, when we comment on public affairs, our comments have some extra weight because we are professors in a society that places some value on knowledge.  There is a presumption when I speak about global warming, about British poetry or about Gaza that I have some specialized knowledge or at least training in critical reasoning that gives my words a little more weight than the same comments made by someone of unknown employment.

For this reason, we might think a university justified in denying an appointment to a candidate for a professorship on the ground that the person’s statements on matters of public interest were too often “vulgar,” “juvenile,” and “insulting.”  The First Amendment protects my right to speak in ways that are vulgar, juvenile and insulting, but I have no First Amendment right to be a professor.  Just as no one would think twice about a university who refused to hire a person whose scholarship was vulgar, juvenile and insulting, so in circumstances where our speech is given some authority because we are professors, universities might in the abstract insist that our speech not be vulgar, juvenile and insulting as a condition of obtaining employment.

These observations suggest a somewhat different context for the debate over the decision by the University of Illinois to rescind a job offer to Steven Salaita on the ground that his tweets on the Gaza crisis were disrepectful.  For the most part, Salaita’s defenders emphasize two points, both of which strike me as largely correct.  The first is that Illinois as a matter of policy trusts departments to vet professors.  The decision by Chancellor Phyllis Wise to revoke a departmental offer for non-budget reasons is unprecedented, although I think this is less a free speech/academic freedom issue than a faculty governance/academic freedom issue.  The second is that the circumstances make clear that the offer was revoked because Salaita made “disrepectful” comments about Israel.  Had he made disrespectful comments about Hamas, the Senate Majority leader or the most recent production of Carmen, no one would have noticed or cared.  Viewpoint discrimination is a core First Amendment violation.  We might tie these concerns together by noting that when administrators make unprecedented interventions in hiring decisions, viewpoint discrimination is probably afoot.  Still, some defenses of Salaita suggest a third ground, that professors have constitutional rights to be vulgar, juvenile and insulting when they comment on public affairs, as long as they do not do so in the classroom or, maybe, professional settings.  I am less sure for reasons noted above


But I am more certain that an increasing number of university administrators disagree with me.  Each year, more and more pressure seems to be put on faculty to spend less time on traditional forms of publishing and rely more on social media in which significant incentives often exist for vulgar, juvenile, and insulting speech (I’ve never been told I should be especially careful to avoid such temptations).  Take a look at the website of many law schools and other academic institutions.  Many strongly suggest that the way to gain fame and respect at the institution is through the social media or other outlets where eight second soundbites are norm and footnotes forbidden.  More and more of my friends who do traditional, lots of footnotes, scholarship complain that they have fewer and fewer friends (if any) in the administration and they are becoming the first to be asked about buyouts.  In short, Salaita strikes me as doing exactly what a great many professors are now doing to get ahead in our professions.  Having pressured us to get on the social media, the administrators at our universities can hardly complain if we adopt the conventions of the social media rather than what I think are the better norms of academic discourse.

Comments:

At one point the author seems to assume that Salaita's tweets were "vulgar, juvenile and insulting". First of all, each of these terms are based on subjective/personal standards, not objective ones. Secondly, why should anyone care if people engaged in mass killing of defenseless civilians feel insulted?

The author then suggests that even "disrespectful" tweets might be justifiable grounds to withdraw a job offer. This standard would invite pressure groups of all kinds to manufacture outrage and mount campaigns to prevent hiring someone. That would result in an end to academic freedom and the complete loss of sanity in faculty/tenure decision-making.
 

We wouldn't be having this debate if we took the sensible step of privatizing all universities.

There is no excuse for government run mail delivery, universities, K-12 schools, hospitals, parks and forests or healthcare.

If Ted Turner, Amazon, Walmart and thousands of other private parties were to take over these functions, we wouldn't have these useless debates any more than we now have over our choices of religion, food, mates and cars, and our voiced opinions about them.


 

A major aspect of private religion etc. is the ability to refuse membership. Interesting how it would work if you lived somewhere and schools refused your kid since you believed the wrong thing etc.

Likewise, for public places like parks or such. Let private people own them. Private would mean freedom to keep certain people away. Won't be a civil right to go to the local park. Be an act of grace akin to letting someone spend time over your house.

Or, health care. Just refuse health care when it's not profitable. Let people die.

