Thursday, September 14, 2017

Trouble in Paradise

A bit of trouble is brewing here on the idyllic campus of my small but undeniably cute university. My distinguished colleague (arguably my most distinguished colleague) Larry Alexander published along with Penn Law's Amy Wax what I would have thought would be an only mildly controversial opinion piece on, the Philadelphia Inquirer's website. In that piece, the professors claimed, among other things, the following:

All cultures are not equal. Or at least they are not equal in preparing people to be productive in an advanced economy. The culture of the Plains Indians was designed for nomadic hunters, but is not suited to a First World, 21st-century environment. Nor are the single-parent, antisocial habits, prevalent among some working-class whites; the anti-“acting white” rap culture of inner-city blacks; the anti-assimilation ideas gaining ground among some Hispanic immigrants. These cultural orientations are not only incompatible with what an advanced free-market economy and a viable democracy require, they are also destructive of a sense of solidarity and reciprocity among Americans. If the bourgeois cultural script — which the upper-middle class still largely observes but now hesitates to preach — cannot be widely reinstated, things are likely to get worse for us all.

Nothing seemed to happen in San Diego for a while -- the piece was published in early August -- but now several of what I might be forgiven for referring to as the usual suspects arose to denounce Larry's and Amy's expression of opinion. So far, and my apologies if I miss anyone, the Pride Law group (LGBTQ), the Black Law students' group, and the Women's Law Caucus have all denounced Larry and Amy as racists, bigots and so on and so forth. Notably but not entirely unexpectedly, at least in retrospect, our Dean, Stephen Ferruolo, sent the following letter to all students, faculty, alumni, and heaven knows who else:

I want to thank the student groups, as well as the many individual students, faculty and other members of the USD law school community who have spoken or written to me to express their concerns about the article written by USD School of Law Professor Larry Alexander, along with University of Pennsylvania Professor Amy Wax, and their subsequent interviews about the article. 

As I said in my remarks at 1L Orientation, I am committed, as Dean of USD School of Law, to ensuring that there are opportunities for respectful discussion of important issues and for everyone's voices to be heard.  The rights we must respect in an academic community include freedom of speech and academic freedom, and those rights and freedoms extend to every member of our community.  No less importantly, however, in exercising our rights and expressing our views, we must be sensitive to all the members of our community, especially those who may feel vulnerable, marginalized or fearful that they are not welcomed.  We must recognize that, for many students, racial discrimination and cultural subordination are not academic theories, they reflect the students’ personal experiences.

USD School of Law supports the rights of its faculty to comment as individuals on matters of public interest.  When professors speak and write, they speak in their personal capacities and not for or on behalf of the law school or the university. The views expressed by Professor Alexander were his personal views.  I personally do not agree with those views, nor do I believe that they are representative of the views of our law school community.

I realize that my words alone will not address the concerns expressed by so many in the law school community.  It is my responsibility to lead this community in responding in constructive and concrete ways that will keep us united and reflect our shared values.  Working with representatives from BLSA and others, I have already given my full support to several important  initiatives, including expanding the law school’s curriculum to offer additional courses addressing the issues of discrimination and civil rights, inviting prominent speakers to give lectures and hold workshops, initiating small group discussions with faculty and administrators to improve racial and cultural sensitivity, and designing and introducing new training programs on the issues of diversity and inclusion for all our community.  In addition, I am establishing a working group, consisting of students, faculty and administrators, to join me in developing an action plan to ensure that the law school’s commitment to diversity and inclusion remains strong and irrefutable.  I will be reporting to you again after the working group has held its first meeting.

This letter caused quite a stir, as you can imagine. While I was still scratching my head, wondering about the appropriateness of this letter, my distinguished colleague Steve Smith wrote the following in reply, which captured my feelings and thoughts better than I would have been able to:

Yesterday, Stephen Ferruolo, dean of the University of San Diego School of Law, sent to the entire law school community a lengthy email message entitled “Our Commitment to Diversity and Inclusion.” The message began by thanking those who have “expressed their concerns” about an op-ed written by our colleague Larry Alexander and University of Pennsylvania law professor Amy Wax and published last month in the Philadelphia Inquirer. The dean proceeded to emphasize the importance of sensitivity and inclusiveness in the USD community and the evils of “racial discrimination and cultural subordination.” While acknowledging that Professor Alexander has a right to his views, the dean then declared, “I personally do not agree with those views, nor do I believe that they are representative of the views of our law school community.” The dean went on to enumerate a series of measures he is instituting to address issues of exclusion, discrimination, and subordination.

