Smith College and its President Kathleen McCartney are under fire for its treatment of employees after a student, Oumou Kanoute, accused the school of racism in an incident with a security officer and a lunch worker. The incident was disproven but McCartney and the college (as well as the media) treated the allegation as manifestly true — resulting in destruction of the reputations of a number of employees who were labeled as racists or examples of white privilege. To this day, McCartney remains unapologetic for her failure to guarantee due process and fairness for these employees, even after an investigation of the incident in a recent New York Times piece. Continue reading “Smith College Under Fire For Treatment Of Employees After Disproven Bias Incident”
We have been discussing disciplinary measures taken against faculty who engage in the public debate over social and political issues ranging from the Black Lives Matter movement to police misconduct to systemic racism in society. Now Professor Gregory Manco, a math professor at St. Joseph’s University, has been suspended after he made arguments opposing reparations on Twitter. Few media outlets beyond conservative sites like The College Fix are covering the controversy but it raises serious questions over the curtailment of free speech for both faculty and students in expressing opposing views in our ongoing national debate over social, economic, political, and legal reforms.
We just discussed the case of a John Marshall law professor who was suspended after using the censored version of the “n-word” on an exam. Now, another widely reported case has been resolved involving a professor who used the word in a class addressing such offensive terms. However, the restatement by Duquesne President Ken Gormley has a curious but signature touch: it may be rescinded if Professor Gary Shank ever engages in similar conduct. (It is reminiscent of Gormley’s earlier position that President Joe Biden could “unpardon” former president Donald Trump). The reinstatement however still does not resolve questions of academic freedom and indeed magnifies such concerns with its punitive elements. Continue reading “The Unpardoning Option? Duquesne President Issues Controversial Conditions For The Reinstatement Of Professor Who Used N-Word In Class”
There have been a variety of reported conflicts in school districts over curriculum changes and materials addressing racism, including the recent controversy in New York where white families were asked to chose between such “white identities” as “white supremacist” and “white traitor.” Such controversies make for poor lawsuits since they reflect policy, curricula, or programmatic choices of a given district. It becomes a legal matter when a district punishes parents for objecting to such material. That is part of the allegations raised in a recently filed lawsuit by the conservative group Judicial Watch. It is representing fired high school football coach Dave Flynn who alleges that he was terminated by the Dedham High School after raising objections as a parent over the course material in his daughter’s World Geography and Ancient History class. While I have not seen the school’s answer, the lawsuit highlights troubling allegations over how the district handled the matter and allegedly retaliated against Flynn. Continue reading “Fired High School Coach Sues Massachusetts School In Free Speech Lawsuit”
Jason Kilborn is a professor at John Marshall Law School at the University of Illinois-Chicago who wrote a Civil Procedure exam based on an employment discrimination hypothetical. The question referenced the use of racial and sexual epithets but, rather than use the words, Kilborn used commonly censored versions of just the first letter and blanks. That led to his suspension at the school and now, after he was reinstated, University of Illinois-Chicago Chancellor Michael Amiridis has issued a letter to the Foundation for Individual Rights in Education (FIRE) that did little to quell concerns over academic freedom. Indeed, it seemed to minimize those concerns. While I disagree that the letter was a categorical denial any academic freedom protection, the controversy is chilling for those who see both free of speech and academic freedom being eroded on our campuses. (For full disclosure, I have an honorary degree from John Marshall Law School).
There was a palpable sense of relief in Washington as the Trump trial came to a chaotic but final end. The verdict is in so now the vilification can begin. Both Majority Leader Chuck Schumer and Speaker Nancy Pelosi immediately weaponized the verdict and demonized those who voted to acquit. While the Democrats insisted that all senators should “vote their conscience” that only meant if their conscience supported their side. Pelosi denounced opposing senators as cowards while Schumer lashed out at them for holding an opposing view of the evidence or the process. While groups are targeting members on both sides of the trial, our leaders should be calling for unity and civility after the trial. Instead, they are fueling the politics of division.
