The Committee for Academic Freedom and Rights at the University of Wisconsin-Madison has followed with deepening concern the process and news coverage surrounding the accusations by some students against Professor Leonard Kaplan of the Law School. Given that Professor Kaplan has not publicly commented on what he said in class, we refrain from commenting on any other details of the case at this time. That said, it is important to comment on a fundamental principle that is at the heart of the controversy. Namely, academic freedom.
There is a distinct possibility that the emotion and pressures surrounding this case—especially after the public meeting at the law school the evening of March 1—will have a chilling effect on honest and good faith discussion of racial and cultural issues in class and on campus. While good teaching requires that students be treated with respect, undue sensitivity and fear of accusations can cause professors and instructors to steer clear of controversy or uncomfortable truths that need to be discussed and faced if we are to improve as a society. Such pursuit of truth is the university's special charter and reason for existence.
Nothing in this statement is intended to justify the use of gratuitous offense or personal insult as an element of public discussion, whether inside or outside the classroom, and whether directed from faculty members to students or from students to members of the faculty. The university must be a place in which no member of the community has reason to fear expressing his or her ideas and feelings honestly and sincerely, within the bounds of civil discourse, very broadly defined. The university cannot accept efforts by any members of its community to silence others through intimidation, just as the university cannot accept the use of personal insult or denigrating stereotypes in the presentation of arguments.
There is a fundamental distinction between causing offense gratuitously and invidiously, and causing offense as the by-product of the fair-minded pursuit of truth or constructive criticism. A university of the caliber of UW-Madison, with its long history and tradition of protecting academic freedom in the "fearless sifting and winnowing of ideas" for the pursuit of truth, must take this distinction seriously, lest it surrenders its intellectual integrity.
We fear, however, that the crucial distinction between gratuitous offense and provocative argument has been lost in the public furor over the Kaplan case. We are dismayed at the Law School’s public response to this dispute, as it has addressed only the school's commitment to sensitivity and diversity, while saying nothing about that institution's fiduciary obligation to train minds to grapple with various sides of controversial and difficult issues. Without serious consideration of the importance and meaning of academic freedom on campus among the members of the university community, how can freedom prevail in the face of pressures from both left and right to make universities conform to one or another model of political correctness? We urge that the principles of academic freedom and fairness be a serious part of our community's response to the allegations that have been made concerning Professor Kaplan.
Signed by members of the Committee for Academic Freedom and Rights, UW-Madison
Ann Althouse, Mary Anderson, Anatole Beck, Michael Chamberlain, Donald Downs (President), Michael Fox, Robert Frykenberg, Lee Hansen, Lester Hunt, Larry Kahan, Anatoly Khazanov, Kenneth Mayer, Marshall Onellion, Dietram Scheufele, Howard Schweber, John Sharpless, Kenneth Thomas, Steven Underwood (Legal Counsel)
ADDED: UW Sociology professor Jeremy Freese writes: "if they asked the faculty more broadly to sign this, i would sign. since they haven't, i will only link to it."
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What a shame that you missed a chance to get Kevin Barrett on your press release.
The statement is excellent, of course, although I wish you said “higher” or “greater” or even “more important” rather than “fiduciary.”
How might a student sue the institution for breach of fiduciary duty?
My two cents, FWIW.
But again, the statement is excellent.
Nicely written, but this part:
"A university of the caliber of UW-Madison, with its long history and tradition of protecting academic freedom in the "fearless sifting and winnowing of ideas" for the pursuit of truth"
Flies in the face of the fact that UW-Madison is the home of the original “Design for Diversity”.
The Committee exuded tremendous courage in criticizing UW Law's incompetent dean for his response to the situation. Now it's time for officials to publicly call for his resignation, and perhaps once again UW Law can achieve some semblance of prestige.
Oh, and it wouldn't hurt to fire like 2/3 of the clinical faculty so UW Law can have at least one intellectual property professor.
More power to your elbow, Madam.
