Response to AAUP report on Title IX from Faculty Against Rape

Faculty Against Rape has drafted a response to the AAUP’s draft report on Title IX to submit by the end of the comment period tomorrow, and they are accepting signatures from academics in support of the letter. The full letter is here, and the form to add your name is here.

Here’s a passage from the introduction:

As members of Faculty Against Rape (FAR), a group of more than 300 faculty and civil rights activists from across the U.S., we write to express grave concerns regarding the American Association of University Professor’s (AAUP) draft report on Title IX.  We started FAR in the summer of 2014 as an ad-hoc volunteer collective whose mission is to get more faculty involved in preventing sexual assault and sexual harassment and improving campus responses. FAR is also committed to protecting faculty who experience retaliation for doing so. Over the past two years, FAR has provided resources for faculty to learn how to best support survivors, tools for faculty who want to get more involved in reform efforts, and support for faculty who face retaliation. Collectively, our members have supported literally hundreds of survivors at campuses across the country. Many of them have endured significant retaliation from university administrations who want to protect the university brand, even at the cost of the safety and well-being of students. We have seen the crisis of campus sexual violence, and the nature of Title IX enforcement as practiced, often inadequately, across campuses in the United States, first-hand.

Our experiences, as members of educational communities involved in these issues on the ground, have made evident that Title IX enforcement at institutions of higher education is, indeed, a matter of pressing concern. However, if the AAUP seeks to adequately understand, and competently comment on this issue, it must take care to, at the very least, attend to the body of existing expert scholarship— including scholarship by some of its own members— on this topic. As it stands, we are troubled by much of the framing, content, unrepresentative nature of, and failures of accuracy within, the draft report.

The overall impression given by the report is that the Department of Education’s Office of Civil Rights is ‘overreaching’ in its mandated mission of providing guidance to universities and ‘abusing’ Title IX; this,  despite the fact that there is broad underreporting of campus sexual assault by universities. The American Association of University Women (AAUW) analyzed DOE data and found that 91% of colleges did not report any rapes in 2014, leading the AAUW to exclaim that “The data reported by the nation’s colleges simply defy reality and common sense,” given that they “don’t reflect campus climate surveys and academic research.”

While we would ordinarily join with the AAUP in resisting the corporatization of institutions of higher learning, we are deeply concerned that the AAUP’s analysis of this issue as it pertains to Title IX, by pitting student concerns for campus safety against faculty interests, reinforces the symptoms instead of addresses the problem. Students and faculty alike are rightfully alarmed by universities and colleges placing the protection of their reputation before the integrity of their campus communities — but these concerns ought to unite, rather than divide us. The AAUP is right to remind us that administrative overreach into the classroom may be driven by a misguided focus on public relations, but we should also acknowledge that it is this very feature of the contemporary university that victims of campus sexual misconduct have been decrying as they witness justice, safety, and prevention sacrificed time and again for the sake of the bottom line.

What’s Wrong with the AAUP’s Report on Title IX: Preponderance of the Evidence Standard Redux

I posted a couple of days ago about some of the problems with the AAUP’s recent report on Title IX. I think there are others, but for considerations of space, just mentioned two: one of which was the AAUP’s resistance to the preponderance of the evidence standard, the other was the AAUP’s confusion regarding the increase and manner of OCR investigations. At some point, I think it would be valuable to discuss some of those other issues (I’ll draw on a couple of points from this letter from the National Women’s Law Center below, but I encourage you to read it in full as it pertains to some of the other issues in the report as well), but first, more on the justification for the preponderance standard.

Brian Leiter wrote a reply to my post, taking issue with this passage:

But, more to the point, if Title IX complaints were held to a higher standard than a preponderance of the evidence when other civil rights claims are adjudicated by exactly that standard, then it would follow that complainants would be held to a higher standard, i.e., disadvantaged, on the basis of sex, i.e., they would be subject to sexual discrimination.

