Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. . . . From today’s vantage point, one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.

Although O’Connor and her colleagues upheld the constitutionality of the University of Michigan Law School’s affirmative action program at issue in Grutter, her opinion reflected a belief that affirmative action programs would draw to a close at some future point.

Data released by the College Board, the organization that administers the SAT exam, at the end of August suggests, however, that the end date for affirmative action is probably still a long way off. 

Once again, Non-Hispanic whites and Asians scored significantly higher on the SAT than African-Americans and Hispanics, and the pattern of scores provides no evidence that the gap is closing.  Over 1.5 million college-bound seniors took the test, the largest number in history.

The SAT now consists of three sections — writing, critical reading, and mathematics — each of which is scored on a scale that ranges from 200 to 800.  Since April 1995, the targeted median score on each test has been 500 (rather than 450 as it was before).  Consequently, the range of combined scores is 600 to 2400, with an “average” score being 1500.  The actual average for the 2008-09 academic year was 1504, essentially the same as it was the previous year.

For the test as a whole, Asian students scored 1633 compared to 1581 for non-Hispanic whites, with most of the disparity resulting from a significantly higher mathematics score.  Other groups did not do nearly as well.  The scores of Native Americans and Eskimos averaged 1448; Hispanics, 1364; and African-Americans, only 1273.  Males of all races, who counted for only 46.5 percent of test takers, outscored females, 1523 to 1496.

Much of the discrepancy in racial performance is due to socio-economic factors that adversely affect black and Hispanic adolescents.  Low family incomes, single-parent homes, low levels of education in the family, and the lack of role models who have achieved academic success all contribute to poor test performance. For example, students of all races with family incomes of $200,000 or more averaged 1702 on the SAT; those with family incomes of below $20,000 scored 1321.  Students whose parents had at least one graduate degree averaged 1683; those who parents had not finished high school scored only 1281.

With this kind of disparity in SAT scores, only affirmative action programs can guarantee that African-Americans and Hispanics will be proportionally represented at America’s more selective colleges and universities.  Although we may reach Justice O’Connor’s sunset at some point, right now we are clearly still in the middle of the day.

A glance at the Constitution reveals that there is much more to the document, some of it mysterious. There is, for example, talk of “Emoluments,” “Letters of Marque and Reprisal,” and “Corruption of Blood.” Indeed, large portions of the Constitution make at best infrequent appearances in public discourse. There is, one might say, an Overlooked Constitution.

The Overlooked Constitution will be the theme of our Constitution Day observation at the law school this year. As most are probably aware, in 2004 Senator Robert Byrd introduced an amendment to an appropriations bill that, when ultimately enacted, required all educational institutions receiving federal funds to hold educational programs relating to the Constitution on September 17 (which is the date on which, in 1787, the delegates to the Constitutional Convention in Philadelphia signed the Constitution at their final meeting).

In accordance with this mandate, four panelists will present brief talks concerning provisions in the Constitution that are infrequently discussed. The speakers and their topics are as follows:

Professor Stephen Engel, Marquette Department of Political Science: The Membership of Congress clause of Article 1, Section 5.

Professor Ed Fallone, Marquette Law School: The “Republican Form of Government” clause of Article 4, Section 4.

Professor Nora O’Callaghan, Marquette Law School: The Forgotten Thirteenth Amendment.

Professor Stephen Vladeck, American University Law School: The “Calling Forth” clause” of Article I, Section 8. Lunch will be provided. More information here .

A student has filed a lawsuit against Los Angeles City College, claiming that he was giving a class-assigned speech on same sex marriage (which he apparently opposes) and his instructor interrupted him calling him a “fascist bastard.” The instructor then dismissed the class without allowing the student to finish and, on his evaluation sheet, did not enter a final score. Instead, he wrote that the student should  ”ask God what your grade is.”

I have to admit that there is part of me that admires the attempt to recruit divine assistance at grading time, but this is a serious matter. It does not appear that the college is defending the instructor and claims that it will take appropriate steps to deal with the instructor and protect the student. It says, however, that the instructor’s privacy must be respected and any disciplinary action may not be made public.

A few things interest me.

The first, of which this is a larger part, is the rancor that has roiled California in the wake of Proposition 8. As I have blogged before, opposition to same sex marriage is viewed, by a portion of the population, as the moral equivalent of racism and something that ought not to be tolerated in civil society. Thus, some have worked to disclose the identity of supporters of the measure in ways that make it easy for others to find them. The American Association of Law Schools deemed it appropriate to refuse to hold meetings in a hotel owned by a prominent Propostion 8 supporter. While I think everyone agrees that the instructor (if the allegations are true) acted improperly, he was merely expressing — at the wrong time — what a not trivial number of Californians seem to believe.

This presents, I think, a variety of difficulties for civil libertarians. Many believe that disclosure of donations to candidates and ballot measures is vital information that assists the public in evaluating the messages they finance. Yet, use of that information to pressure donors threatens to stifle public participation.