When the House moved to impeach President Donald Trump for a second time, I wrote a column on the similarities to the William Belknap impeachment in 1876. The vote of the Senate to continue the trial despite a constitutional challenge over the use of a retroactive trial bore striking resemblance to that earlier decision. That should be good news for Trump. The Senate declared the trial constitutional and effectively over by its 56-44 vote. Continue reading “The Belknap Margin: The Senate Decision Shows Not Much Has Changed Since 1876”
Recently, Laurence Tribe bizarrely claimed that “not long ago” I argued in favor of retroactive trials in reference to my Duke Law Journal article from 21 years ago. Now, the House managers have claimed that I supported retroactive trials up to a few weeks ago. Rep. Joe Neguse cited my Duke piece at length to support the basis for retroactive trials after saying that I supported such trials until the last few weeks. I felt Neguse did an excellent job in his argument but any suggestion of a recent change would be untrue. His reliance, however, on the Duke article was not misplaced. I did and continue to recognize the value of such trials — and certainly the historical use of such trials. It is the jurisdictional question that has changed for me. It is true that I did not have reason to write publicly on the Trump retroactive trial until a few weeks ago (like many scholars), but my underlying views changed years before. However, if my views of 21 years ago are going to be cited as recent or “not long ago,” I would at least appreciate the use of my thinner photos from the 1990s. To give you an idea of how “recent” this was, here is my picture when I wrote those words. I will now insist on it being used as a recent image.
“The First Amendment does not apply in impeachment proceedings.” If there is a single line that sums up the sense of legal impunity in the second Trump impeachment, it is that line from a letter sent by law professors to deny any basis for the former president to challenge his impeachment on free speech grounds. The scholars call any such arguments “legally frivolous” but only after misstating the argument and frankly employing a degree of circular logic. While I agree with aspects of the letter, I believe that the thrust of the letter misses the point of those of us who have raised free speech concerns. Continue reading ““The First Amendment Does Not Apply”: A Response To The Letter Of Scholars In Rejecting Trump Arguments Under The First Amendment”
Alison Collins, the Vice President of the San Francisco Board of Education, has declared meritocracy to be racist even in the selection of students at advanced or gifted programs. As we have previously discussed, this has been a building campaign in academia as educators and others denounce selection based on academic performance through testing. At issue in San Francisco is Lowell High School where top students were selected through testing and grades. Most cities have such gifted programs or institutions, though we have discussed calls for the elimination of all gifted and talented programs in cities like New York. Lowell had a majority of white and Asian students and only two percent of its student body were African-Americans. Collins and other board members want to abolish the merit-based selection in favor of a blind lottery system. Continue reading ““We Cannot Mince Words”: San Francisco Education Official Denounces Meritocracy As Racist”
Over the last four years, we have seen an alarming trend of law professors and legal experts discarding constitutional and due process commitments to support theories for the prosecution or impeachment of Donald Trump or his family. Legal experts who long defended criminal defense rights have suddenly become advocates of the most sweeping interpretations of criminal or constitutional provisions while discarding basic due process and fairness concerns. Even theories that have been clearly rejected by the Supreme Court have been claimed to be valid in columns. No principle seems inviolate when it stands in the way of a Trump prosecution. Yet, the statement of House manager Rep. Jamie Raskin, D-Md., this week was breathtaking. A former law professor, Raskin declared that the decision of Trump not to testify in the Senate could be cited or used by House managers as an inference of his guilt — a statement that contradicts not just our constitutional principles but centuries of legal writing. Yet, it appears a signature of this team of House managers. Rep. Eric Swalwell earlier insisted that the failure to then President Trump to turn over documents should be cited as evidence of guilt on any underlying claims.
There has been much press about the New York University study, “False Accusation: The Unfounded Claim that Social Media Companies Censor Conservatives.” It is being touted by the media as establishing that any allegations of bias against conservatives is “disinformation,” the term used by authors Paul M. Barrett and J. Grant Sims of the NYU Stern Center for Business and Human Rights. That term of course is now used as a basis for flagging or censoring material. The problem is that the study is largely conclusory and, though buried in the study, acknowledges that it is not based on any real hard data and is therefore “inconclusive.”