I cited Jackson v. Birmingham Board of Education in the explanation of my thinking, and in an update on his post, Leiter writes, “that retaliation for reporting sex discrimination is actionable sex discrimination for purposes of Title IX does nothing to establish that a higher standard of proof to prevail on a sex discrimination claim is sex discrimination.” Leiter is right that, in itself, that retaliation in the context of Title IX constitutes sex discrimination says nothing about standards of proof, but I didn’t say that it did. What I did say is that I think the courts’ reasoning in the course of determining whether or not retaliation constitutes discrimination – i.e., how the court defined what it is for something to constitute “discrimination on the basis of sex” – does.

Here’s that language again (emphasis mine):

In all of these cases, we relied on the text of Title IX, which, subject to a list of narrow exceptions not at issue here, broadly prohibits a funding recipient from subjecting any person to “discrimination” “on the basis of sex.” 20 U. S. C. ß1681. Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX’s private cause of action. Retaliation is, by definition, an intentional act. It is a form of “discrimination” because the complainant is being subjected to differential treatment. See generally Olmstead v. L. C., 527 U. S. 581, 614 (1999) (KENNEDY, J., concurring in judgment) (the “normal definition of discrimination” is “differential treatment”); see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 682, n. 22 (1983) (discrimination means “less favorable” treatment). Moreover, retaliation is discrimination “on the basis of sex because” it is an intentional response to the nature of the complaint: an allegation of sex discrimination. . .

The import of the Jackson language quoted is not that the retaliation was a response to the person (Roderick Jackson) but to the claim (in Jackson’s case, a series of complaints about unequal treatment that he felt were prohibited by Title IX).  It can be analogized to campus responses to sexual assault cases in the following way: when a victim makes a complaint that s/he was sexually assaulted, under Title IX that is a claim of sex discrimination, because sexual assault is a severe form of sexual harassment, and sexual harassment has been confirmed by SCOTUS to be a form of sex discrimination.  Therefore, if the school responds to that claim using a process that requires a higher standard of proof than the standard of proof that the school uses for other claims, ones that do not implicate Title IX and do not allege sex discrimination, that is, in the words of the Court in Jackson, “differential treatment.”  So if a student made a complaint that s/he was the victim of harassment based on his/her race, the school would be required under Title VI to use a preponderance of the evidence standard.  If the school were still using “clear and convincing evidence” for sexual assault cases, this would mean that claims of sex discrimination (severe sexual harassment in the form of sexual assault) would be treated differently, and less favorably, by the school from claims of race discrimination (racial harassment).

Similarly, if one white, male, heterosexual student accused another white, male, heterosexual student of punching him in the face and the school used a preponderance of the evidence standard in its process for responding to that assault, but was still using “clear and convincing” in its process for sexual assault, that would be differential treatment based on the nature of the claim, where the claim alleging discrimination based on sex got “‘less favorable treatment” (see language from Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682, n. 22, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983) included in Jackson) than the claim not alleging discrimination based on sex.

The National Women’s Law Center (lead counsel in Jackson v. Birmingham Board of Education) seems to agree that parity with other claims justifies the use of the preponderance standard in Title IX claims: Given that Title IX was modeled after Title VI, and preponderance of the evidence is the standard used in claims brought under Title VI, it is also the standard that applies to Title IX claims. The preponderance standard is also used in litigation of claims under Title VII of the Civil Rights Act of 1964, regarding sex discrimination in employment. Thus, it is the correct standard for allegations of sexual harassment, including violence.” (If you doubt that courts have taken up this standard, note the footnotes to this passage in their letter.)