As others have said, law students just need to grow the nerve to openly disagree with their professors when their professors express in class beliefs, about the law or otherwise, which are dubious and with which the students disagree. I did, in Kaplan's class and other's. If it looks like your grades are suffering because of such valid disagreement, that's the time to really raise hell. If you truly believe the professor's expressed belief is egregiously offensive, then respond egregiously. There's a good chance the professor will either qualify or clarify his remarks. Having been a student of Prof. Kaplan's, and recalling his freewheeling and at times intentionally-provacative lecture style, I bet that's what would have happened if only the offended students had had some nerve, and the description of the context by a law student who was there on another thread rings true to me. So much better than crawling off into a corner, working yourself into a tizzy, and running to the Dean. (You could also make your complaints known in the evaluation form at the end of the semester.)
There is a fundamental distinction between causing offense gratuitously and invidiously, and causing offense as the by-product of the fair-minded pursuit of truth or constructive criticism.
Well said.
The university cannot accept efforts by any members of its community to silence others through intimidation, just as the university cannot accept the use of personal insult or denigrating stereotypes in the presentation of arguments.
There is a fundamental distinction between causing offense gratuitously and invidiously, and causing offense as the by-product of the fair-minded pursuit of truth or constructive criticism.
I agree. Hope someone listens.
I hope this excellent writing gets the same exposure as Kaplan's words did.
How many law professors reviewed this and allowed this howler to pass through: "We are dismayed at the Law School’s public response to this dispute, as it has addressed only the school's commitment to sensitivity and diversity, while saying nothing about that institution's fiduciary obligation to train minds to grapple with various sides of controversial and difficult issues."
A fiduciary relationship imposes a well defined set of duties and obligations, and arises in a well defined set of relationships. I have never before heard it suggested that a school or its professors has a fiduciary obligation to "train minds to grapple with various sides of controversial and difficult issues."
This is especially hilarious coming from a Committee for Academic Freemon and Rights. If you are truly concerned about academic freedom and rights, the last thing you want is for professors to be held to owe some sort of fiduciary duty to students! The negative implications to academic freedom, were that the case, makes the mind boggle.
Finally, in this instance I understand that Kaplan has so far refused to address the controversy on the advice of his attorney (as is his right). If he had a fiduciary duty to train minds to grapple with various sides of difficult and controversial issues, wouldn't he be required to join the fray despite the possible harm to his own interests? Putting the fiduciary duty before personal interests is pretty much the defining feature of a fiduciary, no?
I feel like I'm back in the '50s, when universities made high-sounding statements in favor of free speech.
Except that then it was "the right" that was most in favor of suppressing things it found offensive.
Of course, what is considered "left" and what is considered "right" has changed a lot in five decades.
In any case, the old consensus was dominant for several decades, and hasn't expired, as this statement makes clear.
Maybe we can get it back for another multi-decade run.
It's a shame that the committee couldn't have addressed the facts of the case, but perfectly understandable given the state of the investigation.
It seems, appropriately, that the committee is anticipating that Kaplan will be found the victim of a PC witch hunt. When and if that happens, I hope that the committee speaks againg, and more forcefully.
Good work.
Michael J. Fox is a law professor?
re: Fiduciary Obligation
I read that as "good-faith obligation" or "obligation of trust". The Committee's statement is not a contract.
“There is a fundamental distinction between causing offense gratuitously and invidiously, and causing offense as the by-product of the fair-minded pursuit of truth or constructive criticism.”
If a law professor cannot discuss racial issues without actually speaking “the ‘N’ word,” (which remains the assumption barring more data) then he is in need of some constructive criticism of his own.
Has admitting one has made a mistake become such anathema in our society that we can’t apologise for saying the N word if public?
This episode is an act of unconscious racism and Ms. Althouse et. al. are rallying behind that act.
Peter: That would be a pretty weird assumption since what Kaplan is accused of is making assertions about the Hmong (as part of a lesson about cultural difference). No one says he used any epithets.
The Committee for Academic Freedom and Rights...
The day it was felt necessary to have a 'Committee' for this purpose must have been a dark one.
I applaud that the Committee has spoken, but it troubles me that the rights of educators to think and to speak as they find is not self-evident and self-sustaining.
