It seems almost certain that the Supreme Court will again take up the issue of affirmative action in higher education, as two highly controversial cases separately make their way up the appellate ladder.

On two occasions, Regents of the University of California v. Bakke (1978) and the companion cases of Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), the Supreme Court has, by narrow 5-4 majorities, upheld the constitutionality of college and graduate school admissions programs that take race into account when making admissions decisions. In the same cases, the Court, also by 5-4 votes, struck down the use of formal admissions quotas (Bakke) and the awarding of a specific number of points for race in a numerically-based admissions systems (Gratz) as running afoul of the Equal Protection Clause of the Fourteenth Amendment. Although there was no clear majority sentiment on this point, the use of race as an admissions “consideration” was famously justified in opinions by now-former justices Lewis Powell and Sandra Day O’Connor as a way of achieving the “compelling state interest” in “diversity” in the composition of college and university student bodies.

In the first of the new cases, Fisher v. University of Texas, Abigail Fisher and a number of other unsuccessful white applicants to the undergraduate program at the University of Texas argue that they were denied the opportunity to attend the university because of its policy of taking race into account in making some of its admissions decisions.

The University of Texas uses an admissions system that guarantees admission to students who graduate in the top ten percent of their Texas high school classes. This system accounts for 81% of admitted students, but the other 19% are chosen through a competitive process in which race is taken into account as one of multiple factors used to determine which students will be offered admission. The policy was adopted following the Supreme Court’s decision in Grutter in which a similar practice by the University of Michigan Law School was upheld.

Fisher’s suit was dismissed by the federal district court on the grounds that this issue had been resolved by Grutter. On appeal to the Fifth Circuit, the three-judge panel unanimously upheld the decision of the district court, although one of the three, Judge Emilio Garza, filed a concurrence in which he forcefully questioned the correctness of the Grutter decision.

Fisher then petitioned for an en banc hearing, which was denied, although by a narrow vote of 9-7, with Chief Judge Edith Jones filing a dissenting opinion which was joined by four of her colleagues.

Fisher then petitioned to the United States Supreme Court for a writ of certiorari, and the petition remains on the Court’s current docket. To date, the University of Texas has, somewhat mysteriously, refused to respond to the petition, although at least six amicus briefs have already been filed. The Supreme Court has already taken the unusual step of formally requesting a response from the University, which now has until November 30, 2011, to file a reply or request an extension of the time to do so.

Should cert be granted, it is still possible that Fisher could still be argued before the full court during this term.

Two questions jump out in regard to this case. The first has to do with the personnel changes on the court since 2003. Is there now a five-justice majority willing to overturn the Court’s Grutter decision? Many observers think there is. Presumably, Chief Justice Roberts shares the affirmative action views of his predecessor Chief Justice Rehnquist, but there are strong reasons to believe that Justice Alito’s views are more in line with those of strongly anti-affirmative action justices Scalia and Thomas than they were of his predecessor, Justice Sandra Day O’Connor. However, the matter is somewhat complicated by the increasingly unpredictable views of Justice Kennedy, who could conceivably shift over to the pro-affirmative action side.

The other interesting issue raised by Fisher involves a question of standing. No court has yet ruled that either Abigail Fisher or any of her other co-appellants would have been admitted to the University of Texas had it not been for the school’s practice of taking race into account. This is a recurring problem in reverse discrimination cases: how does a plaintiff establish conclusively that he or she has Article III standing to challenge an allegedly unconstitutional admissions system that may (or may not) have affected them adversely?

It is possible, of course, that the trial court could reach such a conclusion, as it apparently did in Bakke and Grutter, but in this case there was really never an opportunity to do so, since the district court believed the question to be irrelevant under Grutter.

The Supreme Court may (or may not) have reached this issue in its 1999 decision in Texas v. Lesage, a Section 1983 action filed by an unsuccessful white applicant for a graduate program at the same University of Texas. In that case, the Supreme Court unanimously dismissed the plaintiff’s action, but there the trial testimony had included evidence that Lesage would not have been accepted to the program, even if all of the available slots had been filled by Caucasians. (My friend Vik Amar has written a very intelligent commentary on this question which can be found at http://verdict.justia.com/2011/10/28/an-update-on-the-fisher-v-university-of-texas-affirmative-action-case.)

The second of the two new cases involves an amendment to the Michigan state constitution enacted after the Supreme Court’s decision in Grutter. The amendment was designed to achieve what the Gratz-Grutter litigation had not. Similar state constitutional amendments had earlier passed in California and Washington.

