Missionaries kidnapped in Haiti reach freedom, but murky U.S. policy generally fails ransomed abductees

Haitian child in 2012 (photo by Feed My Starving Children CC BY 2.0).

News came last week that the last 12 of 17 Christian missionaries abducted for ransom in Haiti in October either escaped or were released, reports vary, and walked miles to freedom. The circumstances of their liberation raise questions about the ongoing apparent lack of any clear U.S. policy on abductions abroad.

Less well reported than the story of the missionaries, Haitian lawyer and university professor Patrice Dérénoncourt was shot and killed on October 31 by the kidnappers who abducted him in October.  Dérénoncourt taught crimonology and constitutional law in the Economic, Social and Political Sciences Department of the Université Notre-Dame d'Haiti.

Dérénoncourt and the missionaries are typical of the some 800 kidnappings in Haiti just this year. Economic desperation and political turmoil have resulted in flourishing gang violence, and kidnappers seeking ransom have targeted aid workers and the education sector, children included.  Struggling to maintain rule of law, the Haitian government has not been able to get a handle on the problem.  Foreign governments seem either habitually disinterested or similarly impotent.

In the Dérénoncourt case, some of the $900,000 ransom demanded had been paid.  It is unclear whether any ransom was paid for the missionaries.  Representatives of the families and, apparently, the U.S. government through the FBI, were involved in negotiation over kidnappers' outrageous demand for $1 million per person.  Whatever reports are accurate, and whether or not a ransom was paid or the pressure simply became untenable, I find it difficult to believe that the last 12 missionaries surmounted a concerted effort by the kidnappers to keep them.

The Biden Administration was understandably tight-lipped about how it was dealing with the kidnapping crisis while it was going on.  Now that the event is over, it's time for an open conversation about what U.S. policy should be, both with regard to kidnappings and to the social and economic catastrophe unfolding less than 700 miles from Miami.

In the broader picture, U.S. policy on abductions for ransom seems at best inconsistent and at worst incoherent.  In late October, families of Americans still detained abroad, in China, Egypt, Russia, Saudi Arabia, and Venezuela, called on the Biden Administration to do better.  "When we do meet with ... officials," the families wrote, "we feel we are being kept in the dark about what the U.S. government intends to do to free our loved ones."

The murder of an educator such as Dérénoncourt sets back rule of law in Haiti not by just one mind, but by a generation of students he would have taught.  Persistent instability in Haiti meanwhile is contributing to a burgeoning refugee crisis in the Americas and threatens to destabilize democracy in the Caribbean.  Even an isolationist American administration can ignore Haiti for only so long.

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.

'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.

Arts school awards BFA to creative talent in film, TV; 'Schitt's Creek' creator Levy says, 'follow through'

Last week, my daughter was awarded a well earned bachelor of fine arts degree by the film and television program at the Savannah College of Art and Design.  Look forward to shameless promotion of her future projects on this blog.

Dan Levy
(Vogue Taiwan CC BY 3.0)

The commencement speaker was Schitt's Creek creator Dan Levy.  He told graduates:

[F]ollow through. That’s the greatest advice I could give because so few people actually do it....  If you’re a writer and you want to write a book, or a book of poetry, or a television show, or a movie and it gets a bit daunting and intimidating and you get that writer’s block, don’t give up on it. Because at the end of that experience, you will have something....  Ninety-nine percent of the people out there have all the ideas in the world but never follow through on it. So if you are that person, that can walk into a room with something, some expression of your creativity that you have completed, you are so far ahead of a lot of people.

I always wanted to have a blog.

So you wanna teach law school? Good luck with that. Or, 'A Clerkship Story'

pxhere (modified) CC0

Professor Howard M. Wasserman at FIU Law, author of the superb Understanding Civil Rights Litigation, has published in Judicature a thought-provoking study, Academic Feeder Judges: Are Clerkships the Key to Academia? (spring 2021).

