High court construes tenure contract to constrain faculty salary cuts at Tufts medical school

TUSM Arnold Wing, 2012, Boston
John Phelan via Wikimedia Commons CC BY 3.0

Academic freedom won a rare court victory last week when the Massachusetts high court allowed claims that Tufts University improperly reduced the salaries of tenured medical faculty.

(As an aside, I wrote just yesterday about academic freedom in the case of FAMU's efforts to fire the law school's first and only tenured Latina professor for speaking on a matter of public concern, namely, the school dean's contentious resignation. Please consider signing the letter in support of Prof. Maritza Reyes.)

In the scrappy remains of what academia has become, the Tufts School of Medicine (TUSM) in the late 2010s told eight faculty that they would have to bring in external research support to cover half their salaries and their lab space, or they would see their salaries and space cut. The eight plaintiffs didn't meet the new standards, and TUSM imposed the cuts.

As things usually go in these cases, the trial court awarded summary judgment to the defense. Much responsibility for the sorry state of academic tenure in the United States can be laid at the feet of its once defenders, such as the American Association of University Professors (AAUP), which became so enamored with procedural arcana in the early 20th century that it forgot the substantive rights it was supposed to be fighting for. I wrote in 2011 about this problem and the urgent need to address it then. The law too often says that as long as a university dots its is and crosses its ts, it can fire for any reason.

The typical bulwark in the tenure contract is simply that firing must be "for cause," a wishy-washy term that reduces the contract practically to year-to-year employment. A university can disavow termination as a violation of civil rights, then turn right around and point to bad breath and a disagreeable disposition as sufficient "cause." Judges usually are eager to defer to universities, reasoning that workers could strike better bargains if they wanted to; they have the AAUP working for them, after all.

Just such ambiguity contributed to the plaintiffs' grief in the instant case. The Massachusetts Supreme Judicial Court (SJC) opined that the term "economic security" in the Tufts tenure contract "is ambiguous." Upon the ambiguity, the term could be not be said to include a guarantee of lab space, and the lower court so concluded correctly.

A state high court typically would send plaintiffs packing wholesale upon deference to university interpretation of the contract. However, the SJC reversed and remanded, concluding that "more evidence is required regarding the customs and practices and reasonable expectations related to salary and full-time status for tenured professors at TUSM, and even other universities and medical schools," to determine whether the compensation reduction violated the contract.

Massachusetts is a labor-friendly state, for better and for worse. The courts are permissive, for example, in "wrongful termination" tort suits that would be shut down in a flash in other states. Here, the SJC was willing to look for evidence that other states' courts would eschew breezily. While I'm usually hesitant to see a court broadly construe a meticulous private contract, I'll here let myself be bettered by anxiety over academic freedom facing evisceration by the looming dismantling of faculty job security.

The plaintiffs in the Tufts case had been awarded tenure at different times, from 1970 to 2009. The SJC looked to the TUSM faculty handbook, which usually is construed as contractual in higher ed employment law. The handbook includes an academic, freedom, tenure, and retirement policy that incorporated language verbatim from the 1940 AAUP Statement on Principles of Academic Freedom and Tenure.

The 1940 statement speaks eloquently to the importance of "freedom of teaching and research and of extramural activities," as well as "a sufficient degree of economic security." All good. But the statement characteristically left "the precise terms and conditions" to ad hoc negotiation, as long as termination is permitted "only for adequate cause" and the result of some kind of review process. That's long left the tenured professor in an AAUP-style contract to wonder whether anything would stop the university from reducing salary to a penny and relocating the professor's office to the boiler room.

When Tufts presented a faculty hearing board with a multi-million operating deficit in the late 2010s, the board was more than willing to throw some faculty under the bus to save the rest. The union at my school did the same thing during the pandemic: eagerly approving faculty salary cuts, and even asking that they be higher, rather than calculating how many quarter-million-dollar-a-year assistant-associate-vice-provost-chancellors we might do without instead. 

Thus, another problem with tenure as we have it is that the AAUP, enraptured as it was and is with collectivism, never thought to consider the need to protect faculty from each other. Unlike the First Amendment, AAUP academic freedom allows the collective to run roughshod over dissenting voices.

With due process duly delivered, the Tufts plaintiffs saw salary reductions from 10 to 50%.

Taking stock of the matter, the SJC concluded, again, exceptionally, that "economic security is an important substantive provision of the tenure contract and not a prefatory or hortatory term." The court relied on the 1940 statement and strained in structuralist contract construction to distinguish a 2022 New York decision to the contrary. 

The record at Tufts probably does not support plaintiffs in resisting any salary reduction, but, the SJC concluded, at least created a question of fact as to how much is too much.

The case is Wortis v. Trustees of Tufts College (Mass. Mar. 14, 2024). Chief Justice Scott L. Kafker wrote the unanimous opinion.

Florida A&M moves to fire Latina law prof who spoke on public concern; Hispanic law students resist

You may review and sign on to a letter of the FAMU Hispanic American Law Student Association opposing Reyes's termination here. 

Prof. Maritza Reyes

My colleague Professor Maritza Reyes, who is tenured at the Florida A&M (FAMU) College of Law, is fighting alongside students and other allies to save her job and to preserve academic freedom.

Reyes has been notified of the school's intent to dismiss her for doing her job in faculty governance. Reyes commented, professionally and appropriately, in a community email discussion of the abrupt, contentious, and institutionally embarrassing resignation of the law dean at FAMU in February.

FAMU apparently did not like what Reyes had to say. In a plain violation of academic freedom, the school proferred the email discussion as the reason to terminate a tenured professor.

I have written many times, since 2011, about the failure of universities to recognize academic freedom in spaces "penumbral" to published research and classroom teaching, namely faculty governance. In the same vein, Professor Keith Whittington wrote recently about the importance of protecting "extramural" academic speech.

Reyes is an accomplished and highly respected law teacher—thus, just the sort who attract condemnation in the academic culture—who is treasured by generations of students and has especially made a difference for persons of color in law schools and legal practice. She is FAMU's first and only tenured Latina law professor. In 2022, she founded the Graciela Olivárez Latinas in the Legal Academy ("GO LILA") Workshop, which she discussed in 2023 for AALS Women in Legal Education.

Students and alumni are leading the resistance to Reyes's termination. Please review and consider signing on to the following letter.  You can share the letter further with this link: https://forms.gle/VUnYPKiMwyWtMDJx8, or via The Savory Tort.

(This post revised and updated on Mar. 19, at 5:40 p.m.)

---

Dear President Larry Robinson and Provost Allyson Watson:

We, the undersigned members of the Florida Agriculture and Mechanical University (FAMU) Hispanic American Law Student Association (HALSA), joined by fellow students, alumni, allies, and friends, respectfully request that you rescind your intent to dismiss College of Law Professor Maritza Reyes (Professor Reyes) from her tenured position. For the past fifteen (15) years, Professor Reyes has been a caring professor and has made excellent contributions to the school, especially its students. Professor Reyes has also served as HALSA's faculty advisor for many years.