The Michigan Civil Rights Initiative, formally known as Proposal 2, was a proposed amendment to the Michigan Constitution that was adopted by a public referendum in 2006, by a vote of 58% to 52%. The amendment prohibits any agent of the state from discriminating against, or giving preferential treatment to, anyone on the basis of race, sex, color, ethnicity, or national origin.

The Proposal 2 amendment was sponsored by a number of groups, including noted black anti-affirmative action activist Ward Connerly and the Michigan Civil Rights Initiative, whose executive director was Jennifer Gratz, the successful plaintiff in Gratz v. Michigan.

A number of different legal challenges have been filed against Proposal 2. An effort to have it removed from the ballot in 2006 as inconsistent with the federal Voting Rights Act was unsuccessful; however, after its adoption, it was again challenged on the theory that the amendment violated the Fourteenth Amendment to the United States Constitution.

In 2008, the United States District Court for the Eastern District of Michigan upheld the constitutionality of the Michigan Amendment, but that decision was recently reversed by a 2-1 decision of the Sixth Circuit Court of Appeals in Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. At the end of June, the court ruled that the amendment “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” The state of Michigan has petitioned for a hearing en banc, and as of the end of November, no ruling on the request has been issued.

While the Michigan case will not be part of the Supreme Court’s 2011-12 docket, it may well hear the matter the following year.

The Supreme Court has avoided making a conclusive ruling on the constitutionality of race-based affirmative action for almost forty years now, but the issue has a way of coming back time after time. However, with all the evidence pointing toward a sharply and evenly divided court, it is unlikely that these cases, if they are in fact heard, will be the end of the story.

Speaking during an “On the Issues” session with Mike Gousha, distinguished fellow in law and public policy, in the Law School’s Eckstein Hall, Pilarz described Marquette as one of the nation’s great universities. He said great universities successfully walk a tightrope in which student education and research are complementary, not competitive, interests.

Asked by Gousha what other universities he felt Marquette was competing with, he said, “I think we’re competing with Marquette to be the best Marquette we can be.” He said university leaders shouldn’t  spend a lot of time looking over their shoulders.  “We’re a major national university,” Pilarz said. The focus should simply be, “How do we improve Marquette?”

Pilarz took office as president on Aug. 1. Ceremonies to inaugurate him officially are scheduled for Thursday and Friday.

Gousha asked what the new president does best.  Pilarz answered, “Listening. Listening. And admitting what you don’t know. That’s really important.” He said it was important to listen to “not just the likely  suspects” and to not only the good news. “I think it’s really important for me to say, from time to time, ‘I don’t know. I need to learn that.’ And in order to learn, I need to listen to people.”

In addition, as president, Pilarz said, “I think you have to be the great story teller for the institution. . . . Let the world know what great things are happening at Marquette and why this is such an important and exciting place.”

Pilarz downplayed his own qualifications to tackle Milwaukee’s problems  (“If Milwaukee has a 16^th Century poetry problem, I’m your guy”), but talked up the role Marquette can, should, and already is playing. His role, he said, is help that occur.

“We have a responsibility as a Jesuit university to promote justice, and a big part of promoting justice is to attend to economic issues,” Pilarz told the audience of about 200.

He said other local college presidents look to Marquette for leadership on community engagement and respect Marquette’s faculty resources. “Think of the brain power we’ve got on this campus and the ways we can harness all that great intellectual power” in dealing with Milwaukee’s issues, Pilarz said. “I would love to see us move more in those directions.” He said Marquette students are doing “some amazing things” in community service.

In other matters, Pilarz said he had sent Marquette students  a firm message that the university has zero tolerance for sexual misbehavior; that student safety is his “baseline” concern when it comes to the future of the campus and that Marquette is “doing great” overall on that front; and that the university needs to do all it can to be affordable, especially for students who are the first in their families to go to a university.

Amid news about major changes in the membership of the Big East basketball conference, Pilarz said he was determined to keep Marquette competing at the highest level of college competition and that he is working with other Big East presidents on the issue.  Amid speculation that a basketball conference of Catholic universities might emerge, Pilarz said, “I don’t think we want to limit ourselves along sectarian lines when it comes to college athletics.”

The session with Father Pilarz may be viewed by clicking here.

