Ninth Circuit Holds Academic Liberty Pwns Workplace Harassment

May 20, 2010

by Christopher Harbin

My man crush on Judge Kozinksi got kicked up a notch after reading his slammin’ opinion in Rodriguez v. Maricopa County Community College Dist. Here, Kozinksi, joined by Ikuta and Sandra Day (sitting by designation), held that a professor’s racist emails to a college employee listserv on a matter of public importance was protected speech under the First Amendment and thus cannot constitute workplace harassment.

Walter Kehowski is a math professor at Maricopa County Community College.  Kehowski sent three racially charged-emails (presumably to a list-serv) that were received by all employees of the District with email access:  two challenging the District’s support of “Dia De La Raza”, which is celebrated by some Hispanics instead of Columbus Day and another calling for preservation of a White majority through immigration enforcement.   Plaintiffs sued the college and and its chancellor and president individually on Title VII and Equal Protection grounds.  In reversing the district court’s denial of qualified immunity, the Ninth Circuit held that they “doubt that a college professor’s expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment and justify the judicial intervention that plaintiffs seek.”

The entire opinion is pretty great, but my favorite part is Koz’s coup de grace:

It’s easy enough to assert that Kehowski’s ideas contribute nothing to academic debate, and that the expression of his point of view does more harm than good. But the First Amendment doesn’t allow us to weigh the pros and cons of certain types of speech. Those offended by Kehowski’s ideas should engage him in debate or hit the “delete” button when they receive his emails. They may not invoke the power of the government to shut him up.
Everyone in the Academy should  frame this opinion and hang it on their office walls — the Ninth Circuit has taken a more pro-academic speech position than 99% of them.

Would mass suicide affect student loan practices?

May 11, 2010

By J. DeVoy

Earlier this week, 60 Minutes tackled the hard issue of strategic mortgage default.  In these situations, people capable of paying their mortgages despite being badly upside-down on their homes – owing far more than they’re worth – simply walk away from them.  While government loan modification programs are available to those who have lost jobs and suffered other economic hardship, creditors are refusing to offer interest or principal reductions to people who are capable of paying their mortgages.  So far, this latter group has been unable to cause any change in public or private policy on loan modifications, despite the group growing by the day.

In the 2005 Bankruptcy Code revisions, student loans were made non-dischargable in bankruptcy.  Now, as noted in a recent Frontline episode, the government administers all Federal student loans, which were previously available through private banks and lenders.  The episode further explains that Federal loans can be attached to wages and tax returns if not paid, and will follow the borrower everywhere… except into the grave.  Federal loans are discharged upon death.

For graduates returning home to live with their parents, jobless and adrift, one consequence may be depression and long-term psychological effects.  Given the above-average cognitive abilities and self-awareness of college graduates, it seems more likely than not that they would suffer these effects more than the average person.  In one particularly sad story last year, one attorney committed suicide upon learning of his layoff

Suicide is a serious matter that shatters families, ruining the lives of those left behind, and thus it is not invoked lightly.  With graduates from the classes of 2009 and 2010 now entering the worst job market anyone can remember, and competing with people a generation older for entry-level positions, the future clearly is bleak for them.  Coupled with a black swan environmental disaster that has profound implications for the long-term cost of oil and the growing sovereign debt default crisis, the makings of a double-dip recession are moving rapidly into place.

Even with the benefit of programs like Income-Based Repayment, the interest and principal of student loans will continue to grow for recent graduates.  Despite the program’s vaunted 10-year forgiveness feature for government and public interest employment, such jobs are extremely selective or nonexistent as state governments slash and burn various departments with layoffs, furloughs and forced attrition.  The social and egoistic cachet conferred by a college degree may also preclude graduates from seeking work in blue-collar or service fields; some may cite the desire to preserve themselves for a “career-track” position, while others’ pride may come in the way of taking a job that doesn’t make use of their credentials.  Even for those with the humility to seek whatever employment they can, employers may well reject these applicants for being flight risks destined to bolt for the first superior opportunity, or for lacking the requisite skills for the job.

If enough college graduates are pushed to the breaking point and decide life isn’t worth living, will anyone notice?  A governmental response assumes its knowledge, which is difficult if surviving family members refuse to talk about what happened and what they know.  For some families, this devastation may have already visited home for exactly the reason of crushing, inescapable student loan debt and crushed dreams.  But, like a tree falling in the woods, nobody can know a problem exists if it remains a hushed secret — however painful it is to keep.

