Tuesday, April 14, 2015

Law Professors and Flat-Earthers

FlatThis blog post from Stephen Diamond, via Brian Leiter, nicely collects the criticism of Paul Campos's recent editorial in the New York Times on the rising cost of higher education. Rather than piling onto the criticism, I'd like to use this as an opportunity to ask a different question: at what point is a tenured faculty member's public pronouncements, professional misconduct, and/or research methodology, so outlandishly bad as to justify permanent removal of that faculty member from the university?

Academic freedom is rightly a powerful force; it protects the ability of academics to seek and speak Truth to Power. But what if a tenured astrophysicist insists -- publicly and at every possible opportunity, that the earth is flat? What if a geneticist claims to find a genetic basis for arguing that members of a certain race are inherently less intelligent than members of another race, and the geneticist's "findings" both are obviously methodologically flawed and completely ignore counter-evidence? What if a faculty member uses social media or the classroom to denigrate her university, or to make ad hominem attacks against fellow faculty members? At what point does a tenured faculty member become such an embarrassment to the institution, or become so disruptive to its educational mission, that the institution is justified in terminating the relationship?

For better or worse, many administrative matters that historically were primarily the responsibility of faculty have become the responsibility of professional administrators. Perhaps  this is for the good -- shifting at least some responsibility for student admissions to administrative professionals helps ensure more consistent outcomes and frees faculty members to use their time more productively. But if faculty governance is to mean anything, it must mean the freedom to govern, not the freedom from governing.

Self-policing is difficult, uncomfortable work. No one wants to discipline or expel a colleague, and "enforcing professional norms" too often has been used as a subterfuge for excluding worthy individuals on other, less benign, bases. Perhaps for this reason much of the process of evaluating tenured faculty and holding them accountable has been either abdicated or shifted from the collective power of a college's faculty to deans, administrators, and university-level faculty bureaucracies. The unfortunate consequence is that we've largely lost the sense of colleges being a group of self-governing colleagues.

Thoughts and responses are welcome, though because of a yet-unresolved technical glitch I will have to rely on the other contributors to this Blog to approve comments.




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I think that it's a dangerous standard to allow administrators to be arbiters of what research methods are valid.

I think that if we allow administrators to block research because they dislike the methods, then they will inevitably be biased against methods that lead to conclusions that they disagree with.

It could lead to universities where politicians pressure administrators of public universities to force out professors with leftist ideologies. It could lead to bans on research which disagrees with popular religious views.

"At what point does a tenured faculty member become such an embarrassment to the institution, or become so disruptive to its educational mission, that the institution is justified in terminating the relationship?"

This is a disturbing line of reasoning. Some of the best research is provocative and unpopular.

Posted by: Alex | Apr 15, 2015 8:07:53 PM

To respect academic freedom, I think the answer should be, "not at a point that we're seeing here." While I found Campos's op-ed problematic, I was more troubled by your March 10th post suggesting that Deans should lie when they fill out the U.S. News rankings. This was a very disturbing and troubling position, especially for a Dean. So if we're saying that a really troubling argument should lead to dismissal, under that standard I would seek your dismissal for that post first, before Campos's dismissal for his op-ed. For that matter, I'm sure I've written something over the years that (if you read it) would have struck you as really outlandish, which would mean that I should be fired, too. The same goes for what Brian Leiter has written, and Stephen Diamond, too. Maybe all of us who comment publicly about law should be fired. But that seems like a standard that would infringe upon academic freedom.

Posted by: Orin Kerr | Apr 15, 2015 8:49:34 PM

Professor Diamond and other honest scholars have pulled back the curtain on Paul Campos and his fellow Wizards of Odds and Ends, exposing the stunning extent of their self-serving hypocrisy. As a former law professor who grew up in a working-class family, attended an elite school (Harvard) on an Air Force program, and then taught at non-elite institutions (Roger Williams, Charlotte, and Appalachian), I've seen the legal academy from all sides. It's refreshing to witness the truth at last revealed behind the Campos costume ball mask.

At least 99% of the people in this nation could never dream of being coddled in the luxury that Campos has enjoyed for so long. Regular folks who work long, hard hours every day just to pay the rent or mortgage and keep the lights on would laugh at the pampered life such academics lead. His almost total lack of actual practice experience would astonish anyone who had to pay his or her dues for years to work through the lower rungs of any real-world organization. Short hours, huge amounts of free time, lavish salaries, generous Summer Research Stipends, abundant funds for travel, books, furniture, and equipment, occasional sabbaticals, incredible pension plans and medical/dental benefits...the list would make Louis XIV envious.

