Trading a Vice for a Virtue: A Reconsideration

The post I wrote earlier this week on the Yale controversy has gotten a decent amount of positive feedback. And while I'm grateful, I also am a bit surprised, because -- oddly enough -- I didn't really like that post. I wasn't comfortable with it when I wrote it, I hesitated greatly before publishing it, and I continue to have misgivings about it now. It's not exactly that the takeaways were wrong, but I wasn't satisfied with how I expressed them and there was some hiding of the ball -- even from myself -- on what was motivating me to focus on what I did. And while I imagine some will think that I received some blowback or critical response that is provoking this reconsideration, I can honestly say there was none (though perhaps one would have been deserved). This was internally-motivated, and hopefully gets across better what I want to think about on the subject.

I've noticed in all the (good) articles on this subject, there's a fair bit of "to-be-sure"ing going on, whereby the writer critical of the student protests acknowledges, "to be sure", that racial harassment is a very bad thing when it happens, or the writer defending the protests agrees, "to be sure", that it is inappropriate to call for "muscle" to evict a media photographer. Given these overlapping "to-be-sures", one could wonder what all the fuss is about -- but it's clear the question is on emphasis: is the important issue ingrained racist practices at many of our colleges and universities (with suppression of dissident views a real but side issue), or is the important issue incurious and intolerant millennials (with ongoing racial harassment a real but side issue)? Clearly there is a problem of caring equally here. But on reflection, it's unclear why I should have taken the focus that I did (incurious millennials, while to-be-sureing racial inequities).

One of the arguments I did try to make with some level of clarity was that this entire discussion is ill-served when it is grouped-in as a question of free speech. Kate Manne and Jason Stanley have a very thoughtful article on this point that I largely agree with* noting that for the most part "free speech" is being used opportunistically to privilege particular speech-instances while condemning others that are structurally identical. The Yale controversy, after all, essentially broke down as follows:

1. Yale administrators say that one shouldn't (not mandate that one can't) wear ethnically offensive Halloween costumes (because that's part of being respectful of one's peers on a diverse campus);
2. A Yale dorm master says that they shouldn't have sent that email (because one shouldn't need administrators to make such recommendations and in any event a little bit of offense is not the worst thing in the world);
3. Yale students say that the dorm master shouldn't have made that argument (they find the argument risible, beneath the standards of good argumentation, or not in keeping with the master's mission).
4. Various commentators say that the students shouldn't  have condemned the dorm master for writing the email (they should be tougher, they should be open to diverse views, etc.).

All of this is speech and counter-speech, structurally identical to one another. And moreover, I've been quite consistent in arguing that it is a legitimate move (from both a "counterspeech" perspective and a good citizen perspective) to argue that certain arguments should not be made (the "academic legitimacy" argument), though I've also implied that I think one should be very judicious in making such claims -- there should be a very wide gap between "claims I think are wrong" and "claims I think should be explicitly discouraged from being considered in the deliberative space". My contention was essentially that the Yale students made that gap too small -- and while I still think I'm right about that, there are some serious shortcomings in how I framed it. 

For starters, believing that the Yale students drew the line incorrectly does not necessarily suggest that they simply lacked curiosity about an alternative view -- indeed, it seems overwhelmingly likely that they have thought about this issue plenty and were just tired about having to retread plowed ground again. Potentially, such retreading is nonetheless necessary -- but failure to do so is at least a distinguishable vice from a lack of curiosity. And to the extent I implied that there was a more general failure of curiosity at work here, that seems on reflection difficult to infer as well given that I acknowledged that this email almost certainly did not occur in isolation but rather was the straw that broke the camels back (and of course individual straws look insignificant). On this score, Kevin Drum got it exactly right when he said that "fixating on a single incident like this is as silly as trying to figure out why all those European countries really cared so much about Archduke Ferdinand." Finally, you'll note that this concern about having a strong default in favor of considering arguments qua arguments did not come into play in my assessment of the master's email vis-a-vis the Yale administration email. Why wasn't I also rattled by the idea, forwarded by the master, that it was a bad (not impermissible, but bad) deliberative step for the administration to proffer its ideas regarding what one should (but was not obliged) to do? It's not that there aren't arguments to be had on this score, and I think the master raises a legitimate point when she asks why the students lack confidence in their internal ability to create tolerant norms but do have confidence in the administration's capacity for doing so, but those are significantly more complicated points that seem not to explain the disparate treatment between arguments that structurally adopt the same pose.