Hopefully the state of education lending will never come to needing reform because of ended lives.  There are signs that this is already happening across the country, though, and the trend may only accelerate as economic malaise deepens, parental resources diminish, and opportunities for even the smartest among us become increasingly scarce.  Despite the emphasis to attend college from every angle, those who do and have done so are increasingly finding that the credentials they acquired at great expense aren’t as valuable as they were lead to believe.  This is the ultimate betrayal: People who are lionized for their accomplishment and knowledge are left to drop out of society in the most irreversible way possible.  More immediately, the discharge of these loans upon death affects the CDO-like securities stacked upon them; discharges above those actuarially anticipated when creating the instrument would lead to its unwinding, as well as the derivatives and options resting upon it.

As for what these reforms would be, making student loan debt dischargable in bankruptcy wouldn’t solve the whole problem.  It would, however, bring about several other realizations.  First, the cost of education in America has gotten out of control.  Second, the values of a generic college degree are oversold.  Additionally, not all institutions or degrees are created equally, and it is absurd that students from elite schools pay the same interest rate – to the extent undergraduates at elite schools have to take loans – as students from less rigorous institutions.  The same is true of major selection, as the value provided by a degree in biology or chemistry and the opportunities it provides is markedly different from one in communications, psychology or criminal justice.  These would be painful realizations, but ones that do not seem to be arising naturally.

However large or insignificant the problem of loan-induced helplessness is, it can’t be ascertained or addressed without ensuring it can be discussed.  Despite the shame and stigma people feel for not meeting their financial obligations, or the hurt a family may feel for the senseless loss of a loved one, hiding the experience under a bushel basket ensures that nobody can learn from it, potentially helping others and effecting real change.

Frontline echoes The Legal Satyricon

May 4, 2010

By J. DeVoy

For several years, this blog has been shrieking about the utter worthlessness of higher education — or at least that its purported benefits are oversold.  Finally, the mainstream media has begun to notice.  Tuesday’s Frontline episode, College Inc., was no exception.

The upshot: For-profit colleges enroll 10% of all students.  Yet they receive 25% of all Federal aid – subsidized by you, the taxpayer – and their graduates are responsible for 44% of all student loan defaults.

This issue is creeping into the legal academy as well.  Florida Coastal Law School – which curiously promotes “tradition” on its website despite being in existence only since 1996 – is owned by the for-profit InfiLaw group, which establishes law schools across the country.  Realistically, these schools do not offer their students the prospects they envision.  We at the Legal Satyricon come from all walks of life and education, and we’re not playing the elitism card here — just calling it as we see it.

Response to the Harvard e-mail controversy

May 4, 2010

By All Hands

Last week, one Harvard law student forwarded a fellow classmate’s six-month old e-mail to people guaranteed to take offense to it.  The original e-mail’s damning line, which has been seized upon by Above The Law, Eugene Volokh and others, is this:

“I absolutely do not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent.”

We are not writing to discuss the merits of this original e-mail, but rather the response it has generated.  The above quote can fairly be described as the line that launched ten thousand blog comments.  Beyond the sources mentioned above, scores of people have weighed in on the issue at Gawker, Jezebel, Feministe, Bossip, Steve Sailer’s Blog, Roissy and other message boards.  Some are now calling, fairly actively in some cases, for the e-mail’s author to lose her upcoming clerkship on the 9th Circuit.

This outrage is predictable and protected by the first amendment.  While being offended is the cost of living in a free society, people who are offended are entitled to recourse using their own free speech rights.  When religious groups are offended by some aspect of culture, they band together to effect change, or at least heightened awareness and sensitivity.  Even if the outrage surrounding this e-mail is irrational, it’s a natural response to profound criticism; chiding outraged people for expressing their distress would be glib.

Shaming tactics, however, only work when there is mutual respect between parties that can be lost through a breach of trust.  When someone’s parents or friends shame them, it is effective because the shamed wishes to be viewed positively by those he or she values.  When the shaming group is anonymous to its target, there is no respect to be lost.  Rather than engaging the controversy with attacks and shaming language, those aggrieved could have engaged in reasoned, logical discourse, as we attempt to do now.

