Friday, April 14, 2023

Corruption in the Family

By now, you've no doubt heard about the ongoing corruption controversy regarding Justice Thomas failing to disclose numerous financial gifts from a billionaire conservative friend. To a large extent, the usual suspects are lining up to criticize Justice Thomas and the usual suspects are organizing to defend him. But I want to focus on one thing in particular, embodied by this tweet from former Thomas clerk and Notre Dame Law Professor Nicole Garnett.

I am sympathetic to Professor Garnett here. I truly am. I've often pondered how I would respond if a loved one -- a mentor, relative, parent, friend -- was credibly accused of corruption or some other dire crime. How would I handle it if the judge I clerked for, the late Diane E. Murphy, whom I absolutely adored, turned out to have accepted millions of dollars in "gifts" without proper disclosures?

Even in writing that sentence, I wanted to hasten to add "now, I could never imagine Judge Murphy doing such a thing." Which is true, I can't imagine it. Judge Murphy was an extraordinarily kind, generous, and humble person; universally respected by peers of all ideological persuasions. She was the furthest thing from a financial grandstander.

But that's just the thing: in most cases like this, the crime is unimaginable to the perpetrator's loved ones right up until it's revealed. It is a myth, I think, that most wrongs of this nature are only committed by persons whom, once the truth comes out, their closest relations will be like "you know what? He did seem the type." It's always going to be a shock to someone.

Be honest with yourself: when it comes to the people closest to you, would you actually know if they were doing something wrong akin to what Justice Thomas is accused of? "Know" not in the loose sense of "I know their character," but in the strong sense of "I'm familiar with their accounting practices"/"I've seen their disclosures"/"I know what's going in and out of their bank accounts"? We don't know. It would come as a shock. If you woke up tomorrow and your parent was arrested for skimming money from their job, you'd be blindsided, and not really because you have a blind spot as far as your parents are concerned. The truth is, you would have probably had no way of knowing what they were up to until the investigation actually broke. It really would be unfathomable, even were it true.

So I do sympathize with Professor Garnett. I don't think she's myopic in identifying Justice Thomas as a personally warm and generous human being (something I've heard from multiple sources). I don't think it is a function of self-delusion that she didn't see this coming.

But the fact is that, for essentially every scandal like this, the perpetrator has loved ones for whom the scandal comes as a terrible, unfathomable surprise. That doesn't mean it didn't happen. That doesn't mean it wasn't wrong. For the individuals affected, the dissonance between the person they know and the crime alleged is beyond abnormal, it is a terrible, almost irresolvable discordance. From the vantage of broader society, that discordance is utterly and mundanely normal -- it characterizes every single case.

Wednesday, April 12, 2023

Why Does DEI Make Good Free Speech Advocates Go Bad?

Keith Whittington, Princeton professor and chief of the Academic Freedom Alliance, has been reviewing various state-level attacks on academic freedom. Today he visits Texas, which has a trio of bills under consideration that all put public universities under their sights in various ways. Whittington is generally skeptical of all these proposals, but he does have kind things to say about portions of one of the proposed laws, SB17.

That bill would shift greater authority to the university boards of trustees, would prohibit the use of diversity statements in faculty hiring, and would abolish the activities of diversity, equity and inclusion administrators. A similar prohibition was adopted as an appropriation rider in the House. Violating the DEI ban can be a cause for terminating even tenured members of the faculty. The bill would also require state universities to adopt as part of their mission statements a set of pledges regarding intellectual freedom, including a commitment to "viewpoint diversity" and "institutional neutrality."


From my perspective, the DEI ban and the institutional commitments are all to the good in enhancing the intellectual freedom on college campuses. The potential penalty for faculty who violate the DEI ban is worrisome, however, in both its chilling effect and its unjustified expansion of the bases upon which tenured professors can be terminated.

(Whittington also raises the alarm about shifting review power to the boards of trustees).

I want to flag Whittington's claim that the DEI ban is "all to the good" (even if, perhaps, too draconian in its enforcement mechanisms). It is not all to the good! It is very bad, and pointedly, it's very bad for reasons that Whittington identifies elsewhere in his post! This is yet another example of how the anti-DEI obsession amongst some "free speech" advocates has caused them to endorse policies and practices whose impingement on academic freedom would otherwise be nakedly obvious.

Among the things prohibited by this part of SB17, universities would be prohibited from soliciting or acting on any statement regarding an applicants "views on, experience with, or past or planned contributions to efforts involving diversity, equity, and inclusion, marginalized groups, antiracism, social justice, or views on or experience with race, color, ethnicity, national origin, or other immutable characteristics."