Opponents of measures like Proposition 8 have a right to speak their minds and many apparently do believe that opposition to same sex marriage is rooted in hate. But does the choice to frame the issue in this way poison political dialogue in a way that prevents the development of consensus on SSM and related issues? Is any significant degree of consensus even possible?

And what about the college’s insistence on the privacy of the instructor? Let’s put aside the question of whether California law requires this (as general counsel of a national company, I came to learn that California is one huge legal outlier).  If an instructor discriminates against a student on the basis of race, religion, gender, etc., should the university disclose whatever action it has taken in the interest of assuring the student (and the broader community) that it takes such matters seriously?

Finally, there may be a question as to whether the student’s speech was responsive to the class assignment, i.e., that it was persuasive as opposed to informational. Putting that aside, what of the instructor’s objection to its religious content? The instructor wrote on the evaluation form that the speech was inappropriate for a public school. Is that right? Should public schools assume responsibility for protecting student from unwanted religious messages delivered by other students? And, if they should, does this impose on them a duty to protect students from irreligious messages delivered by other students? What if those messages are ostensibly secular, but inconsistent with or, to make the case stronger, derisive of the religious beliefs of the hearer?

What gets this obscure Canadian professor a column in the New York Times is not his solution of the Invar Problem of metal physics, but rather the fact that he is a self-professed and practicing academic anarchist. His profile describes himself as “an activist, anarchist, and critical pedagogue.” If his anarchistic activism were limited to speaking and writing, he would be just another campus radical. What got him headlines and an official Recommendation of Termination of Employment from his $120,000 professorship was his pedagogical activity. For example:

In 2005, without administration or general faculty approval, he experimented with using pass/fail grades in lieu of letter grades.

• He also changed course content from what appeared in official university publications, a process in which he sought and obtained the consent of only the students enrolled in the course, a practice he calls “academic squatting.”
• He created and maintained an anarchist blog sharply critical of the university administration and urging other professors to engage in “academic squatting.”
• When the university revoked the enrollment of 10 year old twins who registered with their mother for one of Professor Rancourt’s courses, he supported the twins’ filing of a human rights complaint against the university claiming ageism.

On the first day of Professor Rancourt’s 4th year physics course in the second semester of 2008, he announced that each of the 24 senior and graduate-level students would receive a grade of A+. As the Globe and Mail newspaper reported, “it was not his job, as he explained later, to rank their skills for future employers, or train them to be ‘information transfer machines,’ regurgitating facts on demand. Released from the pressure to ace the test, they would become ’scientists, not automatons,’ he reasoned.” This turned out to be the straw that broke the camel’s back. On December 10th, Rancourt was informed that he was being placed on academic suspension and recommended for dismissal from the faculty. He was also locked out of his laboratory and barred from campus. When he came to campus to host a meeting of his film society focused on social activism, he was arrested, handcuffed, and charged with trespassing.

It appears that the university authorities are in the process of deciding whether to dismiss Rancourt. The Canadian Association of University Teachers is independently reviewing whether Rancourt’s academic freedom has been or is about to be violated.

(For a more complete picture of Professor Rancourt and his relationship with his university, see the videos at YouTube when you search “Denis Rancourt.”)

Was the university justified in suspending Rancourt? In locking him out of the laboratory as well as the classroom? In banning him from campus? In having him arrested, cuffed, and criminally charged with trespass? In dismissing him (if dismissal occurs)? Stanley Fish has little sympathy for Rancourt. He wrote:

Last week we came to the section on academic freedom in my course on the law of higher education and I posed this hypothetical to the students: Suppose you were a member of a law firm or a mid-level executive in a corporation and you skipped meetings or came late, blew off assignments or altered them according to your whims, abused your colleagues and were habitually rude to clients. What would happen to you?

The chorus of answers cascaded immediately: “I’d be fired.” Now, I continued, imagine the same scenario and the same set of behaviors, but this time you’re a tenured professor in a North American university. What then?

I answered this one myself: “You’d be celebrated as a brave nonconformist, a tilter against orthodoxies, a pedagogical visionary and an exemplar of academic freedom.

He added that “some academics contrive to turn serial irresponsibility into a form of heroism under the banner of academic freedom . . .”

I confess to having some sympathy for Rancourt.

I have long had a deep hostility to the tyranny of academic grades. In my second year of law school teaching, I made a written motion to the faculty that we shift from our (then) numerical and oppressive grading system to a pass/fail/honors system. Not surprisingly, the motion failed for want of a second. Over a couple of decades of teaching, I encountered many students who more interested in the grade to be obtained from a course than in mastery the subject matter. Competition for grades and class rank led to joy and anticipation for some students but dejection and resignation for many more. Both those at the top of the class and those in the vast middle tend to place much too much emphasis on grades. I recall vividly one young man crying in my office. He received a very creditable grade in my evidence course, but it wasn’t quite an “A” and his class rank was not in the top 10%. He was going through a rough time with serious illness in his family so his law school performance was hardly the only thing on his mind, but he felt like a failure. I asked him what grade he got for honesty, what grade for good judgment, what grade for empathy and the ability to relate well to other people, etc. He looked at me as if I were nuts, of course, but I reminded him that there’s a lot more to becoming a good and successful lawyer than the grades one gets in law school. He is practicing today in one of Milwaukee’s well respected medium sized law firms. I can’t know but I suspect he is an excellent lawyer, every bit as capable as his classmates who received higher grades.