We do not begrudge the offended their response to this incident.  We do not think that it is the most effective or productive means of response, either.  By pushing sentiments like the e-mailer’s underground, we delay and deepen the effects of such beliefs.  Perhaps the time to discuss race without the cloud of racism hanging overhead has not yet come, but refusing to engage ideas, however uncomfortable they are, with evidence, facts, data or anything but counterattacks and dismissiveness ensures that the post-racial society we strove for in 2008 is no closer to existing today than it was then.

The issue addressed by the e-mailer is a complex one of scientific and social significance.  This subtlety and nuance of these issues largely have been lost amidst the backlash from her speech.  Indeed, she should expect backlash, and may well deserve it.  However, given the fact that this was presumed to be a private email, and it only became a widely-publicized event because of a personal spat, even that is called into question.

But as with all rights, the ability to do something does not necessarily make it a good idea.  However justified we all may feel in saying what we want, it does not shield ourselves and others from the consequences of doing so.  Just as the emailer and her critics’ speech affected one another, the aggregate effect of this incident and its fallout affects all of us and how we as a society respond to difficult questions of race.  Being mindful of the precedent these controversies set, it would be better for all involved to swallow their pride, however bitter it tastes, and engage in discourse together.  For it is in the dark, in the vacuum of contextualized information and feedback that taboos create and reinforce, that ignorant and harmful views are born.

Slap happy at Ball State University

April 12, 2010

By J. DeVoy

An unknown assailant is tormenting the women at Ball State University by slapping two of them on the bottom.  As suddenly as the attack began, the assailant would pedal away into the darkness, “no doubt while twirling his mustache and cackling maniacally.”

The fallout has been predictable, closely following the arc of PCU‘s plot.

Of course, there are folks out there who say that this is no laughing matter, and that anyone who finds humor in this whole thing is evil and should be hunted down by a lynch mob. BSU’s student paper covered their asses adequately withthis milquetoast editorialdemanding that this crime be taken seriously, and a Facebook group that opposes “MEMEBRS” of the Ball State Ass Slapper page (IT IS NOT A JOKE!!!) is a mere 328 fans strong at the time this sentence was tapped out. But the real laughs are to be had from an indignant blog post from ScienceBlogs scribbler ”Isis the Scientist” of On Becoming a Domestic and Laboratory Goddess… (haha, don’t you get it? Her name is Isis, the Egyptian goddess of motherhood and fertility and her blog is called, eh heh…). You’d think a blog on a site called ScienceBlogs would be more about, y’know, SCIENCE, but Isis would rather chew up their bandwidth to show how shocked, appalled, offended she is that people would dare to find this incident funny.

Explaining the college admissions gender gap

April 8, 2010

By J. DeVoy

Noted at Overlawyered, the University of Florida’s freshman class has 3 females for every 2 males.  Most men would like those odds, but then again most men are listless betas shut out of the “dating scene” (i.e. casual sex market), and cannot fathom using this gender ratio to access the top-shelf stuff.  When asked about this disparity, a spokesman had this to say:

 “Girls are being admitted because they are doing the things to be admitted and boys aren’t.” 

Though possibly true, blaming males is becoming passé.  From colonialism to being presumptive rapists – and, the more intelligent, the more effective the rapist – men get a bum rap.  When there’s dissension in the ranks, others blame men for being self-interested.  This is best evinced by the rise of the phrase “angry white men” across all media after 1992, shown by a cursory WestLaw search.

That women are now outperforming men in school is unsurprising, since many institutions of education have been modified to better serve them at the expense of males.  Everything from No Child Left Behind reporting to the SAT has been modified to ensure women’s results mirror men, allowing women to close the gap — or so it seems.  But, because the 2005 changes to the SAT merely removed questions men performed better on, women haven’t necessarily “gained” anything; what the test measures has been fundamentally changed in order to eliminate a gender gap.

Standardized tests are only a portion of the college admissions equation.  Letters of recommendation, GPA and class rank all factor into admissions decisions.  This is problematic for males when their teachers neither resemble nor identify with them, as a full 80% of public school teachers are now female.  While this shouldn’t matter, it does, as sound concepts such as ingroup bias explain why female teachers would give preferable treatment to female students, even if unintentionally.  Coupled with universally negative stereotypes of males as bumbling, incompetent and brutish, and it can become a daunting task for adolescent men to work closely with their female teachers, build relationships with them, and thrive in an alien environment.