Professor Reyes is an accomplished teacher, scholar, and member of the legal academy and community. She began her employment in the FAMU College of Law as a tenure-track assistant professor of law in 2009, earned tenure in 2015, and is now a tenured, full professor of law (the highest faculty rank). FAMU has evaluated Professor Reyes's record during many formal evaluative processes, including applications for promotion to associate professor, for tenure, and promotion to full professor; annual reviews; and, most recently, post-tenure review. Professor Reyes has demonstrated consistent excellence and productivity in scholarship, teaching, and service. She has too many accomplishments to list here, including being recognized in the U.S. Congressional Record for her service to our community. You are well-aware of her many accomplishments including through all of the above listed evaluations.

We were heartbroken and outraged to learn that Provost Allyson Watson (Provost Watson), by letter dated February 16, 2024 (the "Notice"), informed Professor Reyes of the University's intent to dismiss her from her tenured position. According to FAMU Regulation 10.120(2)(c), the "Contents of Notice" must include the following information: "A list of documents or written explanation on which the charges are based; and a statement that documents shall be available to the employee upon request." The documents Professor Reyes received consisted of emails that were sent to the entire College of Law Community during the period of February 1, 2024 to February 5, 2024. The entire College of Law Community (faculty, staff, and students) received the emails after then College of Law Dean Deidré Keller (Dean Keller) opened this email forum on February 1, 2024 to provide notice of her resignation effective immediately. Several professors, including Professor Reyes, and three students participated in these communications and sent emails to the entire College of Law Community. The use of email forums/listservs to the entire College of Law Community was not prohibited. Professor Reyes's emails were informative, professional, and timely. They helped bring transparency and accountability regarding Dean Keller's resignation, a matter of institutional and public importance. The Tallahassee Democrat initially reported about Dean Keller's resignation on February 2, 2024. Subsequently, Dean Keller provided her letter of resignation to this newspaper, which published it in a second article on February 6, 2024. These materials were readily available online via the newspaper's website.

In response to Professor Reyes's contributions via emails about Dean Keller's resignation, Provost Watson issued a Notice of intent to dismiss Professor Reyes from her tenured position. It seems to us that Provost Watson targeted Professor Reyes for the content of her speech and sought to silence her voice and future contributions in the FAMU College of Law. In a matter of days, Provost Watson charged Professor Reyes for dismissal without allowing her an opportunity to respond to a formal complaint, go through an investigation, receive meaningful due process, and get a report. To us as law students, the way Provost Watson has handled this situation screams of injustice and lack of due process.

Many students and alumni describe Professor Reyes as an exceptional educator who made a lasting and meaningful impact on their law school experiences and legal careers. She always set high standards and would provide the guidance and skills necessary to reach them. She also inspired students to achieve their individual levels of excellence. Some of us made it through difficult situations during law school thanks to her unwavering support. Professor Reyes has also been an advocate for student organizations. Therefore, if your intent to dismiss Professor Reyes comes to pass, you will harm past, current, and future FAMU College of Law students by taking away an excellent professor who has been our teacher, mentor, advocate, ally, supporter, and friend. You will also harm the law school, including with negative publicity. You have already disrupted the high-caliber teaching law students expected to receive when they registered for Professor Reyes's courses. You abruptly replaced her with less-credentialed and less-experienced instructors who had never taught in a law school before. Many of us will be further traumatized by Professor Reyes's dismissal. We cannot remain silent in the face of such injustice.

There are currently twenty (20) tenured professors (associate and full) in the College of Law. Professor Reyes was the first and thus far only Hispanic professor hired in the tenure track and subsequently tenured in the FAMU College of Law. She has served as HALSA's dedicated, supportive, and highly competent faculty advisor. According to the FAMU College of Law American Bar Association 2023 Standard 509 Required Disclosures, Hispanic students make up 25% of the total law student body. It is important that Hispanic students be appropriately represented in the law school. While this letter is spearheaded by HALSA's Board, we are being supported in our efforts by students and alumni of diverse backgrounds who appreciate and respect Professor Reyes's teaching, mentoring, and support.

There is a strong sense among the student body that an injustice is happening in view of all of us. On February 27, 2024, students met with FAMU College of Law Interim Dean Cecil Howard and protested the intended dismissal of Professor Reyes. Interim Dean Howard responded that the decision was made by Tallahassee Administrators to whom students should voice their protests. This is what we are doing via this open letter. We have distributed this letter widely for signatures by students, alumni, allies, friends, and supporters of justice everywhere. Please hear us when we tell you that the intended dismissal of Professor Reyes is a grave injustice. You have the power to stop this intended wrong. Please do so!

We respectfully demand that you keep Professor Maritza Reyes in the tenured faculty position she earned. She has done nothing warranting dismissal. We also demand that you grant Professor Reyes's request for a public meeting regarding her intended dismissal.

[Sign.]

ABA adopts academic freedom standard, but 'Crossroads' convo shows, not everybody gets it

Is the American Bar Association (ABA) "Doing Enough to Promote Viewpoint Diversity?," panelists were asked at the ABA Midyear Meeting in Louisville, Ky., on February 3.

No, I say emphatically. So I was pleased that my take was represented on the panel by Kentucky attorney Philip D. Williamson and South Texas College of Law Professor Josh Blackman.

Having made a quantitative assessment of 10 years of ABA amicus briefs in the U.S. Supreme Court, Williamson listed positions to which the ABA has committed itself. The ABA has taken positions, such as on Roe and Dobbs, that are not related to the practice of law or legal professionalism, and about which there is rational disagreement among lawyers. 

ABA briefs also take "diametrically opposed" positions, Williamson said: favoring stare decisis in Dobbs, but disfavoring it on juror unanimity; favoring state power in a Republican administration, favoring federal power in a Democrat administration; regarding tribal classifications as political rather than racial, and then, under the Trump travel ban, arguing nationality classifications as racial rather than political. One might ask, Williamson posited, "Why does the ABA care about this at all?"

The only common thread in ABA positions, Williamson said, is consistency with liberal politics. Would right-of-center lawyers feel welcome in the ABA?, Williamson asked. "No." There might be one amicus in the pile that aligned with a red-state attorney general, Williamson said, but it's "hard to find."

Williamson also criticized ABA policy on racial classifications as hypocritical. Until recently, the ABA had numerical quotas based on race in composing panels for continuing legal education (CLE) programs. The ABA backed down when the Florida Bar resisted awarding CLE credits upon a policy it viewed as unconstitutionally racially discriminatory.

Williamson observed that for ABA diversity purposes, "Asian" regards a Bangladeshi person and a Chinese person as "interchangeable." "Maybe we could fine tune how we think about race," Williamson said, "rather than how fast you sunburn in Miami." You won't read that in the ABA coverage of the event.

Williamson, Thomas, Blackman, and Rosenblum
RJ Peltz-Steele CC BY-NC-SA 4.0

Chicago attorney Juan R. Thomas said he welcomes viewpoint diversity, subject to one condition: He paraphrased James Baldwin: "We can disagree and still love each other unless your disagreement is rooted in my oppression and denial of my humanity and right to exist." (The quote is widely attributed to Baldwin, but I cannot find an original source.)