Permit me to repeat what I said a year ago concerning Prof. Rofes. The context was my reporting to students, in my beginning-of-semester letter, that Prof. Rofes had elected to return this academic year to full-time faculty duties, in the tradition of the Law School, after lengthy service as director of the part-time program and associate dean for academic affairs. I wished to explain “my thanks and admiration”:

I have been especially impressed by Prof. Rofes’s ability—even while administering the academic program, including determining course offerings, working with full-time and adjunct faculty, overseeing the schedule, and running the Academic Support Program—never to lose sight of the individuals with whom he works and never to fail to make time, for example, for the individual in need of time, attention, or assistance. There is a lesson for you in his work. For your work as a lawyer also will be in support and service of others; indeed, the work of the lawyer inheres most basically in the attention to and care for another. I express at graduation my hope that you have found some models in these, your early days in the profession. You—we—would do well especially to consider the important ways in which Prof. Rofes is an exemplar.

Congratulations, Peter—and thank you.

The Education Trust study focuses on comparative graduation rates for black and white students at the same colleges and universities.  Data was collected from 456 colleges and universities throughout the United States.  For the study as a whole black students are twenty percent less likely to graduate from college than their white counterparts who attend the same school.

However, the discrepancy in graduation rates is not uniform.  At some colleges and universities, African-Americans graduate at the same or nearly the same rate as white students.  At other schools, the gap is as wide as thirty-four percent.

Although the Education Trust study does not address the issue of regional variance, it is apparent from the results presented that the gap between white and black graduation rates is much lower in the South than it is in other regions of the country, and that the gap is particularly wide in Wisconsin.

Of the 29 public universities where black student graduate at the same (or greater) frequency as whites, 23 are in the South.  (I am defining any state that permitted slavery in 1860 as a “Southern” jurisdiction.)  In contrast, of the 25 public universities where the disparity between black and white graduation rates is the greatest, all are outside the South.  The latter group includes the Madison, Milwaukee, and Whitewater campuses of the University of Wisconsin.

The same regional pattern can also be seen in private schools.  Of the thirteen private schools listed in which black graduation rates equal that of whites, only one is outside the South.  In contrast, the twenty-one of the twenty-five private schools with greatest variation are outside the South.  Included among the twenty-one are Milwaukee’s Alverno College and Marquette University.

Why African-American college students appear to be playing on a more level playing field in the South is a fascinating question, as is the question of why African-American students at several of Wisconsin’s best universities have trouble obtaining the same graduation rates as their white peers.

The study can be found here.

Fox was born in Milwaukee on January 3, 1891.  Both of his parents had deep ties to the legal and political history of Wisconsin.  His father, Dr. William Fox, was a surgeon and the grandnephew of William Fox, one of the signers of the 1848 Wisconsin Constitution.  His mother, Narcissa McDill, was the daughter of Alexander McDill, a former Wisconsin congressman. 

Fox was initially educated in public schools in Milwaukee, but at age nine, he was sent away to enroll in the preparatory department at Notre Dame University in South Bend, Indiana.  At age 14, he moved up to the college and graduated with a bachelor of arts degree in 1909.  After graduating, he accepted a position as a teacher at St. Edward’s College, a small Roman Catholic institution in Austin, Texas.  Even by the standards of the early twentieth century, becoming a college professor at age 18 was quite precocious, although it is likely that Fox taught primarily in the school’s college preparatory division.

In the fall of 1910, he enrolled at Harvard Law School where he was a member of the John Marshall Law Club (an organization that sponsored moot court competitions but was essentially social) and one of the founders of the Harvard University Wisconsin Club.  He graduated in 1913, and was admitted to the bar in Massachusetts.  He began practice in Boston, initially as a lawyer in the offices of the firm of Whipple, Sears, and Ogden, a prominent local law firm.  However, after a year there, he began his own practice, specializing in admiralty law.  In 1914, he married Elsa Sonnenmann, the daughter of a Neenah, Wisconsin tobacconist who had emigrated to Wisconsin from Germany after the turn of the century.

In 1916, the Foxes returned to Milwaukee, and after securing admission to the Wisconsin bar in June, Fox established his own admiralty law practice in the city.  In the spring of 1919, Fox was hired to teach a course in maritime law at the Marquette Law School.  That same year, new Association of American Law School rules required all member schools to have at least three full-time faculty.  Because Marquette had previously relied upon a full-time dean (in 1919, Max Schoetz) and part-time faculty, it was necessary to appoint two new full-time faculty members.  One of the appointments went to Fox. (The other went to the little remembered Willis Lang.)

