"A trio of high-profile UW-Madison professors went public Wednesday with concerns about President Barack Obama's planned Thursday campaign rally..."

"... saying students who want to attend are unfairly being required to supply a phone number and email address to the campaign, even having to click 'I'm In' to get a free ticket at the campaign's website...."

Vince Sweeney, vice chancellor for university relations, said the university takes the concerns seriously and will respond formally but hadn't done so as of Wednesday night. In linking to the Obama campaign's registration site on the university's website, the university sought to provide as much information as possible to interested attendees, he said.

"We don't manage the (Obama) link, we're not collecting that information, and ultimately if it's a problem for those wishing to attend, it's an individual decision" whether or not to provide an email address and phone number, he said.

A year ago today... the big Wisconsin protests began.

The Badger Herald has some reflections, including one by my assemblyman Brett Hulsey ("Gov. Scott Walker dropped a bomb on the people of Wisconsin") and one by UW polisci prof Donald Downs ("The country cries out for genuine vision that goes beyond the entrenched interests and shibboleths of the present right and left.")

Here's my February 13, 2011 post about the "very low key" crowd at the Capitol that day. Typical sign, from before things blew up: "Bullying Is NOT the Answer! Fix if the Plan Needed!" I went on about the lameness of the protest:

You can see that it wasn't a very big crowd. There was an effort to get cars to honk, and when they honked, the honkees went "Wooo!"

There were no speakers and no chants.

No chants! I need to be careful what I agitate for.

There was one man — I have video but I'm not posting it — who seemed a bit disoriented, who did something that is comically easy to do in a low-key protest. He started speaking, haranguing, like he was the leader. The group of nice, tolerant people did nothing to shoo him away. It was rather touching, even as it underlined the ineffectiveness of the protest.

It was a beautiful, unseasonably warm Sunday, and our new governor has just dropped a shocking union-busting proposal that our newly Republican legislature is likely to step up and pass. This is the push-back from the unions?

Ha ha. Is this all you got? I asked.

It was the next day, the 14th, that things started getting big. All I had that day was a link to Isthmus columnist Bill Lueders who said protests would be "a colossal waste of everybody's time, and exactly the reaction Gov. Walker hopes to inspire." The protests would boost Walker?

Either they are peaceful and accomplish nothing; or they turn violent and create a massive backlash against the unions and their members. Either way, Walker wins.

My reaction was: "Wow. When did Madison lefties become so cynical about protests?"

That's all very funny in retrospect. And I was definitely wrong. Madison lefties were immensely, passionately optimistic about protests. And Lueders was right, wasn't he? The protests, in the end — we're not quite at the end yet — will have boosted Walker.

Prof. Donald Downs demands answers from the University of Wisconsin about the Doubletree protest against Roger Clegg.

Noting the university's vaunted devotion to "sifting and winnowing," he writes:

There is a key First Amendment distinction between protest and disruption...

Disruption is a problem for at least two reasons. First, it violates the rights of speakers and listeners. Second, it sends a message that the topic under discussion is taboo, and, therefore, not a proper subject for public discussion...

What do University of Wisconsin leaders have to say about what happened at the press conference? Are they prepared to support and espouse the rules that make free speech possible? Did some administrators play a role in encouraging protests? If so, were they acting consistently with their professional responsibilities?

Only by seriously addressing these and related questions can we proceed together as a community bound by a common commitment to legal speech, counter-speech and protest.

Downs ought to get answers to these questions, but I tend to doubt that he will.

I'm creating a new tag, "Doubletree protest," so click there if you want to go back to those old posts to get up to speed. That protest is a sub-issue to 2 major issues — with very specific Wisconsin content — which I am covering, long term, on this blog: 1. protests and 2. affirmative action. I'm trying to control tag proliferation, but I'm glad I made a "Wisconsin protests" tag last winter instead of relying solely on my old "protest" tag. But to make a sub-category out of one Wisconsin protest... that seemed ridiculous... until it didn't.

"There's going to be a cloud hanging over" the Wisconsin Supreme Court.

Says Professor Donald Downs... as the justices had to sit side by side in public again.... and nobody got choked.

Is it viewpoint discrimination under the First Amendment for Wisconsin to permit the protesters to use the Capitol building as it has over the past 10+ days?

Here is part of a presentation made at the University of Wisconsin Law School on February 22, 2011 by Donald Downs, a UW political science professor:



Downs is very briefly raising the issue of whether it should be considered viewpoint discrimination for the protesters at the state capitol to be permitted to post signs and sleep overnight when other groups are not going to be given the same treatment.

The case he mentions is Clark v. Community for Creative Nonviolence, in which the Supreme Court upheld a neutral rule that prohibited everyone from sleeping in the park. In that case, protesters argued that they had a right to special treatment, because they were sleeping as a form of expression, to say something about the plight of the homeless.