The dean did not describe the contents of the Alexander-Wax op-ed, and he offered no specifics about what he disagreed with. In the context of the overall message, readers of the dean’s statement will inevitably infer that, at least in the dean’s view, Professor Alexander’s op-ed was in some sense supportive of exclusion or “racial discrimination or cultural subordination.” In effect, the dean adopted the extraordinary measure of singling out a colleague, by name, for a kind of public shaming through unsupported insinuation.

As colleagues of Professor Alexander, we write in response for two principal reasons.

First, the law school community and the interested public should know that Professor Alexander is an honorable, honest man who is not in any way racist. Moreover, he has worked tirelessly at the University of San Diego for over forty years, teaching with dedication, serving on committees, contributing monetarily, devotedly supporting law school functions. He has also been the school’s most prominent and prolific scholar. Just last May, Dean Ferruolo along with the deans of the Yale Law School and the University of Illinois Law School praised Professor Alexander effusively at a conference convened at Yale Law School specifically to discuss and commemorate Professor Alexander’s scholarly contributions in a variety of fields. Considering this distinguished career and unparalleled contribution to the law school, we believe it is unconscionable for a law school dean to subject Professor Alexander to this sort of public shaming.

Second, we are concerned about the harmful effects of the dean’s message for the law school community. A law school and a university should be places where the free exchange of ideas is encouraged, not inhibited. To be sure, unfortunate events around the country show that this ideal is under threat at a number of the nation’s universities. We have been grateful to study, teach, and write at USD, where in our experience civility and a commitment to freedom of discussion have prevailed. But this commitment is seriously undermined if faculty or students come to perceive that their expression of views disfavored by some may cause them to be singled out for public disapproval by university officials.

We understand that there are limits to the freedom of expression. Anyone, including colleagues and deans, should of course feel free to challenge on the merits the views expressed by other members of the community. As noted, Dean Ferruolo’s email made no attempt to do this. In addition, a member of the university who is shown to promote racist or bigoted views or practices may deserve public censure. However, we challenge the dean or other critics to identify anything in Professor Alexander’s op-ed that expresses or endorses bigotry or “racial discrimination or cultural subordination.”

In issuing this challenge, we understand that the Alexander-Wax op-ed deals with complicated cultural and political questions, and that in such matters people will inevitably disagree in their diagnoses and prescriptions. It is precisely these sort of differences that ought to be freely discussable in a university, not censured or sanctioned with unsupported charges or insinuations.


Kevin Cole
Gail Heriot
Michael Rappaport
Maimon Schwarzschild
Steven Smith
Tom Smith
Horacio Spector
Chris Wonnell

I signed onto the letter and I'm grateful to find my name in such distinguished company. More emails and no doubt facebook posts, tweets, blog posts and so forth will no doubt issue in response to these letters. I am breaching my usual dirty bird principle (from the adage, "it's a dirty bird who fouls his (or her!) own nest") because this controversy sounds so directly on matters I blog about, sometimes humorously and usually carefully. I don't agree with every word in Amy and Larry's piece. But you can tell where Amy and Larry are coming from and agree with what they say; or not, I suppose. But that's not the point. The point is, a man or woman should be entitled to express him or herself in the public prints without having a Dean rain down a ton of politically correct nonsense on his head, for heaven's sake. Especially on one, i.e. Larry, who nearly put this law school on the map. And also, I just have to say, what Larry is calling for (get up in the morning, go to your job, don't take drugs, don't have kids out of wedlock, etc., etc.) is rather in line with traditional Catholic teaching, is it not? So if someone says something that is "loudly dogma[tic]", to coin a phrase, in a newspaper, or at least is consistent with that dogma, he runs the risk of being shamed by the administration of a nominally Catholic law school? That just ain't rat. Larry of course is not Catholic, he's a secular Jew, but he's advocating things that are absolutely in line with what a good or even just sort of good Catholic person would do or practice.