Likewise, Nancy Cantalupo, in the piece I linked to a few days ago, writes,

Allowing schools to adopt a criminalized standard of proof such as “clear and convincing” evidence or “beyond a reasonable doubt,” . . . would also create legal and administrative barriers for student survivors of gender-based violence that do not apply to the vast majority of comparable populations involved in civil or civil rights proceedings, all of which use the preponderance standard. To name just a few, these groups include: other students alleging other kinds of sex discrimination; students alleging discrimination based on other protected categories, like race or disability; gender-based violence survivors seeking protection orders in civil court; students alleging other forms of student misconduct; and students accused of sexual or any other misconduct who sue their schools in civil court. In reality the preponderance standard is used in the vast majority of cases, not only in internal disciplinary proceedings but also in other administrative or civil court proceedings and under other civil rights statutes that protect equality . . . Indeed, separating out sexual violence victims for different procedural treatment would enact a new kind of damaging “exceptionality [for] rape,” as Michelle Anderson discusses in her paper for the September 25 Conversation. Using anything more stringent than a preponderance standard would symbolize that we as a society are comfortable with giving one group of women and girls, as well as men and boys who are gender-minorities and victimized because of it, unequal treatment when compared to everyone else.

In a footnote on this passage, Cantalupo notes:

Research shows that the majority of higher education institutions had voluntarily adopted a preponderance of the evidence standard for all student conduct proceedings by the early 2000s. See Michelle J. Anderson, Sexual The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Assault, 84 B.U. L. Rev. 945, 1000 (2004); Heather M. Karjane et al., Campus Sexual Assault: How America’s Institutions of Higher Education Respond 122 tbl.6.12 (2002),  []. Therefore, using a different standard from the preponderance standard in cases involving sexual or other forms of gender-based violence would mean that student victims of gender-based violence would be less protected than students who are victimized by another student in any other way.

Now, Geoffrey Stone has argued against the preponderance standard as follows (emphasis mine):

To justify its insistence on the preponderance of the evidence standard, the Department of Education draws an analogy to civil actions in court. In the typical civil law suit for damages, whether the issue is a car accident, a breach of contract, or an assault, the standard is preponderance of the evidence. But this is a bad analogy. For a college or university to expel a student for sexual assault is a matter of grave consequence both for the institution and for the student. Such an expulsion will haunt the students for the rest of his days, especially in the world of the Internet. Indeed, it may well destroy his chosen career prospects. This is especially likely, for example, for law students.

To the extent that analogy between internal Title IX complaints at an educational institution and action in courts is apt (there is a substantive difference in that what happens in court is thereby public record), the analogy to civil action is far more apt than an analogy to criminal proceedings. In addition to the fact that in criminal cases it is the state, and not the alleged victim, who is party to the proceedings, as Stone writes, civil law adjudicated by a preponderance of the evidence standard provides relief for assault. Again, from the National Women’s Law Center:

The preponderance of the evidence standard is appropriate even in cases where there could be criminal sanctions for the defendant’s actions. For example, it is used in civil proceedings between two private parties, where—like a campus grievance proceeding for a complaint of sexual harassment—each party “has an extremely important, but nevertheless relatively equal, interest in the outcome.” This includes civil proceedings arising out of conduct that can also be criminal, but where there is no authority to impose criminal sanctions, such as a civil tort action for battery, robbery, or murder.

This goes, too, for civil cases regarding sexual violence. For instance, cases brought under California Civil Code Section 52.4, or Illinois’ Gender Violence Act.

Of course, Stone is right that expulsion may haunt a student. We should absolutely take that seriously, and I do. At the same time, let’s not forget how many students are expelled for infractions like plagiarism as compared to sexual assault; let’s not forget having been subject to sexual violence may haunt a victim; let’s not forget that being subject to sexual discrimination (including sexual harassment and assault) might, and in a number of cases has, destroyed victims’ chosen career prospects; let’s not forget that victims are often forced to transfer schools, or drop out; let’s not forget that victims have also been dragged through the nasty trenches of the internet, nor that some have been driven to suicide as a result. Moreover, let’s not forget that it is exactly these kinds of effects that educational institutions are legally obligated to address insofar as they impact one’s access to education; that is, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Title IX: (Some of) What the AAUP Left Out (Updated)

The AAUP recently released a report on Title IX for a comment period (summary version here). There are two points in particular where it appears as if myth and speculation are presented under the guise of fact, and I think it’s incredibly important for the academic community to be clear on where things actually stand.