So that's the reassessment. But I also think it might be valuable, for me at least, to try to unpack what was going on in my head that was driving my thinking on the matter, the focus that I took and the conclusions that I arrived at. The basic argument -- which I still think is right, though more on why in a moment -- is that while it is certainly not a free speech violation to argue that certain other arguments should not (not cannot, but should not) be made or taken seriously, we should be exceptionally judicious in taking such stands. It's not that they're never warranted (an obvious example is a claim that the earth is flat -- I don't want to ban the view, but I do think it shouldn't be taken seriously. "Black people are scum" would be another), but we should be exceedingly cautious and default strongly in favor of at least listening to arguments and disagreeing with them on their merits.

The salience of that position, for me at that time, came out of a post I didn't write -- one about the objections by some progressives to having Bibi Netanyahu present at CAP. This, of course, occurred in the broader context of efforts to boycott -- or otherwise refuse to listen to -- Israelis more generally, and to me exhibited a true lack of curiosity that was deeply disturbing. There was no chance, after all, that Netanyahu would be (as one blogger put it) "feted like the Queen of England and subjected to no challenging questions." And since I am no fan of Netanyahu, I very much liked the idea that he would be subjected to challenging questions. But it seemed to me that the objections to him speaking were predicated less on the prospect that he'd say something outrageous in response than that he'd say something that was not so clearly off-base -- those who wanted not to listen were afraid that he'd give them something that seemed to warrant being listened to, and thus disturb the much more comfortable presumption that any decision he makes or any position he takes is based on such obviously atrocious arguments that they need not even be considered. More broadly, effort to disinvite him exists as part of a larger cultural moment whereby the very legitimacy of (most) Jews' perspectives -- the idea that this entire outlook can be casually dismissed as having no value, deceptive when it isn't oppressive, distracting when it isn't made in bad faith altogether -- that is deeply worrying to me and really does negatively impact my ability to proceed with confidence in deliberative spaces.

In short, I was in a place where I was keenly attuned to the very real equality risks that can emerge when people try to assert the illegitimacy of given perspectives. As a Jew, I can't completely cheer at these expressions of left-wing activism because I know there is a real and non-negligible risk that in that crowd someone wants to say the whole thing they're fighting against is a Zionist plot, and there is a real and non-negligible risk that if that person gets a hold of the mic and says so the crowd will erupt in cheers. 

But the bigger issue is this: I'd like to say that I take the position that I do -- a strong default in favor of accepting arguments into the deliberative space and against preemptively screening off even those I passionately dislike -- for  "neutral" reasons (respect for pluralism, the importance of experimentation, epistemic humility, whatever). But if I'm being honest, I think a large part of my position flows from my awareness that the check these activists wish to write is one that I'm not entitled to cash. The principle that we should (through social if not de jure pressure) seek to tamp down on speech that alienates people or makes them feel unsafe or disrespected is not one I'm allowed to invoke; indeed, it doesn't seem to occur to people that I'm the sort of person who ever could invoke it

One Yale graduate student (I lost the link) wrote an open letter to the dorm masters which presented his perspective on how white privilege and the perspective of persons of color should have played into this debate. Included in his argument was a pretty strong claim that only the oppressed can truly know the nature of their own experience and thereby they deserve deference when making such assertions. And then turning to the "free speech" claim, he asked the master where their free speech commitment was when Steven Salaita was denied his position at Illinois.

