Tagged: Education

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FAN 118 (First Amendment News) University of Cape Town Disinvites Flemming Rose — Floyd Abrams Dissents

Note: Below is a heretofore unpublished letter from Floyd Abrams. It follows another one recently posted on this blog by Professor Nadine Strossen. Vice-Chancellor Max Price, to whom both letters were primarily directed, was invited to reply. (Links have been added for reference purposes.) 

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July 24, 2016

Dear Vice-Chancellor Price:

I am a practicing lawyer in the United States who has devoted the better part of my professional career to defending freedom of expression. I am also a Visiting Lecturer at the Yale Law School, have written two books and many articles about freedom of expression around the world, and have spoken about the topic in a number of nations including, by way of example, India, Japan, Sri Lanka, Malaysia, Great Britain and—of particular relevance—South Africa. I was one of a number of foreign scholars who participated in advising the drafters of the South African Constitution. I have spoken about issues relating to freedom of expression in Johannesburg, Cape Town and Pretoria. I have read your statement about the decision of University of Cape Town to withdraw the invitation to Flemming Rose to deliver this year’s  TB Davie Memorial Lecture. I take the liberty of writing this letter to you because your decision is not only of consequence to your university and to your country but to democratic nations and universities in them throughout the world.

Floyd Abrams

I would like to make two brief observations at the outset.

The first is that I am not writing to you to urge you to adopt or to apply American standards in deciding who may be invited. As your statement correctly observed, the framers of your Constitution quite deliberately adopted a general right of free expression subject to certain specific limitations relating to propaganda for war, incitement of imminent violence, and “advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.”

The second is that I am not writing to suggest that the cancellation by a university of an invitation to speak made to a  prominent  public figure is unique to South Africa. Quite the opposite is true. In the United States, a number of invitations have been made and then withdrawn by universities to prominent individuals including a former Secretary of State and the current head of the International Monetary Fund after protests were feared if the speaker was permitted to offer her views. Indeed, it is precisely because of my strong belief that the decisions of those American universities—and there are many of them– were so shameful and so contrary to basic principles of academic freedom that I take the liberty of writing to you.

UnknownAt the outset, nothing in the South African Constitution lends any support to your decision. Nothing that Mr. Rose has ever said can possibly be said to constitute propaganda for war. He has never urged violence against anyone or sought to incite it. Your statement observes that “Mr. Rose is regarded by many around the world as … someone whose statements . . . possibly amount to hate speech.”. I appreciate and honor your unwillingness to say that you credit any such an insupportable charge. But if you are unwilling to do so—and there is no basis for doing so—you can hardly rely on the notion of incitement as a basis for cancelling the invitation. I note in that respect that even the clause of the South African Constitution that limits free speech protection to advocacy of racial hatred or the like does so only when the speech at issue “constitutes incitement to cause harm”.

Writing from afar, I cannot comment specifically on your expressed concern about the security risks of permitting Mr. Rose to appear except to say that your nation, as mine, has experienced security risks in the past and when aware of them has been able to protect speakers and listeners alike. The security question is not whether it can be provided; it is whether freedom of speech on your campus is so important that it is worth doing so, with all its risks. Your Academic Freedom Committee obviously thought it was. From any perspective that honors academic freedom, that is a necessary conclusion.

Dr. Max Price

Dr. Max Price

The same is true of your stated concern that inviting Mr. Rose may have the perverse effect of limiting rather than vindicating academic freedom since he “represents a provocatively—potentially violently—divisive view.” Of course, Mr. Rose himself offers provocative views. I am sure that is why he was invited. But he hardly “represents” a “potentially violently” view about anything. The risk of violence is at all not from him but from those who simply do not accept core notions of freedom of expression and academic freedom. To yield to those who cannot abide freedom of expression that they find abhorrent is to abjectly surrender to them.

There remains the first basis articulated by you for rescinding the invitation to Mr. Rose—concern about provoking conflict on campus. It is, I am well aware, awfully easy for people thousands of miles away from your campus and whose views you have not sought, to presume to advise you that even if there is a risk of conflict on your campus that follows or accompanies a speech by Mr. Rose, it is one worth accepting. Who needs, you may well ask, such second-guessers? All I can say is that those of us who weigh in on the issue from abroad do so because we care about your country, are impressed by its Constitution, and are often in awe of your Supreme Court and its liberty-protecting rulings. We also offer our views because the decision to disinvite by your great institution is one that will be viewed carefully by academic institutions around the world as they decide how to respond in similar circumstances.

The very first TB Davie Memorial Lecture was delivered by Chief Justice Centlivres, the Chancellor of your university, on May 6, 1959. He then summarized what he characterized as Professor’s Davie’s “articles of faith” as follows: “The first was that a university is primarily a centre of learning, the second that a university flourishes only in an atmosphere of absolute intellectual freedom, and the third, that the pre-eminent virtue of university life is intellectual integrity,.” Guided by those precepts, it is difficult to understand or accept the cancellation of Mr. Rose’s appearance.

