Let's briefly recap the situation: A professor is found guilty of "racial harassment," apparently because he mentioned the term "wetback" in class. He says he wasn't trying to be offensive towards Mexicans or Mexican-Americans (illegal immigrant, legal immigrant, or otherwise), but was merely discussing and condemning some people's attitudes towards them. The student who apparently complained hasn't been quoted as squarely disagreeing with him, but perhaps she does.
The university refuses to publicly say what it thinks the professor said. Is it missing the use/mention distinction? Is it imitating Monty Python? Does it take the view that both using (in the sense of endorsing the message of) and mentioning (in the sense of quoting or describing) the word "wetback" is racial harassment? Does it conclude, as a factual matter, that the professor actually used the term, rather than just mentioning it? Even if he did use it, is he found guilty of racial harassment because he expressed an idea using epithets, or because the idea he expressed — and is Brandeis's view that the racially harassing and therefore prohibited idea is hostility to Mexican-Americans, hostility to Mexican immigrants, or hostility to Mexican illegal immigrants?
No-one knows. No-one knows what is and is not allowed for Brandeis professors who teach controversial subjects. No-one can sensibly evaluate the merits of Brandeis's professor speech code. That's what critics of Brandeis have been saying.
Now here's the response from Brandeis's Provost and Senior Vice President for Academic Affairs:
7:51 a.m. January 29, 2008Dear Faculty Colleagues,
I am well aware that many of you are concerned about the investigatory process and outcome following a complaint by a student last semester against a member of our faculty. As a member of the faculty and as an administrator, I share with all of you the goal and expectation that our university policies reflect our core values of academic freedom, the right of our students to a learning environment that is free of harassment, and the right to privacy in personnel matters.
As you know, the University is legally required to have a non-discrimination and harassment policy. Our policy and investigatory procedures were substantially revised in 2006, following extensive discussions with the Faculty Senate. These procedures instructed the investigation conducted last semester and that case is now considered closed. Because of our obligation to ensure confidentiality, I have been unwilling to comment publicly about this case, despite the misrepresentations of the investigatory process and outcomes that are now widely circulated in the media.
Some of you have expressed confusion concerning what constitutes racially harassing speech and how the University conducts a legally required investigation. As a community, we can all agree that this confusion is not healthy and that we must work together to understand both our legal and academic responsibilities. I have been and will continue to work with the Faculty Senate Council regarding programs for the faculty that increase our internal capacity for understanding diversity issues.
I am saddened by the pain that our community has experienced recently and I want to open up channels for constructive dialogue. The spirit and specifics of our current policy reflects thoughtful discussions between the faculty and university administrators. I expect that such conversations will continue to inform this and other university policies in the future.
Sincerely,
Marty Wyngaarden Krauss
Provost and Senior Vice President for Academic Affairs
Ah, you'll surely say — now everything is fine! The confusion is unhealthy, and the community's pain is saddening, but the Senior Vice President for Academic Affairs will work with the faculty regarding programs that increase everyone's internal capacity for understanding diversity issues. Not only that, but she'll open up channels for constructive dialogue (though apparently not about this incident, since this case is now considered closed).
Look: This is an issue that goes to the heart of Brandeis's role as a center for learning and teaching, and its credibility as a center for learning and teaching. And the University's response is that the "case is now considered closed," and no further information is forthcoming (except perhaps through future "programs that increase our internal capacity for understanding diversity issues"). Nor is the confidentiality argument plausible — the question is what the university thinks the professor (who has spoken publicly on the matter) said in class in front of many students.
Is it really so much to ask the university to reveal this one simple factual finding? Or is the university worried about what this factual finding will say about it and the rules that it is actually applying?
Related Posts (on one page):
- ACLU of Massachusetts Condemns Brandeis University
- Better Not Denigrate Religions / Disabilities / Veteran Status / Sexual Orientation / Etc. at Your University:
- Calling Brandeis Professors and Students:
- Saying "Jehovah" at Brandeis?
- Don't Say This, I Won't Tell You What:
- Brandeis University Trying To Discipline Professor
could that likewise be construed as racial harassment?
If so, I'd guess half the faculty at a typical
institution would be under "investigation."
Could the following conference be in and of itself
considered harassment?
http://www.uccs.edu/~wpc/
Freedom is Slavery
Ignorance is Strength
Because of our obligation to ensure confidentiality, I have been unwilling to comment publicly about this case, despite the misrepresentations of the investigatory process and outcomes that are now widely circulated in the media.
Conclusion: Big Brother is more concise, more honest, less devious, and has less gall than the administration of Brandeis University.
Also, I don't see how anyone could have taken what he said to have been offensive. In the class I took with him he did use some words that might be inappropriate/offensive out of context, but not in the way they were used in class. That's just part of his style.
It's really terrible that the university is embarrassing itself like this by taking advantage of a whiny student to silence an academic who, by any standard, hasn't done anything wrong.
Well, yes, but other than that?
Why are you hyphenating "no one"?
So . . . if this were any OTHER sort of corporation, would we find this an acceptable report from the CEO to the employees on a labor issue? (I'm presuming Brand-X is incorporated in Mass.)
Who is chairman of the board at Brandeis? What does he have to say about this? It would take about five seconds for the press to call the chairman of Exxon in a similar situation.