I must say, I feel just a teensy bit neglected myself here. Have I not said things at least as politically incorrect as Larry? What am I, chopped liver? Or whatever the WASP equivalent of chopped liver is? Bologna and mayonnaise perhaps? Celery with peanut butter? Alas, we are but a small blog. But no matter. All in all, this is just a hellova way to thank Larry, who is nearing the end of his career and has given all of it to a small law school when, at least by professional lights, he should have been at a top ten school. And I don't see how the situation can really be put right at this point. But who knows, perhaps somehow it will be. Meanwhile, the weather finally is beautiful again here today, for what that's worth.

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Good for you and all the other professors who stood up to this academic mob.

Posted by: Paul Mapes | Sep 14, 2017 12:19:37 PM

The Dean's ignorant response has disgraced the school. His letter, in effect said, "shut up, you might discomfit the poor darlings." Lawyers have to bring dispassionate judgment to the most troubling human issues. By publishing such a patronizing view of USD law students, he suggests they are not emotionally fit to handle the profession for which they train.

Posted by: Greg | Sep 14, 2017 1:08:03 PM

I second Mr. Mapes.

Posted by: Greg | Sep 14, 2017 1:46:41 PM

As a retired law school professor I agree 100% with your letter and also Greg's comments. I'm also curious as to what the Dean's views on the issues raised--does he really think drug taking is benign and that children out of wedlock are a positive good?

Posted by: Paul McKaskle | Sep 14, 2017 4:03:03 PM

(i) As a Hayekian I object strongly to "The culture of the Plains Indians was designed for nomadic hunters". That culture was not a result of human design but of human action. Tell your chum off for me, will you, please?

(ii) Your Dean is about as much use as a nun's twat. Better not to tell him that, of course.

Posted by: dearieme | Sep 14, 2017 4:50:51 PM

What's racist? I'll tell you what's racist. It's people like Dean Steve (which is as much an honorific as he deserves) who assert that it's racist to advise anyone (of any race, creed, color, national origin, sexual orientation, or whatever other identifying characteristics seem to matter these days) to get a job, stick to it, work hard at it, and take responsibility for yourself. There are lots of blacks -- undoubtedly a majority of them (and many of whom I worked with) -- who don't think such attitudes are racist. But Dean Steve and his ilk seem to believe that such attitudes are racist. Which means that Dean Steve and his ilk are racists, because they believe that all blacks either (a) don't work hard, etc., and/or (b) are affronted by the idea that hard work, etc., are virtues. How racist can you get?

Posted by: Thomas | Sep 14, 2017 7:29:27 PM

Posted by: Stacey | Sep 15, 2017 1:49:01 PM

"The views expressed by Professor Alexander were his personal views. I personally do not agree with those views, nor do I believe that they are representative of the views of our law school community."

Why is it problematic for a dean to state that University does not share the same views expressed by a professor?

Posted by: Stacey | Sep 15, 2017 2:40:26 PM

Oh Thomas, how I love the age old defense to racism - I'm not racist, I know/am related to/agree with (insert minority group). And if you were familiar with Professor Wax’s writings you would know she believes in the superiority of white culture. I would think as a learned professor (with this gaggle of learned followers) you, Professor Michael A. Smith, would make better attempts at presenting the ENTIRE story, and not cherry-picking the segments that support your arguments. Dean Ferruolo issued his letter in response to the Black Law Students Association’s letter calling for the removal of Professor Alexander from mandatory 1L classes (UPenn students have issued the same request). Moreover, as a learned sect of the world, it would seem automatic to support your claims of the fall of society with even a scintilla of support - which neither Professor attempted. Yes, this was an opinion by two notable professors, and opinion does not need support. However, occupying a particular position in society affords one a cache, establishes a credence to one’s words – ESPECIALLY given all they have done. But lest not equate tenure and achievements to being infallible – Bill Clinton, Bill Cosby, Bill O’Reilly (and that’s just a few of the Bills of the late). With position and specifically career choice, comes a responsibility – to inform, to educate, to represent. While the tenants of free speech and academic freedom loom large over this issue, the censorship of the Professors was never the issue – and as learned as you are, a simple read easily conveys that it was never the goal of either Dean of UPenn or USD. Just as you lambast Dean Ferruolo for what may be perceived from his message, given his position, you must direct that same expectation, that same disappointment at Professors Wax and Alexander for their tragically outdated, misguided, and remember, unsupported opinion.