Society doesn't care for this sort of thing. Happily enough imho.

Anyway, why privatization would end the debate is far from clear. On that level, the above is largely besides the point.

Private universities still in general can promote certain academic standards etc. We would then, like with religion and other things, debate what should be the ideal generally accepted standards.

We would still "care" etc.


 

More and more of my friends who do traditional, lots of footnotes, scholarship complain that they have fewer and fewer friends (if any) in the administration and they are becoming the first to be asked about buyouts.

I'd be very surprised if this were due to an administrative turn against traditional scholarship.

To what extent is this a simple function of age (and thus, in most cases, expense) and/or identification with an ancien regime in faculty politics (oft acquired with seniority)? In other words, do you have equally situated (age, chairs, friends-with-old-Dean) colleagues who don't do traditional scholarship, but do social media, and who aren't getting the same cold shoulder?
 

I am a dinosaur. I don't have a social media presence. I reluctantly opened a Facebook account so I could follow the pages of a very few people I care for, but my own is inactive and I have disabled the notifications. I blog instead; this gives space for extended writing and nuance, and more time for reflection before hitting "publish".

Here's the thing. Even blogging exposes you to the risk of intemperate speech. I recently had to pull a post which went too far. I would never comment on current affairs with a tweet.

Universities should encourage faculty to take part in public democratic debate. What they bring to this is perspective, knowledge, irony and nuance. These are possible, though not easy, in blogging, They are not possible with tweets.
 

"These observations suggest a somewhat different context for the debate over the decision by the University of Illinois to rescind a job offer to Steven Salaita on the ground that his tweets on the Gaza crisis were disrepectful."

Here you're speaking not so much as a professor as a propagandist, or at best a bubble denizen. Your readers can find out what the critics of Salaita's tweets actually think are objectionable about them: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/08/tweeting-without-tenure/

I think this is an interesting case, but of course nothing in the I/P context will be discussed sensibly, esp. in the blogosphere.
 

The Founders/Framers/Ratifiers of the First Amendment (as well as the entire Bill of Rights) well anticipated the types of disputes that involve its speech and press clauses that have surfaced in recent times with social media and other technologies that did not exist in their time, based upon studies of original intent, meaning (semantic and otherwise), understanding by a reasonable man of that time, such as Ben Franklin.1

1. Google Ben Franklin Flying a Kite; The Originalism Blog; The VC Blog.
 

Suggested closing paragraph:

"I apologize for the length of this [email/blog post/blog comment/Facebook entry/other social media] as I did not have the time to accomplish an 140 character Tweet worthy of my position as a tenured Professor of {insert field] at the prestigious [insert name of college or university], worthy or re-tweeting, worthy of copyright protection, worthy of not deleting just because some other tenured professors may not like it or understand it, worthy of being picked up on amici briefs submitted to the Supreme Court on important matters being considered by the Court, and most of all worthy to the administration of my institution in advancing my career by attracting bright, impressionable students. Frankly, this [email, etc] while wordy is not worthy of Twitter.

"P.S. I have omitted footnotes because I am barefoot."
 

"We wouldn't be having this debate if we took the sensible step of privatizing all universities."

Considering that the event that led to the founding of the AAUP and its statement on academic freedom involved private Stanford University, I doubt that. We've been witness to firestorms about private enterprises dealing with the speech of their employees (Paula Deen and the Food Network, the CEO of Mozilla, Duck Dynasty, etc) quite a bit lately.
 

"In twenty manere koude he trippe and daunce
After the scole of Oxenforde tho,
And with his legges casten to and fro,
And pleyen songes on a smal rubible;
Therto he song som tyme a loud quynyble;
And as wel koude he pleye on a giterne.
In al the toun nas brewhous ne taverne
That he ne visited with his solas,
Ther any gaylard tappestere was.
But sooth to seyn, he was somdeel squaymous
Of fartyng, and of speche daungerous."

The academy spends most of its time studying vulgarity. From the Bible to Chaucer or Fanny Hill, it's all the same shit. Some of the shit is good and some of it's great, but the university is not the fucking church.

For the rest, the rise of the administrators and the fall of teachers began 40 years ago. What was the title of that recent post on this page? "We Are All Law and Economics Now"
http://balkin.blogspot.com/2014/08/sara-mayeux-we-are-all-law-and.html

Look to yourselves to see how that happened. One bloodless post and now another, symptoms of the same high-flown passivity.