In the current Wisconsin situation, the protesters are being allowed to do many, many things that ordinarily no one does. It's hard to imagine how the state could operate in the future if other groups were given equal treatment and permitted to stay overnight for days on end, to post thousands of signs all over the historic marble walls and pillars, to prop and post signs on the monuments, to bang drums and use a bullhorn in the rotunda to give speeches and lead chants all day long for days on end. Tell me then, what will happen when the next protester comes along and the next and the next? Hasn't the state opened the Capitol as a free speech forum in which viewpoint discrimination will be forbidden under the First Amendment?

But, you might say, the Republicans hold the political majority and the special treatment is going to their opponents. To that I say: So what? If you discriminate in favor of your political opponents, it's still viewpoint discrimination. It's interesting to speculate about why the Republicans are permitting such a giant extra helping of free speech to their opponents. Perhaps it is so they can say, when their friends show up on some later occasion — some Tea Party group? — that they must give them the same access.

But I don't believe they want that. The Capitol has for years and years been a solemn place. For 25 years, I have brought visitors there and walked slowly through the beautiful spaces looking at the different colored and patterned marble on the walls and gazing with awe up into the dome. This is the Capitol Wisconsinites know and treasure. It can't become an all-purpose free-speech forum.

At Christmastime, there is a big tree in the rotunda. The Freedom from Religion Foundation doesn't like that. This week's anti-Scott Walker people are banging on drywall buckets and chanting "This is what democracy looks like." How about a hundred atheists in the rotunda for a week in December banging on buckets and chanting "This is what stupidity looks like"? (Okay, there's a conlaw exam for you. Submit your answers and I'll grade.)

I think the Republicans are simply refraining from confrontation and waiting for the protesters to get tired and leave or — on their own — to upset the ordinary people around the state. Any attempt to sweep them out or pull down their signs might make them look sympathetic or generate an air of martyrdom, and so, I assume, it has seemed to be the wiser path to leave them alone.

UPDATE: At the Capitol today (2/26/11) I talked to the police enough to get some insight into what the legal theory is. I've got a lot of video and photographs to process this evening, so I will put off writing more about this until tomorrow.

UPDATE 2: Prof. Downs emails:

Ann raises points that merit serious First Amendment attention. In my talk last Wednesday, I raised the concern about viewpoint discrimination, but said it was outweighed at that point by public necessity. But the necessity position loses force as time passes, and police are able to adjust to the situation. Regardless of where one stands on this particular issue, it is never a valid or good thing if government grants special First Amendment rights to one group or set of protesters that it would not extend to all other groups. This is bedrock First Amendment principle based on a long history of experience. And police need to maintain a position of absolute neutrality in such matters. And it doesn't matter how peaceful or respectful a group might be behaving, for such otherwise laudatory behavior does not entitle anyone to special treatement under the law. The First Amendment either applies equally to everyone, or it is subject to political barter.

Professor Donald Downs says Gov. Walker "by being radical... has exposed the contradictions in the political economy."

"It's creedal!"



This is the last 2 1/2 minutes of Downs's talk at last night's teach-in, which is also discussed in the previous post, and which should soon be on-line in its entirety here.

The Badger Herald writes about last night's teach-in on the Wisconsin budget bill and completely misrepresents what Prof. Donald Downs said.

Here's the Badger Herald.  Here's Professor Downs's response — which was cc'd to me:

I write in response to Grant Hermes reporting on my comments at the Law School Forum Wednesday evening. Hermes wrote that I "alluded to the idea that the governor’s proposed bill may have long-term negative effects on political areas outside of labor disputes, such as taxes and the rising cost in higher education." This is a complete misrepresentation of what I said and meant. I was talking about the crisis of debt, and how higher education is part of this crisis because we cost so much. Walker has had nothing to do [with] having caused this problem; indeed, his measures are designed to at least address the crisis of public debt in a forceful way. At no point in my discussion of this aspect of the problem did I implicate Walker's plan as a source of the problem. The cost of higher education has skyrocketed at twice the skyrocketing rate of medical care costs over the course of the last twenty years, and we are the source of this problem, not Walker.

Donald Downs
Meiklejohn Professor of Political Science, Law, and Journalism

Maybe the reporter had trouble hearing a professor imply that Scott Walker might be doing something good.

ADDED: The boldface is mine. Here's the last 2 1/2 minutes of Downs's talk.

Come to "University of Wisconsin Law School 'Teach-in' on the legal and political issues raised by the Governor’s Budget Repair Bill."

All are welcome. Wednesday, February 23, 2011. 6-8 pm, Room 2260 at the UW Law School:

This academic forum seeks to provide insights into the dramatic developments that have followed the introduction of the Governor’s Budget Repair Bill from an historical, legal and political perspective. All are welcome.