Anyway, I agree with you about the need for transparency. But the use-mention-as-a-shield idea (and I know you're not suggesting use-mention is a shield, per se) reminds me of this sketch.
My impression of academic boards is that they're pretty much captive creatures of the administrations, Dartmouth being (or perhaps, and quite sadly, formerly being) a notable exception.
Professor Volokh, you seem to be assuming that confidentiality is an ex post decision made by Brandeis. If it were, your arguments would be valid. But since it is a preexisting policy, it is perfectly reasonable for the university to stick to it. Many discrimination complaints are sensitive, and both accusers and accused benefit from confidentiality policies ex ante. The university is not obligated to abandon its confidentiality policy whenever its benefits seem less clear ex post. In any case, it may well have made confidentiality commitments that it is not free to break.
But does it stop Brandeis from saying whatever the professor did wrong? Because that's what we're trying to figure out.
Q the Enchanter is correct: I was curious. I thought it was archaic, and thought perhaps you were purposefully using an archaic form for some reason. I checked a dictionary before posting and it didn't list "no-one" as an alternative.
There should be a different punctuation mark for "this is a genuine question" vs. "this is a snarky criticism posing as a genuine question."
Academics are often PC to the point of silliness. But they are also committed to rank and its privileges to a degree that would make a Prussian Army officer blush. So it's still a surprise to me any time that a university's administration decides to force a professor out when there are no gross violations being alleged.
This university forced a truly mad tenured professor out many years ago. But they had to wait until he told some members of the basketball team that "I have to buy you guys a watermelon." (Quote) Then they had him dead to rights. And even then, they bought him out on early retirement.
So now I know at least one thing that I can't say to my students. Which gives me an advantage over my learned colleagues at Brandies.
(And, yes, he was a leftist. But not a PC leftists, it would appear. He must not have gotten the memo.)
Thus Krauss says that he can’t tell us what the professor said because the matter is “closed” and would evidently reveal the identify of the complainer. Would he tell us if the case were not closed? It seems to me that the Brandeis can always invoke these escape clauses in future cases and continue its undefined censorship of professorial speech. Krauss’ position reminds me of the Soviet Union where the penal code was a secret of state (See The Gulag Archipelago). If you asked to see the penal code, the government would ask, “Are you planning to commit a crime?”
e.g., here, here, or here but it shows up without comment in dictionary.com. However even there it has only two entries while x-ray, a clearly accepted usage, shows up with 15.
Once I tried to protest against a "white paper" that our provost had written, not because it was politically problematic, but because it was incredibly long and filled with slogans, while containing almost no real content. It was embarrassing. Everyone I spoke with agreed with my criticisms, but no-one thought it was worth complaining about. We create these monstrosities ourselves.
Cf. The Human Stain, by Philip Roth.
And people like me encourage our brightest, like-minded undergrad students to go to law schol and not PhD programs. (Perhaps this is why law faculties will generally have a couple faculty on the right. Unlke English Departments.)
Well, I was born in 1956 and none of this is surprising to me. At my little Southern college, some poor freshman from another part of the country used to dress in American Indian garb and all sorts of hell broke loose when the campus newspaper made fun of him. We also had a professor who was in the early stages of dementia and made all sorts of inappropriate remarks and wandered off topic in his classes. It took the onset of full-blown Alzheimer's to force the guy into retirement.
I remember all sorts of fusses and crises and uproars about all manner of things. I remember the sense of shock when they told me I could "design my own curriculum"!! Goodness! Well, I did just that--signing up for a triple major in subjects that interested me, skipping all the gut or boring courses and taking the 300 and 400 level stuff. I've always been glad, actually, that I had that option. The breadth of things I absorbed has served me *very* well since then. But it seemed like a pretty "progessive" thing to do back then.
Taken by itself, Krauss's letter gives no sign that, as indicated by her letter to Hindley, she is the key decisionmaker--decision maker? decision-maker? ;-) -- in the case or that she accepts responsibility and accountability.
Like for example this childlike need for full disclosure. Or the charming reticence to accept a more flexible lexicon. It's a living language after all. You can't expect words to have the same stagnant usage day after day, place after place, just because they are in some musty old book...unless they are offensive of course, then they always have the worst possible meaning.
In the end language and the investigation of its use is best left to those with more formal training. Persons of letters and all that.
Another possibility is that they're too proud to admit they made a mistake, or, as above, they want to hound this guy out. ("They" being Brandeis admin). If they were too explicit in what the offense was, they are afraid that the accusation will be too weak to seem reasonable. If they're not specific, people can fantasize over an epithet-spewing prof.
"First God made idiots. That was for practice. Then He made college administrations."
Shouldn't that be "far-and-wide"?
I moved back to the US from Canada after my freshman year in college. Had a Hispanic roommate - all the guys on the floor called us the wetback and the iceback. We thought it was funny. Wonder if it is too late to sue for mental distress (class of '83).
I also noticed the "legally required investigation" language, but suspected a completely different cause. I took it as an attempt to evade responsibility - "Maybe we're acting foolishly, but our lawyers are making us do it." On the other hand, I counsel my clients to never blame malice for anything which can be explained by incompetence, and this would suggest your reading is correct. Any others have thoughts?