UMass Lowell stands with First Amendment, for now, in row over student tied to neo-Nazi hate group

Weed Hall at UMass Lowell
(photo by Ktr101 CC BY-SA 3.0)

UMass Lowell seems, so far, to be taking a principled position in a controversy over a student tied to a neo-Nazi group.

According to Patch, the University of Massachusetts Lowell sent a letter to students and faculty last week saying that it could not suspend a student tied to a neo-Nazi, hate group simply because of the association.  At the same time, the university pledged to investigate specific threats, alleged crimes, or incidents of hate speech, and to enforce the Student Code of Conduct.

The student in question appeared on a live-stream posted on Telegram, and re-posted to Twitter by a watch group, with the founder of "NSC-131," an organization founded in opposition to Black Lives Matter and identified as a hate group by the Anti-Defamation League, Patch reported earlier this month.

A Change.org petition, with more than 11,000 signatures at the time of this writing, accuses UMass Lowell of being "blatantly permissive of not only racism and hate speech (which they state is protected under Freedom of Speech) but outright criminal activity and Neo-Nazism" in protecting the student.  The petition accuses the student, by name, of having violated already the Student Code of Conduct and, through alleged participation in the January 6 Capitol riot, the state vandalism law.  Patch reported the appearance of NSC-131 at the Capitol riot, but no personal involvement by the student.

I appreciate the university's principled free speech stance—so far.  I hope the university does not cave to pressure and remains cognizant of the First Amendment's vital anti-majoritarian and "safety valve" functions.  It is crucial, especially in combating hate, that we refrain from prosecuting thoughtcrime, or its mere expression, else we are no better than the haters.

The problem with instruments such as the Student Code of Conduct is that they're easily applied unconstitutionally, regardless of whether they're facially constitutional.  The code in question, for example, calls on students to show "respect and protection for persons and property," and respect is defined as "acting to enhance the safety, well-being and freedom to allow all persons to pursue their legitimate aims," including all persons, i.e., "non-community members," 

The code stops short of defining a specific offense for lack of respect.  Rather, "interpersonal misconduct" includes

creat[ion of] an intimidating, hostile, or offensive working or academic environment. A single, unusually severe incident may constitute intimidation, threats, or bullying.  Any pattern of unwelcome conduct directed specifically at another person that threatens or endangers the physical or mental safety or property of that person (or a member of that person’s family or household) or creates a reasonable fear or intimidation of such a threat or action.

The code adds, "The University has special concern for incidents in which persons are subject to such conduct because of membership or perceived membership in a racial, ethnic, religious, gender, or sexual orientation group."

That definition comports with First Amendment restriction on anti-harassment law, as long as the definition is observed in its particulars.  The terms refer appropriately and essentially to a "specific[] ... []other person" and to a "reasonable" response.  Administrators do not always parse so finely.  The Change.org petition encourages all readers to "file a report with student conduct," offering a link, regardless, it seems, of whether the filer has had any contact at all with the student of concern.

I have personal experience with administrators' loose understanding of academic freedom.  The "Principles of Employee Conduct" for the UMass System call on UMass employees "to conduct themselves in ways that accord respect to themselves and others."  That might sound merely aspirational.  But I was once adjudged guilty of violating the policy for accusing staff of misfeasance.  There was no contention that I was wrong on the facts.  But I was threatened with firing, despite my tenure.  No punishment was imposed after I pledged to sue in my defense—not a bluff.

In 2017-18, I served as a faculty delegate on an ad hoc campus committee formed at the behest of the campus chancellor to create an "anti-bullying" policy.  We faculty delegates agreed that workplace bullying was already impermissible under existing policies and state law.  The university seemed interested in having specifically an "anti-bullying" policy principally just to say that it does.  So we drafted a proposal that was substantively duplicative of existing norms, mindful of the First Amendment and academic freedom, and added a detailed procedure that would protect faculty in the event of ill founded and opportunistic accusation by administrators.

That, apparently, was not the right answer, because our proposal was buried in the bureaucratic bog.  Now I've been asked to serve on a committee again, in the next academic year, to do the work over, for a new chancellor.  Maybe we'll get it "right" this time.

'Clinton' honorific draws fire at Arkansas law school

"The Clinton Law School"
was not to be.

An op-ed in The Arkansas Democrat-Gazette by Mike Masterson on Saturday reported a mess at the "William H. Bowen" law school at the University of Arkansas, Little Rock, since a professor there started calling himself the "William J. Clinton Professor."  The ADG quoted an email from my friend and colleague, Distinguished Professor J. Thomas Sullivan, obtained under the Arkansas Freedom of Information Act (FOIA):

I don't recall when the Law and Public Policy Professorship was re-named for President Clinton.... I first noticed this reference in the signature block on an email sent by ["Dean Emeritus and William J. Clinton Professor of Constitutional Law and Public Service"] John DiPippa in March.