Speakers:
Professor Carin Clauss, Law School
Professor Donald Downs, Political Science
Professor Will Jones, History
Professor Andrew Coan, Law School
Professor David Cannon, Political Science
Professor Neill DeClercq, School for Workers, UW Extension

Chair:
Professor Heinz Klug, UW Law School

It's called a "teach-in" in the email that was sent around but a "forum" at the law school website.

About that teacher arrested for a blog comment.

BUMPED: Good news: "Washington County District Attorney Todd Martens says he believes the comment left by James Buss was disgusting but is protected under the First Amendment."

ORIGINAL POST:

Here's something more on the Wisconsin teacher — James Buss — who was arrested for a blog comment that some read as recommending that teachers be shot. We discussed this a few days ago here.

In the new story, we see the ACLU and UW polisci professor Donald Downs urging that no charges be filed:

Washington County District Attorney Todd Martens is considering whether to charge Buss with disorderly conduct and unlawful use of computerized communication systems.

"If you look at all the factors in this case, it's pretty clear it would be a mistake to charge," said Larry Dupuis, legal director of The American Civil Liberties Union of Wisconsin. "At worst, it was somebody expressing admiration for somebody who did something reprehensible. But the more reasonable explanation is this is somebody who is trying to mock the conservative view of teacher salaries."

Police Capt. Toby Netko defended the arrest. He said the teacher who complained was disturbed by the reference to "one shot at a time" and other educators agreed it was a threat.

"What happens when you say bomb in an airport? That's free speech, isn't it?" he said. "And people are taken into custody for that all the time."

Donald Downs, a University of Wisconsin-Madison professor and expert in free speech, said that "all sorts of unsavory, controversial speech" are protected by the First Amendment.

"It has to be intended to incite violence" to be illegal, Downs said. "If it's tongue-in-cheek, there's virtually no way they can claim that."

Downs added, however, that the school district might have legal grounds to discipline Buss. The teacher has been placed on paid administrative leave while his school district considers what action to take.

Buss tried for sarcasm, but not everyone gets a joke. Oddly enough, he himself was in the category of persons who are threatened, if it's a threat. Why wasn't he more worried about inspiring a troubled student to attack teachers? Probably, like many writers, he assumed people would understand his writing. But not even the other teachers understood it. That's all quite unfortunate.

Now, let me be clear about one thing — sledgehammer clear — so that no one can misread this: The man should not be charged with a crime.

And let no one think I will be coming 'round with a real sledgehammer.

UPDATE: As indicated above, the decision was made not to prosecute. Here, Buss explains himself:

Buss told police he "just wanted to see if the hate towards teachers from other posters was so strong that other posters would endorse my facetious post," the report says....

Buss, who in a statement described himself as politically "moderate," told police he misspelled words and used incorrect grammar and punctuation to enhance his characterization of "Observer" as "a right-wing zealot."

Buss told police that he did not intend his post, which he called "mischievous," as a threat, but he understood how someone could perceive it as "advocating a Columbine-like attack on schools." Buss said he posted comments on the Web site under two other names, "Jeff" and "Ditto."

"Prof pays price for causing offense: Sensitivities take precedence over truth and academic freedom."

That's the striking headline in Isthmus, as Jason Shepard covers the Kaplan story. Read the whole thing. It is very strongly critical of the way this incident was handled here:

[I]t appears that both students and the UW administration were too quick to act without all the facts. The students cried racism based on questionable information, then got carried away by the politics of group victimhood. UW officials, meanwhile, saw student offense as all the proof they needed to immediately and unequivocally apologize. (Opined Law School Dean Kenneth Davis to the Wisconsin State Journal, “I think a number of our students were entirely justified in being deeply offended.”)...

Hundreds attended a campus forum on March 1 organized by seven Asian women who’ve led the attacks on Kaplan. Many came expecting a fair airing of views at what was billed as an “open forum.” Instead, they witnessed further condemnation of Kaplan at what professor Howard Schweber afterward called a “political rally.”

At the forum, Moua acknowledged that her initial e-mail was misinformed as to precisely what Kaplan had said. Nonetheless, scores of speakers drew from it over the next two hours to peg Kaplan as racist and ignorant.

Two women in the class, who’ve since transferred out, described their shocked reactions to Kaplan’s comments. Mai Der Yang, a first-year student who missed class that day, said the real harm came in a meeting days later when Kaplan gave “insult after insult.” Among those insults, Yang said, was that Kaplan “believed his statements to be true.”

Nancy Vu, another organizer, stressed the women’s collective victimization, saying they’ve felt “so intensely alone” and “at every corner have been dismissed” by faculty and students. “You have made us feel alienated.”

Additional speakers from student and community groups accused university leaders of not doing enough to promote diversity and sensitivity. Madison school board member Shwaw Vang, who is Hmong, said Kaplan’s speech “degrades and dehumanizes me.” Activist Peng Her drew parallels between the seven women and Rosa Parks and the civil rights marchers in Selma, Ala. And the women were called the “Magnificent Seven” to great applause.