Had that question been directed to me, of course, I could have responded that I was quite explicit in declaring Salaita's academic freedom had been violated. But what I really wanted to say was that Steven Salaita is not your standard-bearer; Steven Salaita is your victim. What, exactly, do you think the Illinois decision was except an assessment that in deriding the legitimacy of anti-Semitism allegations as being worthy of concern (he said he took them with "bemused indifference"), in comparing Zionists to vermin or a pox ("scabies"), in celebrating violence against Jews and wishing more to fall upon them, he was making the space unsafe for Jews on campus? I could lob right back -- where was your epistemic humility about your ability to understand their outlook and what they've gone through? Where was your concern about respecting oppressed peoples' right to name their own experience when you erased their stated concern about anti-Semitism and substituted in a supposed inability to tolerate criticism of Israel? It doesn't even ring a bell. 

Now it's not the case that everyone is a hypocrite here. As I mentioned, despite absolutely believing that Salaita's tweets were anti-Semitic, I still thought his academic freedom was violated -- for me, the free speech issue trumped. And I had a wonderful train ride last year with a colleague who is both far more harsh in her assessment of Israel than I am and more favorably disposed to the "safe space" concept than I am, and she took the exact opposite view: She thought that Salaita's tweets raised serious questions about his ability to foster a safe and inclusive space in his classroom, and therefore was not convinced that the administrators were necessarily unjustified in revoking his appointment. Thus we had the strange experience of the Zionist defending Salaita's academic freedom rights and the anti-Zionist suggesting that maybe the administration had a point in keeping him off campus.

Still, that I think is the exception and not the rule. I have an admittedly deep-seated suspicion of the argumentative line be taken here, and I think it results primarily from the fact that I don't think I'd be allowed to access it. And in this, I'm reminded of Patricia Williams' defense of formal legal rights as against the challenge of Critical Legal Studies professors who'd prefer more informal norms of relations. Williams liked rights not because they were ideal, but because she couldn't count on informal communal norms to be inclusive of her. The thin, threadbare, dispassionate, anemic rights-talk still gave her at least a bare foothold for asserting claims; the rich, casual, everyday modes of informal discourse often times would just casually and informally exclude her. And so it is with my instincts of discourse -- my preference to let as much as possible be admitted to the space of arguments that demand reasoned responses does not come from a belief that most arguments are worthwhile, it comes from a lack of confidence in the institutions -- be they college administrators or public legislators or, unfortunately, idealistic campus activists -- that are tasked with deciding what is drawn in and what is drawn out.

* I have to observe, though, that there is in fact no "hate speech" exception in First Amendment doctrine. This is a widespread misconception, and while I'm not sure from where it derives, it is unfortunate that it was forwarded here.

Illinois and Salaita Settle

The University of Illinois and Steven Salaita have settled their dispute over the former's "unhiring" of the latter, with Salaita to be paid over $800,000 in damages and attorneys fees. Since this looks to be the conclusion of the saga, I'll take the opportunity to one last time state my position: Yes, I think Salaita made anti-Semitic tweets, yes, I think his academic freedom was violated, no, clause "a" and clause "b" should not have anything to do with one another. Academic freedom includes the right to make anti-Semitic (or racist, or sexist, or whatever) statements; Salaita should not have been effectively stripped of his position for doing so; and he was entitled to (and I'm glad he received) a significant cash payout given that he detrimentally relied on Illinois' failure to adhere to basic academic freedom standards.

Things People Blame the Jews For, Volume XXII: High Tuition

College is expensive, and growing more so. Tuition prices seem to trend ever-upward, with no end in sight. Causes are no doubt complex: Bloated administrations, increasingly ritzy amenities, proliferation of niche and trendy centers and programs ... oh, and if CUNY's SJP chapter is to be believed, "Zionist administrators":

Wow. Students for Justice in Palestine at CUNY actually blamed "the Zionist administration" for high tuition: pic.twitter.com/6bZlX1WeU9

— Yair Rosenberg (@Yair_Rosenberg) November 12, 2015

Jews ruining higher education -- it's not just a law school thing any more!

Look, it's not that Zionist mind-control indoctrination rays are cheap -- they're not. But they're the only reason why the Elders of Zion even allow there to be an Engineering Department. So really, folks should be thanking us.