But then I'm just an old hippie who never went to lectures on principle - the principle by and large being that 'the man' was trying to warp our minds. (We might have had a committee on this - but I forget much. It's an ageing hippie thing.)
Ah, I made a mistake about which instance happened where. I apologize. See how easy it is to apologize when you make a mistake?
This argument, to me, comes down to the relationship of power and making meaning. The powerful have always decided what is right, appropriate, good, etc... in any society. If this is a state of affairs that you are supporting, then you don't get to position yourself as a defender of free speech. You are a defender of a power-based and unequal status quo.
Peter, the problem is that the students in the course and the rest of the Hmong law students cannot accept the fact that one has to make a statement about average cultural characteristics in order to understand the logic of cultural defense. Cultural defense presupposes that there are some cultural characteristics that are "bad" because the cultural norm does not penalize behavior that is formally criminal. That is not unconscious racism but rather an intelligent discussion of the relevance of cultural differences in the context of law. Academic freedom has to be defended in the face of epistemic relativists who believe that the only way to know anything about a culture is to be part of that culture and the only people who can comment on a culture are those in that culture.
Dick, you infer scholars can or should ascertain the beliefs of all students in deciding course content. Allowing student beliefs to determine academic conduct is another reason why there needs to be defenses of academic freedom like the statement of CFAR.
Score one for reasonable.
An encouraging loss for the "I was not there to hear what was said but am offended anyway" crowd. I hope many more losses are to follow.
Trey
"you don't get to position yourself as a defender of free speech. You are a defender of a power-based and unequal status quo."
And why can't you be both at the same time?
"What I find distressing about this is that the professor essentially said that the Hmong culture is disgusting in a class where 20% of the class comes from that culture."
The students who were actually in the class would dispute that characterization. Or are you saying we should not discuss other subcultures and their intersection with US law at all?
We discuss the Civil War in class although it might be seen as "disgusting" by some in the class. What's the difference?
And kudos to the Committee.
PatCA:
The students are saying "don't talk about our culture, how dare you!!!". They are asking their culture not be mangled or mischaracterized.
To use your civil war example, its one thing for a discussion to dwelve into how southern plantation owners forcibly had sex with slaves and then sold off their children. But what about this way "yeah those southern rednecks were just heartless brutes. They weren't men enough to get some on their own, so they raped their women. And then sold off their babies. What an ingenious way to make a living".
If a southerner or even a black person didn't find some offense in that...wow. And at that point, why shouldn't they challenge the person's right to talk about this? Why should they pay good money to listen to such drivel?
You know, a judge can do what he/she wants in a courtroom. But when they berate attorneys for no reason or even if they're having a cranky day, well they're a jerk. An attorney who's rude to staff or junior attorneys is also a jerk. And the hypothetical professor who said stuff like I just did, sorry you don't get to wrap yourself up in free speech on that one. That person gets to say their crap and they get to then feel the holy hell that will come his/her way.
(PS...my comments are based on the alleged statements, not on what I know to be fact. For now, I assume those statements to be true for this discussion!)
There is a fundamental distinction between causing offense gratuitously and invidiously, and causing offense as the by-product of the fair-minded pursuit of truth or constructive criticism
There isn't anymore. In an age when people are encouraged to identify themselves as members of a victim group, and an age in which we are told that words mean what the listener hears, and not what the speaker means there can't be any such expectation.
People, especially young activists, seek out reasons to take offense and protest today.
An excellent statement. The quibbling comments above do not make a dent in its compelling reasoning, IMO. I hope the UW Lawschool Admin has the guts to adopt it.
Who knew that Hasselhoff was talking about Academic Freedom when reuniting Germany at the Wall in '89.
http://youtube.com/watch?v=NxAd2sHtMf0&mode=related&search=
Dick,
Obviously academic freedom cannot depend on who happens to be in the classroom. Provocative arguments are always protected. Kaplan's arguments were provocative and important to learning. He is a stimulating teacher. I had him for several courses. He does not single out a culture, and he gets students who are willing to listen to think about important issues. I trust that guy more to lead a discussion on Hmong culture and the law than some Hmong law students. Why? Because being Hmong does not make one an expert on Hmong culture, or an expert on cultural defense, or someone who can step back and reflect critically on their own culture.