The education experience itself may be stifling for male minds.  Biological and social differences make it hard for boys to sit still and behave as they are expected to, even from a young age, and punishments for failing to comply may be steep.  In the U.K., academics are realizing that the grind of coursework in lieu of more rigorous final exams is detrimental to males, leaving them feminized and demoralized upon leaving the education system.  Similarly, having to do work that men are unwilling and unaccustomed to doing has a deleterious effect on their grades, especially if such busy work like homework and a deluge of quizzes is significantly weighed in their final average.  This can also poison the well for letters of recommendation, as a perceived lack of effort or motivation and resulting low grades can sink a teacher’s ability to honestly recommend a student to his desired colleges.  American academics who’ve breached the subject have seen the same issues not just in schools, but throughout society, as male behavior merely is pathologized without being understood or channeled to more productive uses.

One does not need to be a seer to understand the uproar that would ensue if the above changes were made in reverse.  Taking away advantages from a politically unpopular group, males, seems to be quite acceptable, but is not a two-way street.  For instance, women wanted the inclusion of a provision ending gender-rating among insurers in the recent health care reform legislation, which which would spread the higher healthcare costs for women among the genders.  There is no such broad concern about gender-rating in auto insurance, though, which typically results in higher rates for men.

To reframe the debate: What good is accomplished by punishing men?  As of May 2009, 485 Fortune 500 and 972 Fortune 1000 companies were run by men, a sample size significant enough to show self-selection rather than systematic exclusion of women.  The latter, while possible within a particular company’s culture, seems unlikely to occur across 1,000 very large companies interested in having executives who resemble the markets they serve.  Another data point on this issue, the discrepancy between men and women in Nobel prizes, particularly in economics and sciences, is also illuminating.

Indeed, the regular distribution of all data points between men and women, from GRE scores to height, indicates a higher peak for women and fatter tails for men.  While more women are average and above-average then men, there’s more variance among men, both good and bad.  On the positive side, it leads to significant developments from men like Einstein, Kerouac, Newton, Bohr, Dawkins and Stephen Schwarzman.  The downside to increased variability is the higher incidence of negative pathologies among men; women are not leading the charge to ensure equal representation on death row, where they are 1% of the population.

Hope and change in the face of rejection

April 1, 2010

By J. DeVoy

Not an April Fool’s joke — just a good, if trite, op-ed from Susan Estrich, with whom I normally disagree.  From law school and college students facing graduation just weeks away to applicants who are realizing for the first time that their best isn’t good enough, there’s something for everyone.

I know that no one gets all Aces, that life is rarely a straight flush, beginning to end, and that what matters most is not the cards you are dealt but how you play them. A charmed childhood is no guarantee of a charmed life, and learning to deal with rejection is one of those bitter pills we all have to swallow sooner or later.

I know that after a certain point, no one asks you where you went to school; they ask what you have done since. It is not enough to accept what is. The challenge of life is to do more than that, to adapt, to turn it into something better and to not waste too much time and energy bemoaning what isn’t.

Harvard, Stanford cross the $50k rubicon

March 23, 2010

By J. DeVoy

For undergrad tuition and fees.

Time to Think About Abolishing Public Education?

March 18, 2010

Probably not.

But, if this video is accurate (and the CATO Institute usually is) then it costs just as much to educate a student at the Anacostia school for future dropouts as it does to send a kid to Sidwell-Friends. If that’s the case, maybe those “voucher people” aren’t so crazy after all.

H/T: Doski

Memo to the Left: The Right now has your playbook

March 15, 2010

Ken at Popehat critiques the Texas State Board of Education’s decision to soviet-style remove Thomas Jefferson from the state’s history curriculum. You see Jefferson was a deist, and that fucks with right wing dipshits’ fairy tale that we are a “christian nation.”

