Saturday, November 21, 2015

The Anthropologist Boycott and National Origin Discrimination

The question of whether anti-Israel boycotts violate American anti-discrimination laws (prohibiting, among other things, discrimination on basis of national origin) is an interesting one that is surprisingly underexplored. We're starting to see a little bit of it in the administrative ruling that Kuwaiti Airways discriminated against an Israeli passenger by refusing to board her on a flight to London, and of course American anti-boycott laws and regulations continue to lurk in the background.

Much of the debate is a specific manifestation of a much broader problem lying at the intersection of freedom of association and anti-discrimination norms. This has long been a vexing problem for liberal anti-discrimination theorists: how can we force someone to associate with (contract with, work alongside) someone that they do not want to? In this case, if an academic does not want to collaborate with one of her fellows (or a particular institution), isn't that their free choice? But what if the decision is taken on basis of a protected characteristic like race, religion, or national origin? Still, it seems profoundly illiberal (and probably unenforceable) to force them to engage in collaborations that they do not wish to do. Yet one could level that same objection to the application of anti-discrimination laws in any context -- and people have done just that. Compare Roberts v. United States Jaycees, 468 U.S. 609 (1984) (freedom of association rights of Jaycees were not violated by enforcement of an anti-discrimination law requiring that they admit female members) with Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (freedom of association rights of the boy scouts were violated by enforcement of an anti-discrimination provision requiring that they cease discriminating against gays).

The hard case, it seems, is one where we're talking about individualized collaborations with a given other. The easy case, by contrast, is in everyday commercial dealings: "I will not sell to you on basis of your race/gender/national origin", where such sales are otherwise made generally available. And on that note, I want to flag a provision of the pro-boycott resolution passed overwhelmingly by the American Anthropological Association last night (the resolution passes on the question to the full AAA membership):
Israeli universities would not be allowed to purchase access to a database of anthropology journals maintained by the AAA.
Whether or not the boycott generally runs afoul of American anti-discrimination law, this particular clause, at first glance, seems to do so openly and obviously. I could be wrong about this, but it seems entirely open and shut -- the free association claims in this context are pretty weak, and it just is an open admission that a given class of potential customers defined on basis of nationality will be excluded from access to a given commercial service offered by the AAA.

I'm sure the inevitable litigation will be a joy to behold.

Thursday, November 19, 2015

Generosity for Thee....

Jonathan Haidt has a post in the Heterodox Academy arguing, in response to student protests at Yale and other colleges, for "generosity of spirit." This is how he characterizes this virtue:
Philosophers often advocate what they call “the principle of charity.” It means that in any discussion we interpret others people’s statements in the way that makes their argument strongest, not weakest. We give them the benefit of the doubt, rather than trying to twist their words to support the ugliest possible implications.
I don't have any intrinsic objection to this. In fact, I rather like generosity of spirit in this respect. I think we should try to encounter other people on their strongest terms, and that we shouldn't reduce conversation into a search for bad motives.

But I do have to ask if this is a virtue Haidt embodies when it comes to his "others." For when Haidt talks about the current generation of students and the grievances they air, he does not seem particularly generous. They are presented as spoiled millennial brats, perpetually making mountains out of molehills, incapable of grasping basic concepts regarding freedom of speech, willfully ignorant of what "real" oppression is, unable to handle any dissonance to their worldview penetrating their perfectly serene and coddled "safe spaces", and so far removed from  civilized modes of reasoning that they've created an entirely new "culture of victimhood" to inhabit. Is this "generosity of spirit"? Is this an genuine effort to "make[] their argument strongest, not weakest"?

We can push further to see a more fundamental problem in Haidt's outlook: it comes with an implied "unless the argument is about racism, sexism, or other like -isms" exception. These arguments are viewed as inherently violative of a "principle of charity"; simply by invoking them one steps outside the boundaries of "generosity of spirit" and therefore forfeits the right to receive due consideration. This is what allows such claims to be responded to in ways that, on the face of it, in no way can be harmonized with principles of charity. I tried to make this point in my Playing with Cards article:
The bad faith charge [leveled against discrimination claimants] ... is precisely an allegation that the claimant is engaging in a deceptive, malicious, and opportunistic game designed to browbeat her interlocutor into agreement. And contrary to the respondents’ allegation, this same sin is not (or at least not necessarily) fairly attributed to those who claim discrimination. A claim of racism, sexism, or anti-Semitism need not come attached to any assertion of insincerity or bad faith. This is because the contours of discrimination are not exhausted by the intentions of the speaker. It is a perfectly valid discursive request to interrogate potential injustices lurking within positions honestly taken and passionately felt. To reduce such inquiry to a mere search for hidden motivations is to dramatically circumscribe justice-talk generally.
Were Haidt serious about applying his generosity of spirit principle evenhandedly, I think he'd arrive at a very different descriptor of what is motivating the student protesters at various campuses. It would concede the possibility that the students are responding to genuine, not overwrought, feelings of alienation and discrimination. It would acknowledge the possibility that they had in fact grappled with the standard academic arguments in the relevant areas, and that perhaps they had endeavored to articulate their concerns within the standard deliberative language and had been stymied. It would not race to the conclusion that they were only acting the way they were because they were sociopathic or sadistic; that they enjoyed heaping angst on others for its own sake or that they are presenting their claims in this particular way because they are too unsophisticated to do so in any other way.