The Hmong should be pleased Kaplan was misquoted and misinterpreted. It means they need not fear a racist law professor at UW. The seven Hmong students should step up and accept some responsibility for this mess. Then there might be more hope to discuss Hmong and the law in a constructive way. If they continue to demand apologies and critical race programs and more diversity forums, they will continue to look like activists who only care about their agenda.
Dick:
I don't agree that Kaplan essentially said that Hmong culture is disgusting.
I am quoted in the Journal Sentinel as saying "Kaplan talked about Hmong women thriving because they had skills such as needlework. 'He was saying that Hmong men aren't thriving as much because they don't have skills that have transferred as well'"
I definitely said that, and to the best of my recollection, that's what Kaplan said as well. While I don't know whether his assertion is true - I haven't done an ethnography - it seems to me that context is really, really important.
That said, I absolutely understand why some students were offended. And I'm glad they expressed their concerns. I just wish it hadn't turned into a media circus.
what exactly did this guy say?
why are his exact comments not included in this statement?
"We are dismayed at the Law School’s public response to this dispute, as it has addressed only the school's commitment to sensitivity and diversity..."
With the infestation of class/race/gender parasites on just about every campus, enabled by the kowtowing of spineless administrators, I would have been dismayed at any other response.
A statement of this nature from the CAFR is rare these days and should be appreciated as an attempt at rationality in the face of mindless over-reaction to a perceived slight by yet another "victim" group.
While in a comment above I expressed the wish that law students would speak up and have the courage to challenge their professors in class when they say something dubious and/or offensive, instead of running to the Dean and creating a media circus, I also have to second communitygal's observation above as a former student of Kaplan, about Kaplan's teaching style. There did seem to be a lot of unnecessary baiting, and the free association lecture style, typically delivered while pacing back and forth, often seemed to smack more of the personal and subjective than the substantial and objective. I remember being surprised at some of the things he said in class on that score, and fellow students expressing dissatisfaction outside of class with things he said. Oddly, I also remember once being surprised when he said something, in the space of about 15 seconds, that was actually quite lucid, insightful and substantial about the point of law or policy under discussion. Kaplan seemed to realize it was out of the ordinary for him too, as he followed it up with something like, "Now how about that?" I regretted that he did not lecture in that manner more often.
I hesitated to say this, because I have nothing personal against Kaplan and liked him, and I agree wholeheartedly with the Committee's statement. On the other hand, perhaps this very unfortunate incident will motivate Kaplan to re-evaluate his lecture style in a positive way.
I repeat my statement from my response to an earlier post of Prof Althouse on her last NYTimes article (my typo corrected).
“This Academic Grievance Industry reminds me of the perpetually aggrieved GEICO Caveman, except that it’s not funny at all.”
The reaction of “Peter” in this thread gives away the game & gets to the heart of the Industry. And heart is a perfect word here: it’s all emotion & no thought. He never even bothered to find out anything, to look for facts; he just assumed that this incident involved a slur on Blacks & that the professor had used the “N” word. Then he goes pot banging. Let’s hang the Prof! Verdict first, trial later. And after being exposed, he does not have the grace to keep quiet.
Unfortunately, he is not alone.
This CAFR statement, while not perfect, is good & allowance must be made for the fact that it has been put together by a committee. It should be a welcome anodyne, but I fear that it will fail to satisfy the injustice collectors whom college administrators seem to fear inordinately. Make that injustice collectors from certain “members of the community”, a term used in the statement. They won’t be satisfied or mollified by anything other than a complete acknowledgement of Guilt on the perp’s, er, prof’s part.
In this regard, Rachel, a student who says that she was present at the lecture, still “absolutely understand[s] why some students were offended.” OK, but before we give her a gold star for speaking out for truth & justice, shouldn’t we ask whether these students are justified in such feeling? And does Rachel also understand why the card-carrying members of the Grievance Industry are always selectively absolutely offended, in perpetuity? Does she understand that they seem to have a desire to find racism even where it does not exist?