But… Ken stabs right through the Right wing, and hooks around to skewer the left too:

What happened before the Texas State Board of Education is appalling. But to the lefties of academia who are particularly incensed, I must paraphrase the pothead kid from the anti-drug advertisements: they learned it by watching you, okay? They learned it by watching you. The academic left has contributed at least equally to the crass politicization of education, knowledge, and epistemology. The scorn you see on the Texas board towards wrong-thinkers like Jefferson is just the Left’s sneer of “dead white males” repackaged and re-spun for modern conservative tastes. The lefty tropes of the sixties through the eighties — that a biased educational system has suppressed the truth about the groups we sympathize with in favor of the groups we don’t like — have been adroitly scooped up and brought to bear from the right. (source)

What does law school really cost?

March 15, 2010

By J. DeVoy

This weekend, my facebook and e-mail discussions focused on a New York Times piece about for-profit trade schools and their questionable value to students.  Many likened the trade schools at issue to law schools, which require a substantial investment for returns that, even in the best of times, are uncertain for all but the most elite law students.

While much is made of the financial cost of law school, that information is readily accessible.  With income-based repayment and the mounting reality that Something Must Be Done (TM) about ballooning student loan burdens, the financial slavery that would normally accompany mortgage-sized debt is diminishing — but not yet eliminated.

Too little attention is paid to the opportunity costs entailed in three years of law school.  I posit two reasons: First,  people who come to law school are exiting careers as teachers, engineers, or other white-collar McJob holders, and don’t see anything wrong with spending three years developing a new skill set.  Second, undergrads without any other options – the philopshy, psychology and sociology majors of the world who lack designs on academia – tend to default into law school without considering the life experiences they’ll forego.

I spent some time on facebook seeing what my non-law friends have done in the time I’ve been here, particularly those who graduated college with me in 2007.  Coupling these observations with law school-related data and other information, hopefully this paints a meaningful picture of just what the comprehensive cost of law school truly is.

Foregone income (@ $25,000/yr, post-tax): $75,000

Engagements: 36

Marriages: 20

Newborn babies: 7

Separations/Divorces: 3

Deaths: 0 (At least not permanently – it’s hard to keep down a Cornellian.)

Trips back home since beginning law school: 7

People who have moved cities in that time: 51

People who have moved cities more than once in that time: 12

School-wide GPA median: 3.1

Personal percentage of A-range grades: 47%

Rejection letters: dozens, at least

Summer associate hours billed, 6/1/09 – 8/7/09: ~440

Hours billed by teacher friends during that time period: none

Hours requirements of friend who just moved in-house to a MLB team’s PR department: none

Sent e-mails (.edu account): 1124

Hours in law library: hundreds

Median course outline length: 32 pages

Median final exam time: 3 hours

Average hours of sleep per night: 5

Eyesight change: -.25

Weight change: +<5 lbs.

Observed average weight change in others: +15 lbs.

Bench press change: -15 lbs.

Estimated miles walked to and from law school: 693

Apartment furnishing budget: $1,500

Pictures or other artwork displayed in apartment: 0

Times air conditioner has been used: 5

Times George Foreman Grill has been used: 7

Times feeling inadequate in class: many

Times wishing I’d chosen to work in another field: 1

Number of friends working in media who have been laid off: 0

Friends I’ve recommended attend law school: 1

iTunes library change (in GB): +73%

Change in suits: +25%

Change in dress shirts: + 65%

Change in neckties: +100%

Amount spent on delivery: $0

Amount spent at Chipotle Mexican Grill: unconscionable

Do I regret it?  Not a chance.  But, at 21 years old, upon pulling the trigger on this life plan – even before the economy collapsed – I did not realize the things that would happen in life, both to myself and others, between then and now.  Fortunately, I was suited for it.  Many aren’t.

Young people considering law school should consider the significant consequences legal education can have on their lives, potentially pushing back numerous milestones and accomplishments.  At a minimum, law school may be the difference between students moving back into their parents’ basements and moving back into their parents’ basements three years older, bearing six-figure debt.

Sometimes law students and prospectives discuss these costs and considerations, but seldom in one place or in quantitative terms.  Each data point, however, is a valid consideration; ties and shirts cost money, and certain things, like life experiences and health, are too valuable to be considered in purely monetary terms.

Hopefully 0Ls considering where to go and even what to do with their lives in September 2010 mull over this information.  Though unlikely, others could prevent regrettable and expensive decisions by contemplating these facts.  Indeed, law school is not for everyone.