Within this cocoon of comfort, it has been so easy for critics like Campos to bite the hand that feeds him with a silver spoon. The supposed scandals in higher education, the alleged corruption, the self-interested practices--Campos has been free to point his finger at all of them, while enjoying a life of ease and luxury. Now, reality therapy has begun. The hard facts are that the overwhelming majority of people have to claw and fight for every opportunity. We have to scramble for even a slight chance, a slim opportunity. For people of color, people of limited means, folks who need to earn money while going to school, life is anything but a bed of thorn-free roses.

The normal people Campos has so long derided make their own lucky breaks. They work to have a chance to realize their dreams at any school that will give them that opening. They can't worry about U.S. News rankings, reputation, and the opinions of self-appointed elitist critics. They only want even a tiny chance to earn a slender sliver of the good life Campos has marinated in for decades. A law school that truly values diversity, serving the underserved, and giving a chance to non-traditional students may be scorned by Campos and those of his ilk, but it is a true lifeline to so many worthy, hard-working individuals for whom this is their one chance for a better life. It's about time we saw the Wizard for what he really is. The charade is over.

Posted by: John Charles Kunich | Apr 16, 2015 2:40:35 AM

It is shocking to see a law dean suggest (thinly veiled) that a professor should be fired for his views. So let’s put this in perspective: A professor who advocates torture (water-boarding) is protected by academic freedom but a professor critical of legal education is not? Why exactly? Because the latter is uncivil (by your standards) and you consider his arguments weak?

This post, coming from a person in authority, is disturbing—a plain threat to the values of academic freedom—but, fortunately, academic freedom protects your right to utter it.

Posted by: Brian Tamanaha | Apr 16, 2015 7:32:31 AM

I did not read the Dean to propose that anyone be fired for their views, but for their competence. Campos's now famously bad NY Times op ed does not establish that he is incompetent, but his own admission that he is a "fraud" does raise questions. The fact that he has also blogged about faculty meetings at his own school surely suggests, after Garcetti, a possible problem for someone at a public university. Note that Dean Bales did not suggest that Prof. Tamanaha should be fired for being a critic of legal education. It's quite clear that Campos's shenanigans go far beyond merely being a critic of legal education, and they do raise difficult issues for a public university.

Posted by: Rob | Apr 16, 2015 3:33:42 PM

[Comment by Rick Bales, who because of technical issues with typepad is unable to post this himself.] I share Alex's reluctance to allow administrators to be arbiters of research methodology, which is why I posed the question of whether faculty should play more active roles. Regarding Orin's comment, I do not believe that my earlier post can fairly be read as advocating that USNWR poll-takers should "lie" when they fill out the USNWR surveys. Instead, my intent was to argue that schools fudging their numbers to enhance their USNWR rankings are masking underlying weaknesses, and that poll-takers should take this into account when (honestly) ranking the schools. But perhaps Orin mischaracterized my post precisely to make a point: that outlandishness often is in the eyes of the beholder.

Posted by: Admin | Apr 16, 2015 5:47:40 PM

Let's not pretend this is about competence, "not about his views." Had Campos not provoked the ire of legal educators owing to his criticisms of legal education, no one would be talking about firing him--particularly not the dean of another law school.

Why should Dean Bales have any say in or concern about the competence or collegiality of professors at other law schools?

The call for firing Campos owing to his views is a classic breach of academic freedom.

Posted by: Brian Tamanaha | Apr 17, 2015 6:14:03 AM

Prof. Tamanaha is ignoring the obvious: namely substantial evidence of incompetence and irresponsible behavior by Campos over a long period of time. If criticizing legal education were an offense, people would have called for Prof. Tamanaha's head long ago, since his critique has been far more influential. Leiter's blog contains a veritable litany of questionable actions by Campos, I assume it was to these that Dean Bales was responding.

Posted by: Rob | Apr 17, 2015 3:24:56 PM

"I did not read the Dean to propose that anyone be fired for their views, but for their competence"

In practice one can always argue that a person is incompetent because he/she holds certain views, so the power to fire someone based on competence provides the power to fire someone based on views.