Near the end, Dean Davis again apologized to students, saying they’ve exhibited a “remarkable thoughtfulness and grace that makes me proud.” He did not bother to put in a good word for the idea of academic freedom.

The Kaplan case, as it’s played out so far, represents a low point in UW-Madison’s storied history of defending academic freedom, dating back more than a century to a case that generated the famed “sifting and winnowing” plaque on Bascom Hall. It shows that the fad of political correctness that rose in the early 1990s, giving rise to student and faculty speech codes, still has great power....

“The rush to judgment in this case has been extremely unsettling,” says professor Donald Downs, author of Restoring Free Speech and Liberty on Campus. “How can you make a valid assessment about whether a line was crossed in this case unless you seriously consider the academic freedom issue? That hasn’t been part of the discussion that’s come out of the law school.”....

“It’s not just a question of whether faculty members — or students, for that matter — are punished for expressing the ‘wrong’ views,” says [Professor Howard] Schweber. “It’s whether the university is a place where people feel free to explore controversial topics and express unpopular arguments.”

This is a very tough article, which is sure to send (another) shock wave through the school.

"We fear... that the crucial distinction between gratuitous offense and provocative argument has been lost in the public furor..."

Below is the statement of the Committee for Academic Freedom and Rights. (My discussion of this incident can be found here, here, here, and here.)

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."

MSM finally tries to get the Kaplan story straight.

Megan Twohey -- in the Milwaukee Journal Sentinel -- is -- I think -- the first mainstream reporter to really get somewhere reporting the other side of the Wisconsin Law School story that has gotten so much press lately. She quotes me quoting Professor Kaplan at Friday's faculty meeting:

"The law school is my home," Leonard Kaplan told law school colleagues at a weekly meeting, which was recorded by Ann Althouse, a fellow professor. "I'm going to fight to make it stay my home."

While not offering a detailed explanation, Kaplan said: "I didn't say what was attributed to me. But I think I know why it was misinterpreted."

Kaplan said he was crafting a written statement to be released later that "was compassionate but a response from a lawyer."

Twohey refers to the "tumultuous" meeting at the law school on Thursday (which she witnessed and we talked about here yesterday) and reports that "other students" who were in the class said his words were "misconstrued and taken out of context." The quotes that have appeared in the press and that have gotten so many people exercised were -- according to Twohey -- compiled by a student who was not in the class but who spoke with two students who were. There is no indication whether those two students wrote verbatim quotes down while they were in class, and no one seems to have an audio recording, but the student who wrote the inflammatory email did put quotes around words:

[Name deleted] told the standing-room-only crowd Thursday that the allegations she made in her e-mail were "not well informed," but insisted that what Kaplan said was hurtful and damaging....

The offended students said they were upset with the way their complaint had been handled. They said that Kaplan, in a private meeting, had apologized for hurting their feelings but stood by his statements.

Kaplan did not attend the forum. He said in a statement that was read by another professor that he did not want to draw attention from the educational purpose of the forum - an apparent reference to some speakers who had been invited to talk to the group about Hmong culture.

Davis, the dean, did attend the forum, and he praised Kaplan's accusers for the way they had handled their concerns and promised to provide cultural awareness programming next month.

I hope that phrase "cultural awareness programming" means that there will be programs and not that we are about to be programmed -- like a computer or a brainwashing victim.

Althouse said Friday that Davis should have "demonstrated a concern for finding out what was true."

"What happened to the truth?" she said. "It seems to me that before you design remedies for problems, you should find out what the problem is. I don't think it's the interest of people who care about race to see this minefield where your quotes are taken out of context."

A law school, especially, should set the example of what it means to care scrupulously about the truth, to follow due process when a person's reputation is on the line, and to show that remedies should be tailored to real problems, not based on one-sided accusations. These are principles fundamental to law. We are a law school. What are we teaching? You may well have some questions about what Kaplan taught his class. But our actions these past two weeks have taught something to our students and to the rest of the world. That is what I am questioning.

Twohey, unlike some of the other reporters who splashed this story into the news, does some digging for the truth:

[Names deleted], students who were in Kaplan's class, said Friday that [name deleted's] e-mail misquoted Kaplan.

"I think the comments were taken out of context," said [name deleted], a Latino undergraduate in the class.

They said the focus of the class was how American law can sometimes conflict with the values of different cultures, and that Kaplan was using the Hmong experience in Wisconsin as an example. They said Kaplan did touch on issues of rape, dowries and crime within the Hmong community, but had been misquoted in [name deleted's] e-mail.

Misquoted. That is an important word.

"If anything, he was critiquing what a bad job Wisconsin was doing in providing job opportunities to the Hmong, that that's why they end up in gangs," said [name deleted], who is Vietnamese.

[Name deleted], who is white, said 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," she said.

The students said they could see how [names deleted] could have been offended by the comments, and [name deleted] acknowledging that Kaplan had used Hmong stereotypes that made him feel uncomfortable at times.