This professorship was originally designated as the Law and Public Policy professorship and was created, as I recall, after we moved into the current building. There was discussion that the Law School itself would be named for Clinton, but that was scuttled because there was serious concern that he would be subjected to some adverse legal action ... for giving false testimony in the civil action brought by Paula Corbin Jones....

I couldn't find any reference to the professorship as the "William J. Clinton Professor of Constitutional Law and Public Service" on the Bowen web site. In fact, John's faculty page describes him as: Dean Emeritus and Distinguished Professor of Law and Public Policy.

It may be that I missed an announcement ... but I am not aware of the re-designation of the professorship in the name of William J. Clinton or the reference to "Constitutional Law and Public Service." Had this been brought to the faculty for discussion ... I would have opposed the change in designation for a number of reasons:

First, President Clinton was disbarred from practice before the United States Supreme Court and the Arkansas courts following the impeachment trial, in 2000 or 2001. I believe that John took the opportunity to defend him against disbarment at the time, but conceded that some form of censure was appropriate, being quoted at the time by The Washington Post: ... "But DiPippa also said Clinton should be punished more severely because of his position. He suggested a suspension of his license for some period of time. Disbarment ought to be reserved for what I've called incorrigible lawyers—lawyers who are just going to repeat their offenses and continue to harm clients, he said." ....

I simply do not think it appropriate for a law school to honor a disbarred lawyer—it strikes me as hardly sending a deterrent message to law students or practitioners. But beyond the disbarment, I have grave concerns about Bowen being aligned with significant policy decisions taken by Clinton that have [caused] irreparable damage to our legal system.

The mass incarceration of Americans, particularly affecting the poor and African American communities, was accelerated during the Clinton administration in an effort to deflect potential Republican claims that Democrats were/are soft on crime....

Second, the 1994 law shaped Democratic Party politics for years. Under the leadership of Bill Clinton, Democrats wanted to wrest control of crime issues from Republicans, so the two parties began a bidding war to increase penalties for crime. The 1994 crime bill was a key part of the Democratic strategy to show it can be tougher-on-crime than Republicans.

Of particular importance, Clinton signed the Anti-Terrorism and Effective Death Penalty Act of 1996 which effectively eliminated federal habeas corpus as a protection against state court criminal convictions tainted by procedural irregularities and failure of state courts to correctly apply U.S. Supreme Court precedent in disposition of claimed violations of federal constitutional protections.

Sullivan is right about the naming of the law school; I was there then, too.  The money was coming from Bowen, an Arkansas banker—over faculty objections that UALR was selling itself to a donor for less money than any law school had ever taken for the honor—and Bowen's name was substituted when Clinton's became politically problematic.  In the op-ed, Professor Rob Steinbuch, a colleague of Sullivan's and co-author of mine on transparency research, confirmed Sullivan's take on the unilateral impropriety of the name change.

Sullivan wrote further:

Of general importance is the usurpation of faculty governance by the law school administration. At a minimum, the question of re-designating a named professorship should be announced to the faculty for purposes of eliciting legitimate concerns. The faculty originally adopted the rule regarding named professorships that was altered to give the dean sole authority for designation—apart from specific directions given by a donor.

I don't recall whether there was faculty input in altering terms of the original rule, but I do recall the faculty were generally notified of the current rule, as published. In either event, the legitimate authority of the faculty to advise and consent, if not promulgate, a policy that may have significant consequences for the law school in terms of our mission and reputation, shouldn't be dismissed by expediency or political interests of a dean, advisers or supporters answering only to the dean.

Sullivan has his own history with named professorships at UALR.  He was stripped of his in the past for the sin of dissent.  The professorships are better measures of academic-political compliance than of merit.  They're awarded only for five-year terms so as to incentivize continuing obedience to the dean among tenured faculty who otherwise might be hard to wrangle.

Such is academics.  My school, too, punishes anyone who dares not be a "team player," or fails to dumb down her or his own performance to the median.  The problem of "workplace mobbing" to enforce group-think and tame high achievers is so severe in academics that sociologist Kenneth Westhues wrote books about it.

Arkansas profs champion academic freedom as bipartisan cause

Most recently in June, I wrote about the faculty lawsuit against the University of Arkansas System to protect academic freedom, as the university tries to cut back on tenure protection for both past and future hires.  The case is tracked by Professor Josh Silverstein, at his blog, Jurisophia, where the most recent filing is a September reply brief in support of defendants' motion to dismiss.