Posted by: Alex | Apr 21, 2015 12:22:49 AM

It is pretty clear that the Dean of a law school that many reasonable people would say should close, one that conceals as much as possible about employment outcomes for its graduates "Ohio Northern University did not publicly provide the salary distribution (i.e. both the 25th, 50th, and 75th percentiles and the number of graduates reporting salary for this category) of its employed graduates." has reasons to want Campos removed from the blogosphere.

Many others would say Ohio Northern should close, which would achieve the objective of firing its dean

Posted by: Lurker | Apr 24, 2015 10:36:59 AM

I'm amazed at the chutzpah here. Mr. Dean, tell me what the job outcomes for your grads are? For some reason, LST doesn't have the salary data. Are they part of the evil conspiracy, as well?

Posted by: Barry | Apr 27, 2015 1:28:49 PM

It's worth noting that Steve Diamond is now taking the position that various law professors who are critical of the legal academic status quo are part of a Koch brothers-funded conspiracy to eliminate law schools, in order to destroy the rule of law. Here he is trying to convince Orin Kerr that Deborah Jones Merritt and Brian Tamanaha (along with of course myself) are part of this conspiracy:

"It’s a “fact” that this crowd is out to destroy the American law school and higher education itself as an institution. That is the clear goal of the Koch Brothers backed Cato Institute. Anyone who tries to deny that is either collaborating in that effort or naive beyond belief. I have made this crystal clear from the earliest days in which I joined this debate. See LUN.

In the longer run I believe the intent [of law professors such as Merritt and Tamanaha] is to undermine the rule of law itself. As law faculty we have a responsibility to defend the rule of law and I have argued that means defending the American law school as an autonomous institution.

The slanderous treatment of (least of all) me but much more against many others by this crowd is aimed precisely at shutting us out of the debate and that of course is critical to the longer term strategy of destroying law schools themselves. Instead of worrying about my reputation – as much as I appreciate your concern (in all seriousness) – perhaps you should consider the agenda these people are attempting to carry out."

This is the kind of person who Bales is quoting as a worthwhile critic of my work.

BTW I asked Bales directly what he thought ought to be done in my "case," but he refused to respond, hopefully out of embarrassment more than simple cowardice.

Posted by: Paul Campos | Apr 30, 2015 7:09:43 PM

For the record, Professor Campos is just inventing the idea that I suggested there is a conspiracy. But there is a shared agenda at work.

The comment Professor Campos refers to included a link to a long blog post that I wrote at the outset of my entry into the Great Law School Debate. It explores in depth my concern about the impact of the critics’ attack on the law school and the rule of law.

You can read it here: http://stephen-diamond.com/2013/01/21/will-separate-but-equal-return-to-the-american-law-school/

The essence of the concern is that Professors Tamanaha and Campos have helped feed the agenda of the Cato/Koch crowd aimed at “de-regulating” law school including gutting tenure and other protections of academic freedom. My more specific critique of Tamanaha’s views can be found here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2207749

Of course those are the protections that enable Professor Campos to engage in the kinds of whacky extramural speech that he uses to cover up the very weak case he makes about the alleged role law schools played in triggering the greatest economic downturn since the 1930s. Ironically when Professor Campos’ colleague Ward Churchill engaged in similarly absurd extramural speech in the wake of 9/11 and lost his job as a tenured professor at Colorado, Professor Campos went on Fox News to throw him under the bus (see here: http://www.foxnews.com/story/2005/02/01/more-controversy-over-univ-colorado-professor-churchill/).

Posted by: Steve Diamond | May 3, 2015 6:39:11 PM

In addition to inventing the word conspiracy, which I never used, Professor Campos places the names of Professors Merritt and Tamanaha into brackets at the start of the second paragraph of the comment he clipped from Prawfsblawg (the original full and accurate comment can be found here: http://prawfsblawg.blogs.com/prawfsblawg/2015/04/ohio-.html.)

But that changes what I actually wrote and is therefore inaccurate, at least with respect to Professor Merritt. I said that the critics were either collaborating in the Cato agenda (such as supporting the weakening of tenure) or were naïve about how that agenda works. I do not know Professor Merritt’s views on this issue and it is inappropriate for Professor Campos to have suggested otherwise.

Posted by: Steve Diamond | May 3, 2015 6:58:47 PM

Only the first example given, flat earth claims, is truly beyond any possible justification. The others should be protected given my limited understanding of the circumstances. The flat earth claim is simply false and indefensible beyond any doubt.

Posted by: Jim Clark | Jul 8, 2015 12:32:16 AM

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