None of this, it bears noting, requires endorsing any or all of the actual stylistic or substantive choices the protesters are making. Indeed, there are quite a few of them I have serious problems with -- I have deep skepticism about the some of the rhetoric surrounding free speech, and as a rule I don't like political discourse taking the form of surrounding a target and screaming at them. This is a tough line to walk: it's what I tried to get at in my Yale reconsideration post. The defect of my original post was not that I failed to endorse particular tactics or conclusions of the Yale protesters, it's that I jumped from "I don't endorse particular tactics or conclusions of the Yale protesters" to "they must have arrived at those conclusions because they're intellectually sloppy." The generosity of spirit, which I tried to embody in the follow-up, would be to explain why I had reservations regarding their positions without relying on an uncharitable assumption that they were simply bad at reasoning for disagreeing with me.

Now, one could charge me with that old paradox of "tolerating the intolerant": I'm saying we must give the student protesters the benefit of charitable interpretation even as they allegedly display no such generosity towards the targets of their investigation. I say "allegedly" because I do not think such ungenerousness is present in all cases; as the quote from my article suggests I think it is quite possible to argue that a given belief or practice is oppressive without suggesting that the holder of it is being dishonest or unthinking in adopting it, and I think frequently the claim that such arguments constitute a personal attack is in fact a defensive move designed to remove such claims from the ambit of legitimate discussion deserving reasoned responses. But certainly, I agree that some of the claims do seem to evince a lack of charity, so no more on that.

Yet even here, note how one-sided the complaint is. After all, the argument of the protesters is identical in structure: "why," they ask, "should we have to 'tolerate' the intolerance of persons making racist remarks or employing crude racial caricatures?" There, of course, the response is to say that liberalism demands that we defeat their bad claims with good ones, and moreover, that we assume that their bad claims aren't simply a matter of irredeemably defective souls but perhaps come from good intentions and good places that can be reasoned with. So it seems a similar degree of "tolerance" should be extended to those students who are, at least some of the time in my view, making bad arguments -- the response shouldn't be to intone portentously about how kids these days don't understand the importance of free dialogue (much less to scream about how maybe they'd like things better in North Korea). Here, too, we could say that bad claims should be met with good claims, even as free speech allows them to make bad claims (as my former professor Geoff Stone rightly observes, it is a bedrock principle of free speech that even arguments demanding the curtailment or abolition of free speech are nonetheless protected by free speech, so long as they stay in the realm of arguments).

Again, it's not that I don't like generosity of spirit or interpreting with charity. I think they're both good values, and I think they're underappreciated values. But they are values whose absence is very easy to see in our adversaries but difficult to recognize in ourselves. I certainly wish that many of the students in question showed more charity towards their interlocutors; but that same principle advises that I should assume that maybe the reasons they're not being so generous in spirit is more complicated than raw defects in character.

Wednesday, November 18, 2015

Israeli Court Affirms Transgender Woman's Request To Be Cremated

The Forward reports on an interesting and heartening case out of Israel involving a transgender woman's request to be cremated. Cremation is generally prohibited under traditional Jewish law (a prohibition which predates, but was emotionally strengthened by, the Holocaust), but for a variety of reasons some secular or Reform Jews prefer it to a traditional burial. Among them was a transgender woman who requested in her will that she be cremated because she was worried that in a traditional burial her status as a woman would not be honored by her family. As if it to vindicate those fears, the woman's mother sued contending that her "son" was "undergoing a deep mental crisis and was not capable of drawing up a will."

A Jerusalem court, however, rejected the mother's suit and allowed the woman to cremated according to her wishes. This of course seems morally correct and important both as an affirmation of transperson's rights of self-identity as well as a rejection of the notion that such self-identity is simply a "mental crisis."

May her memory be a blessing.

UPDATE: The Israeli Supreme Court just affirmed the lower court decision.