As a constitutional law professor whose work focuses significantly on questions of race, equity, inclusion, and so on, I shudder to think how an interview with me would go if the hiring committee were forbidden from asking about or considering my views on these topics. What, exactly, would we talk about -- the Dodgers? And while for someone in my shoes there is an obvious relationship between the banned topics and my disciplinary work, there are also areas where this is germane for professors of any academic affiliation -- most notably, in discussions of pedagogy. As I've written before, it cannot be the case that university actors are forbidden from caring about questions like "will the job candidate do a good job creating an equitable and inclusive environment for our diverse academic community?" But SB17 strongly suggests that such concerns would, in fact, be legally proscribed.*

This is why I've written before regarding how anti-DEI bans are inevitably academic freedom trainwrecks. They're justified as checks against "compelled speech", but in practice they serve (and intentionally so) as massive chills on important facets of academic conversation. And the thing is, Whittington is well aware of the mechanics here -- he explains them ably in his critique of the companion SB16 bill. SB16 purports to forbid professors from "compel[ling] or attempt[ing] to compel" an enrolled student "to adopt a belief that any race, sex, or ethnicity or social, political, or religious belief is inherently superior to any other race, sex, ethnicity, or belief." Here's what Whittington says to that proposal:

It would likely chill classroom speech as faculty try to avoid any appearance of compelling belief on various sensitive topics routinely discussed in college classrooms. To the extent that the law simply codifies the constitutional prohibition on compelled speech, then it accomplishes little other than attempting to chill speech. To the extent that it might be interpreted to prohibit professors from advocating certain views in the classroom or requiring students to correctly describe and analyze such views in their coursework, then it will invite controversy. Not hard to imagine students complaining that a professor attempted to compel them to believe that, for example capitalism is superior to socialism by assigning them to write an essay with that premise.

Emphasis added, because that's the rub. If it's just an attempt to forbid compelled speech -- someone being forced to swear allegiance to a particular ideological framework -- it's redundant except for its knock-on chilling effect. But of course, the law isn't just about the specific "compelled speech" case -- it is designed to and inevitably will curtail very normal academic conversations.

Yet this exact same problem besets the DEI ban. If it's just about forbidding a requirement that prospective professors genuflect before a graven image of Derrick Bell as part of the application process, then it's unnecessary and only serves to create an additional halo of chilling effect. But SB17's DEI ban doesn't "just" do that; it by its term stretches to cover any "statement" on matters of diversity, equity, inclusion, race, or other like topics -- topics that a hiring committee regularly and appropriately should be considering. For example, as someone who has served on a hiring committee, I very much want to be able to inquire into whether (to pick a recent example) a candidate openly believes Jews should never be hired again. It is important and good that a person like that not get hired; I absolutely can and should be giving preference to candidates who do not take that sort of view! And more broadly, we can and should be able to consider and debate over whether given candidates will do a good a job facilitating an effective academic and pedagogical environment for diverse communities. That's normal, and that's salutary, and that would likely be either forbidden or at least significantly chilled by application of Texas' proposed DEI ban.

Again, the logic for why the DEI ban is problematic is contained in Whittington's own post. He should be able to spot it, and yet it says that the provision (absent the penalty provisions) is "all to the good." FIRE went through the same thing a few weeks ago, drafting a trainwreck proposal against DEI statements that -- were it on any other topic -- FIRE would be screaming bloody murder about the obvious academic freedom impingements. Something about the DEI issue is corrupting free speech advocates, causing them endorse obvious violations and ignore flagrant threats. They're going to need to address this blindspot sooner rather than later, because this fever doesn't seem to be going away.

* SB17 has a provision that exempts requests for information regarding "pedagogical approaches or experience with students with learning disabilities." That narrow and highly specific carveout strongly suggests that inquiring generally how a prospective professor would seek to facilitate an effective and inclusive classroom environment for students of diverse backgrounds would now be verboten.

Tuesday, April 11, 2023

Guns as Escalators, Guns as Deescalators

Professor McGonagall's face was pinched and angry. "You are not to use the Time-Turner in that fashion, Mr. Potter! Is the concept of secrecy not something that you understand?"

"They don't know how I did it! They just think I can do really weird things by snapping my fingers! I've done other weird stuff that can't be done with Time-Turners even, and I'll do more stuff like that, and this case won't even stand out! I had to do it, Professor!"