And finally, Gaza.
http://www.kolor.com/virtual-tours/20140818-kolor-lewis-whyld/#s=pano102

http://www.globalpost.com/dispatch/news/regions/middle-east/140709/these-are-the-photos-gaza-too-graphic-for-some-news-media-to-show

A Jewish State for a Jewish People - A German State for a German People. Jewish nativism is the product of German nativism, and in more ways than one.

If you want equal rights for Jews in Germany you want equal rights for Palestinians on their own land. They live under Apartheid in Gaza and the West Bank and Jim Crow within the 67 borders. And I'm tired of the concerns of erstwhile liberals spouting the language of white citizens' councils of 60 years ago.

Salaita's an ass, and seems not too bright, but I know a lot of stupid PhDs with tenure.
 

Most universities, that ABA, and the AALS have a policy against discrimination on various grounds but do not list "political opinion" as one of the prohibited grounds. I thought that this was a left-over from McCarthyism, but they apparently do not want to change to conform to human rights law (which prohibits discrimination on the ground of "political opinion").
 

Aside to Mark Graber: I finally finished reading the Summer 2014 issue of Constitutional Commentary devoted to papers on Charles Beard. Learning of Beard through the eyes of a disparate group of scholars was enlightening. Age and eyesight keep me from exploring Beard's writings directly but I get the picture of a man who was ahead of his time willing to challenge the foundations of the Founders/Framers that may have been based on their economic interests. The progressivism of Beard lives on, not exactly as he may have have seen it, but progressivism continues to evolve, perhaps leading to a more perfect Union.

And several of the papers include strong responses to originalism, particularly by Saul Cornell and Mary Anne Case.

Back to tweets and twittering.
 

Another aside to Mark Graber: I finally finished reading his most interesting draft article "Constructing Constitutional Politics: Thaddeus Stevens, John Bingham, and the Forgotten Fourteenth Amendment." Graber provides a lot of history on the discussions, debates in Congress on the 14th A as it went through various stages before finally passing both houses and subsequently ratified. Stevens failed in his efforts to make sure of equality for former slaves and others loyal to the Union in the Civil War. As a result of this failure, the Republican Party of Lincoln - and of Stevens - changed with the Party's focus on wooing voters in the North and securing political bases in the emerging new western states many of which were underpopulated but each obtaining two Senate seats, thereby expanding the Republican Party's base in the Senate. The westward expansion of new states as well as the Party's efforts in the North were aimed at white voters, not former slaves.

This all ties-into the current political dysfunction and Graber reminds us of Sandy's frustrations with the power of the Senate under the Constitution of states with low populations.

I was born in 1930. In growing up I often heard of the Republican Party of Lincoln. And I believed it. But Graber has well demonstrated that Lincoln's Party had changed in the late 19th century. Then in 1954, When I was finishing up at law school, the Warren Court came down with its unanimous decision in Brown v. Bd. of Educ. Brown was followed by the civil rights movement and the Republican Party's base changed dramatically to encompass former Democrats in the former slave states. Clearly, that Republican Party (now augmented by the Tea Party) is not the Republican Party of Lincoln. But then agains, as Graber points out, it had long ceased being the Republican Party of Lincoln.

Brown, the civil rights movement and the 1960s Civil Rights Acts spawned reactions not only from the deep South but also from conservatives and libertarians about the role of the Warren Court and the early Burger Court. This fed the gestating originalism, a precursor to the current political dysfunction aided by the more conservative Supreme Court. The Federalist Society was born and nurtured quickly to support conservatives, including the "conservatives" who were formerly Democrats turned into the Republican base as previously noted. (Query: Should the Federalist Society have been named the Anti-Federalist Society, as its members seemed to share anti-federalist values of 1787-9?) Perhaps the Federalist Society does not perceive itself as having contributed to the current political dysfunction, which coincidentally has heightened with the election and re-election of America's first African American President. I have my views.

In any event, Graber has done a great job with his draft article, supported by a lot of history. This article adds to earlier articles (cited by him in this article) by Graber more specifically on the matter of the current political dysfunction .

