Maybe we could have a grown-up confirmation hearing if the Senators were to read the latest book by my esteemed former colleague, L.A. Powe, Jr., The Supreme Court and the American Elite: 1789-2008 (Harvard University Press).
Scroll down here for her lengthy response. Her English is of startling poor quality, which raises another question about how in the world she was invited to be a visiting professor. The 'substance' of her response to being challenged on her anti-gay bigotry is also slightly over-the-top. Very strange.
UPDATE: A reader points out what may be a first in the history of the "Above the Law" blog: a worthwhile (and funny) comment! It's on the thread linked above (which is otherwise full of a lot of nasty abuse in the comments):
She is lucky she is at NYU instead of Chicago because the whole "stop bullying me" thing would have been laughed off by pretty much every single damn person in the building. A person basically slamming your opinion on logic and reason is not an ad hominen attack. If you can't defend yourself without playing the stop bullying me card, then you might want to revisit the strength of your own convictions. Just sayin'
If she can't handle people getting in her rankles, she surely picked the most passive, "nice" law school to try to pull that off. Good luck with that.
Her posture of being the 'victim' here is, indeed, part of the strangeness of the display.
That seems to be the upshot of this extraordinary opinion by district judge Larry Naves in the Ward Churchill case, about which more in a moment.
To recap: Bill O'Reilly and other far right pundits called attention several years ago to Churchill's offensive comparison of the 9/11 victims to Adolf Eichmann, made in the context of an article that was obviously protected by the First Amendment and by any morally sound principle of academic freedom. Political leaders and even one Colorado law professor called for him to be fired for his political speech, but university leaders took the prudent position that this would be illegal. Instead, the University of Colorado commenced an investigation of allegations of academic misconduct against Professor Churchill, which resulted in a lengthy, but rather underwhelming, report that found one actual instance of plagiarism and found that he had cited to articles he had ghost-written, and went on at some length disputing his footnoting practices in other articles. (The one plagiarism charge against Churchill that actually stuck would hardly have distinguished him among Harvard Law School plagiarists, none of whom were fired [or should have been fired for their offenses].) Various university committees were divided on the appropriate punishment for his academic misconduct (termination was the minority view), but in the end, the university regents (with one dissenter) voted to terminate his employment.
Since Churchill's work, scholarly and pedagogical, had been reviewed many times during his tenure at Colorado, and he had received promotions, salary increases, and even awards from the university, Churchill took the prima facie plausible position that he was being punished for his constitutinoally protected speech. At the conclusion of trial, a jury agreed, and found that Churchill was, indeed, fired for his offensive speech, and would not have been fired if it had not been for that speech. However, the jury gave only one dollar in damages, for reasons that are still opaque. Churchill asked the court for reinstatement, a possible, but certainly not required, remedy in this context (monetary damages are, I am told by colleagues, the more common remedy in wrongful discharge cases like this).
That brings us to the present, and the decision of Judge Naves. There is a decent summary account of the Naves decision here and an even better one here (though the latter appears not to realize the possibly catastrophic implications of the decision). Judge Naves vacates (par. 69) the jury decision (so much for the First Amendment violation!) on the grounds that the Regents, in deciding to fire Churchill, enjoy a "quasi-judicial immunity" from suit! The key paragraphs of the opinion are 22-49. Although judges, prosecutors, jurors, and administrative hearing officers are the usual beneficiaries of judicial and quasi-judicial immunity, the court is able to identify a handful of cases similar to this one. The implication seems to be that, as long as the Regents have in place procedural safeguards, they can fire faculty members for their offensive speech, though of course, they can't give that as the reason! (But remember: the jury here found that was the real reason, though that finding was vacated.) And the fired faculty member only has a remedy if they can show an "abuse of discretion" by the Regents given their quasi-judicial function (par. 47).
Wow.
Signed thoughts from readers with knowledge of the legal issues raised by the finding of quasi-judicial immunity are welcome. Submit your comments only once, they may take awhile to appear.
Several readers have now sent links to this story about a Singapore professor who will be teaching human rights law at NYU this fall, who is captured on video arguing at length against the decriminilization of homosexuality (the links to the video can be found in the story linked above). The most striking thing about the video is its embarrassingly low intellectual level--she mostly just regurgitates Lord Devlin's side of the Hart/Devlin debate, which Hart won, both intellectually and as a matter of English law. There isn't even the pretense of a response to the obvious Hartian and Millian objections to her Devlinesque position. Now perhaps Professor Thio isn't as dumb as this performance suggests, and perhaps she has done good work in other areas--there are plenty of anti-gay bigots in the academy who have done important scholarly work (John Finnis is an outstanding example). Still, this is all a bit embarrassing for NYU. One imagines she will not receive a warm welcome in Greenwich Village this fall.
UPDATE: A colleague elsewhere writes:
In addition to your observations about the purely analytical deficiencies of Professor Thio's performance before Parliament, I think that this video helps to point out the deficiencies in the human spirit that she brings to the debate. The qualities of compassion, enlightenment, and living within the truth (to borrow Vaclav Havel's phrase) that a person exhibits in making an argument about human behavior -- or, conversely, the qualities of condemnation, bitter small-mindedness and unconcern for the humanity of others -- are sometimes as important as the purely analytical forces that one can marshall. This particular debate, which depends so much upon the basic, threshold question of recognizing the humanity of another, is one of those instances.
This is well-said, though I suppose we must concede that elite law schools have never been able to pretend that they weigh empathy or human decency as important factors in hiring decisions, but they do at least pretend to care about analytical smarts.
Details here. I would be interested to see the letter from the faculty to Judge Wolfson. One wonders what Judge Wolfson knew before stepping into this morass and also whether he appreciates the profound damage Provost Epp has done to the DePaul College of Law. His letter suggests he does not.