Academic Incuriousity: Not Just a Liberal Problem

Apropos my last post on the Yale flare-up, Max Fisher has a good post at Vox about a similar free speech/safe-space type controversy at William & Mary a few years ago that didn't get anywhere near the attention that Yale's did. Part of the reason, Fisher suggests, is that it was conservatives doing the crying -- crying that a foot-and-a-half tall cross was taken down from a public building, and crying that an allegedly offensive art show played on campus. The result was ultimately the ouster of the college's President.

I remember that controversy well, and I remember that it certainly didn't have the cultural resonance of the contemporary "PC-liberals hate free speech" issues we're talking about today. Indeed, my first thought when reading the recent fusillade of articles denouncing liberal oversensitivity on campus was to marvel at how conservative writers had managed to shift from "campuses are brainwashing students with evil dirty sexy offensive anti-American propaganda that should be banned" to "whiny liberals don't understand that college shouldn't be comfortable" without skipping a beat.

Like Fisher, this is not an apologia for liberal students being similarly close-minded. As I observed in my last post, what we're seeing is not a uniquely liberal vice, but rather a convergence on a bad equilibrium whereby everybody has the right to be epistemically incurious and close-minded (as opposed to just the dominant groups). That's bad, but it's not a specifically liberal bad. It's a far more pervasive and more dangerous problem precisely because it is a vice that now everyone seems to feel entitled to (even as they are appalled to see it exercised by others).

Trading a Virtue for a Vice at Yale

I'm currently reading Jose Medina's truly outstanding book The Epistemology of Resistance. I'm only through the first chapter, but one of Medina's core arguments is that the social position of privilege can (does not always, but can) lead to certain epistemic vices -- for example, close-mindedness or overconfidence. Privileged persons who do not often experience others challenging their views (or, when such challenges do emerge, are assured by other societal actors that these challenges are inconsequential) may be hampered in their ability to self-reflect and think critically about the merits of their own position. Since nothing forces them to engage in such (potentially distressing) behavior, they may simply abstain from it, preferring to bask in the comfortable security of "knowing" that they've got it all figured out. And accordingly, Medina argues, persons under conditions of oppression can (do not always, but can) exhibit certain epistemic virtues -- they may be more open-minded or curious about the world and positions not their own, simply because they have to be. They are not in a position where they can simply not listen to the views of others, they often have to grapple with and be fluent with perspectives and experiences that are different from their own.

Medina is no fundamentalist: he obviously does not think we must be radically open-minded and uncertain towards any and all beliefs we might hold (a position that would lead to epistemic anarchy, if not outright paralysis). Nor is he essentialist: he believes that plenty of oppressed persons can display the vice and plenty of privileged persons the virtue, and he clearly hopes that all of us will strive to do a little less of the former and a little more of the latter. But I worry that we're beginning to see the opposite. Instead of encouraging more virtue -- asking people to emulate the particular epistemic virtues of curiosity often fostered by oppression -- people are asserting a right to the vice. They want the power not to listen, they want to not have to think discomforting thoughts. The equilibrium seems to fall exactly where we don't want it to be.

In a sense, this is unsurprising. Virtues are very often no fun to live out -- that's if anything a cliche --and the virtue of epistemic curiosity is no different. It is uncomfortable and disorienting for one's worldview to constantly be under threat, to never be quite sure if one's views (including passionately-held ones) are on target, to always have to encounter and reckon with voices and perspectives that seem radically alien from one's own. How much nicer is it to occupy that space of privilege -- to not have to endure such challenges, to be secure in one's correctness, to be surrounded by fellow-travelers in solidarity. The virtue is not recognized as a virtue but is recognized as a burden; the vice is not recognized as a vice but is recognized as a comfort.