We can debate which Super Bowl team is the better, Thomas said, but not whether they play football.

I admire Thomas quite a bit, and the Baldwin quote is a self-evident truth. But it's also a red herring.

Blackman asked in response—also omitted from the ABA coverage—"if I can't oppose qualified immunity because it's not grounded in the Fourteenth Amendment, that makes me a racist?"

Thomas, who is a minister besides lawyer, also voiced a "dirty secret," that "not all people of color are progressives." He should have directed the observation to the ABA, not to his co-panelist adversaries. Their very point was that the ABA should be wary of taking politically charged positions over which reasonable, informed people disagree.

To Thomas's point, a lawyer commenting from the audience said something that resonated with me: that he personally opposes lawmakers making abortion decisions for women, but he believes that Roe was wrongly decided as a matter of federalism. That's the unpopular conclusion that I, too, came to, many years ago. I refrain from voicing it in the liberal circles of academia.

My position on affirmative action is similar. I champion socioeconomic equality and fully acknowledge systemic racism, but I so abhor government classification based on race that I cannot countenance official discrimination as a purported redress of discrimination. I rather would redress systemic inequalities through socioeconomic amelioration.

I said as much once out loud, and the r-word charges upended my life and career. An ABA accreditation site team at the time was fully informed of the matter and brushed it under the rug. One rocks the boat at one's hazard at an ABA-compliant school.

Which brings me to an interesting point and an occasion for the ABA discussion: At the time of the caucus meeting, the ABA had just signed off on new legal education Standard 208, which requires ABA-accredited law schools, such as the one where I work, to "adopt, publish, and adhere to written policies that protect academic freedom."

That only took 70 years since the Second Red Scare.

I'm keen to see whether the ABA really will follow through. ABA accreditation of law schools is nothing but a pricey protection racket. Entry costs are steep to join the club, but once you're in, you can do no wrong—almost: woe to the unfortunate straggler left to hang in the wind to prove the legitimacy of the system. The ABA is terrified of losing its monopoly power over legal education, as it did over judicial confirmation.

The kicker-quote in the ABA's own coverage of the caucus program does not induce confidence: "'I would be proud to be the last member standing of an association that fights against oppression,' [attorney and author Lauren Stiller Rikleen] stated."

Right, because that's what this is about. Standing for equality and rule of law makes me pro oppression.

The ABA Midyear panel on "Are the ABA and the Legal Profession Doing Enough to Promote Viewpoint Diversity?" comprised Williamson, Blackman, Thomas, and Oregon Attorney General Ellen F. Rosenblum. Senior U.S. Sixth Circuit Judge Danny J. Boggs moderated.

War protests expose double standards in higher ed

Ted Eytan CC BY-SA 4.0

I've refrained from commenting on the Israel-Hamas war, specifically and especially on the eruption of conflict, mostly, fortunately, non-violent, in higher ed in the United States, in which my own interests in academic freedom and free speech are most immediately implicated.

Despite my reticence—I'm under water with exams and a textbook deadline, though I follow the war closely in the news and remain in contact with friends in Tel Aviv—I read something in The New York Times that hit the nail on the head, so I want to amplify it.

In "Why Campus Speech Is Vexing" for The Morning from the Times, David Leonhardt wrote today:

[U]niversity leaders do face a basic choice. Do they want to expand the list of restricted speech to include more statements that make conservatives, Jewish students and others feel unsafe? Or do they want to shrink the list and tell all students that they will need to feel uncomfortable at times?

What since-resigned UPenn President Liz Magill said to Congress—essentially that the First Amendment protects a call for the genocide of Jews in the political abstract, absent hallmarks of unprotected speech such as incitement to imminent violence, or the severity and pervasiveness that characterize harassment—however socially and politically tone deaf, was technically a correct statement of the law from the former professor of constitutional law and Stanford Law dean.

The problem that Leonhardt recognized is that the First Amendment is not the standard that university administrators and their henchpersons have been applying on campuses for decades. Rather, hate speech codes, anti-discrimination policies, anti-bullying rules, and related prohibitions have proliferated and been enforced vigorously, First Amendment notwithstanding. And the standard has been a double one, because enforcement has been variable based on viewpoint, protecting only favored classes of minority persons or condemning disfavored, read: politically incorrect, viewpoints.

The problem is only compounded for university faculty, who are supposed to be the standard bearers for free expression, but have our livelihood hanging in the balance. At renowned schools where misdoings garner headlines, faculty might have a fighting chance to protect themselves. But what I've seen at the universities where the rest of us work, in the trenches, faculty routinely are intimidated, disciplined, and terminated for not toeing the line. When it happens in flyover country or in the lowest tiers of rankings, no one bats an eye.

When I was accused of stepping out of line years ago at another institution, Foundation for Individual Rights in Education founder Harvey Silverglate gave the local paper a quote condemning me. He apparently responded to the paper's inquiry with the assumption that a typically liberal law prof had gone off the rails. He failed utterly to learn anything about the case before he opined on it. When a mutual friend reached out to tell him that "he got it wrong," FIRE adjusted its public position thenceforth. But Silverglate never retracted his remarks, nor ever said anything apologetic to me.

At the University of Massachusetts Law School, which ranks at #167 in the U.S. News ranking of U.S. law schools, I've been told that University of Massachusetts policy, which requires that all employees show "respect" for all other employees, is violated by calling out misfeasance. So when I see an opportunity through faculty governance to do things better for our students and our community, I keep my mouth shut.

Tenure means nothing in these fights. I wrote many years ago about that paper tiger. Big-name-school academics, who don't have to toil at the hamster-wheel-spinning labor of assessment data collection and interim-strategic-plan-benchmark-attainment reports, don't well understand how faculty governance roles, as distinct from teaching and research responsibilities, are weaponized against faculty in the schools of the trenches.

Just last week, I completed a survey on academic freedom by the University of Chicago NORC that asked about ideological intimidation of faculty. The check-all-that-apply list of contexts in which intimidation or suppression of viewpoints might happen named a range of research and teaching contexts, but, true to form, University of Chicago, said almost nothing about school and university service roles. I added the response in "Other."

Professor Keith E. Whittington recently published a characteristically compelling paper on faculty "intramural speech" and academic freedom. It doesn't cite my 2010 work, in which I coined the term "penumbral academic freedom." I was working in a flyover state then, so it's like the paper never existed. Or maybe, as an east-coast, Duke Law would-be mentor once gently advised me when I was toiling voicelessly in flyover country, I should accept that my writing just isn't very good.

Well, I digress. My aim here is principally to say: When Magill fell, and as Harvard President Claudine Gay flounders, I'm torn between a head-shaking sorrow for the supposed quintessential marketplace of ideas and a mite more than a modicum of schadenfreude.

Back to work. The provost's dusty bookshelf is crying out for another strategic plan, and these exams aren't going to grade themselves.

In wake of Stanford free speech fiasco, Duncan models civility, and dean surprises with powerful letter

Abortion rights rally at Stanford Law in 2022.
(Suiren2022 via Wikimedia Commons CC BY-SA 4.0)

After the brouhaha at Stanford Law School in which protestors disrupted a lecture by Trump-appointed U.S. Circuit Judge Kyle Duncan, Stanford Dean Jenny S. Martinez this week stood up for free speech on campus.