I had lost track in my inbox of this short segment (click box below) from Fox News in June, below, in which Arkansas named plaintiffs, my friend and mentor Professor-Attorney Tom Sullivan among them, schooled anchors on how academic freedom and tenure should be a bipartisan cause.



The case is Palade, Borse, and Sullivan v. Board of Trustees of the University of Arkansas System, No. 4:19-cv00379-JM (E.D. Ark. complaint filed May 31, 2019).

I've freshly endured my own reminder at UMass Law of how readily academics turn on each other.  As I nurse the knife wound in my own back, I find myself re-sensitized to how American university administrators today exploit the ruthless faculty penchant for self-preservation to further the faculty's own fall and the rise of bureaucratic hegemony in its place.  Ultimately if indirectly, the most devastating impact of this dynamic is visited on the students who should be the beneficiaries of the educational mission.

Arkansas higher ed faculty sue to protect tenure, academic freedom

An assault on academic freedom in Arkansas has drawn a lawsuit by faculty.

In fall 2017, I republished concerns by my colleagues in the University of Arkansas System that proposed changes to board policy essentially would render academic tenure a nullity, allowing discipline and termination of faculty on a broad range of new and vague grounds.  Adopted in 2018, one new policy provision allows faculty firing for "a pattern of conduct that is detrimental to the productive and efficient operation of the instructional or work environment."  That's code for "we don't like you; play ball or else."  

Symptomatic of the contemporary corporatization of higher education, the new policy fails to recognize that faculty are actually the governors of universities, not at-will workers on the assembly line.  This is not just an Arkansas problem.  See generally Benjamin Ginsberg's "lacerating" (WSJ) 2013 book, The Fall of the Faculty, for documentation of this phenomenon and why it's so dangerous. For a stunning yet representative case study, see Jacob Howland on the University of Tulsa for the Manhattan Institute's City Journal (describing "a perfect storm of trends currently tearing through the American academy: the confident ignorance of administrators, the infantilization of students, the policing of faculty, the replacement of thinking with ideological jargon, and the corporatization of education") (and podcast).

Now three tenured faculty have sued over the revised policy.  Professor Joshua M. Silverstein at the University of Arkansas Little Rock Law School explained in an email to Arkansas Little Rock faculty last week:

After the Board of Trustees adopted the revisions to Board Policy 405.1 at the Board’s March, 2018 meeting, I wrote an email summarizing what happened at the meeting and offering some thoughts regarding strategies that could be used to combat the changes.  In the latter section, I noted that litigation challenging the revisions was highly likely.  That litigation has commenced.  Yesterday, the law firm of Quattlebaum, Grooms & Tull filed a lawsuit on behalf of three of our colleagues – one each from UAMS [Medical School], UA-Little Rock, and UA-Monticello.  The lawsuit seeks to nullify the changes to 405.1 to the extent they apply to UA System faculty who were tenured or started in a tenure-track position prior to March 29, 2018, the date the amendments to 405.1 were adopted.  As I explained last year during the deliberations on 405.1, I believe that the lawsuit has a very good chance of succeeding....

[A] bill that was introduced in the Arkansas legislature this past session ... would have prohibited the application of Revised 405.1 to any faculty member with tenure or on the tenure track at the time the revisions were adopted.  Rob Steinbuch, a colleague of mine at the law school, and I were deeply involved with that bill and we both testified in favor of it.  Had the bill become law, it would have nullified the need for litigation.  Unfortunately, the bill died in committee.  Hence the filing of the lawsuit.

Note that this lawsuit itself won't stop the slow death of tenure and academic freedom going forward at the University of Arkansas.  New hires would still be entitled only to paper-thin tenure.  Meanwhile, nationwide, we still are grappling with the elimination of tenure-track positions altogether, in favor of cheap adjunct labor.  Nevertheless, I applaud my plaintiff-colleagues.  It's time faculty started pushing back, lest we irreversibly turn American universities into a mockery of the Bolognian conception—just in time for its 1,000-year anniversary in 2088.

Professor Silverstein is tracking the litigation at his blog, Jurisophia, where you can download the complaint.  The case is Palade, Borse, and Sullivan v. Board of Trustees of the University of Arkansas System, No. 4:19-cv00379-JM (E.D. Ark. filed May 31, 2019).  Here is June 1 coverage in The Arkansas Democrat-Gazette.  One of the named plaintiffs is a law professor, extraordinary practicing attorney, and treasured friend of mine, J. Thomas Sullivan at Arkansas Little Rock.