From 1919 to 1930, Fox taught a variety of courses at the law school.  He also served as faculty adviser to the law review for many years, and regularly published book reviews for that publication.  He also contributed a number of articles to the journal on topics ranging from trusts to chattel mortgages, and from bar admissions to the role of law review articles in litigation.  In the 1920’s, Fox and his colleague Carl Zollman developed the field of aviation law as a serious academic discipline (although most of the scholarly writing was done by Zollman).

Fox was also the teacher of a popular bar review course in an era when the diploma privilege had not been extended to Marquette (and, in fact, both Fox and Marquette Dean Max Schoetz wanted the diploma privilege abolished).  It appears that in the fall of 1923, Fox also tutored the famous athlete, performer, civil rights activist, and then law student Paul Robeson, who was on leave from Columbia Law School so that he could play football for the Milwaukee Badgers, then a member of the National Football League. 

Although Mrs. Fox was a Lutheran, Fox himself was a devout Roman Catholic, a member of the Knights of Columbus, and a frequent speaker on Catholic subjects.  While he did not publish his views on the topic during his time at Marquette, Fox had strong views on the subject of Catholic legal education.  An advocate of a distinctive Catholic approach to law study, this position placed him somewhat at odds with his colleagues Schoetz and Zollman.  Although a Catholic himself, Schoetz regularly pointed to the non-denominational character of the law school, emphasizing that while Marquette University was a Catholic institution, the law school was not.  (Zollman, the author of several works on the law of religious institutions, was also an ordained Lutheran minister.)  When Schoetz was killed in a collision with a railroad train on his way the 1927, apparently no thought was given to replacing him with a Roman Catholic, and the position instead went to Schoetz’s law partner, Clifton Williams, who was a Quaker.

In 1930, the Catholic University of Washington, D.C., which was committed to the idea of a distinctive Roman Catholic form of legal education, had an opening for a dean, and Fox was offered the position.  The June 19, 1930 article in the Milwaukee Journal reporting that Fox had accepted the position also noted that Fox planned to retain his house in Milwaukee where he would spend the summers.

Catholic University had spent the previous two years searching for an appropriate dean, and the university’s rector, Bishop James H. Ryan, was initially delighted with the choice of Fox, reporting to the university trustees “that the Law School has again been put on the road originally outlined by the late Dean Robinson, to produce a learned, scholarly, and cultured Catholic bar.”  At the time of his appointment the law school at Catholic University was on life support.  It was clearly the least successful school in the District of Columbia, and in the year prior to Fox’s appointment, it had neither admitted a new student nor graduated an existing one.

As dean, Fox dramatically raised the law school’s standards.  He instituted a requirement that all entering students have a baccalaureate degree, at a time when only seven other law schools had such a requirement.  (Marquette, like most law schools in 1930, required two years of college work for entering students.)  He also increased the requirements for graduation and required all students to spend at least 18 hours a week in the law library.  He abolished the moot court, but replaced it with a law club and a legal aid society.

In regard to making the law school more scholarly and more distinctively Roman Catholic, he incorporated the Washington-based Riccobono Seminar of Roman Law into the law school.  He also placed a new emphasis on the development of what he called “theophilosophical” jurisprudence as the underpinning of the law course at Catholic University. 

Writing to one of his former professors, Harvard Law School’s Joseph Beale, shortly after assuming the office of dean, Fox observed: “This being a Catholic University, we are stressing wherever possible Scholastic Philosophy and Neo scholasticism. We feel that there has been no attempt on the part of the Catholic law schools to do anything in this regard heretofore, except possibly by certain selected courses in what is usually called “natural law,” or “Jurisprudence.” Our plan is to integrate what we can into the various courses, rather than segregate the subject matter.”  Although he did not mention Marquette in his letter to Beale, he was clearly describing his former university which did in most years offer a course on national law taught by a priest from the Marquette Theology Department.

Fox’s activities at Catholic University were not limited to religious matters.  He established an aviation law institute at Catholic and served on the Aeronautical Law Committee of the American Bar Association.  Additionally, in 1932, he was one of the founders of the Academy of World Economics in Washington, D.C., and he later served on the National Council on Naturalization and Citizenship

Unfortunately, Fox’s effort to turn his new law school into a Roman Catholic Harvard fell victim to his problems with alcohol which apparently plagued him throughout his adult life.  In 1934, he was placed on probation by the University because of issues related to excessive drinking, and when the problems persisted, he was asked to resign in 1935.   When he failed to do so, he was discharged, and the locks were changed on his office door at the order of the same university rector who had praised his appointment five years earlier.  To the embarrassment of both Fox and the university, the “locking out of his office” incident was widely publicized by newspapers throughout the region.