No college should pretend that it stands for Academic Freedom if it won’t defend all of its reasonable profs. And, yes, the term “reasonable” is difficult to pin down, as is the term “offended” but that’s why college administrators, including the CEOs, especially the CEOs get the big bucks. The money is for their judgment. Clerks can be hired for much less.
And, yes, college CEOs should even be able to determine the “reasonableness” and the “offensiveness” of an “excited utterance”.
Wurly, not "wading through all of the comments" means you miss such illogic as: "Did I learn more about criminal law because he provoked me? I don't think so. My lousy grade in the class proves it."
Well, no, that didn't prove it. But this statement sure supports it.
As we say in a Wisconsinism, we can't learn you; we can only teach you.
Btw, I would hope that Madison law school faculty will call for a no-confidence vote on the dean, at the least.
Dick: Your comment is very confused. No one is telling the students to shut up and there is no evidence that this group is being treated worse than some other group would be. Moreover, CAFAR was originated to counter the speech code movement and has been active and vigilant on campus for years. It is very principled and strong.
"The point is that in this case the Hmong are essentially being told to shut up and take it while if the African American community had been spoken of in the same way, Al Sharpton and Jesse Jackson would be leading a march on the Law School."
No, they went to the professor and didn't like what he said, so they called in a professional racial activist like Sharpton and Jackson, a Ms. Moua, to create a public controversy and force Kaplan to recant and force the law school to grant them certain privileges.
R Fagin
You rightly point to the ridiculous “niggardly” instance where the perp was fired because of the reaction of his listeners, nevermind that they had simply misunderstood. But your proposed solution
“[m]aintaining broad protection of free speech, even deplorably offensive free speech against protected minority and disadvantaged classes of people, it (sic) the only way to avoid the situation we now find ourselves in”,
creates its own set of nightmares: It doesn't limit anyone to civil discourse. (Sorry for the perhsps incivil “sic”; I make my share of typos too!)
To me, it represents a sidestepping. I think that we both agree that as long as this area is administered by over-paid clerks or by a hostile group of PC loonies, we’re gonna get un-commonsense results. But, I’d note that while the CAFAR statement does not go as far as it could, it still is better than the victimization rhetoric from the easily-offended on the one hand & simply giving in by allowing shocking presentations of substandard prejudiced thought on the other.
The CAFAR statement notes specifically, as you would, that
"[U]ndue sensitivity and fear of accusations can cause professors and instructors to steer clear of controversy or uncomfortable truths that need to be discussed and faced."
"[N]o member of the community [should] fear expressing his or her ideas and feelings...."
"[None of the] members of [the university’s] community [can be allowed] to silence others through intimidation."
But, contrary to your reduction, it also notes that :
"Ideas and feelings" must be expressed "honestly and sincerely, within the bounds of civil discourse, very broadly defined."
"[There is no way] to justify the use of gratuitous offense or personal insult as an element of public discussion, whether inside or outside the classroom, and whether directed from faculty members to students or from students to members of the faculty."
"There is a fundamental distinction between causing offense gratuitously and invidiously, and causing offense as the by-product of the fair-minded pursuit of truth or constructive criticism."
OK, it's nuanced, but in this area where thoughtful people dwell, nuance is the better way!
Nothing like being a smartass with my "sic" when quoting someone's response with a typo and then making my own typo by misspelling "perhaps"!
The proud shall be humbled!
Sorry for the perhsps incivil “sic”; I make my share of typos too
I useualee jst make corectshuns that r obveuslee kneaded and go frum their.
Dick, tcd:
It should be obvious to both of you that CAFAR will defened any faculty member as long as they are not engaging in actions that involve "gratuitous offense or personal insult." These standards do not depend in any way on the ethnicity of the offended group. If you know anything about the defenders of free speech, then you will know that these groups regularly defend individuals accused of racism against African Americans. You are ignorant of historical defenses of free speech if you actually believe CAFAR and similar groups (e.g. FIRE) are unwilling to defend individuals when the minority group in question is African American.