Political correctness continues to threaten academic freedom. But if it's a martyr you want, don't look at me.

When my daughter was a high school senior, she and my wife visited Sarah Lawrence College in New York.  My wife and I are keen on liberal-arts education, so we might have pushed Sarah Lawrence a bit as an option—even while I might have dropped the offhand reference to flower power and love beads.  Founded in 1926, Sarah Lawrence is famous for its left-wing political activism.  It has McCarthyist accusations of communist loyalties to its historical credit.

Siegel Student Center at Sarah Lawrence College (CC BY 3.0 by SaidieLou)

In the end, our daughter did not care for Sarah Lawrence.  A testament to her maturity, I think, she found that the school's method of individualized courses of study and its loose, seminar-like classroom experiences, modeled on the British tutorial style, did not suit her learning style and needs at age 18.  We agreed, and she is now happy elsewhere.  That's not to deny that Sarah Lawrence is pedagogically innovative in a way that beautifully complements the needs of many young adults and fosters creative genius.  After all, one Sarah Lawrence alumnus turned into J.J. Abrams.

However, from what I heard at the New England Political Science Association annual meeting's lunch program on Saturday, April 27, the flower power and love beads that I teased about might in fact be in desperately short supply at the Sarah Lawrence College of today.  After joking about being uncomfortable, as a Sarah Lawrence professor, standing at a lectern on a podium, Samuel Abrams shared his experience and research into ideologically driven, doctrinaire oversight of faculty and classrooms at Sarah Lawrence and elsewhere.

You can read more about Abrams's experience in recent coverage at the National Review, in Inside Higher Ed, and in the Chronicle of Higher Education, and in his own words in The New York Times in October 2018.  Abrams is an AEI scholar, which I guess makes him a radical conservative relative to famously lefty Sarah Lawrence, though plenty of partisan right wingers I'm sure would beg to differ over the sufficiency of his conservative fervor.

"We have a problem in higher education," Abrams said to NEPSA in Portland, Maine.  We, academics, need to ensure that the university remains free of viewpoint discrimination and a forum hospitable to robust "dialog and discourse," he said.

It's not exactly news that the ivory tower in America has been captured by a dogmatic partisan ideology that is oddly blind to classical liberal values such as freedom of thought and speech.  But to see and hear Abrams telling of his experiences live was chilling.  He collects Quechua art, he said, because he appreciates it, but multiple deans challenged the display of works in his office as cultural misappropriation.  For his encouragement of viewpoint diversity in the classroom, he has been called "racist," "bigoted," "homophobic," and, ironically, "anti-Semitic," he said.  His young son has been threatened.  Now deans are asking to review his class content in advance.

This is not hateful rhetoric derived from right-wing demagoguery.  To be sure, there's plenty of that to go around.  But on this occasion, these are the words and tactics of the left, the purportedly hate speech-loathing, ideological font of the civil rights movement.  I have no patience for this rhetoric, wherever, whatever it comes from.

Especially those of us with tenure must resist this suppressive, oppressive group-think, from right or left, Abrams declared.

How?  For a good while now, tenure has been exposed as a largely symbolic and legally insignificant barrier to adverse job action.*  The tenure contract is only as good as the lawyer you can afford whilst unemployed.  Then where the rubber meets the road, courts defer to universities to construe "cause" for termination in the tenure contract, absent any clear constitutional backing for the notion of academic freedom.  My work with the faculty union at UMass Dartmouth has shown me beyond a shadow of a doubt (even pre-Janus) that the union lacks any real bargaining strength.  When push comes to shove, the vast majority of faculty are not really willing to make any personal sacrifice for better working conditions, much less to stand on principle.  And the university knows it.

Maybe I'm no better.  Knowing the score, knowing that academia already has ceded the battle for intellectual freedom, I discourage classroom dialog over hot-button issues. I admire Abrams.  But I have a daughter who's trying to pay her way through American higher ed.  Her economic security—and the paycheck that makes it possible—has got to be my top priority.

---

*For collateral misgivings about the scope of tenure protection, see also my writing in JC&UL in 2010, which I presented at an AAUP conference.  Stanley Fish's more recent ruminations in Versions of Academic Freedom (2014) also ponder the scope of academic freedom relative to the professor's job—though he doesn't cite me.  JS.

Does your dean work for you?

[This opinion is mine, reprinted from the Faculty Federation News: A Publication of the UMass Dartmouth Faculty Federation AFT-MA 1895, vol. XXIV, no. 5, Mar./Apr. 2018, p. 3.  A version geared to university students can be found at The Torch, the student newspaper of UMass Dartmouth, Oct. 21, 2018.]