"You did not have to do it!" snapped Professor McGonagall. "All you needed to do was get this anonymous Slytherin back on the ground and the wands put away! You could have challenged him to a game of Exploding Snap but no, you had to use the Time-Turner in a flagrant and unnecessary manner!"

"It was all I could think of! I don't even know what Exploding Snap is, they wouldn't have accepted a game of chess and if I'd picked arm-wresting I would have lost!"

"Then you should have picked wrestling! "

Harry blinked. "But then I'd have lost -"

Harry stopped.

Professor McGonagall was looking very angry.

"I'm sorry, Professor McGonagall," Harry said in a small voice. "I honestly didn't think of that, and you're right, I should have, it would have been brilliant if I had, but I just didn't think of that at all..."

-- Harry Potter and the Methods of Rationality, Chapter 17

"Mr. Potter, you have taken to using the Time-Turner as your solution to everything, often very foolishly so. You used it to get back a Remembrall. You vanished from a closet in a fashion apparent to other students, instead of going back after you were out and getting me or someone else to come and open the door."

From the look on Harry's face he hadn't thought of that.

"And more importantly," she said, "you should have simply sat in Professor Snape's class. And watched. And left at the end of class. As you would have done if you had not possessed a Time-Turner. There are some students who cannot be entrusted with Time-Turners, Mr. Potter. You are one of them. I am sorry."

"But I need it!" Harry blurted. "What if there are Slytherins threatening me and I have to escape? It keeps me safe -"

"Every other student in this castle runs the same risk, and I assure you that they survive. No student has died in this castle for fifty years. Mr. Potter, you will hand over your Time-Turner and do so now."

-- HPMOR, Chapter 18

"Harry Potter," Professor Quirrell said.

"Yes," Harry said, his voice hoarse.

"What precisely did you do wrong today, Mr. Potter?"

Harry felt like he was going to throw up. "I lost my temper."

"That is not precise," said Professor Quirrell. "I will describe it more exactly. There are many animals which have what are called dominance contests. They rush at each other with horns - trying to knock each other down, not gore each other. They fight with their paws - with claws sheathed. But why with their claws sheathed? Surely, if they used their claws, they would stand a better chance of winning? But then their enemy might unsheathe their claws as well, and instead of resolving the dominance contest with a winner and a loser, both of them might be severely hurt."

Professor Quirrell gaze seemed to come straight out at Harry from the repeater screen. "What you demonstrated today, Mr. Potter, is that - unlike those animals who keep their claws sheathed and accept the results - you do not know how to lose a dominance contest. When a Hogwarts professor challenged you, you did not back down. When it looked like you might lose, you unsheathed your claws, heedless of the danger. You escalated, and then you escalated again. It started with a slap at you from Professor Snape, who was obviously dominant over you. Instead of losing, you slapped back and lost ten points from Ravenclaw. Soon you were talking about leaving Hogwarts. The fact that you escalated even further in some unknown direction, and somehow won at the end, does not change the fact that you are an idiot."


"The next time, Mr. Potter, that you choose to escalate a contest rather than lose, you may lose all the stakes you place on the table. I cannot guess what they were today. I can guess that they were far, far too high for the loss of ten House points." 

-- HPMOR, Chapter 19

Yesterday, the New York Post ran a story about an incident in Florida where two drivers got into a rolling gunfight with one another, exchanging fire that injured both drivers' daughters (a 14-year old and 5-year old girl). While both drivers were initially charged with attempted murder, one driver -- the one who opened fire first -- had the charges dropped after prosecutors decided he had a valid self-defense claim since the other driver was the initial aggressor (allegedly trying to "run him off the road" and hurling a water bottle at his truck).

Hale tried to run Allison [the driver who had the charges dropped] — who was driving a Nissan Murano with two passengers — off Highway 1 near Calahan with his Dodge Ram pickup truck, which had four passengers, police said.

At one point, Hale drove alongside the Murano, rolled down his window and began shouting at Allison to pull over as Hale’s wife made an obscene gesture.

Allison rolled down his window to shout back when a plastic water bottle was thrown from the truck into the SUV, according to the Nassau County Sheriff’s Office in Florida.


[Then, Allison] fired a semiautomatic handgun at [Hale], hitting Hale’s daughter, who was sitting in the back seat, and then sped off, police said.

When Hale realized the girl was hit, he sped closer to the SUV and began firing several rounds from his semiautomatic — one of which struck the 14-year-old girl. 

I was thinking about this incident, and to a lesser extent the recent case in Texas where a man was convicted of killing a protester who allegedly brandished an assault rifle at his car after the shooter reportedly drove his car into the crowd (this is the case where the Governor has promised to pardon the killer), and thinking "what would happen if none of the parties had guns?"