By the Bybee [expletives deleted], a recent NYTimes op-ed by Heather Cox Richardson "Bring Back the Party of Lincoln" is a good read although its history is not as detailed as Graber's article.

It's all about equality, especially in this Second Gilded Age of ever increasing inequality not only in wealth and income but in other respects. Thaddeus Stevens tried, fighting the good fight. But the Republican Party of Lincoln did not follow suit. And this shortly after reconstruction failed brought forth "The Gilded Age."
 

A third aside to Mark Graber: G. Edward White's Constitutional Commentary paper on Charles Beard ""Charles Beard & Progressive Historiography" is available at SSRN. The Legal History Blog provides a link. Earlier, Larry Solum's Legal Theory Blog posted on the paper with Solum's "Highly Recommended."

Perhaps we can expect more of the authors in the Summer 2014 issue of C. C. to make them available via SSRN.
 

This aside is for progressives/liberals who visit this Blog (as well as for conservatives and other libertarians who might want to know what progressives/liberals are doing).

1. Sandy has referred several times in posts to Thomas Edsall online columns in the NYTimes, praising him. Edsall's column today "Who Needs a Smoke-Filled Room?" is about IRC Section 501(c)(4) PACS emboldened by Citizens United.

2. Robin West's article (20 pages) "A Tale of Two Rights" is available at SSRN:

http://ssrn.com/abstract=2479387

It's about certain civil rights arising out of the social compact/contract making up our society, such civil rights not being the same as constitutional rights in contrast to certain constitutional rights which may negatively clash with the former (including an absolutist 2nd A), adding to the current political dysfunction.

My advice to progressives/liberals "Go West.?
 

This comment has been removed by the author.
 

Perhaps a final aside as we prepare to go to war (see Bruce Ackerman's post) on the matter of political dysfunction. Both Mark Graber and Sandy Levinson were participants in the BU Law School Symposium last Fall on "Political Dysfunction ...." Another participant, Yasmin Dawood, contributed "Democratic Dysfunction and Constitutional Design," serving on Panel V: "What Can We Learn From Other Nations' Experiences?"

Dawood makes comparisons between presidential systems and parliamentary systems, citing various studies that indicate that the latter may be more effective in governance than the former - but not necessarily the US presidential system. (A significant percentage of fairly recent democratic presidential systems have become dictatorships.) Dawood focuses upon Canada's (where she if from) parliamentary system and recent events there to compare with the US presidential system that is most interesting. There is no clear conclusion from her paper on the better system. She closes with this:

"As disheartening as the recent [US government] shutdown may be for those who admire democracy, it is worth noting that compared to the much of the world, the United States has enjoyed a long and stable democracy."

Her take on the causes of political dysfunction lists a number of factors, including the Constitution, but no one of which alone is the cause.
 

As to Prof. Ackerman's post, the President is not here asking for "world-wide" power to have a "free-hand to wage preemptive war against future terrorist threats."

I think the argument granted is a stretch, but it was tied to a congressional authorization addressing a specific threat.

The ultimate responsibility should be on CONGRESS to protect it's authority to declare war if this is deemed not enough. But, yet again (see "Obamacare") it is about the President. This on some level only furthers the problem.

http://justsecurity.org/14820/democracys-failure
 

As to Joe's point: "But, yet again (see 'Obamacare') it is about the President. This on some level only furthers the problem." consider this:
****
"GOP Rep. Jack Kingston (Ga.) explained the political dynamic in Congress with unusual candor – for a congressman – in The New York Times on Tuesday morning:

A lot of people would like to stay on the sideline and say, ‘Just bomb the place and tell us about it later.'

It’s an election year. A lot of Democrats don’t know how it would play in their party, and Republicans don’t want to change anything. We like the path we’re on now. We can denounce it if it goes bad, and praise it if it goes well and ask what took him so long.”

*****

In other words, "Obama, we got you coming AND going."

 

The NYTimes today (online?) features Jon Grinspan's "Don't Throw the Bums Out" providing readers with juicy political tidbits from "The Gilded Age" (which at least one unregulated commenter at this Blog thinks were America's best days). My eye (the good one) lit up with this tidbit:

"One Boston boss captured the new sentiment with the mantra, 'Never write if you can speak; never speak if you can nod; never nod if you can wink.'”

which I recall hearing for the first time in Boston politics in the mid 1940s - and to this day.
 