Yes is the short answer.  There is clear correlation between clerking and later teaching.  Wasserman explained, "Two or three generations ago, the clerkship was the essential credential, and a call from the judge or justice to the law-school dean was the ticket to the teaching job. Louis Brandeis favored clerks whom he believed would become law teachers."

But the correlation, and probable causation, is diminishing, and "[t]he Great Recession of 2008 appears to have exacerbated the disconnect between clerkship and teaching," Wasserman wrote.  He chalks up the change to a number of factors.  Teaching fellowship programs, "sexy" niche appellate practices, and more programs for advanced degrees in law have generated a pool of promising candidates on alternative tracks to fewer positions.

Though I don't think any of that will change the status quo.  Legal academics remains largely the province of an elite, including too many by inherited opportunity, especially at top schools.  Even these newly minted access tracks only reinforce exclusion.

I didn't clerk.  I've been fortunate to land two jobs in academics at schools where a clerkship was not a sine qua non.  But in my job searches, I know that I was excluded at some schools—once, only about a dozen years ago, I was told so plainly—for lack of a clerkship.  As I don't think I'm too bad at being a law professor, that's a disappointing result.  While Wasserman might purport to describe a preference of "two or three generations ago," people who were hired two generations ago are still doing hiring now.

And there is resistance to change.  For all the bluster about equality of access to opportunity uttered by the nation's overwhelmingly liberal law professors, the vast majority in the end succumb to the beguiling predilection to replicate themselves and their experiences.

Considering why students, me included, don't clerk illustrates the inequality of access to opportunity in the academy, not to mention many other career tracks.

To start with, judges, many of whom also fall prey to the predilection to replicate themselves, tend to recruit only from select law schools.  UMass Law, for example, a "fourth-tier law school," has seen only modest success at placing students in clerkships, then only at the state level, and only through concerted, all-hands-on-deck efforts by students, faculty, and staff.  

Federal judges don't recruit at UMass.  They did recruit at "first tier" Duke Law School when I was a student there in the 1990s.  But they weren't recruiting me.  The career services office groomed students with a 3.5 GPA for interviews, and my 3.4 didn't make the cut.

I think I would have made a good clerk.  Having come to law from journalism, I was a decent writer and editor.  To my observation, my classmates who excelled at law school and attained those top grades with less effort were as often as not children of lawyers and professionals.  I was not.  They seemed to understand the 1L game in a way that was opaque to me.  I figured it out and turned out A+s by the time I graduated, but that was too late to open some doors.  From where I sit today, as a professor, it's no wonder to see that my students who are the first in their families to attempt graduate school, or even university, face the steepest learning curves.

I was determined, though.  Whatever this clerkship thing was about, telling me I could not have something just supercharged my desire for it.  A full-tuition-paying Duke client, I demanded access to clerkships.  Career services pointed me to a binder of judges' names and addresses.  I was welcome to apply on my own, without Duke's help.

I remember the feel of the thin plastic cover of the binder in my hands.  I remember turning the looseleaf pages and copying the information into my notebook with a pen.  I remember feeling ashamed and angry doing this while, feet behind my back, in the career services office, other students sat, sharply dressed, waiting nervously for clerkship interviews to which they had been invited.

I did apply on my own for clerkships: 23 years old and no clue what I was doing.  Unsurprisingly, I had no bites from the federal bench.  Surprisingly, I did score an interview with a state supreme court judge.  I traveled to the state on my own dime, donned my best (only) suit, and interviewed.  The interview seemed to go well.

The judge telephoned me a couple of weeks later.  I was his first choice, he said.  My pulse quickened and face flushed.  But, he said sheepishly, haltingly, he was, unfortunately, obliged to hire his second choice, because she was the daughter of a colleague.  Surely I could understand his predicament.  This is how things are.  He was sorry.  Felt he owed me the explanation.  My heart sank.

Don't feel sorry for me.  I went right into law practice at a large, prestigious firm in a major city.  I didn't have whatever it took to get a clerkship.  But I had an opportunity out of Duke that almost none of my UMass students can get still today.  It's all relative.