UPDATE: A colleague elsewhere has forwarded to me the letter sent by 20 DePaul faculty to Judge Wolfson:
We, the faculty whose names appear below, are writing to urge you to resign your appointment as interim dean of the College of Law. Our request is not directed at you personally. Most of the faculty has not had the privilege of meeting you. Those who have met you speak positively of you. We are all aware of your sterling reputation as a judge. More than that, we all appreciate that you have found yourself in a situation that is significantly more difficult than you anticipated, and that is not of your making.Nevertheless, we feel it is our duty to point out that the method by which you were appointed was illegitimate under the ABA standards for law schools and violated DePaul’s longstanding tradition of shared governance, because it deprived the law faculty of any participation in the selection of our interim dean.
The University administration has an ABA-mandated duty to consult with faculty, and it did not do so. As set forth in ABA Accreditation Standards 106(7), 206(d), and Interpretation 206-1, the faculty must have “substantial participation” in the selection of a dean, interim dean, or acting dean. The “good cause” exception mentioned in Interpretation 206-1 applies only to the additional requirement that no appointment be made “over the stated objection of a substantial majority of the faculty.” The requirement of initial faculty participation is absolute. Although the “substantial participation” requirement may be subject to interpretation, it surely cannot be satisfied by no participation at all.
We realize you may not have been fully briefed on the ABA standards when you accepted the position. We feel duty-bound, however, to make you aware of them now, and of the widespread dismay at the University’s disregard of both the ABA standards and longstanding law school practices, though all this news has probably reached you already.Like most law faculties, we have historically had some consultative role in the selection of our deans, whether full, interim, or acting. By depriving us of any such role, and ignoring our judgment and voice, the University is sending a wholly uncalled-for message that the faculty is not deserving of its respect or regard. This message harms our reputation, the school’s standing, the value of our students’ degrees, and our ability to recruit promising students and faculty. It will also harm our ability to attract outstanding applicants for our next dean search.We know that you are a person of conscience and integrity. We also know that, as a judge, you appreciate the critical importance of proper governance and adherence to established and required procedures. We therefore urge you to resign and allow us to pursue our mandated and customary practices in consulting on the appointment of the interim dean of the law school in advance of that appointment.
Look at how the ABA Journal misrepresents the letter from Illinois law faculty about political muscle being used to secure admission for students to the university: "Law Profs on Clout-Influenced Admissions: Everybody Does It." That is obviously designed to leave readers with the impression that the Illinois faculty argue that it is OK to admit sub-par students in response to political pressure. But the letter says nothing of the kind! (Note that the author of the article may not have written the misleading headline.) The faculty letter says, among other things, that: (1) the widespread use of political pressure on university admissions decisions raises a question about newsworthiness in this case; (2) it would be good if all admissions decisions were on the academic merits, and not influenced by non-academic criteria (but they aren't, and they probably can't be); and (3) the university has to be responsive to those who fund the university. This last point surely bears emphasizing: if Chancellor Herman simply "blew off" every legislator seeking "special consideration" for an admissions candidate, the price would not be paid by Chancellor Herman, but by students at the university who would bear the brunt of budget cutbacks. Elected officials should be called to task for using their power over the pursestrings to secure "favors" for friends and constituents, but until the political culture changes, university officials are in an impossible position: they are supposed to protect the educational interests of students at the university, but to do so, they can not antagonize powerful politicans. If the Chicago Tribune stories have the effect of changing the political culture with respect to university admissions, that would be great; but the villains in this piece are those exercising their power to extract special favors, not those who are trying to protect the interests of the university and its educational mission.
UPDATE: OK, I take it back: journalists aren't hopeless at all when compared to the bottomfeeders of the blogosphere who post comments at the Volokh blog. Apparently professors aren't supposed to make arguments, let alone long ones! The nerve of some people, I guess. But it's indicative of why there's a PR problem for the university here given the low level of the ratiocination skills of members of the nominally educated public.
Here. It's quite damning, and rightly so. The Chicago Tribune journalists should apologize--and, better yet, run a story excorciating the real villains, the corrupt politicans using their leverage over the university to secure favors for friends and constituents.
A colleague at the University of Illinois writes:
An aspect of the admissions ruckus at UI that is not getting nearly enough attention is that each member of the legislature has two 4 year full scholarships to state schools to hand out with no criteria whatsoever (and can even do them in 8 one year increments, 4 two year increments, etc.) and these are unfunded – that is, the schools to which the recipients go have to fund eat the costs. That’s a hefty hunk of change – and there is no justification for allocating state resources in this way other than to give legislators’ clout.
The legislative description of this boondoggle is here and a Chicago Tribune columnist notes them here.
Senator Chambliss of Georgia has placed a "hold" on his nomination, and this site gives an indication of what's driving these folks wild. The ironies here are immense: Sunstein is a 'moderate' (by US standards) on a whole host of central economic and regulatory issues, but his relatively 'liberal' positions on animal rights and gay marriage clearly have the potential to upset the far right. Pretty ridiculous.
The Chicago Tribune has run a series of articles (start here and follow the links) on the use of political clout to get sub-par students admitted to the University of Illinois (including the law school), but appears to have missed the actual story (they are journalists, after all): the University of Illinois is hostage to the public purse for a lot of its operations, so every request for 'special consideration' on admissions from a politician with influence on the purse strings comes with an implied threat: admit this student, or lose funding. One can be sure Chancellor Herman understands that. Attacking university officials over this scandal is like attacking the victim of a robbery for handing over his money. (Also odd is that they missed the sarcasm in former Dean Hurd's e-mails to the Chancellor: are journalists really this humorless?)
And, by the way, the same story is waiting to be written about admissions at every state university in the country.
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