In my third year of teaching I engaged in a subversive initiation of anonymous grading. I was appointed to the faculty upon my graduation from the law school in 1970, i.e., in the middle of the Vietnam War. I had served in Vietnam in the Marines prior to starting law school in 1967 and by 1969 I was no longer subject to being called back to active duty as a member of the standby reserves. Most of my classmates on the other hand were subject to the draft and many were in fact drafted. Many others joined the active reserves in order to avoid the draft. When they finished their 2 years of active duty as draftees or 6 months of active duty as reservists, they returned to complete their legal studies. Thus when I started to teach (and test and grade) students, some of my former classmates were now my students. There was a fair amount of paranoia about grades in those days and the last thing I wanted to deal with was claims of favoritism towards friends and former classmates. I also didn’t want to deal with tension I might feel grading the bluebooks of students who were my friends, so I devised an anonymous grading system and used it – without clearing it with the administration or the faculty. Why? Because I knew it would never be approved. Better to seek forgiveness than permission. As I expected, I had a number of very upset colleagues when my transgression was discovered.

I never thought there were academic freedom issues in connection with my unhappiness over the law school’s examination and grading policies in the 1970s, but there were rare occasions when such claims arose. One visiting professor awarded a large number of very low grades and refused to change them in the face of great student, faculty, and administrative displeasure. Academic freedom? When a student complained to a former dean that his passing grade in one course was too low, the dean had the protesting professor produce the exam and blue book to be reviewed by an associate dean. Academic freedom? A junior faculty member assigned a mid-semester book review to his class of 1Ls, causing a senior professor to complain that the assignment led many students in his class to plead “not prepared” when called upon in the days before the assignment was due. Pressure was put on the junior faculty member to stop requiring midsemester book reviews in his class. Academic freedom? When grading norms were adopted by the administration with faculty concurrence, some faculty members claimed infringement of academic freedom. True?

I suspect that 99% of law professors go through their entire careers with no issue of academic freedom arising. This is probably a good thing, certainly better than living with the kind of the kind of intense campus turmoil created by Professor Rancourt. I vote with Stanley Fish on this issue.

My final post is, in fact, the abstract of a piece I have just posted to SSRN. Earlier this year, you may have seen that Fordham’s law school received some heat from Edward Cardinal Egan, Archbishop of New York, for its decision to confer an award on pro-abortion Justice Stephen Breyer.  The story led me to do some investigating, drawing in part on my own experiences as a Marquette student, and voila, an essay emerged. I hope to begin shopping it around to law reviews in the spring submission season.

Here’s the abstract:

In the fall of 2004, the U.S. Conference of Catholic Bishops promulgated a statement titled Catholics in Political Life , which included this provision: “The Catholic community and Catholic institutions should not honor those who act in defiance of our fundamental moral principles. They should not be given awards, honors or platforms which would suggest support for their actions.”

Since the statement’s adoption, a number of Catholic institutions, including law schools at Catholic universities, have issued invitations to speakers and honorees who are pro-abortion or pro-gay marriage. In several instances, the local bishop gave a public or private rebuke to the law school for doing so. These episcopal criticisms often lead to a news story and an outcry from students, alumni, and area Catholics, bringing further embarrassment to the school.

My hope is that this essay will help law school deans and other university administrators navigate the tensions inherent in making these invitations, all with an eye on avoiding awkward situations. The essay begins by recounting the history of the statement’s passage by the USCCB. It then collects a number of examples where bishops and universities have clashed over invited speakers and honorees. Finally, it offers lessons for law school deans, urging them to pursue dialogue with stakeholders before making invitations that could come within the statement’s scope.

The student emailed a hand-picked group of 391 faculty members (roughly eight percent of the total at M.S.U.), asking them to speak up about a proposal by the school administration to change the calendar.  What is truly mind-boggling about the decision to discipline that student is that the administration had itself solicited comments on the change from the faculty; the email was designed to encourage the faculty to take advantage of that offer.

At least this violation of a network’s terms of use policy wasn’t found criminal.

Texas A&M International University in Laredo fired a professor for publishing the names of students accused of plagiarism.

In his syllabus, professor Loye Young wrote that he would “promptly and publicly fail and humiliate anyone caught lying, cheating or stealing.” After he discovered six students had plagiarized on an essay, Young posted their names on his blog, resulting in his firing last week.

“It’s really the only way to teach the students that it’s inappropriate,” he said.

Young, a former adjunct professor of management information systems, said he believes he made the right move. He said trials are public for a reason, and plagiarism should be treated the same way. He added that exposing cheaters is an effective deterrent.

This seems like a shaming method of punishment. Does it actually matter whether it works as an effective deterrent or is the medicine much worse than the disease?

Cross posted at Workplace Prof Blog.