The lesson still is, or should be, a painful one.  The changes that Wasserman cited do little to change the reality of access to opportunity in legal academics.  Teaching fellowships are typically reserved for diverse candidates.  Because diversity doesn't refer to socioeconomics, nor family immigration history, most of my students, like me, would not qualify.

A top-end practice experience did give me an advantage in my applications to the academy.  But for even the very best of my students—who, if it matters, might have chosen UMass for reasons of economic, geographic, or other necessity, not a function of choosing the highest ranking school one can get into, which is what I did—a job at a "white shoe" law firm is a pipe dream.

And more advanced education is not feasible for students who, like me, financed legal education wholly through debt.  My wife and I just paid off our own educational debt last year, right after we started borrowing to pay for our daughter's college education.  We were lucky; neither of us had undergrad debt, thanks to scholarships and the military.  I turned down two full scholarships to lower ranked law schools.  Some of my law students have twice the debt we had and will be lucky to have a quarter of the job prospects. 

One of my students graduating now would make a superb teacher, and he is so inclined.  He asked me about it.  What can I say?  He lacks the demographic endowments requisite for a diversity fellowship.  One of my own faculty colleagues said at a hiring meeting just last week that "we don't need more white" at UMass.  She was applauded.  This student will never score a Boston law firm job.  A UMass valedictorian was told at a Boston law firm just a few years ago that his interview was a professional courtesy to the dean, but the firm would never hire from a public school.  And this student is swimming in debt.  Should I tell him to dig deeper and get a "corrective LL.M." at full price from one of the elite law schools he probably should have chosen to begin with?

The change that Wasserman reported is good news, but I don't think will effect improvement in true diversity in the legal academy in my lifetime—taking into account lived experience, more than just boxes checked for skin color, gender identity, and sexual preference.  Even new avenues of access are limited to narrowly defined classes of people and favor the advantaged insiders of the socioeconomic elite.

And the real kicker about clerkships is that you never get a second chance.  Perversely, one is qualified for a clerkship only once, precisely when one is not qualified for a clerkship: as a graduating law student.  My students who cannot, for a variety of reasons beyond their control, clerk after law school will never clerk.  I would love to clerk, still today, but I can never be 23 again.  When I apply to lateral now in academics, the omission of a clerkship a quarter century ago still stains my résumé.

The stains of access denied last for life.  That's how access to opportunity works in many sectors of the American job market: hallways of doors that are closed to ordinary people.  The liberal legal academy is no exception.

Video series sharpens writing for law school seminars just in time for research paper deadlines

I've posted at YouTube a video series aimed at helping law students sharpen their scholarly writing.

Eschewing production quality in favor of illustrative screen sharing, the series presents a range of self-assessment strategies culled from my decades as a teacher and legal writer, with a deep nod to my schooling and experience in journalism.  The series, "Better Law School Writing," is designed to help law students in seminars, or anyone attempting expository work, to step outside their writing and view it critically.

The four videos attack the writing project at four levels of abstraction, from (1) "the big picture," focusing on introduction and purpose (47 mins.), to (2) top-level organization (22 mins.), (3) paragraph-level assessment (19 mins.), and (4) sentence-level assessment (37 mins.).  I put some of my own work on the pyre for analysis, as well as draft work submitted by students in past years.  The lessons are not inter-dependent, so a writer might find any one useful to strengthen skills in an area of concern.

New England poli sci group announces virtual meeting, extends CFP deadline for faculty, grad students

NEPSA art

The New England Political Science Association (NEPSA) has decided that its spring 2021 annual conference will be all virtual.

The call for proposals (CFP) deadline has been extended to February 19, 2021. NEPSA will convene on April 23 and 24, 2021.  The CFP is open to faculty and graduate students.  I have tremendously enjoyed this conference in past years and found it to be a collegial, inclusive, and supportive environment for scholars both junior and senior, and both political science and interdisciplinary, including law students. 