When I left law practice to teach, I knew little to nothing about faculty governance and academic freedom.  The dean who hired me, Rodney K. Smith—now professor and director of the Sports Law and Business Program at the O’Connor College of Law, Arizona State University—is a person of the utmost integrity from whom I learned a lot about leadership and the business of higher education.

When I was a green, 26-year-old instructor of law, I remember, I was joined at lunch by Dean Smith.  I couldn’t bring myself to call him “Rod,” even when everyone else did, and it still sounds odd to me, decades later.  Sometimes Dean Smith ate lunch with the crew of us who ate in the faculty lounge, a “king incognito” kind of thing, but, I think, totally genuine.

Dean Smith wanted to know how things were going in the new job.  We chatted a bit about classes, teaching, students.  He asked something about my interests in terms of developing new programs at the law school.  I said something about being willing to do whatever he needed me to, because “you’re the boss.”

“No, I’m not,” he retorted quickly.  And he waited for me to react in that MBTI-sensing-personality way that we Ns always find really aggravating.

That he was the boss seemed self-evident to me.  In my law firm, all partners were the boss, and they could scream and yell or hop up and down or throw papers around or pretty much do whatever they wanted, and we associates were supposed to act like that was totally normal and appropriate.  So this challenge to the natural order of things really made no sense to me.

“You’re the boss,” he added, as if that cleared things up.  I was pretty sure that when I was hired, he had told me how much I would be paid.  If things in fact were the other way around, I had really sold myself short.

“I work for you,” he said with the finality with which one tells a hard-headed child “because I said so.”

It took me a long time to wrap my mind around his meaning.  When I had evaluation meetings with Dean Smith his tack was always “what can I be doing for you?,” to make me better able to do my job—teaching, research, and service.  That was new for me.

As the First Amendment is part of my media law portfolio, and academic freedom is an aspect of the freedom of expression, I have, since that day at lunch with Rod Smith in January 1998, spent some part of my academic life studying the history, law, and policy of academic freedom and its partner principle, faculty governance.

I thought of this at the Faculty Federation meeting this week when President Cathy Curran said we, faculty, are “weird,” in describing the particular challenge of drafting HR policies that apply to faculty.

We are weird.  And it’s not something that’s well understood outside academia, nor often by administrators in academia.

We are weird in a way that is critical to institutional governance, to student learning, and moreover to our society—not just American society, but human society.  If the organization of human civilization is built upon a search for truth in a free market of ideas, and the university is “peculiarly the ‘marketplace of ideas,’” as Justice Brennan wrote, then the independence of faculty inquiry is essential to improvement of the human condition.  That notion underpinned the constituting principle of academic freedom in the original universitas in 13th-century Bologna.  And it’s only more true, more important, in the 21st-century information age.

Faculty governance of the academic enterprise is a corollary.  As former union President Susan Krumholz aptly recalled at the Federation meeting, the administration of a university works for the faculty.  Yes, the administration manages budget, payroll, and enrollment, all things that might constrain faculty freedom.  That’s the weird part.  But it must not be forgotten that those functions exist only to enable faculty, whose job it is to educate students.

Dean Smith was right, and the intervening years have only added to the urgency of his assertion.  In an environment of higher ed financial crisis, burgeoning staff-to-faculty ratios, and rampant bureaucratic overreach in the guises of assessment and accountability, we lose touch with the essential, classical design of the university at our own peril.

Deans, provosts, vice chancellors, and even chancellors and presidents:  They work for us.

Why do law profs lose their employment suits? Because most plaintiffs lose

An article about litigious law profs in the Albany Law Review by Nova Southeastern Law Professor Robert Jarvis is getting a lot of play in legal academic circles.  Jarvis did an astonishingly thorough and first-of-its-kind survey of cases in which law professors are plaintiffs suing over employment matters.  Here's how the ABA Journal (May 2018, at 15) summarized it:

Law professors often lose when they sue over employment matters such as not getting hired, tenure denials or pay disputes, according to an article by Robert Jarvis in the latest issue of the Albany Law Review. Jarvis, a professor at Nova Southeastern University’s Shepard Broad College of Law, wrote that three issues are at the root of these lawsuits: dissatisfaction with, and professional jealousy of, faculty colleagues; disagreements with, and distrust of, administrators; and feeling that others are receiving better, and undeserved, treatment. In what appears to be the first study of its kind, Jarvis also found that law professor suits are far more common in recent years.