First, from the AAUP’s report on the issue of the Office for Civil Rights’ interpretation of Title IX as requiring sexual discrimination complaints be adjudicated according to a preponderance of the evidence standard:

OCR’s 2011 Dear Colleague Letter (DCL) went further, mandating an evidentiary standard that conflicts with due process protections of faculty and students. In a shift of enormous significance the DCL prohibited the use of the standard calling for “clear and convincing” evidence (highly probable or reasonably certain), and replaced it with a lower standard: that there need be no more than a “preponderance of evidence” (more likely than not) to assess sexual violence claims and all sexual harassment claims. The DCL explicitly noted that university procedures using a “clear and convincing” evidentiary standard were “not equitable under Title IX.” Although it marked a substantial change in procedures, OCR did not engage in the federal administration rulemaking public notice and comment process prior to issuing this 2011 DCL. The “preponderance of evidence” standard is a new mandate, however, even though the OCR describes the DCL only as a clarification of its 1997 and 2001 Guidances, which had followed federal rulemaking requirements.

The OCR has done more than merely “describe” the 2011 DCL letter as a clarification, though. Rather, Catherine Lhamon explained why the OCR believes the 2011 Dear Colleague Letter was not a substantial change of procedure as follows:

The standards outlined in the 2011 DCL stem from the Department’s Title IX regulations, including but not limited to, the requirement that educational institutions adopt “grievance procedures providing for prompt and equitable resolution” of complaints. Prior to the 2011 DCL, OCR had determined in letters of findings issued during multiple Administrations that in order for a recipient’s procedures to be “equitable,” they must use a preponderance of the evidence standard (i.e., more likely than not) to determine whether sexual violence has occurred. As OCR’s practice in these cases confirms, it is Title IX and the regulation, which has the force and effect of law, that OCR enforces, not OCR’s 2011 (or any other) DCL. OCR’s 2011 DCL simply serves to advise the public of the construction of the regulation it administers and enforces.

But, more to the point, if Title IX complaints were held to a higher standard than a preponderance of the evidence when other civil rights claims are adjudicated by exactly that standard, then it would follow that complainants would be held to a higher standard, i.e., disadvantaged, on the basis of sex, i.e., they would be subject to sexual discrimination.

Why are civil rights claims adjudicated by a preponderance of the evidence standard? Nancy Cantalupo explains:

Read More »

Why young women are less enthusiastic about Hillary: One account

The following is from a column in the NY Times by a 32 year old female lawyer, Jill Filipovic. Her account makes sense to me, in part because I’ve seen a similar account in another context. Bright young female scientists will often, some analyses have said, not realize how gender biased their field is until around the time they go up for tenure.  By then the exclusion of women is much more obvious, in part because they are becoming victims.

A number of people are quoted in the article, and it seems to me some wise things are said. The whole thing is very worth reading, but some snippets may give you the sense of a major argument in “Why Sexism at the Office Makes Women Love Hillary Clinton:”

Even for women active in feminist causes in college, as I was a dozen years ago, [some time in employment] can be a rude awakening. As a young lawyer, one of the first things I noticed about department meetings at my law firm was not just the dearth of female partners, but that one of the few female partners always seemed to be in charge of ordering lunch. I listened as some of my male colleagues opined on the need to marry a woman who would stay home with the children — that wasn’t sexist, they insisted, because it wasn’t that they thought only women should stay home; it was just that somebody had to, and the years in which they planned on having children would be crucial ones for their own careers.

I saw that the older white, male partners who mentored the younger white, male associates were able to work long days and excel professionally precisely because their stay-at-home wives took care of everything else; I saw that virtually none of the female partners had a similar setup.

In jobs that followed, managers would remark that they wanted “more women” and proceed to reject qualified candidates. (Similar dynamics took place with minority candidates.) There were always reasons — not the right cultural fit, not the right experience, a phenomenon of unintentional sexism now well documented in controlled studies. I watched as men with little or irrelevant experience were hired and promoted, because they had such great ideas, or they fit in better. “We want a woman,” the conclusion seemed to be, “just not this woman.”