There are video and audio recordings aplenty on the internet if you want to learn more about what happened March 9. Here's David Lat with the play by play. For my money, the take-away is that a guest federal judge was treated disrespectfully—dare I say uncvilly?—in an effort to silence him, and even a school administrator joined in the effort. That must have been the dean's take, too, when she issued an apology to Duncan, which drew a disruptive protest of her office in turn.

Martinez's letter is masterful and worth a read for the First Amendment refresher and expression of commitment to academic freedom at even a private school. She put the protesting administrator on leave and pledged mandatory educational programming for the student body on free speech and legal professionalism. 

Frankly, I was shocked. I do not expect deans in today's legal academy to stake out clear and strong positions on, well, anything other than which way the wind is blowing.

Today Duncan appeared at Notre Dame Law School and talked about the incident. His remarks and the Q&A livestreamed and are available on YouTube. To be fair, many renditions of what went down at Stanford report rudeness from both sides, whoever struck the first blow. However so, there was none of that at Notre Dame. Duncan's remarks were unremarkable, but that struck the right tone. The thrust of his assessment was that zealous disagreement is laudable, but shouting down one's opponent or merely vituperating one's ideological adversary does nothing to enrich the marketplace of ideas. Like me here, he lauded Martinez's letter.

In a curious coincidence, and really the only reason I throw my two-cent hat into this ring, I today (at last) finished legendary lawyer Robert Corn-Revere's superb 2021 book, Mind of the Censor and Eye of the Beholder: The First Amendment and the Censor's Dilemma.  The book could not be more on point in the Duncan matter.

Mind of the Censor is chock full of engaging prose and a paean to the freedom of expression in our troubled times. But it's the final chapter that delivers the biggest bang for the buck with a delightful Jeff Foxworthy-esque list of 10 reasons to suspect "you might be a censor."  And apropos of Duncan's comments today, Corn-Revere's number 8 reads, "You Might Be a Censor if You Believe that Silencing Speech You Dislike Is the Exercise of Your Rights."

I wrote just this week about "civility" being deployed as a new, conveniently vague code word to suppress academic freedom. To be clear, I wasn't speaking against civility. The problem arises in the misuse of the word to differentiate speech one wants to hear from speech one does not want to hear.

It's OK to disagree with Duncan, indeed, to disagree vehemently. He spoke today of the challenge all judges face in remaining open to the possibility that they are wrong in their preconceptions. Civility is about respecting other people regardless of agreement or disagreement, and acting ethically, accordingly. Thus, willingness to hear challenges to our thinking is part and parcel of civility and goes hand in hand with an expectation that others will hear our challenges, too.

I'm really not wrong about this.

'Civility' is code for conformity

The Massachusetts Supreme Judicial Court two weeks ago struck down a town policy purporting to require civility in public meetings. The town policy resembles attempts to restrict academic freedom.

Board meeting, via Southborough Access Media video
(Kolenda at center).

'Civility' in Politics

In December 2018, Southborough, Massachusetts, resident Louise Barron took advantage of a public comment period at a town board meeting to call out board members on fiscal policy and, ironically, compliance with state open meetings law. Though not obliged to, board members responded. The discussion became heated, resulting in Barron calling one selectman, Daniel Kolenda, "a Hitler," and Kolenda abruptly ending the comment period and expelling Barron. (The meeting is on YouTube (cued). Read more at Wicked Local.)

Board policy provides for an open public comment period for extra-agenda items with this admonition:

All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks. Inappropriate language and/or shouting will not be tolerated. Furthermore, no person may offer comment without permission of the [c]hair, and all persons shall, at the request of the [c]hair, be silent. No person shall disrupt the proceedings of a meeting.

Barron challenged the policy and her expulsion under the freedom of assembly and freedom of speech provisions of the 1780 Massachusetts Declaration of Rights, articles 19 and 16, respectively. Barron forewent challenge under the younger (1791) First Amendment to the U.S. Constitution to keep the case in state court. 

And just as well. The Massachusetts Declaration is a revered document in its own right in American history and global human rights, and the Massachusetts Supreme Judicial Court has not hesitated to construe its provisions as more protective of civil rights than the federal standard. Indeed, for many years, well before I came to work in Massachusetts, I taught a public seminar on the First Amendment for the Freedom of Information Foundation of Texas and used the Massachusetts Declaration to demonstrate the close connection of FOI and assembly.

Article 19 provides, "The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer."

In teaching freedom of information law, I often shorthand the constitutional context of access law as the "flip side of the coin" of the First Amendment. The idea is that the freedom of speech is meaningless, especially in the core protection of political expression, if one does not know the facts to speak about.

The coin characterization is useful, but it's not entirely accurate. The First Amendment recognition of assembly as ancillary to expression aptly indicates an interrelationship that is more an intertwining than a duality.

Board meeting, via Southborough Access Media video
(Barron at right).

In the opinion of the court, Justice Scott L. Kafker recounted Article 19's "illustrious" history.

The provision also has a distinct, identifiable history and a close connection to public participation in town government that is uniquely informative in this case. ... [Article] 19 reflects the lessons and the spirit of the American Revolution. The assembly provision arose out of fierce opposition to governmental authority, and it was designed to protect such opposition, even if it was rude, personal, and disrespectful to public figures, as the colonists eventually were to the king and his representatives in Massachusetts.

Our interpretation of the text, history, and purpose of art. 19 is further informed by the words and actions of Samuel and John Adams, who not only theorized and commented upon the right, but were historic actors well versed in its application during the revolutionary period, particularly in the towns. Both Adams cousins emphasized in their correspondence and their actions the importance of the right to assemble.... Samuel Adams wielded it to great effect in his attempt to "procure a Redress of Grievances" when the British governor of the colony attempted to exercise control over assemblies after the Boston Massacre.... 

More philosophically, John Adams explained that the right of assembly was a most important principle and institution of self-government, as it allowed "[every] Man, high and low ... [to speak his senti]ments of public Affairs.".... Town inhabitants, he wrote, "are invested with ... the right to assemble, whenever they are summoned by their selectmen, in their town halls, there to deliberate upon the public affairs of the town." .... "The consequences" of the right of assembly, in Adams's words, were that "the inhabitants ... acquired ... the habit of discussing, of deliberating, and of judging of public affairs," and thus, "it was in these assemblies of towns ... that the sentiments of the people were formed ... and their resolutions were taken from the beginning to the end of the disputes ... with Great Britain." .... Alexis de Tocqueville made a similar point in Democracy in America: "Town-meetings are to liberty what primary schools are to science; they bring it within the people's reach, they teach men how to use and how to enjoy it." ....

Cousins Samuel Adams and John Adams
(via JohnAdamsInfo.com)

The court had little difficulty concluding that the town policy thus ran afoul of article 19. 

There was nothing respectful or courteous about the public assemblies of the revolutionary period. There was also much that was rude and personal, especially when it was directed at the representatives of the king and the king himself.