Jarvis's work is quality, but commenters have read too much into his observations.  Eager to dine on the raw flesh of irony, stories such as Above the Law's have ripped lines from Jarvis, such as "many law professors are guilty of a shocking level of thin-skinnedness," to over-explain law profs' poor record in litigation.  First, Jarvis offered that as an observation, not an explanation.  Second, "many" does not mean even "most."  It's surely true of "many," but that hardly explains the litigation record.

Jarvis himself observed, "law professors generally do a poor job assessing their chances, for they lose much more often than they win."  That's just wrong--a non sequitur.  Any plaintiff in a civil action could be said to have assessed the situation poorly, simply because defendants usually win civil actions.  Yet plaintiffs keep suing.  So there must be other reasons to sue.  One reason to sue is that a plaintiff might hope to win a settlement, because a defendant wishes to avoid a public row or litigation transaction costs.  Another reason to sue is that a plaintiff has nothing to lose.  A lawsuit in a hopeless situation might yet stake out a public defense of integrity and leave a record to protect future employment prospects.

Importantly, whether a plaintiff wins in litigation or seeks to accomplish these ancillary aims says nothing definitive as to whether plaintiff was actually wronged.  Plenty of plaintiffs are wronged and lose.  Evidence controlled by defendants often cannot be marshaled sufficiently to make the plaintiff's case to the requisite standard.  Courts broadly defer to universities in the construction of tenure contracts, even though the universities draft them and they're not negotiable.  And all kinds of legal standards, such as sovereign immunity, and sometimes tort reforms, such as anti-SLAPP laws, protect defendants prophylactically. 

So why do law professors lose their cases?  Because all plaintiffs usually lose, for all sorts of reasons, some legitimate, some not.  In academics, universities dominate the employment bargain in a supply-rich market, so law professors, like anyone else, start from a disadvantage.  And law professors might be expected to turn up as plaintiffs more often than the average employee because the law professor correctly calculates that she or he has a better-than-average chance of beating the odds.

Full disclosure, my own once upon a case is mentioned, fairly and correctly, in a footnote in Jarvis's article, on the subject of reputational injury.  When I sued, I was most definitely accused of being thin-skinned--by people who had no idea what it was like to see one's career and livelihood pouring down the drain, and family suffering by association, upon defamatory falsehoods that spread like wildfire.  I could have not sued.  One colleague advised me to just wait five years and let the false allegations fade from memory.  Even if they would have faded, a dubious proposition, waiting would have meant career stasis for at least five years, maybe forever.

And had I not sued, despite the odds, and had the lawsuit as leverage, I never would have received the public letter of exoneration that I did.  My current employer asked to see that letter before I started a new job.  I don't know whether I count as a loss in Jarvis's statistics.  My lawsuit didn't win any money, and I dismissed it with prejudice.  But I don't think I lost.

Anyway, why law profs lose their cases is not what worries me the most about Jarvis's findings.  I'm far more concerned about his observation that lawsuits in legal academics are on the uptick.  This I believe to be the result of worsening employment conditions and the frustration of law faculty--me included--whom, in the troubled legal education market, universities increasingly expect to be vocational trainers and obedient serfs, rather than erudite educators and champions of intellectual freedom.  In examining the unusual incidence of law professor-employee plaintiffs, Jarvis is seeing just the tip of a nasty iceberg.

City not liable for bullying that resulted in child's quadriplegia, Mass. supreme court holds (and note on infantilization of faculty in higher ed)

The Massachusetts Supreme Judicial Court (SJC) affirmed application of the Massachusetts Torts Claims Act (MTCA) to protect the City of Lynn, north of Boston, from liability in a tragic bullying incident that resulted in the permanent paralysis of the victim, a fourth grader.  The case is Corimer v. Lynn, No. SJC-12323 (Feb. 27, 2018).

The boy's mother had reported bullying and harassment of her son on "multiple occasions" in the 2007-08 school year.  Ultimately bullies pushed the boy down stairs, resulting in damage to his spinal cord and in quadriplegia.

The 1978 MTCA waives sovereign immunity, but a public actor may be held liable for the tort or violence of a third party only if the public actor "originally caused" the "harmful consequences."  Mass. G. L. c. 258, § 10 (j).  The courts have struggled to interpret that language, but have, as the SJC restated the rule, looked for "an affirmative act that materially contributed to creating a condition or situation that resulted in [plaintiff's] injuries."  A failure to act is distinguished.

The school left the bullies in class in proximity to the plaintiff, and we may assume arguendo that the school was negligent in failing to protect the plaintiff.  Even so, those failures were "'too remote as a matter of law'" to represent material contribution to the plaintiff's injuries.  In essence, then the "originally caused" standard seems to effect a causation-at-law analysis heightened above even the stringent inquiry invoked upon an intervening criminal actor.  On the same basis, the court rejected ancillary plaintiff theories predicated on negligent hiring, supervision, and retention of school staff.