NEPSA subject-matter sections are: American Politics, Comparative and Canadian Politics, International Relations, Political Theory, Politics and History, Public Law, Public Policy, and Technology and Politics.

Canadian privacy advocate deploys anti-SLAPP law in suit by electronic exam proctoring company

John Oliver's Big Coal SLAPP nemesis, Bob Murray, retires

Pixabay by Aksa2011

An IT specialist at a Canadian university is defending a lawsuit against a U.S. tech company over its allegations of copyright infringement and his allegations of infringement of student privacy.

Proctorio is an Arizona-based company offering online testing to academic institutions.  It's similar to ExamSoft, which is used by my law school, the Massachusetts Bar, and other academic and licensing organizations.

Needless to say, businesses in the mold of Proctorio and ExamSoft have taken off since the pandemic.  But these businesses are not without their problems, and their widespread use has brought unwanted scrutiny to their terms of service.

For example, the Electronic Frontier Foundation raised a red flag over ExamSoft in anticipation of its adoption to administer the California bar exam.  Examsoft's terms of service afford the company overbroad reach into the computers of users and, worse, collection of biometric data from studying their faces on screen.  My students have raised legitimate concerns about ExamSoft, and I will not be administering a "closed-book" final exam because I share those concerns.

UBC (GoToVan CC BY 2.0)

Related privacy worries motivated University of British Columbia learning technology specialist Ian Linkletter, MLIS, to tweet out the URLs of unlisted Proctorio instructional videos located at YouTube, meaning to make his case that the company is excessively intrusive of student privacy.  In response, the company sued Linkletter in British Columbia for copyright infringement and breach of confidence.

Now Linkletter has filed for dismissal under British Columbia's anti-SLAPP law.  Linkletter told the Vancouver Sun that fighting the lawsuit for just "more than a month has cost him and his wife tens out thousands of dollars."  Read more in Linkletter's public statement of October 16.

B.C.'s anti-SLAPP law was enacted unanimously by lawmakers in March 2019.  Oddly enough, B.C. lawmakers passed one of Canada's first anti-SLAPP laws in 2001, but quickly repealed it over doubts about its efficacy.  I wrote recently about the dark side of anti-SLAPP laws.  Never have I denied that they are sometimes deployed consistently with their laudable aims; rather, my concerns derive from their ready abuse when deployed against meritorious defamation and privacy causes.   

The case is Proctorio, Inc. v. Linkletter, Vancouver Reg. No. S-208730 (filed B.C. Sup. Ct. Sept. 20, 2020) (civil claim).

Bye, bye, Bob

[UPDATE, Oct. 27, 2020. To be clear, I wrote that sub-headline before this happened: "Coal giant Robert Murray passes away just days after announcing retirement" (Stephanie Grindley, WBOY, Oct. 25, 2020).]

In other, if distantly related, anti-SLAPP news, Bob Murray is resigning and retiring as board chairman of American Consolidated Natural Resource Holdings Inc., successor of Big Coal's Murray Energy.  It was a tangle with Murray that turned HBO comedian John Oliver into an anti-SLAPP champion.  And, I admit again, HBO's use of anti-SLAPP law was textbook and laudable after Murray brought a groundless suit against the network.

While I disagree with Oliver over anti-SLAPP, he's one of my favorite comedians and social activists, and definitely was the mic-drop-best live act I've ever seen.  Here are his key Murray Energy treatments from Last Week Tonight.

The first, June 18, 2017, drew Murray's lawsuit.

The second, November 10, 2019, followed up with a paean to anti-SLAPP, wrapping up with a musical tribute to Murray.

Communication education makes people better

Preparing for my Trump Litigation Seminar next week, I just re-read the final chapter of James Zirin's Plaintiff in Chief.  Variously attributed, Zirin catalogs the vocabulary of our truth-challenged culture, discussing "post-truth" (Oxford Word of the Year 2016), "truth [that] isn't truth," (Rudy Giuliani), "truth decay" (RAND), and "alternative facts" (Kellyanne Conway).  And, of course, who could forget the great Stephen Colbert's groundbreaking "truthiness" (The Wørd, and a real word).  Along with Trevor Noah, I've wondered at the breakdown in distinction between fact and opinion.  More than once, my wife, in slack-jawed witness of the news on TV, has declared the need for media literacy education in our K12 schools (and perhaps, I add, in our senior centers). 