The recent controversy over Yale students protesting over a college assistant "master's" email critical of administration-promoted suggestions regarding proper Halloween costumes (the master suggested that students should not need or desire the administration providing such "guidance" because they should be able to come to good conclusions on their own; and if in certain circumstances they came to bad conclusions that would not be the end of the world) seems to resonate with this concern. The usual caveats apply: this incident did not occur in isolation, there is a long history of college students making poor choices (itself not the worst thing in the world), no social movement can be perfect all the time, and so on. But nonetheless, the conduct of the students -- surrounding the master and verbally abusing him, seemingly enraged that he might have a different view from theirs, finding it outrageous that one might think his arguments are "worth listening to" (I'm actually less concerned with calls that he resign from his post as master than with the verbal confrontation, oddly enough) -- seemed to be about trading the virtue for the vice. The email in question may be wrong, but it did not seem to be outrageously so, the sort of statement that was so obviously out-of-bounds as to warrant exile from the realm of legitimate discourse. It did not exhibit the markers that should have rendered a lack of curiosity (indeed, a sense of offense towards the idea that one might be curious towards them) about its claims a virtuous stance to take.

So what is going on here? Well, obviously a lot is, and again it is clear that this email alone was not really the critical factor in triggering this outburst. Nonetheless, I think it is possible to understand why these students seemed to frame their claims in terms of their right not to listen. Though Yale students come from a variety of backgrounds and many continue to face significant degrees of oppression (on and off campus), all have at least some privilege simply by virtue of being Yale students. And having tasted that privilege -- experienced how good it feels to just be instinctively, reflexively validated -- it's no wonder that they want more of it. If virtues are stereotypically a burden, vices are often a blast. And there is no reason to suspect that people -- when given a naked choice between living out the virtue or living out the vice -- will typically select the former. In many circumstances, epistemic virtue (like any other) must be inculcated.

Certainly, it is fair to say that it is probably ideal for both camps to move closer to other -- more epistemic confidence for oppressed persons, more epistemic humility from privileged ones -- but that leaves the question of where in the middle the two will meet. People who argue that the claim of marginalized persons to access this place of epistemic security are only demanding what the majority has long possessed aren't wrong -- somebody (I forget who) observed that the conservative freakout over Starbucks' red cups is nothing but a safe-space-style demand that their preferred worldview continue to be the unchallenged default -- but they do overlook that this majority-possessed space is not a virtuous one. The risk is what people will seek out is somewhere that's more on the vice side of the ledger, and that is not a desirable (nor, I'd argue, a sustainable) place to be. Not every college movement that seeks to alter the dialogic norms of the community does this, but some of them do, and the Yale case seems to be closer to a pursuit of the vice than the virtue.

Now, I think in many cases the problem here is misidentified as a "free speech" problem, when often it isn't: it's counterspeech. I've tried to delineate the difference in my posts on academic freedom vs. academic legitimacy (see the latest for links), and while arguably that doesn't apply in the Yale case (where one could plausibly maintain there was intimidation at play), often times people complain about "censorship" when in reality all that's going on is people expressing a contrary  message. The idea that certain ideas should not be socially accepted (so long as social disapprobation is all that's at stake) is entirely consistent with free speech rights. When students say (and do no more than say, though perhaps say quite loudly) "I don't want to listen to this argument" or "I don't think this speaker belongs on our campus", the potential vice in play (and it isn't always a vice) is not censorship, it's a lack of curiosity. This problem -- if it is one (and I think it is one) -- should be addressed on its own terms. And the solution -- whatever it is -- will need to balance the genuine need for bolstering the epistemic confidence of outgroups who are often mistrusted, while preserving the virtues of curiosity and open-mindedness that epitomize an ideal deliberative space.

UPDATE: Please see the follow-up I wrote to this post, which reconsiders some of the critical points and provides additional context.

Great (Israel) Cases Make Bad (International) Law, Part II

Back in July, I blogged on an ICC ruling reversing a prosecutor's decision not to open a case in the Mavi Marmara flotilla incident. Comoros had filed a complaint alleging that the killing of 10 persons aboard the boat during the IDF raid was a war crime; the ICC prosecutor decided that the incident lacked the "gravity" that would compel an ICC investigation (if you're wondering "why Comoros?", it's because neither Turkey nor Israel is an ICC party, but the ship was Comoros-flagged).