A telling anecdote:

“A lot of the women I was friends with in college would have never called themselves feminists, but now that we’ve been in the workplace for 10 years, a lot has changed and they’re becoming more radical,” said Aminatou Sow, a digital strategist and a founder of a support network for women in technology called Tech LadyMafia. They realize, she said, “that the work world and the world at large remains a place that’s built by men and for men.”

That’s part of what makes Mrs. Clinton’s candidacy so compelling for Ms. Sow. “I pray to God that one day we can field a female Bernie Sanders candidate, some disheveled lady yelling, and the country will seriously consider her,” she said. “But nothing in our culture indicates to me that that’s remotely possible right now.”

HRC’s bathroom break

There was a five minute break in the Democratic Debate on Dec. 22nd. HRC was late in returning, and the debate started without her. That struck me as a bit outrageous, but it wasn’t high on my list of things to think about. Maybe I should have felt differently as the comments by the conservatives started up. But now I can be glad the Huffington Post has done a great job and saved me the effort.

Everything in the article is worth reading. I’m picking out a snippet that seems to me quite rich with observations, and I hope others will want to read more.

The author is Soraya Chemaly:

I write and talk about controversial subjects all the time – violence, rape, race – but I have never received as vitriolic a response as last summer, when I wrote about the disparity in public facilities for men and women, The Everyday Sexism of Women Waiting in Bathroom Lines; it was a piece about norms and knowledge. Angry people mostly men, by the hundreds, wrote to tell me I was vulgar, stupid, ignorant and should learn to stand in order to pee, because it’s superior. It continued for weeks, until I wrote a follow-up piece on the ten most sexist responses.

People may think that women no longer face sexism in media or politics when they speak, but that ignores the very obvious fact that even before women say anything they have already, in split seconds, jumped through hundreds of “what if I said something about sexism” hoops. Can you imagine the backlash and media frenzy if Clinton had actually, in some detail, pointed out that the women’s room was farther away or that there is often, especially at large public events like this debate, a line that women patiently wait in while men flit in and out and makes jokes about women’s vanity? That the microaggressive hostility evident, structurally, in so many of our legacy public spaces is relevant to women every day. “Bathroom codes enforce archaic and institutionalized gender norms,” wrote Princeton students Monica Shi & Amanda Shi about their school’s systemic sexism this year.

“This isn’t even a slap on the wrist”

What happens if someone is found responsible for multiple violations of a university’s harassment policies after multiple individuals allege they have “repeatedly engaged in inappropriate physical behavior with students, including unwanted massages, kisses, and groping”? In one case, it turns out, basically nothing. Geoff Marcy, an astronomer at University of California Berkeley, was found to have violated Berkeley’s policies, and according to BuzzFeed: “As a result of the findings, the women were informed, Marcy has been given ‘clear expectations concerning his future interactions with students,’ which he must follow or risk ‘sanctions that could include suspension or dismissal.'”

David Charbonneau, a professor of astronomy at Harvard University, said the matter has broad implications.

“Geoff Marcy is undeniably the most prominent exoplanet researcher in the U.S.,” he said, referring to the study of planets beyond our solar system. “The stakes here couldn’t be higher. We are working so hard to have gender parity in this field, and when the most prominent person is a routine harasser, it threatens a major objective nationally.”

. . .“After all of this effort and trying to go through the proper channels, Berkeley has ultimately come up with no response,” said Joan Schmelz, who until recently led the American Astronomical Society’s Committee on the Status of Women in Astronomy. (Schmelz was not a complainant in Berkeley’s investigation.) “I’ve seen sexual harassers get slaps on the wrist before. This isn’t even a slap on the wrist.”