But the students insisted Kaplan did not strike them as racist or bigoted. They said they were upset by the fallout from the incident.

"I think this is really out of control," [name deleted] said.

On the subject of why Kaplan has not comprehensively refuted the accusations, Twohey quotes Professor Downs:

Donald Downs, a political science professor who is a friend of Kaplan's, said Friday that Kaplan had an attorney who had advised him not to talk about the incident publicly because of the potential for a harassment lawsuit.

"He's all lawyered up," Downs said.

Downs, who heads the university's committee for academic freedom and rights, said some professors have come away from the controversy fearful of discussing race in class.

This is also a point I make in my NYT column today:

Your colleagues may sympathize with you in private, but most likely they'll be rethinking this idea -- heartily promoted in law schools since the 1980s -- that they ought to actively incorporate delicate issues of race into their courses.

One of the many ironies of this story is that both Kaplan's style of teaching and the Dean's student-appeasing efforts at climate-control come from the same well-meaning liberal idea that law schools ought to take account of race.

I'm on that committee with Downs and a number of other UW professors. It's called CAFAR (Committee for Academic Freedom and Rights). (The same group supported that 9/11 conspiracy theorist last fall and was critical of the "Think. Respect" program. Downs wrote this book about free speech on campus.) Twohey notes that CAFAR has a statement on the Kaplan affair, and I will publish that statement in full when it's through with the final edit (which will be very soon).

NOTE: I've deleted the student names that originally appeared here. I didn't like using the students' names, and only had them because they were in the newspaper article I was commenting on. Obviously, the names are still available in the linked newspaper articles.

"We have to be very careful. We want professors to speak with what they see as their truths."

Says UW Professor Donald Downs, who is a strong voice for free speech here on campus. "We're here to push the envelope. … Academic freedom has to be very strong and vibrant."

ADDED: Speaking of context, consider the academic freedom case of Kevin Barrett, whom the university supported last fall, as he turned part of his course on Islam into a study of the theory -- which he believes -- that the U.S. government perpetrated the 9/11 attacks.

"We think the ad's authors were right to give voice to the students quoted, whose suffering is real."

Here's the new open letter from various Duke University professors, saying why their original ad -- "This is a social disaster" -- is not something to apologize for:

The ad has been read as a comment on the alleged rape, the team party, or the specific students accused. Worse, it has been read as rendering a judgment in the case. We understand the ad instead as a call to action on important, longstanding issues on and around our campus, an attempt to channel the attention generated by the incident to addressing these. We reject all attempts to try the case outside the courts, and stand firmly by the principle of the presumption of innocence.

As a statement about campus culture, the ad deplores a "Social Disaster," as described in the student statements, which feature racism, segregation, isolation, and sexism as ongoing problems before the scandal broke, exacerbated by the heightened tensions in its immediate aftermath. The disaster is the atmosphere that allows sexism, racism, and sexual violence to be so prevalent on campus. The ad's statement that the problem "won't end with what the police say or the court decides" is as clearly true now as it was then. Whatever its conclusions, the legal process will not resolve these problems.

The ad thanked "the students speaking individually and...the protesters making collective noise." We do not endorse every demonstration that took place at the time. We appreciate the efforts of those who used the attention the incident generated to raise issues of discrimination and violence.

There have been public calls to the authors to retract the ad or apologize for it, as well as calls for action against them and attacks on their character. We reject all of these. We think the ad's authors were right to give voice to the students quoted, whose suffering is real. We also acknowledge the pain that has been generated by what we believe is a misperception that the authors of the ad prejudged the rape case.

We stand by the claim that issues of race and sexual violence on campus are real, and we join the ad's call to all of us at Duke to do something about this. We hope that the Duke community will emerge from this tragedy as a better place for all of us to live, study, and work.

"The disaster is the atmosphere...." -- we're told. The students' perceptions matter and deserve to be "give[n] voice." But the professors don't like how they were perceived by the world outside the university; that was misreading. But if it is perception -- atmosphere -- that matters -- how can you think that you can contribute things to be perceived and avoid responsibility for the effect that you have?

ADDED: La Shawn Barber is scathing.

MORE: I've been thinking a lot about this post -- minimal as it is. There is so much behind this that could be said, so much going back over the 20 years that I've been a law professor. My office for the last decade or so was once occupied by my brilliant colleague Patricia Williams. She wrote something long ago about Tawana Brawley that maybe not everyone remembers, but you should know if you mean to find your way around American academia. I'll put it in context in this 1997 article by Neil A. Lewis (TimesSelect link):

Critical race theorists, who are on the faculty at almost every major law school and are producing an ever-growing body of scholarly work, have drawn from an idea made popular by postmodernist scholars of all races, that there is no objective reality. Instead, the critical race theorists say, there are competing racial versions of reality that may never be reconciled.