Volokh on Reason.TV

March 5, 2010

If I were president, hands down, this cat would be my first choice if a Supreme Court seat opened up. I don’t agree with him on all issues (far from it) but he’s principled, intelligent, and consistent.

Is Higher Education Overrated?

February 25, 2010

This Time Magazine article makes a compelling case that it might be.

How to get yourself off: A class at Michigan Law?

February 21, 2010

Brought to you by Michigan Law

It gets awfully cold in Ann Arbor, Michigan this time of year. Our sources report that a man, most likely a homeless vagrant, has been bopping his baloney in the Michigan Law Library. Well, christ, with the temperature hovering around -3 fahrenheit, a poor guy’s wiener might just go all brittle and shatter if he did it the old fashioned way — hiding in the bushes outside while murmuring “free candy… freeeee candy.” Accordingly, our vagrant-du-jour has decided to engage in his practice of the fapping arts in the hallowed halls of the Michigan Law School library.

“I am not positive that it was a homeless guy,” said a source familiar with the incident who asked not to be named for fear of retribution. “But, I would bet cold hard cash — you see shady fucks in there all the time.”

This particular “shady fuck” and his antics prompted the following bulletin to be broadcast to the entire Michigan Law student body:

From: David H. Baum
Date: Fri, Feb 19, 2010 at 3:31 PM
Subject: Incidents in Law Library
To: “Law School Official List: May10″


To: Law student community
Cc: Law Library staff

We have received a report that on two recent Saturday afternoons, the same man indecently exposed himself in the sub-levels of the Law Library. Each time, he sat down near a female law student at a study table, discreetly and quietly pulled his pants part of the way down his legs, and touched himself inappropriately. In each instance, once he was aware that he had been noticed, he quickly left the library. In neither incident did he overtly confront the student nor behave in an aggressive manner toward her.

He was described as a medium- to dark-complected black male in his early 30’s, 5’7”, 160 pounds, bald (almost polished head), last seen wearing a brown coat, black sweater, tan pants and a brown or off green knit hat.

The Department of Public Safety is actively involved in addressing this issue. If you have observed similar behavior in the past in the library (or anywhere in Hutchins Hall or the Legal Research building), please contact Officer Richard Zavala or Officer David Dupuis either by e-mail or telephone.

If you observe similar behavior in the future, please immediately report the matter to DPS by calling that same number. Once you have reported the matter to DPS, please let the Office of Student Affairs know about the incident as well by e-mailing

David H. Baum
Assistant Dean and Senior Manager of Student Affairs
University of Michigan Law School

I am a “glass is half full” kind of guy, so lets focus on the positive here.

Without condoning Spanky Mc Fapperson’s antics, it does sound as if he exercised good manners whilst tossing his tallywhacker. The good dean describes his jacking technique as both “discreet” and “quiet.” At least the guy was exercising proper library etiquette! He was neither overtly confrontational nor aggressive, and he left when his welcome seemed worn out. Aside from the masturbating in the library part, it sounds like he was downright gentlemanly. He is a credit to homeless compulsive masturbators everywhere.

A Michigan Law Student we interviewed for this article informed us that Spanky’s efforts might have gone unnoticed, had he brought his penile motion in a better venue. “If you are going to jerk it, you have to do it in the rare book room,” he said.

Kenneth Starr from Pepperdine to Baylor

February 15, 2010

By J. DeVoy

Kenneth Starr, current dean of Pepperdine University School of Law, has been named Baylor University’s new president.

For Starr, originally from central Texas, this may be a natural move.  Indeed, most of his career has been spent below the Mason-Dixon line.  Starr earned his A.B. from George Washington University and J.D. from Duke, with a brief excursion to Rhode Island to earn his M.A. at Brown University.  He then clerked for the Fifth Circuit Court of Appeals and U.S. Supreme Court Chief Justice Warren Berger.  Starr served on the Court of Appeals for the District of Columbia Circuit before his tenure as Solicitor General under George H.W. Bush.  There’s also that whole Clinton thing.

The jump from leading a law school to an entire university is a considerable one, but not unprecedented.  In 2005, the University of Rochester poached Washington University in St. Louis Law’s dean, Joel Seligman, to serve as its President.  Unfortunately, the efficacy of his tenure is obscured by the down economy, which adversely affects alumni donations, endowment growth and student outcomes.