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 Philly.com, 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.

Respectfully,

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.