The court furthermore held the town policy overbroad and vague in violation of the article 16 freedom of speech. The case did not require the court to determine whether the First Amendment public forum doctrine applies to article 16 problems, the opinion explained. Massachusetts precedents already establish that content-based restrictions of political speech are subject to strict scrutiny. Worse, the court reasoned, the policy is viewpoint based, as it allows "polite[] praise[]" of public officials while condemning "rude[] or disrespectful[] critici[sm]."

Well reasoned as it is, the decision in Barron v. Kolenda, No. SJC-13284 (Mar. 7, 2023), does not break new ground in freedom of speech, even in Massachusetts law. And the case has been well reported with commentary, for example by J.D. Tuccille for Reason ("Let Massholes Be Massholes, Says Bay State's High Court"), and by Pioneer Legal, The New York Times, and the Brennan Center. What enticed me to write about the case is the likeness of the civility code to efforts to extinguish academic freedom.

'Civility' in the Workplace

The go-to code word on American college campuses to curb faculty freedom has been "collegiality." Introducing a 2016 report, the AAUP explained:

In recent years, Committee A has become aware of an increasing tendency on the part not only of administrations and governing boards but also of faculty members serving in such roles as department chairs or as members of promotion and tenure committees to add a fourth criterion in faculty evaluation: "collegiality." For the reasons set forth in this statement, we view this development as highly unfortunate, and we believe that it should be discouraged....

.... Historically, "collegiality" has not infrequently been associated with ensuring homogeneity and hence with practices that exclude persons on the basis of their difference from a perceived norm. The invocation of "collegiality" may also threaten academic freedom. In the heat of important decisions regarding promotion or tenure, as well as other matters involving such traditional areas of faculty responsibility as curriculum or academic hiring, collegiality may be confused with the expectation that a faculty member display "enthusiasm" or "dedication," evince "a constructive attitude" that will "foster harmony," or display an excessive deference to administrative or faculty decisions where these may require reasoned discussion. Such expectations are flatly contrary to elementary principles of academic freedom, which protect a faculty member’s right to dissent from the judgments of colleagues and administrators.

I witnessed this problem in action in those "recent years." "Collegiality" as an excuse to demand conformity was key in prompting me to write and speak in 2009 and 2010 about the importance of what I termed "penumbral academic freedom." 

Are you part of "the team" at work?
(Rawpixel Ltd via Flickr CC BY 2.0)

The problem has only worsened. In fact, I see the "collegiality" expectation as a piece of the broader problem of corporate ideology that insists on everyone being a "team player." That's the coded language designed to alienate workers who hesitate to take on extra duties or to give up personal time without fair compensation. Too long in coming, the "quiet quitting" movement is a direct response to this self-serving worldview.

Though "team speak" is not a specially academic problem, the ever more corporatized public university embraces the jargon. Routinely, I hear my work for a public entity described as "public service." The characterization is invariably paired with a demand that I take on some additional responsibility with no more, if not with less, compensation, and certainly with less compensation than a similarly skilled colleague at a private institution.

The rhetoric is exhausting. I'm not on your "team." The faculty is not my football side. The office is not my church. The institutional "mission" is not my creed. Rather, I do a job. I get paid for the job. Quid pro quo. Often, I enjoy my work, and sometimes, I'm good at it. But it's work. Then (even when the switch is merely virtual) I go home. Where I don't work for anyone else. Where I have a family and a life. Where I hope to win the lottery and quit my job.

That arrangement should be a source of pride, not shame. A public institution performing a public service is no less laudable because its staff is paid rather than volunteer. When administrators, especially handsomely compensated deans and chancellors, break out the "public service" rhetoric, hat in hand, I want to ask why they cash their paychecks, if they're so committed to "public service."

Just as I digested the court's Barron decision and commentary last week, Professor Robert Steinbuch, a (genuinely collegial) colleague at another public law school, told me about a proposed amendment to his school's selection criteria for distinguished professorships. 

Apparently, there was dissatisfaction by some faculty, I assume for the very reasons the AAUP warned, that "collegiality" was an express factor in the assessment. Thus, the law school faculty development committee proposed changes including the following (red-ink deletions and additions as in original).

In awarding named professorships, the Dean shall consider criteria in addition to a candidate's meritorious work in their particular field, including but not limited to donor specifications associated with the title, the overall mission of the law school, and continued excellence in scholarship, teaching, service, civility, and respect and collegiality as outlined in the Bowen Faculty Handbook, and established University policy, or the Association of American Law Schools Best Practices.

....

III. SERVICE & COLLEGIALITY

....

In the space provided below, please describe any additional information you wish to provide reflecting exemplary service rendered in the spirit of civility, respect collegiality and collaboration at the law school and the university level and wider recognition at the national or international level.

....

Self-Assessment: Using the categories of scholarship, teaching, service, civility, and respect and collegiality in this Application, in the space provided below, please provide a candid assessment of how you would represent this Named Professorship while you held the award.

I suppose that any candidate selected for a distinguished professorship at this public law school, like anyone commenting on the performance of public officials in Southborough, Massachusetts, before Barron, "must be respectful and courteous" and refrain from the "rude" and "personal." Faculty governance is all well and good, as long as no one is offended.

Let the revolution be quelled.

Atlantic's Applebaum adds to reminscences of academic, editorial freedom; mob justice rules now

In an article in the October Atlantic, Anne Applebaum examined the potentially devastating effect of cancel culture on academic and editorial freedom.

With her usual incisive writing, Applebaum compared contemporary cancellation with the summary imposition of the scarlet letter on Hester Prynne and described how today's mob justice is dangerously empowered by social media.

What's missing from Applebaum's tale is recognition that the threat to academic freedom is not new.  Workplace mobbing has been studied since the 1980s ("ganging up"), and, as I have written before, sociologist Kenneth Westhues wrote about the threat to academic freedom in a 2004 book. I know of what I speak (2005-10, 2017-19).

The following lines struck me as most salient in Applebaum's analysis.

A journalist told me that when he was summarily fired, his acquaintances sorted themselves into three groups.  First, the "heroes," very small in number, who "insist on due process before damaging another person's life and who stick by their friends." Second, the "villains," who think you should "immediately lose your livelihood as soon as the allegation is made." .... But the majority were in the third category: "good but useless.  They don't necessarily think the worst of you, and they would like you to get due process, but, you know, they haven't looked into it."

This observation is spot on.  My heroes once were two in number, another time zero.  One of my heroes paid a price for his chronic condition of character.  Villains are rewarded by employers.  But I respect honest villains more than I respect the "good but useless," who are the vast majority of academic colleagues, for their hypocrisy is galling.  That this group is the majority is precisely what makes "ganging up," or "mobbing," possible; the villains, otherwise, are too few in number to get away with it.  Especially in legal education, I have been horrified repeatedly by the selfish indifference to wrongs in their midst borne by people who hold themselves out as champions of civil rights.

Sometimes advocates of the new mob justice claim that these are minor punishments, that the loss of a job is not serious, that people should be able to accept their situation and move on.