Many theorists say that because few whites will ever be able to see things as blacks do, real racial understanding may be beyond the nation's reach....

Some theorists go so far as to say that what really happened in a particular incident may be no more important than what people feel or say happened. For example, some argue that even though Tawana Brawley, then a teen-ager, made up her account that a gang of white men, one with a badge, raped and defiled her in New York in 1987, her story is still valid because it offers truths about the oppression of black women.

In her book "The Alchemy of Race and Rights" (Harvard, 1991), Prof. Patricia Williams of the Columbia University Law School appeared to suggest that it made little difference whether Ms. Brawley had made up her account. The teen-ager, Professor Williams wrote, was the victim of an unspeakable crime "no matter who did it to her -- and even if she did it to herself."

"Her condition was clearly the expression of some crime against her, some tremendous violence, some great violation that challenges comprehension," Professor Williams said. "Tawana's terrible story has every black woman's worst fears and experiences wrapped into it."

Critics of Professor Williams's comments, however, note that a New York State grand jury investigated Ms. Brawley's story and concluded that she had made it up. Professor Williams, Professor [Suzanna] Sherry wrote, seems "unable to distinguish between Brawley's fantasized rape and another woman's real one."

In a recent interview, Professor Williams said she had been misinterpreted. She meant, she said, that the debate about whether Ms. Brawley was telling the truth obscured that she was a troubled minor.

"Her needs were not dealt with, as they should have been with any child," Professor Williams said. Further, Ms. Brawley was transformed into a stereotype of "black women as hard women who can never really suffer any violation," she added.

Misinterpreted. Remember that word. Professors like it. We mean well. We mean to demonstrate empathy and outrage in all the right places. And if you don't credit us with the grand ideals we intended, we will say you don't read well enough. Try again.

MORE: Another brilliant colleague I'm lucky enough to have is Donald Downs -- who wrote this book -- and teaches in the Political Science department here. He emails me this:

The Duke case is symptomatic of the victimhood syndrome has beset too many campuses, and which (as one poster discusses) undermines the agency and vitality of its putative beneficiaries. The case is also symptomatic in another, less recognized sense: members of the economics department published their own dissent to the now infamous "88" and the campus climate that was hostile to due process, and got hundreds of signatures from alumni and other groups. This is precisely what campuses like Duke need: counter-mobilization by faculty who are fed up with this kind of climate and behavior. Perhaps there is hope for Duke, after all, but faculty have to take a stand against the inanity.

Professor Downs, you should know, has done just the thing he recommends and organized the faculty at his home institution.

The right to silently protest a speaker.

On Friday, I wrote about the UW-Oshkosh police throwing students out of a lecture for standing and turning their backs to a speaker -- who happened to be UW's own 9/11 conspiracy theorist, Kevin Barrett. I also raised this question with the Committee for Academic Freedom and Rights, and UW polisci prof Donald Downs -- president of the group -- wrote this (and wanted me to copy it here):

The key point is to balance the rights of the protesters with the rights of the speaker and the audience. Protesters have a right to make their views known, but they must not infringe the rights of the speaker and the audiences. So the following questions are relevant:

1) Were the protesteros actually disrupting others' views?

2) If so, HOW LONG did they obstruct the view? A symbolic gesture to turn the back that prevented people in the audience from seeing the speaker is fine, so long as the act is short and does not block views for a meaningful period of time (a couple of minutes, max, it would seem to me);

3) how did the police react? Did they make an attempt to talk with the protesters, and did the protesters make any attempt to make it clear that they were not trying to disrupt the audience's view? This is a factual call about which we lack evidence;

4) how have similar speech actions been treated by authorities in the past? This is Ann's key question. Ann's question has validity because in my entire time at Madison, I have never witnessed a conservative group attempting to disrupt a speaker, only leftist groups opposed to the speaker. In no case has the leftist group ever been punished or even spoken to by the administration. In some cases, it was evident who was doing the disruption, as in the Ward Connerly disruption in 1998. But we still need to know the facts in the case at hand. What we want in these encounters is even-handedness (viewpoint neutrality) on the part of authorities, plain and simple.

"Wisconsin’s latest speech code, the 'Think. Respect.' program."

Here's an opinion piece in the Badger Herald by Robert Phansalkar, a UW student (majoring in political science and languages and cultures of Asia):

The [“Think. Respect.”] program calls for university students to search for forms of discrimination and harassment on campus, and when present, to download a “bias incident report form” to be submitted to the Student Advocacy and Judicial Affairs unit of the Dean of Students for a potential investigation. Implicit in this reporting scheme is that students who harass will be punished or reprimanded in some way....

Ironically enough, the university’s protection of students against bias includes political affiliation...