The SJC acknowledged "that bullying is a serious issue" comprising "the emotional pain of day-to-day harassment" and sometimes, as here, "horrific physical consequences."  "[T]he elementary school could have and should have done more to protect [the plaintiff]."  Nevertheless, the operation of the MTCA is textbook, furthering the "public policy [of] some reasonable limits to governmental liability in order for taxpayers to avoid a potentially catastrophic financial burden."

Allow me a tangential observation about bullying policy:  

Many workplace entities, private and public, and including my own, are busily about the business of formulating "anti-bullying" policies.  At least in the academic context, I find these efforts nothing less than an end-run of contract, tenure, and academic freedom, calculated to suppress dissent and vigorous debate.  This SJC case indirectly illustrates the problem.  

Bullying is a concept derived from the K12 environment.  In the adult workplace—especially in the academic workplace, where the very job is the exercise of free expression—bullying is co-extensive with harassment, discrimination, tort, and crime.  All of those were present in Corimer, harassment even before the child was physically injured.  There is no need for a separate policy purportedly to enforce civility (as if such a thing even were possible) among adults.  Any effort to create such a policy is nothing more than an authoritarian perversion of modish terminology—on campus, the infantilization of the faculty—and a disservice to children who truly are bullied in school.

Janus-faced about 'Janus': Supreme Court hears major First Amendment labor case, and 'it's complicated'

The U.S. Supreme Court hears oral argument in Janus v. AFSCME (SCOTUSblog) on Monday, February 26.  The problem in a nutshell is the extent to which a public employee can be compelled to associate with a union consistently with the First Amendment freedoms of expression and association.

The Court already held, some years ago, that a public employee cannot be compelled to pay the portion of union dues that supports political activity.  But mandatory payments to support the union in collective bargaining have been upheld upon the logic that employees otherwise would be able to opt out and benefit from union collective bargaining as free-riders, and, ultimately, the union would be decertified for lack of members.  So it’s got to be all in with the union, or no union for anyone.

This is an agonizing problem for a libertarian.  One wishes to protect the right to organize but is loath to compel anyone to do so.  Honoring the latter priority undermines the former.

When I changed jobs in 2011 from the University of Arkansas system to the University of Massachusetts system, I moved from a non-union shop to a union shop.  My first years at UMass, I opted out of the political dues and paid only to be a member of the bargaining unit—“agency,” it’s called.  And I resented having to pay for that. 

Certainly Arkansas was not a bed-of-roses workplace experience.  I had my challenges there and had to spend a good chunk of my personal savings on legal fees.  Now faculty there are fighting to preserve tenure.  I can see where a union might help.

Nevertheless, moving to UMass, I resented being compelled to join the union.  My experience with unions had been that they too often protect people in the workplace who don’t pull their weight, and they prevent people in the workplace who pull more than their weight from being rewarded accordingly.

I have more experience with unions now.  And I was right.  They often protect people who don’t pull their weight, and unionization prevents people who pull more than their weight from being rewarded accordingly.

At the same time, I’ve come to understand that plenty of fault for unions working, or not working, can be laid at the feet of employers, too.  It’s complicated.

I declined to become a union member at first at UMass and sought instead to leverage my own hard work for superior reward.  That didn’t work.  At best, I got into the highest echelons of the contractual raise pool.  We’re talking about a distinction of maybe a percentage point.  I could have gotten that with much less work.  I’ve hardly been able to negotiate my own terms of employment.

To the contrary, like many an employer, the university seems to have a love-hate relationship with the union.  Even while administrators seethe with loathing for their union adversaries, management is unwilling to dance with any other and jealously guards the bargaining table against rivals.  That’s the dirty little secret of public-sector union shops: management and labor are on the same side when it comes to making sure that no one else gets to play the game.  A truly free market, with full information and a healthy balance of labor supply and demand: if such a thing existed, it would be bad news for both sides.  Meanwhile the individual worker gets left on the sidelines.

So unable to make any headway for myself, and upon later experience and observation, I decided to throw in my lot with the labor movement.  Before union membership, my agency dues were $580 for the year in 2016.  That was deducted from my check, even though I was excluded from the bargaining table and stuck with whatever contract concessions someone else decided for me.  Now as a full member of the union, based on my last paycheck, my dues are about $1,285 per year.  So about two-thirds of my union dues go to political activity that I don’t necessarily agree with.

That’s my catch-22.  Membership is the only way to get a seat at the table, and having a seat at the table is the only way to work against abusive employment practices.  The labor market being what it is, there is abuse.  And there are good people in my union who are working hard to fight it.