Rachel Maddow last night says Congress might actually hold a vote. Imagine that.

It should be noted that it is questionable to say we are "at war" with a terrorist organization and/or rebel faction against the organized government. Use of force against Syrian territory would be a special case.

But, hostilities aren't okay w/o congressional action just because it is not a "war." AUMF 2001 was not a "war" either. But, Congress rightly authorized the force, in part since some of what is covered (such as invading other nation's territories because they are looking on as attacks from their territory go on and threaten our safety) can very well include acts of war.

Self-defense might be acceptable under rules of international law in various cases there, but it still looks like war and Congress should get involved. The line drawing is at times hard. Best to give authorization even the executive might have a reasonable argument.


 

Maureen Dowd's NYTimes Column today "Throw the Bums Out" is not a response to Jon Grinspan's op-ed yesterday. Rather, our dowdy and sometimes rowdy Maureen is taking on the NFL and its current brouhaha over its players' involvements in domestic violence. While Grinspan took us back to "The Gilded Age" Maureen takes on the greedy NFL in the current "The Second Gilded Age."

And then I read reviews of Francis Fukuyama's "Political Order and Political Decay" and of Henry Kissinger's "World Order," keeping in mind the current situation in the Middle East and wondering what if any action will be taken by Congress under its constitutional power to declare war. There is a sense of chaos. What we need is a robed Supreme Being pounding her gavel, "Order in the World! Order in the World!"

It's too early for an adult beverage. So I'll have to squirm until 1:00 PM (EDT) to watch the Patriots v. Vikings for some semblance of order in the NFL.

In the meantime, I can amuse myself with thoughts of Scotland's upcoming vote on independence, guessing whether the high or the low road will be taken to get there. Will the "Tight Little Island" become even tighter sans Scotch? (There's always Gin, of course, which does not require that much aging.) (A friend informed me recently that a 10,000 Northern Ireland (stout hearted men) protestant "march" to Scotland is planned to convince Scots to vote "NO," in fear that if Scotland secedes from the UK, then Northern Ireland may be next and the prolific Catholic population there may prevail.)

Where are Monty Python when they are really needed?
 

Ken Burns' "The Roosevelts" starting on PBS tonight should get my progressive/New Deal/liberal juices flowing.
 

Reading "The Sound of Freedom: Marian Anderson, the Lincoln Memorial, and the Concert That Awakened America" by Raymond Arsenault with the Roosevelts playing a supporting role.

 

In place of Monty Python, transplanted Englishman John Oliver ("This Week Tonight") has come forward to plead with Scotland to say "Nae" to independence, closing with a big production number featuring the Scot's National Animal, the Unicorn, and a chorus of kilted bagpipers. (I couldn't see if Oliver was wearing patent leather shoes to determine the longtime riddle/mystery concerning wearers of kilts.) I wonder if all this may end with Amazing Grace-lessness.
 

Add Stephen Colbert's take on Monday night on the Scottish secession. Stephen was having a problem pumping the bagpipe, perhaps one made over from a failed Haggis boil [redundant?]. A guest from London's "liberal" Guardian was all in for a YES vote obviously to needle the ultra conservative PM Cameron. So, is this a reverse variation of America's North/South secession movement?

By the way, I've not heard even a wee drop further on the 10,000 Northern Ireland Protestant Men "march" on Scotland to urge a NAE vote. So maybe it's time to Scotch that rumor.
 

Nobelist Joseph Stiglitz has a piece at the Scotsman on the upcoming vote to secede that questions some - but not all - of the economic negative points made by fellow nobelist Paul Krugman. Unfortunately Stiglist doesn't not go into any real detail in challenging Krugman.

Query: What if Scotland opts out of the UK and the UK opts out of the EU? Would that benefit Scotland, assuming it would join the EU? Cameron's offer a couple of years ago to have the Scots vote on independence may have been arrogant/paternalistic. But it seems that at some point the Scots long favoring Labor leanings have had it with England's Conservatives. (See today's Huffington Post for a take on this.) I repeat this question from my preceding comment:

"So, is this a reverse variation of America's North/South secession movement?"

At least it' peaceful, so far. But might the "Tight Little Island" get a tad tighter yet?
 

Just don't know what you gotta do to lose your job at Cal Law.
 

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