Dr. Sherry Morreale (UCCS)

It turns out that media literacy is just one piece in the puzzle of what might be missing in our society today. Communication Professor Sherwyn P. Morreale has co-authored a series of scholarly articles on Why Communication Education Is Important.  Her third installment, co-authored with Joseph M. Valenzano and Janessa A. Bauer, has just won the 2020 Distinguished Article Award in the Basic Course Division of the National Communication Association (NCA).  The abstract speaks to the range of life skills that are bolstered by communication education (my highlighting).

The results of this study argue that communication, and specifically oral communication education, is critical to students’ future personal and professional success. Similar to two earlier studies, thematic analysis of 679 documents in academic and popular press publications, published from 2008 to 2015, provide support for the centrality of the communication discipline’s content and pedagogy. These results reinforce the importance of communication to enhancing organizational processes and organizational life; promoting health communication; enriching the educational enterprise; understanding crisis, safety, risk, and security; improving interpersonal communication and relationships; influencing diplomacy and government relations; being a responsible participant in the world, socially and culturally; developing as a whole person; and succeeding as an individual in one’s career and in business. The kinds of communication addressed as important in each of these nine general themes are outlined, and the results are compared with those in the first two iterations of the study.

This conclusion might seem self-evident to the academic outsider (technical term, "real people") but it readily escapes the grasp of the bean counters who run today's STEM-obsessed universities, where faculty in the social sciences (law included) are tormented with demands that their departments generate revenue to justify their existence.  Because that's why we educate people, for the money.

The current study is titled, Why communication education is important: a third study on the centrality of the discipline’s content and pedagogy, and appears at 66:4 J. Communication Educ. 402 (2017).  Dr. Morreale previously published, with co-author Judy C. Pearson, Why Communication Education is Important: The Centrality of the Discipline in the 21st Century, 57:2 J. Communication Educ. 224 (2008); and, with co-authors Pearson and Michael M. Osborn, Why communication is important: A rationale for the centrality of the study of communication, 29:1 J. Ass'n Communication Admin. 1 (2000).

Full disclosure: Dr. Morreale is my aunt.  She always was the cool aunt.  So her parents are probably to blame for my academic nature, and she, in part, for the nurture.

Research for educational opportunity, accountability requires transparency, need not forgo student privacy

When I had the privilege of working on transparency issues in the Arkansas General Assembly in the 20-aughts, two legislators and I promoted a bill that would have required public state universities to disclose data on their use of affirmative action in admissions.

One legislator, an African-American woman, reacted with manifest hostility, as if we sought outright to deprive persons of color of access to education.  I wish she would have engaged with us rather than fighting the bill behind closed doors.  It probably would have surprised her to learn that I was motivated specifically by an accusation leveled by an African-American advocacy group.  The group alleged, inter alia, that higher ed was using affirmative action to boost enrollment profiles, for PR and accreditation purposes, but then failing to support those enrolled students' success on state campuses.

I didn't know, and to this day don't know, whether the group's accusations held up as more than anecdotes.  As a transparency and accountability advocate and public educator myself, charged with the responsibility of faculty governance, I wanted to know the truth.  And there arose the problem: It was impossible to do the research, because the universities claimed, even in response to internal queries, that student privacy required nearly every datum about admissions to be held secret.  There was no way to know what students benefited from affirmative action, nor to match those data up with how those students fared.

The access bill ultimately failed, and, to my view, the reason for that failure only made the transparency case stronger.  We were not undone by objection based on equality of opportunity.  We were undone because our bill, which broadly defined affirmative action, would have required disclosure of legacy admissions: that is, when a university admits an applicant because the applicant is related to an alumna or alumnus, especially one who's a donor.  That kind of admissions preference is known to contribute to systemic discrimination against persons of color, not to mention aggravation of our alarming rise in America of socioeconomic disparity.