Suppose a history professor at UW read from a document that used language offensive to blacks and students ascribed these beliefs to the professor and demanded an apology. There is no reason to believe that CAFAR would not defend academic freedom provided that the group did not feel that the comments were intended as a gratuitous or personal insult.
In any event, when you see Kaplan's statement, you will see he was not insulting a culture. My guess is that this statement could have been feasibly issued much earlier had the Dean done things differently. Kaplan was forced to wait because of mistakes made by the Dean in allowing certain students to dictate the terms of the conflict. Perhaps the Dean will do things differently next time. Perhaps the law faculty will ensure that the Dean does things differntly next time.
R Fagin
Don’t understand your reply.
You say “that’s the point”. Now, you’ve confused me. So I say to you: What’s the point?
I thought that when you said
“[m]aintaining broad protection of free speech, even deplorably offensive free speech against protected minority and disadvantaged classes of people, it the only way to avoid the situation we now find ourselves in”
you were saying that you wanted unbridled free speech.
Now you seem to say, that upon reflection on the Hon. Holmes, you want to be nuanced like the CAFAR people & me.
Glad you’re on board.
As to who gets to decide “what’s civil” or for that matter other hard-to-pin-down terms such as “reasonable” & “offensive”? Asked & answered.
And I don’t know why you think that either CAFAR or I feel that “hurt feelings” are the gold standard.
tcd,
race baiting is irrelevant here. race baiting would be something that is gratuitous offense. kaplan was not engaging in race baiting. i said the groups would defend an individual who was accused of racism by african american students so long as the offense was not gratuitous. this is the relevant comparison. a professor considers african americans and cultural defense and makes some statements about african americans, job skills, and crime. students get upset and protest this as a stereotype. administrators throw professor under the bus without getting the facts. i have no doubt cafar would defend this professor. i don't see why you think that the statement they made is inconsistent with defending faculty when the offended group is african american.
look at fire's website to see what these groups do. look at downs' book about free speech on campus. i said groups devoted to academic freedom defend people accused of racism all the time even when the group claiming offense is african american. donald downs formed cafar to defend academic freedom but the group is relatively new. no case at UW so far has involved african americans. i have discussed these issues with downs hundreds of times. his principles do not depend on the race of the individuals in question.
if you need an example of their consistent defense of principles, consider kevin barrett. this group defended barrett's right to speech when so many in the state were calling for his head. this group defended someone when the defenders took a great deal of heat, probably more than they would get if they were defending someone accused of racism by a minority group.
the individuals in cafar are principled defenders of academic freedom. why don't you believe althouse at least when she says that they do not determine stance based on the particular group offended?
tcd,
I guess the issue is that defending academic freedom in any particular instance has a cost to individual members. This cost is a function of the size of the protest movement behind the individuals brining the charge of racism. We assume a group supported by professional activists will impose a high cost on individuals who defend freedom of speech. Therefore, a committee defending academic freedom will be less likely to defend the group when the group is supported by a professional protester or collection of professional protesters.
At the margin the CAFAR group will be less likely to defend a professor if the backlash will be severe given the members of the group face some personal cost for defending academic freedom. Maybe they could form a pact to defend academic freedom no matter how well funded or well organized the accusers are. That is implicit in the formation of the group, and I have no doubt the group would not really care a group of well-known activists jumped on the bandwagon. Why would they not care? Because these activists do not, in the end, have the ability to impose that big a cost of the group defending academic freedom. That is where the Barrett case is relevant: the personal cost imposed on the group of defending Barrett was probably as great a cost as a cost of defending a professor against someone supported by professional black activists because most people really hated Barrett and thought people defending him were idiots.
In any event, if you want a stronger pact to defend academic freedom, I would not oppose, but I do not think it is necessary because there is no reason to believe CAFAR would back down simply because there were some big protesters opposed to any given professor. So far the group has defended all professors when there has been an academic freedom issue even when the professor was unpopular. You cannot come up with one example where CAFAR backed down from an issue due to fear of the size of the protest, so the track record of the group has to be considered excellent in terms of defending academic freedom.
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