Here's a letter in response to that article by UW polisci prof Donald Downs (who wrote this book about campus speech codes):

It was good to finally see that a student journalist has grasped the fact that the program, as presently conceived, poses a threat to honest discourse and privacy on campus. The program encourages campus citizens to report not only acts of harassment or discrimination that constitute official misconduct, but all forms of “bias,” verbal and non-verbal, without that term being defined in a manner that is consistent with First Amendment principles. In other words, the present policy amounts to a speech code, as it encourages people to file reports on other people’s attitudes and speech that informants deem insufficiently senstive.

Here's the University's announcement of the "Think. Respect." program, explaining the logo, which looks like this:

[IN THE COMMENTS: Pastor Jeff says: "It would look great on an armband. "]

Included in that announcement;

Chancellor John D. Wiley says the campus has seen improvements in climate during the past few years. However, an anti-gay incident in University Housing last spring — one of the driving factors behind the campaign — demonstrated that the campus community still has more work to do.

"We are committed to creating and sustaining a campus community that is open, diverse and inclusive," Wiley says. "We want a campus that embraces difference and where respect is rampant. We will not tolerate bias, racism, disrespect or hate."

To counter racism in any of its forms, Berquam is launching a bias reporting mechanism through the Offices of the Dean of Students Web site.

Here's that website:

A bias incident is a threat or act of bigotry, harassment or intimidation - verbal, written or physical - that is personally directed against or targets a University of Wisconsin-Madison student because of that student's race, age, gender identity or expression, disability, national or ethnic origin, political affiliation, religion, sex (including pregnancy), sexual orientation, veteran status, or other actual or perceived characteristic.

What is a verbal "act of bigotry, harassment or intimidation" aimed at someone's "political affiliation"? What does "other actual or perceived characteristic" refer to? Students who "have witnessed or experienced a bias-related incident" are told to click to this form (PDF) to submit a report. Back to the website:

Students can report anything, from a hate crime to graffiti to verbal harassment. SAJA will attempt to follow up in every instance, contingent on the information provided, to investigate possible misconduct and to provide resources to the victim.

Berquam says that many hate or bias incidents are relayed anecdotally to ODOS staff. The reporting form is one way to quantify how many incidents take place on campus and provide a method for following up.

Students can report anything? And remember Wiley's statement: "We will not tolerate bias, racism, disrespect or hate." We will not tolerate disrespect? You know, I want students to feel good about campus life, but isn't part of campus life having rowdy debates and vigorous arguments? I know from running this blog that there are people who firmly believe that opposition to gay marriage is bigotry. This program should make students worry that anything other than bland pleasantries is going to get them in trouble with the administration. I wonder if you can report feeling threatened if someone made you feel threatened that they were going to report you for making them feel threatened. And what's the good of encouraging students feel entitled to a cushioned speech environment? How does this equip them to live in the real world?

Why doesn't the university have a program that promotes debate about tough issues and teaches students how to express themselves forcefully? No, no, when someone mocks your political ideas, you ought to slink away and go back to your little room and download a report form.

(And, yes, it's incredibly ironic that the university also went to the wall for free speech values when it dealt with Kevin Barrett.)

AND: Don't miss the new post, with the new logo!

"After the public realizes I’m right ... my chances of getting a job will be better.”

The Badger Herald -- which is mostly on summer hiatus -- has a new article on the Kevin Barrett controversy. The student reporter, Joanna Pliner, obtained this quote from UW Provost Patrick Farrell (who made the decision to retain the 9/11 denialist):

“I think the political correctness — or non-political correctness — of his views outside the classroom … should not have an impact on whether or not he’s allowed to teach."

Political correctness?

The Herald, unlike various local newspapers, calls attention to the political criticism that comes not just from Republican legislators, but from the Democratic governor Jim Doyle, whose spokesperson is quoted as saying, "The governor would have come to a different decision than the university." Presumably, that means Doyle would have fired Barrett. (Doyle is up for reelection this fall.)

Also quoted is Donald Downs, the UW political science professor who is president of the Committee of Academic Freedom and Rights:

Downs said he does not believe Barrett’s theory at all and does not know anybody at the university who does, “left, right or center.”

But despite that fundamental disagreement, Downs said he still supports Barrett’s employment.

“We want professors to be intellectually responsible, but we also want professors to be intellectually honest,” Downs said. “We want the envelope pushed; we want people to stick their necks out if it is done with intellectual integrity. Otherwise it could cause a watered-down education.”

Most amusingly, Barrett himself is quoted, saying he plans to seek a permanent job here at the UW: "After the public realizes I’m right ... my chances of getting a job will be better.”

Yeah, I know what you're thinking: he's crazy. I think I know what Farrell is thinking: swathe this loser in academic freedom rhetoric, then hunker down and wait for the semester to end. But meanwhile:

More than a third of the American public suspects that federal officials assisted in the 9/11 terrorist attacks or took no action to stop them so the United States could go to war in the Middle East, according to a new Scripps Howard/Ohio University poll.

Don't assume Barrett's ideas are obviously only a crackpot fringe theory. The 9/11 conspiracy theory has the power to propagate.