I’ve been a student of the First Amendment for a long time, and I don’t know what should happen in Janus, whether from a detached scholarly perspective, or for my own best interests.  It rubs me the wrong way being compelled to participate in organized labor and forego my individual economic liberty.  To have my voice heard, I have to let my pocket be picked by political causes I disagree with.

At the same time, the unions are right:  The Janus challenge is about union busting and worker exploitation, not civil liberties and not economic liberty.  In academics, union busting is sure to hasten the end of tenure and the annihilation of academic freedom.  That hardly seems a result that honors the First Amendment.

I admit: I’m Janus-faced about Janus.  But on Monday, I'll be wearing my AFT T-shirt.

 

[UPDATE, Apr. 10, 2021.  Regrettably, my faith in the union was not enough.  The bargain of surrendering my beliefs became untenable.  See, e.g., this post in 2020.]

Was academic freedom ever really a thing? 'Fluff the paper'!

Almost 10 years ago, I was quoted in Inside Higher Ed: "When I started teaching 10 years ago, I thought universities were the quintessential market place of ideas. I was so naïve, and so, so wrong....  It's not an open market place of ideas -- I hope we can get back to that notion because our society desperately needs places where we can have truly free discussion. I just can't say I see that in the American university today."

10+10.  I've been teaching for 20 years now.

Most of my career, I've worked for two academic employers.  Both at one time had vibrant electronic mail listservs for faculty to be able to discuss, debate, and engage.

At my former workplace, I once made a posting that was critical of my school, but suggested, based on my experiences then visiting off campus at another university, some ideas that we might adopt to up our game.  My dean at that time lambasted me for using the forum to be critical rather than to praise and celebrate the institution.  That was the end of that listserv as a place for serious engagement.  Afterward, it became all about peer-to-peer "Congratulations to Professor So-and-So, Who Achieved This," followed by rousing rounds of Reply-All, "Congratulations, So-and-So!"  (See more recent news.)

At my present workplace, a dialog was recently had about the disused campus listserv.  Online and offline, faculty reminisced about when the forum was a place for vibrant engagement on hot-button issues.  Some speculated about why it no longer is.  Fear of administrative reprisal in the enforcement of vague conduct policy was cited, upon a spate of reported "investigations."  One faculty member reported that the basis for her having been found in violation of policy was that a complainant felt offended.  That accords with my experience.

In recent weeks, the following dialog has unfolded on the campus listserv.  (I emphasize that what is said in this forum is public record in the Commonwealth of Massachusetts, and I have a First Amendment right to republish it.)  I honestly don't know whether this is serious or tongue in cheek.  I don't know whether this is wicked social commentary or innocent chatter.  I do know that I'm afraid to ask.  I really hope it's commentary, because I like it.  I appreciate the earnestness and wit of the responses.  Seriously, I have smiled reading these postings.  I'm just not sure why.  I would hate to conclude that I like this dialog because my mind has become as dull as the subject.

When I started teaching 20 years ago, I thought universities were the quintessential marketplace of ideas. I was so naïve, and so, so wrong.  It's not an open marketplace of ideas.  Maybe it never was.

So here's the latest in scintillating academic engagement, now university approved!  Fluff the paper!


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Wed., 2/7, 2:23 p.m.

If faculty and staff (and work study students) logged the hours we spend dealing with paper jams... I'm sure faculty have all had the experience of trying to print out the rubric for an assignment 15 minutes before class time when the machine jams for the 17th time that week.... 

https://www.newyorker.com/magazine/2018/02/12/why-paper-jams-persist 

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Wed., 2/7, 3:58 p.m.

That is interesting, I never knew these copy machines were so complicated.  Still,  as I saw Elon Musk's SpaceX manage a perfect landing of the two heavy rocket boosters yesterday, I must conclude that it's not rocket science! 

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Thu., 2/8, 9:22 p.m. 

I still think we all need a PhD in Copier Technology to operate them. 

Unfortunately, I have already risen to my level of incompetence. 

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Wed., 2/14, 9:33 p.m. 

As someone with the experience of a PhD in copier technology (30+ years), I can tell you 2 secrets to keeping paper jams to a minimum: 

1) do not unwrap paper or preferably even take the wrapped paper out of the delivery box until needed (i.e. stacking on a shelf causes the paper to absorb moisture, which causes the jams) and

2) fluff the paper (place the ream in the tray and rifle/fan it) every time you put in a new ream. 

Also, I have always found Hammermill paper jams less frequently than other cheaper papers (the time and material lost isn't worth the savings!)

Hope this helps!