State Capitol, Little Rock, Arkansas

The hostility of the aforementioned African-American legislator was a warm smile compared with the outrage that poured forth from a white, male legislator, who happened also to be affiliated with Arkansas State University (ASU).  In a legislative hearing, he challenged my assertion that the universities would not happily cooperate with my research.  They would, he alleged, no legislation needed.  He persuaded his committee colleagues to no-pass the bill with a promise: After the legislative session, I should contact him personally for help procuring the data, and he would see to it that the disclosures happened.

The bill died.  After the session, I contacted our zealous ASU opponent, that he might make good on his promise.  He ignored my query and never responded.

My work on that bill fueled an ongoing interest in the interaction of access and privacy in education, especially the interaction of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, and state freedom of information acts (FOIAs) (e.g., in 2018).  In that vein, my Arkansas colleague Professor Robert Steinbuch and I have just published, Ongoing Challenges in Researching Affirmative Action in Legal Education: Maximizing Public Welfare Through Transparency, 26:1 Texas Hispanic Journal of Law & Policy 57 (2020).  Here is the abstract:

The public good often depends on social science research that employs personal data. Volumes of scientific breakthroughs based on data accumulated through access to public information demonstrate the importance and feasibility of enabling research in the public interest while still respecting data privacy. For decades, reliable and routine technical methods have ensured protection for personal privacy by de-identifying personal data. Social science research into legal education and admission to the bar is presently a matter of urgent public interest and importance, requiring solid empirical analysis of anonymized personal data that government authorities possess. Social science research into the effects of affirmative action represents standard, indeed commonplace, research practice furthering the public interest, while employing established methods that minimize the risk to privacy. Yet, when seeking information regarding admissions standards and success metrics, researchers have faced remarkable headwinds from government officials. In this article, we continue to discuss a topic to which we have devoted significant professional energy: the proper balance of privacy, transparency, and accountability in researching legal education.

Our research grew out of an amicus representation in 2018, alongside Professor Eugene Volokh at UCLA Law.

I'm not here naming the ASU-affiliated legislator only because, these many years later, I don't remember his name.  I have no hesitation in calling him out if someone can remind me.

Pertinently, the data in question are still held secret, in Arkansas and many states.  So my colleagues in FOIA research, including Professor Steinbuch, still would welcome that legislator's help.  It's shameful that this fight for transparency and accountability is still under way all these years later.  It's one thing to adopt a policy position and have reasoned disagreement over it.  It's another thing entirely, and anathema to democracy, to insist on a policy position while willfully concealing evidence of its efficacy.

Teaching and learning speech and advocacy: Is online as good?

The National Communication Association met in downtown Baltimore, Md.
(All photos by RJ Peltz-Steele CC BY-SA 4.0.)

UMass Law offers oral advocacy online. I was on the curriculum committee that approved a colleague's proposal for the offering. I was surprised. Oral skills online? Is nothing sacred?

I've used Zoom quite a bit: for class guests and snow make-ups. I took the university training to teach online courses in toto; I was uninspired by the shaky infrastructure and unproved methods, especially relative to the worthy rigors of legal education. At the same time, I like teaching the occasional online one-off, and online might work well for a seminar. The early miseries of teleconferencing (still the norm in the ABA) feel nothing like the real-time interactive experience offered by contemporary tools.

Anyway, I would not vote against a colleague’s well intentioned proposal. That would be unprofessional.

Well, when you don’t know, ask an expert. At the National Communication Association annual meeting in Baltimore on Saturday, experts in public speaking debated whether the communication discipline’s most popular basic course, Public Speaking, should be taught online.

Keohane and Broeckelman-Post

In the yes camp were Melissa Broeckelman-Post, George Mason University, and Jennifer A. Keohane, University of Baltimore. They structured their argument on three points: (1) we must teach for the 21st century; (2) public speaking can be taught online effectively; and (3) online classwork enhances access to higher education.