Posted by: Christopher | Sep 15, 2017 3:31:27 PM

Yes, of course, Christopher. Wax and Alexander failed to adduce evidence that supports their opinion. On the other hand, there is a veritable mountain of evidence that completing school, getting a job, working hard, avoiding pre-marital parenting, and remaining drug-free result in dramatically superior personal outcomes in life. Wax and Alexander obviously assumed that everybody who read their opinion piece was at least familiar with this vast and completely uncontroversial body of evidence. Shame on them for making that assumption.

Posted by: Lawrence Larson | Sep 17, 2017 8:06:21 AM

Why should the hardworking responsible taxpaying couple have to limit the size of their family because they are taxed to death to underwrite facilitate and perpetuate promiscuous self destructive behavior by people with no impulse control sense of responsibility or core values?

Posted by: lorenzo | Sep 17, 2017 9:06:02 AM

As an '04 it's heartening to see that the conservative-libertarian-Constitutional-free market-Scalia-Thomas contingent @ USD continue to bring prestige to that school.

The dean is out of bounds and should recognize that, in addition to Constitutional considerations, in the legal world, where credentials matter, these highly esteemed law professors (Ivy, Rhodes, clerkships, appointments, publications) are USD's most important draw. (More important even than the weather and location!)

Cheers, professor!

Posted by: John | Sep 17, 2017 9:52:48 AM

Bravo Professor Alexander!!

As a former student of his ('83), I have long been impressed with his course on Constitutional Law. Rather than spitting our materials for bar exam prep, Professor Alexander too the far more expansive but interesting path of seeking the truth. I recall massive amounts of reading - most notably Bork versus Tribe. Too bad the time limitations prevented an expansive review of Hayek's Constitution of Liberty.

I hope that Professor Alexander's course continue to have as much impact on the lives of his students and he did on mine.

Well done Sir!!

Posted by: David Forstadt | Sep 19, 2017 2:57:58 PM

Thank you for supporting Professor Alexander's right of expression.

Posted by: Scoob | Sep 20, 2017 4:40:27 AM

education? hardly

nice to see civilized and honorable people are still out there

Posted by: Deserttrek | Sep 20, 2017 5:58:05 AM

Congratulations to Prof. Alexander and his colleagues for standing up against empty gibberish. The dean just looks pretty silly here, rebuking without offering any substance, or even any specification of what claims he is distancing himself from.

New York Magazine ran a very interesting interview with Amy Wax, by a smart reporter who challenged her but in a substantive way (far smarter than anything Dean Ferrulo had to say) It's very interesting:

Posted by: Hank | Sep 20, 2017 6:07:26 AM

At my son's school, all they talked about from 1st grade up is race, race, race, and now in middle school it's about race, race, race and multiple gender pronouns. By the time he gets to college, I see from deans like this that the curriculum and the school culture will be intolerably fascist in its mindless embrace of Potemkin issues of "social justice." I think he might have to skip any academics and go straight to founding a billion dollar business instead.

Posted by: Spamf Roming | Sep 20, 2017 6:51:40 AM

W. had your dean’s number many years ago when he condemned the soft bigotry of low expectations. Folks like Ferruolo simultaneously believe that holding non-whites to the same racially neutral standards and norms applied to whites is racist and that everyone who thinks otherwise is racist!

Posted by: Curmudgeonly Ex-Clerk | Sep 20, 2017 7:23:20 AM

Can't wait to get this next generation of lawyers into the courtroom, where I will gleefully cut them to ribbons.

Posted by: Strelnikov | Sep 20, 2017 10:04:48 AM

Just more proof of the observation that if you wanted to design an ideology to keep minorities down, modern liberalism is what you would wind up with.

Convince them it's all a conspiracy against them, that they don't have to do anything smart or prudential, and if they don't succeed it's someone else's fault. Perfect recipe to produce losers, who will reliably support you when you claim to want to steal from others and give it to them.

Posted by: mhjhnsn | Sep 20, 2017 11:01:34 AM

Thanks for writing this up, Tom, I had not heard about these developments. Two observations: (1) the Wax-Alexander op-ed struck me as pretty feeble, confusing correlation and causation, but that's not unknown in social analysis; (2) the Dean's e-mail was wholly inappropriate. He should resign, since he has no idea what academic freedom is or what his obligations are as leader of an academic institution.

Posted by: Brian Leiter | Sep 20, 2017 11:44:58 AM

University of San Diego has been CINO for decades. It's time it closed.

Posted by: Micha Elyi | Sep 20, 2017 12:14:40 PM