The ICC panel's decision ordering the prosecutor to reconsider filing the case was notable in that it united right-wing general Israel-defender Avi Bell and left-wing general Israel-critic Kevin Jon Heller in pretty vitriolic criticism. Both agreed that the rule the panel articulated regarding "gravity" was legally novel and practically unworkable; Bell explicitly and Heller implicitly contended that the decision consequently would have no bearing outside the Israel context (where, it seems, the normal rules never apply). My post above (which links to Bell and Heller's arguments) provides more detail, but put simply there is no way that the ICC can be mandated to investigated ever case alleging roughly 10 killings, and given the identity of the complaining party (Comoros) there is no serious argument that the event was part of a larger "situation" in the Comoros that exacerbates the salience of the incident.

In any event, by a 3-2 vote an appellate panel has affirmed the initial decision ordering reconsideration by the prosecutor. I haven't read the opinion so I don't know if it takes any steps to cure the defects Bell and Heller identified, and I look forward to their commentary. But at first glance, this seems to be a continuation of a very deleterious trend: International law principles surrounding Israel tend to be tickets good for this ride only. And that is a principle that is destructive of international law and wholly incompatible with principled commitments to equality.

Honoring Jesse Choper

Last night, I attended a retirement party for Jesse Choper, the Earl Warren Professor of Public Law at UC-Berkeley. Jesse has been an active teacher for a remarkable 54 years, starting at the University of Minnesota in 1961. He moved to Berkeley in 1965 and has been here ever since (including a stint as Dean from 1982 - 1992). So while Jesse is known around the country as one of America's preeminent constitutional law scholars, it is no surprise that here in the Bay Area he is known more simply as "Mr. Boalt".

Of the literally hundreds of people who came out for Jesse's retirement party, it is probable that each of us could have given a meaningful personal toast. Of course, in that group of luminaries I rank pretty low in the pecking order. But here on the internet I can give my own toast, which while probably just a drop in the bucket of accolades Jesse has received throughout his career, is nonetheless the very least I can do.

Of all of Jesse's colleagues, I think I can say with a fair amount of certainty that I am the latest. I arrived a Boalt last year as the inaugural Darling Foundation Fellow in Public Law, and I had the tremendous privilege of being the coordinator for Jesse's final class -- a workshop in Public Law that focused on the Roberts Court. I got to know Jesse throughout the term as we selected the list of invitees and later attended the weekly talks, and so was able to experience first hand many of his noteworthy quirks. Not only does he drink white wine on the rocks, but he does so with such regularity that -- upon arriving at Saul's (our local Jewish deli) -- he need not say a word before a glass has already reached his table. I can also verify that he is a singularly happy figure -- on his daily strolls to the faculty lounge for coffee, I do not believe I've ever seen him without a smile on his face.

Since this was to be Jesse's last class, and since I had known him all of a few months, it would have been easy and understandable if I had faded into the woodwork of the thousands of students, staffers, and colleagues Jesse has worked with over his career. But that did not happen. Jesse took an immediate interest in my work and my career, offering to read and comment on drafts and put in calls whenever one of us spotted an open position. Perhaps more meaningful, he also asked me to read and comment on his work. Admittedly, this was quite intimidating, given that I was not even on the tenure-track and Jesse has literally 50x my experience in constitutional law. But it was also quite important to me. Many senior faculty members are aware of and cheerfully fulfill their obligation to comment on their junior colleague's work, but it doesn't always occur to them to run their own ideas past the juniors. Yet an important part of growing into this role and no longer seeing yourself as an impostor whose law school grades and mastery of big words duped a few people into giving you a faculty office is getting the sense that others value your opinion too. That Jesse Choper -- author of Constitutional Law: Cases, Comments & Questions and Judicial Review and the National Political Process -- wanted my opinion on his work was possibly the most important thing he could have done to make me feel like a true colleague.

Even having been here for barely over a year, it is difficult to imagine Berkeley without Mr. Boalt. There is a part of me that is very skeptical that we'll see much of a drop in Jesse's frequent strolls to the faculty lounge. But regardless of whether he's in the building or not, it is evident that his spirit has penetrated the law school deeply. I was privileged to have worked with him, I am privileged to know him, and I look forward to continuing as his colleague and friend well into the future.