On the first score, they cited research showing that in 2018, the number of online first job interviews doubled, and more than half of professionals telecommute at least half the week. Hillary Clinton was the first candidate to announce for the Presidency online. And globalization is pushing demand for long-distance teamwork, having to surmount communication hurdles from the technical to the cultural.

Huddy and Morreale

On the second score, Broeckelman-Post and Keohane argued that speaking competencies can be achieved through online learning, as measured in student reports of positive experience, diminished anxiety, and increased confidence. The no side referenced research showing contrary results on anxiety and confidence. On rebuttal, the yes side said that the most recent research shows at least equal efficacy by these measures, and maybe somewhat better anxiety reduction with online.

On the third score, Broeckelman-Post and Keohane argued that educators' responsibility to ensure access to education demands online teaching. They cited research counting 74% of college students as “nontraditional,” including military, parents, disabled persons, commuters, and others who are financially independent. Also, dual enrollment in college coursework is on the rise, including more than 1.2 million high schoolers.

In the no camp—though in truth, this was in large measure devil’s advocacy—were Sherwyn P. Morreale, University of Colorado, Colorado Springs, and William P. Huddy, Metropolitan State University of Denver. They appealed more to qualitative than quantitative sources.

Morreale

Morreale cited three components of student communication competence (Spitzberg 2000), motivation, knowledge, and skills. Motivation is fueled by anxiety diminution and confidence enhancement, which (at least earlier) research showed were better achieved in the live company of a supportive community and instructor. Higher order learning is accomplished through discussion and reflection, which Morreale argued are accomplished more readily in the live presence of an instructor. And as to skills, Morreale posited that conventional public speaking skills are adaptable to online communication, but not necessarily vice versa. In later discussion, Morreale conceded that the no side made an apt point on the value of students’ acquisition of tech skills, such as speaking into a mic and looking into a camera, if besides conventional skills.

Morreale pointed also to the six core components of instructional communication competence (Beebe & Mottet 2009), immediacy, affinity-seeking, relational power, credibility, clarity and humor. Live communication epitomizes immediacy and better allows a speaker to exercise relational power, she argued. Credibility and clarity are achieved best without the intermediation of mics and speakers, and humor is more readily generated in person.

Huddy

Huddy made a compelling personal appeal. His work history includes ten years as a television anchor, and he described his process of video-recording and watching himself to study and enhance his communication looking into a camera lens—thereby to manage the camera’s limitations, becoming accustomed to missing what can only be achieved in person. “Eye contact is not just gestural or theatrical,” he said. “It’s my number one opportunity to see if what I am saying is getting across to you. There’s a young lady in the back there that is kind of smiling,” he observed, telling him that what he was saying was resonating with her.

Huddy described the cruciality of de-centering in public speaking (I missed the attribution), meaning putting yourself mentally in your audience's thinking, and evolving on the fly the main points that the audience wants to hear. Learning to do that with live visual cues has no equal of experience, he argued. Effective public speaking requires richness, authenticity, and warmth, he explained, and warmth only communicates in person. An audience member in the Q&A offered some pushback, observing that she experiences a kind of warmth with students online incidentally by seeing them in their home contexts—with nagging siblings, dogs, and other home pandemonium unfolding on screens' edges.

Thorpe, Keohane, Morreale, Huddy, and Broeckelman-Post

The audience voted in the end for who won the debate and, separately, whether to offer public speaking online. Yes took both honors, which probably says a lot about the future of higher education, communication and other fields. In truth, as indicated above, Morreale and Huddy took the hard no position for sake of debate and critical analysis. Morreale in fact eagerly teaches public speaking online. All agreed that the key is not whether to teach online, but how to do it well. I imagine that should be our take-away for legal education, too.

The session was moderated by Janice Thorpe, University of Colorado, Colorado Springs. Susan Ward, Delaware County Community College, offered insightful responsive commentary.