A business argument for diversity (& a cartoon)

Not a new argument, but a useful source:

“fooled by Experience”
Soyer, Emre
Hogarth, Robin M.
Harvard Business Review. May2015, Vol. 93 Issue 5, p72-77. 6p.
As Peter Drucker wrote, “The first rule in decision making is that one does not make a decision unless there is disagreement.” To devise healthy strategies, executives need to hear many perspectives, including feedback that is critical of their own actions. Executives should surround themselves with people from diverse backgrounds and promote independent thinking in their team. Many executives task certain coworkers, friends, or family members with speaking frankly on important matters.
Ed Catmull, the president of Pixar and Walt Disney Animation Studios, stresses the importance of building a brain trust, a group of advisers who will deflate egos and voice unpopular opinions. He argues in his September 2008 HBR article that disagreements in meetings end up benefiting everyone in the long run, because “it’s far better to learn about problems from colleagues when there’s still time to fix them than from the audience after it’s too late.”

Also from the same issue of the Harvard Business Review:

A company’s reputation is reliant on the conduct of its employees. Posting “funny” videos of yourself online? What were you thinking?

On ‘Model Minorities’

David Shih, a professor in the English department at the University of Wisconsin-Eau Claire, has written an excellent post on the idea of a ‘model minority’. I quote from it extensively below, but I encourage you to read the original post — among other things, he connects this issue to the seeming double standard at play in the indictment of NYPD officer Peter Liang, versus failures to indict white officers in other cases.  The full post, You’re The Model Minority until You’re Not, is here.

My students sometimes aren’t sure how to feel about “positive” stereotypes of Asian Americans. What’s wrong with being known as educated, hard-working, and law-abiding? The problem with positive stereotypes is the same problem with negative ones: the dominant group gets to decide what they are. It decides who gets to be a part of the favored racial group and why. What this means is that you’re the model minority until you’re not. The history of Chinese Americans is a crash course on the social construction of race in America. Stereotypes come and go. From the beginning of significant Chinese immigration during the California gold rush to the present, Chinese Americans have been racialized as undesirable or desirable depending on circumstances at home and abroad. The Exclusion era, the World War 2 era, and the Korean War era all racialized Chinese Americans differently according to the historical needs of white supremacy. It took the Civil Rights Movement to shift the social meanings of Chinese Americans once again. Like negative stereotypes, the model minority stereotype is also a tool of white supremacy.

The model minority stereotype has always been less about praising Asian people than it has been about shaming black people. From its lede, the unsigned “Success Story of One Minority Group in U.S.” is interested in more than the state of Chinese America; it aims to compare Chinese Americans to black Americans. The article lists off the admirable qualities of a monolithic Chinese American community: low crime rate (especially among juveniles), strong work ethic, traditional family structures, value on education, low public assistance usage, etc. However, comparisons with black communities quickly become conspicuous . . .

White supremacy spins the tale of the model minority because it is a story of American meritocracy. As late as 2014, the rags-to-riches model minority stereotype was the core talking point Bill O’Reilly used to rebut the argument that white privilege is real. O’Reilly cites Asian American rates of education and income that exceed those of all other groups, including white Americans. But the conflation of “Asian American” and “model minority” identities masks the poverty of many ethnic groups within Asian America. Coverage of the LA uprising tended to cast Korean American immigrants as successful entrepreneurs despite unique institutional barriers that produced wide economic disparity within the community. In 2010, Hmong Americans had the lowest per capita income of any racial/ethnic group, including Latinos. As the story of meritocracy, the model minority stereotype can disempower Asian Americans themselves by linking low social status to cultural deficiency. Positive stereotypes are a two-way street.

Today, model minorities can be too good to be true. Highly-skilled immigrants from India and China make possible the Asian demographic O’Reilly describes, and industry demand for them is so great that tech firms must enter a lottery for their H-1B visas. Sen. Jeff Sessions (R-AL) questions whether the perception of a perpetual shortage of tech workers is, in fact, accurate. The “Silicon Valley STEM Hoax,” he claims, is a ploy of American tech firms to hire lower-paid foreign labor instead of home-grown American labor. This fear of cheap foreign labor, mostly Asian, is not new. The economic “yellow peril” stereotype that defined 19th-century Chinese immigrants conjured the problem of an endless stream of labor against which the white workingman could not compete. The devastating solution to the problem was the 1882 Chinese Exclusion Act, in effect until 1943. While Sessions’ concerns are, by all accounts, marginalized, they do illustrate how readily the assets of the model minority–hard work and frugality–can be reimagined as deficits. New yellow perils. You are the model minority until you are not.