Suspicions that the 9/11 attacks were "an inside job" ... quickly have become nearly as popular as decades-old conspiracy theories that the federal government was responsible for President John F. Kennedy's assassination and that it has covered up proof of space aliens....

University of Florida law professor Mark Fenster, author of the book "Conspiracy Theories: Secrecy and Power in American Culture," said the poll's findings reflect public anger at the unpopular Iraq war, realization that Saddam Hussein did not have weapons of mass destruction and growing doubts of the veracity of the Bush administration....

The poll found that a majority of young adults give at least some credence to a 9/11 conspiracy compared to less than a fourth of people 65 or older. Members of racial and ethnic minorities, people with only a high school education and Democrats were especially likely to suspect federal involvement in 9/11.

I think the university ought to do something big this fall to respond to the situation. If you really care about free speech -- and I think the university does -- you believe that the remedy for bad speech is more speech. I would like the university to present speakers this fall on at least two subjects: 1. Why and how conspiracy theories originate and spread, and 2. Debunking the 9/11 conspiracy theories. In the second category, I would like to see Barrett on the stage with experts in engineering, who would make his lack of expertise very obvious to the audience.

Religion and free speech.

UW polisci profs Donald Downs and Kenneth Mayer have an editorial in the Badger Herald, which has come under criticism for publishing that cartoon of Muhammad wearing a turban-bomb:

Allowing offense to be the basis of reprisal or censorship ... simply gives groups or individuals the power to suppress the speech of anyone with whom they happen to disagree. In our liberal democracy, no group — however virtuous or religious — may claim an exemption from criticism or scrutiny, nor may any religion demand that secular society adhere to its own definitions of heresy or blasphemy. When such policies are attempted, they lead to bullying, favoritism based on power and the end of meaningful freedom of speech and thought. The inevitable result is that certain issues and ideas become off limits to any discussion at all based on a subjective and always-moving standard of who might take offense.

I've noticed that a lot of the criticism of the Herald has accused it of racism. But mocking a religion is very different from mocking a race. A religion is a set of ideas. The belief in religion may be deep and sensitive, and it may be arrived at through a path that is not reason and is therefore not amenable to ordinary argument and debate, but it is nevertheless a matter of ideas. You cannot immunize ideas from criticism and still have free speech. In fact, it is most important to be able to criticize the ideas people take most seriously and cling to most intransigently.

"Is the Second Amendment Still Embarrassing (and for Whom)?"

Reprinting an announcemnt:

The Undergraduate Legal Studies Program and
the Institute for Legal Studies at the Law School
announce the following Harris Lecture and panel discussion
open to faculty, students, and the public:

Is the Second Amendment Still Embarrassing (and for Whom)?

by
Sanford Levinson
Noted Second Amendment and Constitutional Scholar
University of Texas School of Law

Friday, February 17, 2006 at 4:00 p.m.
Godfrey and Kahn Hall (Room 2260)
University of Wisconsin Law School

This lecture is made possible through the generous support
of the Audrey J. Harris Legal Studies Endowment.

The lecture will be followed by a panel discussion moderated by Donald Downs, Professor of Political Science, Law, and Journalism and Director of the Legal Studies Program and the Criminal Justice Certificate Program. Panelists include Ann Althouse, Robert W. and Irma Arthur-Bascom Professor of Law; John Sharpless, Professor of History; and Howard Schweber, Assistant Professor of Political Science.

Sanford Levinson (JD 1973, Stanford; PHD 1969, Harvard; AB 1962, Duke University) is the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law and Professor of Government at The University of Texas at Austin School of Law. He joined the University of Texas Law School in 1980. Previously a member of the Department of Politics at Princeton University, he is also a Professor in the Department of Government at the University of Texas. The author of over 200 articles in professional and more popular journals, Levinson is also book author of Constitutional Faith (1988, winner of the Scribes Award); Written in Stone: Public Monuments in Changing Societies (1998); and Wrestling With Diversity (2003). Most recently, he was the editor of Torture: A Collection (Oxford University Press, 2004), which includes reflections on the morality, law, and politics of torture from a variety of disciplinary perspectives. He has also edited Responding to Imperfection: The Theory and Practice of Constitutional Amendment (1995), and co-edited Reading Law and Literature: A Hermeneutic Reader (1988, with Steven Mallioux); Constitutional Stupidities, Constitutional Tragedies (with William Eskridge, 1998); Legal Canons (with Jack Balkin, 2000), and a leading constitutional law casebook, Processes of Constitutional Decisionmaking (4th ed. 2000, with Paul Brest, Jack Balkin, and Akhil Amar). He has visited at the Harvard, Yale, New York University, and Boston University law schools, as well as at the University of Paris II, Central European University in Budapest, and the Hebrew University in Jerusalem. A member of the American Law Institute, Levinson was elected to the American Academy of Arts and Sciences in 2001.