Indeed, in my experience, I vividly remember one colleague acknowledging the wrongfulness of the persecution, but advising that I "just wait five years" for people to forget the false allegations.  Never mind the opportunity cost to career, nor providing for my family in the interim, nor the uncertainty that five years would be enough, nor the inference of guilt that would derive from acquiescence.

"I wake up every morning afraid to teach," one academic told me: The university campus that he once loved has become a hazardous jungle, full of traps.

Check.  My classroom students are both my greatest motivation and my greatest fear.  I think of both every single time a class is about to begin.  It is a difficult and stressful dissonance to manage. 

[T]he protagonists of most of these stories tend to be successful....  They were professors who liked to chat or drink with their students, ... people who blurred the lines between social life and institutional life....  [Yale Law Professor Amy Chua:] "I do extra work; I get to know them," she told me. "I write extra-good recommendations." ....

It's not just the hyper-social and the flirtatious who have found themselves victims of the New Puritanism....  Others are high achievers, who in turn set high standards for their colleagues or students.  When those standards are not met, these people say so, and that doesn't go over well.  Some of them like to push boundaries, especially intellectual boundaries, or to question orthodoxies.

First, yes.  Westhues long ago identified jealousy, revenge, and schadenfreude as mob motivators.  Hard work and success make one a target.  Second, also yes.  To be fair, early in my academic career, work probably was too much my life: too much overlap between co-workers and social life.  In my defense, that's not unusual for an ambitious young person, especially after relocating to a new city for a new career.  

I've been disabused of that ethic.  Co-workers willing to sacrifice you to save or glorify themselves are not your friends.  Workplaces and schools design social events with the intent to mislead, imbuing senses of belonging and community that only serve the master's interests.  At today's university, students and faculty rather should be forewarned explicitly that if they find themselves on the wrong side of the groupthink, they will be devoured by the mob.

Workplaces once considered demanding are now described as toxic.  The sort of open criticism, voiced in front of other people, that was once normal in newsrooms and academic seminars is now as unacceptable as chewing gum with your mouth open.

Just so.  The kind of hard-nosed, openly aired editorial critique that was a staple of my education as a journalism student, and which conditioned me to take heat and to be stronger for it, I wouldn't dare administer in today's classroom.  Some of my law students understand the new game and read between the lines, and they'll be OK.  Some will be shocked the first time they are across the table from an adversary or in front of a judge who wasn't schooled to coddle.

Students and professors ... all are aware of the kind of society they now inhabit.  That's why they censor themselves, why they steer clear of certain topics, why they avoid discussing anything too sensitive for fear of being mobbed or ostracized or fired without due process.

True.  I have resisted modestly on this front, refusing to purge sensitive content from class materials.  But I do prioritize-down the sensitive, choose materials strategically, and exert tighter control of student discussion.  As usual, this decades-old practice in the academic trenches became a point of public concern only when Yale and Harvard professors started talking about it, as if they discovered the problem. 

If nothing is done, Applebaum concluded,

[u]niversities will no longer be dedicated to the creation and dissemination of knowledge but to the promotion of student comfort and the avoidance of social media attacks.

"[W]ill"?

The article is Anne Applebaum, The New Puritans, The Atlantic, Oct. 2021, at 60.

So now you care about academic mobbing

Angry Mob by Robert Couse-Baker, CC BY 2.0

Princeton politics professor Keith E. Whittington (on the blog) has a wisely worded op-ed, on The Volokh Conspiracy at Reason, on the too often abdicated responsibility of university administrators to push back against viewpoint-based campus mobbing of faculty.

"It is now a familiar pattern," he writes: attack, petition, social media campaign, demand for termination.  Of the university's duty, he writes:

University presidents have a responsibility in such a situation. It should go without saying, but unfortunately it does not, that they have a responsibility to actually live up to their constitutional and contractual responsibilities and refrain from sanctioning the faculty member for saying something that someone finds controversial. They should insist that harassment and threats directed against members of the faculty will not be tolerated. Professors should at least be confident that when the mobs arrive, pitchforks in hand, that university leaders will not flinch and give in to the demands of the mob.

I hope the piece hits the desk of every university president in the land with a thunderclap of j'accuse.

Yet it is fascinating to me to see described today as cliché what was once fringe.  Canadian sociologist Kenneth Westhues, professor emeritus at the University of Waterloo, published his Workplace Mobbing in Academe (2004) seventeen years ago, and that book was built on his earlier Eliminating Professors (1998).

By the time I met Ken in 2009, he was already the world's leading expert on academic mobbing.  He still is.  Westhues's website is still the online clearinghouse on mobbing as a sociological phenomenon. But he's almost never cited, at least in the legal lit.  I find eight references to Westhues on Westlaw's JLR database, and none in the last dozen years.

At a program at the Association of American Law Schools (AALS) in 2010, I accepted the invitation of Westhues and Syracuse University law professor Robert Ashford to speak of my experience.  Ashford perceived a worthwhile connection to his inventive work in socio-economics, and Westhues flattered me with my name as a participle. 

The splash we made at AALS and in legal academics eleven years ago might be described well as mostly indifferent curiosity.  Mostly modifies indifferent, not curiosity.  

I wrote in the Journal of College and University Law in 2009 about the need for broader academic freedom, beyond published research and into the professorial "penumbra."  I presented at AAUP, besides AALS.  The article was cited once in a 2011 bibliography and once in 2013.  (Thanks, Profs. Benson and Jones.)  And that was that.

Not until cancel culture reached the well known coastal scholars of academia's elite institutions did mobbing hit the mainstream.  Now a lot of important people are wringing their hands over academic freedom and waning tenure.

Too bad they don't seem able to find my article.  Or Westhues's work.  Is there really a wheel until it's invented at a "top" school?

It's nice to see serious people having serious thoughts about academic freedom, at last.  But it's too late to give solace to a generation of victim-scholars.  And it's probably too late to resuscitate intellectual liberty on campus, for at least a generation yet.

Netflix's 'The Chair' satirizes academic politics with troubling truths of contemporary campus culture

Netflix's The Chair is an enjoyable six-episode sit com on the absurdity of academic politics in American higher education today.  The show was created and written by Amanda Peet and stars Sandra Oh (Grey's Anatomy, Killing Eve) as the perpetually embattled chair of the English department at a small elite college.

In one storyline, reminiscent of Scott Johnston's Campusland (2019), well meaning professor Bill Dobson (Jay Duplass) is pilloried for a mock Nazi salute, turned into a social media meme, in a class lesson on fascism and absurdism.

Comedic parody derives its beauty, of course, from its grain of truth.  Dobson's predicament is precisely one reason I have resisted routine video lecture capture.  Humor has pedagogical value, but one remark out of context is a brewing tempest in a teapot.  The risk might be worthwhile if teachers could have confidence in academic freedom.  But they can't and don't.

As depicted in the show, university administrators obsessed with appearances and virtue signaling to the near exclusion of educational mission and pedagogical merit relish any opportunity to sacrifice an iconoclastic academic to the maw of groupthink.  No shackles of investigation or professional integrity can be permitted to slow the rush to condemnation.

Jay Duplass (Peabody Awards photo CC BY 2.0) 

Fictional Professor Dobson defends himself to the dean: "I’m tenured.  You can’t constrain my actions in my own classroom or my speech on this campus unless I’m in violation of the faculty code of conduct.  Which I’m not."