Lynching as racial terrorism

If you are glad we in the US are not like ISIS, and don’t do brutal, horrible killings, you might think again:

From the NY Times:

It is important to remember that the hangings, burnings and dismemberments of black American men, women and children that were relatively common in this country between the Civil War and World War II were often public events. They were sometimes advertised in newspapers and drew hundreds and even thousands of white spectators, including elected officials and leading citizens who were so swept up in the carnivals of death that they posed with their children for keepsake photographs within arm’s length of mutilated black corpses.

Kirvin, Tex., where three black men accused of killing a white woman were set on fire in 1922 before a crowd of hundreds.History of Lynchings in the South Documents Nearly 4,000 NamesFEB. 10, 2015
These episodes of horrific, communitywide violence have been erased from civic memory in lynching-belt states like Louisiana, Georgia, Alabama, Florida and Mississippi. But that will change if Bryan Stevenson, a civil rights attorney, succeeds in his mission to build markers and memorials at lynching sites throughout the South as a way of forcing communities and the country to confront an era of racial terror directly and recognize the role that it played in shaping the current racial landscape.

One of the important questions raised is whether the more recent treatment of African Americans by the police and the judicial system is really a substitute for lynching. Do read the article. Even the comments I have seen are better than usual. (I probably will regret saying that.)

Civility v. Freedom? Or something else?

Daily Nous reported that Marquette University is seeking to fire McAdams, and discusses academic freedom in a separate post here. Further discussion of these events is taking place at the Academe Blog (the blog of the AAUP, though its bloggers note the posts may not represent the official position of the organization):

Competence and integrity “in the current case,” as Holz puts it, demand that McAdams refrain from “sham[ing] and intimidat[ing] [a graduate student teacher] with an Internet story that was incompetent, inaccurate, and lacking in integrity, respect for other’s opinions, and appropriate restraint.” In Holz’s telling, McAdams need not exercise appropriate restraint because doing so would foster a more civil discourse—that would be the deeply problematic civility narrative. Rather, he needs to do so because this is how you help graduate students develop as teachers, a key part of faculty members’ jobs at a university: “it is vital for our university and our profession that graduate student instructors learn their craft as teachers of sometimes challenging and difficult students.” Whenever faculty choose to take an interest in graduate students’ teaching, those student instructors have a reasonable expectation of “appropriate and constructive feedback in order to improve their teaching skills.” McAdams made no effort to offer constructive feedback before or after condemning Abbate as a teacher, by name, on his public blog.

After listing several incidents of a similar flavor, Holz concludes that “with this latest example of unprofessional and irresponsible conduct [Marquette has] no confidence that [McAdams] will live up to any additional assurances . . . that [he] will take seriously [his] duties to respect and protect [Marquette] students, including [Marquette] graduate student instructors.”

. . .  Academic freedom is a license to say whatever one please in one’s research and non-institutional, extramural communications. It needs to remain such, as this license guarantees the very possibility of inquiry. And there are of course grey areas, where the limits of academic freedom are unclear. The AAUP often intervenes in these areas in the service of protecting speech rights—and rightly so. Defending faculty speech rights makes the project of a modern university possible. But so does helping students develop.

It is true that, as a matter of principle, the academic freedom central to the very idea of a university trumps civility. But McAdams’ is not a case of academic freedom under siege. His is a case of an abusive professor persistently, up to the present day, refusing to acknowledge any special obligation to the development of a graduate student at his university.

We only harm ourselves in working to add this sorry story to the record of CIVILITY v.FREEDOM.