In the Florida incident, I do not think -- even accepting that Allison was "acting in self-defense" -- "thank goodness Allison had a gun -- who knows what would have happened if he wasn't armed!" My strong intuition -- albeit not one that can be proven -- is that if Allison was not armed, this incident would have resolved as a "normal" case of road rage, and in particular, we would not have seen two young girls be shot in their parents cars. To be clear: Allison seems to have been the victim of terrible, threatening behavior by Hale. But the presence of guns (and it was Allison who fired the first shot) escalated the situation. It did not keep anybody involved safe; it made a bad situation far, far worse.

If Allison had no gun, the most likely result is that he would have just had to endure Hale's predatory road rage (at least until a filing a police report later). There is something disconcerting, I imagine, to saying, in effect, that this would have been the right choice. It entails, to be very colloquial about it, agreeing to "lose" to a predator. Allison firing at Hale represents an (escalatory) effort to fight back; to continue to resist; to win. Should Allison have "picked wrestling", even though it allowed Hale's predations to prevail (at least in the immediate moment)?

I think the answer is yes. At the very least, it's the choice that doesn't result in two children being shot. More to the point, it's the choice that millions of Americans who don't have guns would have had to have made in that same situation. Millions of Americans go through life without guns. When we encounter a road rage scenario like the one in Florida, we can't use a gun "in self-defense" because we don't have one. But as much as it might be humiliating or scary or infuriating to feel impotent in that scenario, it seems clearly better than what happened here when guns did enter the picture.

Proponents of gun rights as a means of self-defense imagine a template case as a scenario where a person is threatened and, had they not had the gun, they would be subjected to severe bodily injury or death. The availability of the gun "deescalates" (that's not quite the right word, but I don't have a better one) the situation insofar as, instead of the innocent victim being severely injured and/or killed, it is the wrongful perpetrator that suffers that fate.

But there are no doubt some number of circumstances -- and I don't know how one could measure it, but I suspect it's a greater number -- where the availability of a gun, even under the "self-defense" rubric, does not deescalate but escalates a situation. A scenario that would have resolved as a lower-level indignity or violation becomes one where someone is shot or killed.

Sometimes, we might say that for some sorts of criminal activity, a violent response is justified and socially beneficial even if it is in some sense escalatory (e.g., many argue this for a homeowner shooting a burglar, notwithstanding the fact that robbery is a "lesser" violation than shooting someone). Nonetheless, when I think back to the occasions where I've been a victim of violent crime, I do not think "if only I had a gun." To the contrary, whether or not on those occasions I would have been legally permitted to "stand my ground", I think it is absolutely for the best that I did not blow away either the homeless man or the drunk college students who assaulted me. It is clear to me that in those circumstances, I should have done what I actually did do, which is pick myself up and walk away. I should have "lost".

Not everyone agrees with me -- a law school classmate told me that if he was shoved to the ground as I would, he would "legitimately fear for his life" and would be justified in responding with lethal force. Perhaps if he had been in my shoes and armed, four people who we know did not need to die would be dead. I lacked the means (or desire) to respond with lethal force, and the result was the people who we know did not need to die, didn't die. Where the presence of guns converts more scenarios like that -- ones where we could just walk away -- into ones where someone or multiple someones are shot or killed, that is I think a clear net loss for society.

Again, I don't know how to measure this. But it seems clear that, just as there are some circumstances where having and using a gun averts the more tragic outcome; there are other circumstances where having and using a gun causes the more tragic outcome -- and (this is important) even under cases which fall under the rubric of self-defense.

The opening excerpts from Harry Potter and the Methods of Rationality (which I highly recommend) are about instances where Harry is, in a brute moral sense, right to resist. Professor Snape and other Slytherins are wronging him, abusing him, in a manner that in a just world he should not have to tolerate. And yet, the moral of these passages is that reckless escalation even in response to injustice or wrongdoing has immense risks; it puts even more stakes on the table that aren't always justified or commiserate to the underlying, initial abuse. Hale seems to have badly abused Allison. But Allison could not just let it lie; he escalated dramatically by firing a gun from a moving vehicle into another car. The danger that posed -- to Allison's own family, to Hale's, to other travelers or passers-by -- is almost incalculable, and hardly seems proportionate to the (very real) wrong and abuse Allison endured. If Allison lacked a gun, he would not have been able to initiate that escalation. And at least two children would not have been shot.