But there's the rub: arguably, he is.  An administrator at my university has enforced against faculty the university system's "Principles of Employee Conduct." The vague principles require faculty to "accord respect" to all persons and "to accept full responsibility for their actions."

If those terms were read in accordance with others—"foster forthright expression of opinion and tolerance for the views of others"—then no problem.  But if administrators are willing to read dissent, whistle-blowing, and classroom provocation as disrespect, which they are, faculty have no real recourse.  As I wrote more than a decade ago, and others periodically observe, tenure protection grounded in procedural due process is an empty promise in practice, and courts routinely abstain from recognition of any substantive academic freedom.

Faced with dismissal proceedings, Dobson reluctantly resorts to a lawyer in the final episode of the first season.  No spoilers.

The Chair is enjoyable mostly for the comedy.  But it delivers as well periodic gems of thought-provoking truth, besides the sad state of academic freedom: the need for critical reexamination of historical subject matter and diversification of faculty perspectives, without sacrificing academic integrity; the fate of classical studies in the age of impatience; university budget cuts to unremunerative liberal arts; the personal and professional challenges of growing old amid fast-paced social evolution; and what can or should be done today to remedy past social and economic injustices of race and gender.

When the father of our protagonist Ji-Yoon Kim criticizes her work-life imbalance, an aggravated Kim retorts, "What promotion means you don't have to work as much?!"

A story for our times.

Also among the outstanding cast are Nana Mensah (Queen of Glory, King of Staten Island) and the ageless Holland Taylor.  Sophie Gilbert at The Atlantic liked it too.  HT @ Prof. Irene Scharf.

Legal educators tussle over politics in faculty honors

For persons interested in the ongoing tumult at the University of Arkansas Little Rock Law School over the renaming of a professorship after President Bill Clinton (e.g., TaxProf Blog, Wash. Times, Ark. Dem.-Gaz. (subscription)), apparently without faculty approval and with dubious official imprimatur, an August 19 legislative hearing on the matter is online on video.  On the Agenda tab, cue item F, at 2:06:39.

Citing, inter alia, named professorships awarded upon "cronyism" rather than merit, a police officer-student barred from open-carrying on campus in uniform until the legislature enacted a remedial statute, and refusal to permit a political conservative to teach constitutional law, Professor Robert Steinbuch concluded:

It saddens me to say but the law school is no longer an environment for unbiased legal education.  It's a hot bed of crypto leftist wokism unwittingly funded by the great people of this state being used by a select few who pocket a drastically disproportionate share of the resources to pursue their political agendas.

Dean Theresa Beiner testified that the law school decided after 20 years to honor the wishes of the donor who funded the professorship, and then, apparently, did so erroneously.  When a newspaper columnist asked for pertinent records under the state Freedom of Information Act (FOIA), the law school discovered that Clinton had "withdrawn" permission amid the investigation of his conduct in the Lewinsky affair.

Three cheers for the Arkansas FOIA.  Full disclosure: I was a co-author with Professor Steinbuch and University of Arkansas Law School Professor Emeritus John J. Watkins of the sixth edition of the treatise, The Arkansas Freedom of Information Act. 

A cheer more for the legislator in the hearing who probed the process for awarding named professorships and compelled the dean's admission that the selection occurs substantially in secret under the statutory personnel exemption.  My recollection of the selection process for named professorships at that law school many years ago accords with Professor Steinbuch's more recent experience.  When I worked there, one professor—the same one who raised a red flag over the "Clinton" name—was stripped of his named professorship when he fell out of favor.  A past dean represented that the professorship here at issue had to be awarded to one professor—the one who kicked off the present controversy by using the "Clinton" name—because of the donor's intent, rather than merit, a contention unsupported by the donor.

At the same time, my experience as a law professor suggests that very little in the American workplace works on merit anyway, legal education and the work experiences of my law students informing my conclusion.  The dean's insistence to the contrary is quaint and typical of persons in power, whatever their politics.

The fireworks show (item F) runs about 48 minutes.  The referenced exhibit, a letter from the university chancellor to the committee, is available online.

Law profs fault vague, empty ABA 'diversity' proposal

Gan Khoon Lay CC BY 3.0

The accreditation of law schools by the American Bar Association would be a joke if it were more funny than costly.

Having been a leader in the push to attain accreditation for the law school where I work presently, I know firsthand the enormous and unnecessary costs that the ABA visits upon law schools—and therefore law students—that strive to become part of the club.  Some years ago, I was invited to write up my observations on the accreditation farce for a book.  I declined to do so because my school did not yet have full accreditation, and I feared putting it in jeopardy.  I'm not sure I made the right choice.  Now that I'm in the club (again), I admit, I feel unmotivated to expose its flaws.

There is a place for academic accreditation.  A functional accreditation system would protect academic freedom from administrative overreach or political intervention; would protect resources vital to students and faculty, such as law library budgets and staffing, from bean counters' incessant cuts; and would protect students in their investment against fraud and unduly burdensome student debt.  Every now and then, the ABA stumbles into accomplishing one of these objectives, usually after having failed to do so resulted in public embarrassment.  Meanwhile, outside watchdogs with no real power at all—the AAUP, FIRE, media such as Inside Higher Ed and US News, and faculty blogs such as TaxProf and ATL—accomplish much more every day to keep law schools honest, and they don't pass fat tabs on to law students or lawyers.

When I have troubled to raise a red flag or blow the whistle on bad behavior in law schools to the ABA, my concerns have been consistently, efficiently, and quietly buried by accreditation review committees.  I've come to understand that the number-one benefit of club membership is that a school's soiled skivvies will be laundered in secrecy.  ABA accreditation is not about transparency and not about truth.

So what is ABA accreditation about?  Appearances.  Accreditation is about looking woke.  And to that end, the ABA wields its accreditation power as a virtue-signaling manifesto.  Too many times, for too many years, I have seen law schools pursue feel-good social agendas, with ABA imprimatur, and it's students, ironically often students of color, who pay the price for the reality that the agenda is mere facade.

So it is with the ABA's latest inclination to prescribe "diversity."  I put that term in quote marks, because the ABA is not worried about all kinds of law school diversity, but only the kinds that resonate in the correct political frequencies; the kind of diversity that prompted a colleague of mine in a recent hiring meeting to say "we don't need more white," drawing applause.

(I do believe we would benefit from greater racial diversity on our faculty, and in legal academics generally.  Where I differ with my colleagues is over the propriety of overt race discrimination as the means to the end.  Dare I suggest it, one might actually have to invest money in creating opportunity.  The problem is akin to employers complaining they're unable to hire while being unwilling to offer attractive terms of employment.)

With Professors Rick Sander and Eugene Volokh at UCLA, and Professor Rob Steinbuch at UALR, I offered comment (TaxProf Blog, Volokh Conspiracy) this week on a recently ABA-proposed "diversity" standard, Standard 206, in parts.  All of the views above are mine, and not necessarily those of my co-authors.  Those views explain my trepidation about the proposed standard, justifying my participation in the comment below, which is ours together.