After his discharge as dean, Fox remained in Washington and went to work as a trial examiner for the Food and Drug Administration.  He issued a number of important rulings in that capacity, and was still in that position when he died unexpectedly on April 18, 1940, at the age of 49.  He was survived by his wife and three daughters.

By the time of his death, he appeared to be largely forgotten at Marquette, although the Marquette Law School had actually taken a “Catholic turn” in 1934 with the appointment as dean of Francis Xavier Swietlik, who held undergraduate, graduate, and law degrees from Marquette.

On February 25, the bill passed in the State Assembly by a vote of 51-42.  However, before passage, it was amended to exempt from the bill’s coverage any school that uses a federal-government recognized tribal name as its nickname or any district that obtains permission to use its name or logo from a federally recognized tribe.  (Consequently, the Auburndale High Apaches would not be covered by the bill.)  At the moment, the bill appears to be bottled up in the Senate where a vote has yet to be scheduled.

During the current academic year, there are still 38 Wisconsin high schools that use Native American team names, including the above-mentioned Auburndale and the all-Native American Menominee High School.  No school uses a racially-related team name referring to a group other than Native-Americans.

 THE NATION’S CAPITAL.  In Washington, D. C., the Supreme Court’s refusal late last year to review a lower court holding dismissing the 1992 Lanham Act challenge to the Washington Redskins trademark filed by Native American activist Suzan Harjo has not ended the Redskins problems.  Harjo’s suit was ultimately dismissed on the basis of laches—Harjo and her fellow complaints had waited too long to challenge the 1967 trademark registration by Pro Football, Inc., the corporate name of the Washington NFL team. 

However, a new effort to invalidate the Redskins trademark on disparagement grounds–Blackhorse v. Pro Football, Inc.—is currently pending before the Trademark Trial and Appeal Board.  The plaintiffs in Blackhorse are all young Native American adults who are claiming that because of their age, they had no previous opportunity to object to the mark and thus are not bared by the lower court ruling in the Harjo litigation.  More recently, a second action has been filed by different plaintiffs attacking the legitimacy of six derivative versions of the Redskins trademark—including one for Washington Redskins Cheerleaders—filed since 1992.  These actions are seeking to deny the Washington team the right to use the name “Redskins” but they are trying to prevent the team from being able to license the mark.

 NORTH DAKOTA.  Finally, the debate continues in North Dakota over the right of the University of North Dakota to continue to use the name “Fighting Sioux” for its athletic teams.  The NCAA has adopted an approach that prohibits the use of Native American team names and logos unless the tribal group bearing the name in question approves.  (More generic team Native American names like Indians, Braves, or Redmen are limited to those colleges like UNC-Pembroke or Haskell University that were founded as colleges for Native Americans.) 

The problem in North Dakota is that one of the state’s two Sioux tribes (the Spirit Lake Sioux) has authorized the use of the name but the other (the Standing Rock Sioux) has not.  The State Board of Higher Education had ordered the University to begin phasing out the nickname on November 30 unless it secured the permission of both tribes.  However, the situation has reached a standstill, and the University is still using the name.  (The Fighting Sioux ice hockey team is one of the favorites in the current NCAA championship play-offs and the team squares off against Yale in a first round game on March 27.) 

At the moment a number of Native-Americans are fighting to allow the University to continue its use of the name.  A petition signed by 850 members of the Standing Rock Sioux tribe is currently in circulation as pro-nickname members of the tribe try to force their leaders to schedule a plebiscite on the issue on the reservation.  (The Standing Rock Sioux also elected a pro-nickname council president last year.)

At the same time, eight members of the Spirit Lake Sioux have filed suit against the state arguing that they will be harmed if the University of North Dakota drops the Fighting Sioux nickname and that under an earlier settlement agreement between the NCAA and North Dakota, approval of the name by the Spirit Lake Sioux was sufficient for its continued use.  Their request for an injunction was denied by the state district court, but the appeal in Davidson v. State is currently before the North Dakota Supreme Court.  Apparently no action will be taken until the court rules.  Oral argument in the case is scheduled for tomorrow (March 23).

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.