June 27, 2021

Via email to Mr. Fernando Mariduena

Dear Chief Justice Bales and Mr. Adams:

Last month, the ABA’s Council of the Section of Legal Education and Admissions to the Bar approved for Notice and Comment proposed revisions to Standards 205, 206, 303, 507, and 508 of the ABA Standards and Rules of Procedure for Approval of Law Schools. The revisions to Rule 206 would significantly alter the responsibilities of law schools to achieve “diverse” and “equitable” environments. In response to your solicitation of comments, we offer the following:

(1) The proposed Rule 206(b) provides that “a law school shall take effective actions that, in their totality, demonstrate progress in diversifying the student body, faculty, and staff….”   There appear to be no exceptions, indicating that the language requires that all law schools must demonstrate progress. “Diversifying,” to judge from the annotations to the rule, means “adding people of color” (not “minorities,” which the annotations say is an outdated term). Yet “progress” is nowhere defined; indeed, there is not even a hint of what it means to fully satisfy this standard. According to the ABA’s own website, which reports the proportion of first-year law students in 2020-21 who are “minorities” (we assume this means “people of color”), the makeup of the 197 ABA-accredited law schools ranges from 8% “minority” to 100% “minority.”(FN1) According to the ABA data, minorities make up more than 90% of students at four schools, and more than half the students at 24 schools. Presumably, these schools are also mandated to achieve greater diversity; does that mean they must find ways to enroll more whites? If there is an implicit goal, is it the same nationwide, or does it depend on the demographics of a school’s region? Any useful effort to create usable guidance to law schools must, at a minimum, address these and other similar questions. The standard, as written, is so vague that it will give enormous discretion to ABA accreditation committees to exert arbitrary control over important and sensitive policy issues.

The proposal fails to account for the fact that among the current population of law school applicants, there are very large disparities in credentials that correlate with race. For example, among all students taking the LSAT, there is about a 1.0 standard deviation gap between the mean score of white takers and the mean score of black takers. The white-black gap in college grades is smaller but still very large (about 0.8 standard deviations).(FN2: The Law School Admissions Council releases annual data on the scores and GPAs of law school applicants in its National Statistical Report series.) It is difficult to argue that either of these credentials is discriminatory, since they are predictive of law school grades and subsequent bar performance, and their predictions are as valid for blacks as for whites. Indeed, to the extent there is a debate over the relationship between black credentials and black law school performance, it is whether LSAT scores and college grades overpredict law school performance.(FN3:  LSAT and UGPA “overpredict” GPA performance of a particular group in law school, that implies that students in that group will obtain lower grades than their credentials predict, and thus that the credential is biased in their favor. The LSAC itself, in its validity studies, finds “very slight” overprediction of black GPAs; Sander finds that when adjustment is made for school quality and within-school grade inflation, LSAT and GPA are unbiased predictors of law school GPA across racial lines; Alexia Marks and Scott Moss, in a study of GPAs at two schools, find LSAT and UGPA modestly overpredictive of black GPAs. See Anthony & Liu; Sander; Marks & Moss.) The large credential gap means, of course, that law schools have resorted to large racial preferences as the main method of increasing the numbers of enrolled blacks, Hispanics, and American Indians. The best data we have on this come from admission records released in 2007-08 by 41 public law schools in the U.S., which in the aggregate show that roughly 60% of blacks entering these law schools had academic credentials that were at least a standard deviation below those of their median classmate.(FN4) (This was also true for about 30% of Hispanic first-years, compared to about 6% of Asian-American students and 4% of whites.) A major failing of the proposed Rule, therefore, is that since it provides no guidance on how the existing pool of law school applicants can be meaningfully expanded, it necessarily implies that greater “diversity” should be achieved by using even more aggressive racial preferences.

(2) The proposed Interpretation 206-2 asserts that “the enrollment of a diverse student body has been proven to improve the quality of the educational environment for all students” but cites no evidence to this effect. So far as we are aware, no one has even attempted to study, in a scientifically credible way, the effect of diversity on legal education quality or outcomes. Careful studies have been done at the undergraduate level, but these studies come to very different conclusions. Importantly, the leading studies that find positive educational benefits from diversity (notably, those by Patricia Gurin and her colleagues(FN5: See, e.g., Gurin et al.; Gurin et al.)) do not take into account how those benefits are affected when schools use large racial preferences to achieve diversity (as nearly all law schools do). The research that does take large preferences into account (such as the work of Arcidiacono et al. at Duke,(FN6: See, e.g., Arcidiacono et al.) or the work of Carrell et al. at the Air Force Academy(FN7)) finds that large preferences can directly undermine the goals of a diverse environment and increase racial segregation and isolation. There is also, of course, the very real danger that if race correlates very highly with class performance—an outcome difficult if not impossible to avoid if large racial preferences are used—then the single-minded pursuit of diversity will create, rather than erode, racial stereotypes.

(3) The proposed Rule and accompanying interpretations conspicuously ignore the likelihood of “mismatch”—that is, the potential harmful effects of very large preferences upon the intended beneficiaries (in terms of law school grades, bar passage, and long-term outcomes). In 2007, the U.S. Commission on Civil Rights issued a lengthy report on law school mismatch, finding grave cause for concern and urging further investigation,(FN8) but the ABA has never taken up this question. This inaction persists despite the fact that the Journal of Legal Education recently accepted for publication a new empirical study showing compelling evidence that law school mismatch has large, negative effects upon bar passage.(FN9) There is heavy attrition of students admitted with large preferences, first in terms of graduation from law school and second in terms of passing state bar exams, and this is at least arguably the major reason the legal profession remains as predominantly white as it still is. The committee’s proposal not only ignores this fundamental problem, but creates pressure on schools to worsen it.

(4) Finally, the proposed Interpretation 206-1 states that “The requirement of a constitutional provision or statute that purports to prohibit consideration of race, color, ethnicity … in admissions or employment decisions is not a justification for a school’s non-compliance with Standard 206 …. [Such a school must] demonstrate the effective actions and progress required by Standard 206 by means other than those prohibited by the applicable constitutional or statutory provisions.” Setting aside the problem noted earlier—that “effective actions and progress” are nowhere defined—the predominant method that schools have used to increase the number of enrolling members of underrepresented racial groups is the use of ever-larger admissions preferences. Case law in the states that have prohibited the use of race- based preferences makes clear—not surprisingly—that such preferences do, in fact, violate the law. In the absence of any explanation or documentation of other, proven methods by which schools can make “progress,” the proposed standard places these schools in an impossible bind—violate the law and the civil rights of applicants, or risk losing accreditation. Putting schools in this impossible bind would be an abuse of the ABA’s professional responsibility as an accreditor.

We welcome the opportunity to share with the Committee and the ABA any of the research discussed in this letter, and to otherwise contribute to a constructive revision of the proposed rules.

Sincerely, ....

I ask of this comment letter only that it bid salutation to my many criticisms of the ABA over the years when joining them in the ABA's dustbin.

[UPDATE, Aug. 18.]  The ABA approved the proposed standards.  See yesterday's TaxProf Blog.