Respectfully submitted,

Floyd Abrams

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News Update: Michael Cardo, UCT: A tale of two lecturers, PoliticsWeb, July 25, 2016 (“This coming weekend, the University of Cape Town will host Hamza Tzortzis, a highly controversial lecturer who propagates a radical version of Islam. His visit to the campus follows hot on the heels of an executive decision to bar Danish journalist Flemming Rose from delivering the 2016 TB Davie Memorial Lecture on academic freedom.”) 

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FAN 117.3 (First Amendment News) University of Cape Town Disinvites Flemming Rose — Nadine Strossen Dissents

In the classic expression of freedom of speech and assembly, UCT’s policy is that our members will enjoy freedom to explore ideas, to express these and to assemble peacefully. The annual TB Davie Memorial Lecture on academic freedom was established by UCT students to commemorate the work of Thomas Benjamin Davie, vice-chancellor of the university from 1948 to 1955 and a defender of the principles of academic freedom. Organised by the Academic Freedom Committee, the lecture is delivered by distinguished speakers who are invited to speak on a theme related to academic and human freedom. 

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Note: Below is a heretofore unpublished letter from Professor Nadine Strossen. This coming Wednesday FAN will post another dissenting letter, this one by Floyd Abrams. Additionally, Vice-Chancellor Max Price, to whom the letter is primarily directed, is invited to reply should he be so inclined. (Links have been added for reference purposes.) 

July 22, 2016

Dear Vice-Chancellor Price, AFC Chair Professor Rousseau, and Professors Hendricks and McClachlan-Daniels:

UnknownAs someone who was honored to deliver the TB Davie Memorial Lecture in 2011, I was inspired by the University of Cape Town’s proud history of defending academic freedom, and its ongoing commitment to doing so, including through this Lecture and the work of the Academic Freedom Committee. I also recall fondly Dr. [Max] Price’s cordial hospitality and  appreciated support for the AFC and the Davie Lecture.

I applaud the AFC’s March 2015 decision to invite Flemming Rose to deliver the 2016 Davie Lecture, and I am heartened by the AFC’s refusal to rescind that invitation despite apparently great pressure to do so from both within and beyond UCT. Having read Mr. Rose’s enlightening book, The Tyranny of Silence, as well as many other publications by and interviews of him, I consider him one of the most principled, courageous exemplars of intellectual freedom and freedom of conscience, including freedom for religious and other beliefs. I was therefore deeply honored to present to him the biennial Friedman Prize for Advancing Liberty, awarded by the Cato Institute, in New York City on May 25, 2016. For your information,  I append below this letter the text of the remarks that I delivered on that occasion.

maxresdefaultOf course, I would neutrally defend Mr. Rose’s right to speak at UCT  — and the UCT community’s right to hear his ideas – even if I strongly objected to his ideas. But he is especially deserving of a forum such as the Davie Lecture because his ideas have been so widely caricatured and misunderstood, and because these ideas are urgently important precisely due to the sensitive nature of the issues they address.

 For the foregoing reasons, I was deeply disheartened to learn recently that UCT had overridden the AFC and breached the commitment to host Mr. Rose to deliver the 2016 Davie Lecture. I was particularly disheartened by the reasons set out for that action in Dr. Price’s recently released letter, dated July 12, 2016.

These are the very same reasons that regularly have been cited to suppress the expression of any view that is politically unpopular at the particular time and place. In the U.S., for example, these were the reasons that too many universities cited for barring civil rights advocates from speaking during the twentieth-century Civil Rights Movement. Likewise, they are the same reasons why too many U.S. universities more recently barred “Black Power” activists from speaking. In a nutshell, the arguments both then and now are that the suppressed ideas could well offend other people, threatening their most cherished personal beliefs and community values, and potentially leading to violent reactions by those who are thus offended.

Professor Nadine Strossen

Professor Nadine Strossen

I have read the persuasive responses that have been issued to Dr. Price’s letter by the 2015 Davie Lecturer, Kenan Malik, and by the Index on Censorship, as well as by the AFC and Flemming Rose himself. I will not repeat the powerful arguments they made.  Rather, I will confine myself to making several additional points.

First, why does UCT succumb to the victim-blaming approach in this context that it would surely eschew in other contexts? To say that Flemming Rose should not advance ideas that others might find provocative and respond to with violence, seems to me the same as arguing that women should not wear certain clothing that others might find provocative and respond to with violence.

Second, Dr. Price’s letter references the limits upon free speech that the South African Constitution sets out, which are also generally accepted in other legal systems.  Yet the letter doesn’t expressly contend – nor could it credibly do so – that anything Flemming Rose has said, or is likely to say, would transgress any of those limits.  Indeed, apparently acknowledging as much, Dr. Price’s letter makes only the tentative, qualified observation that “Mr. Rose is regarded by many around the world as..someone whose statements.possibly amount to hate speech.”

As any survey of the media will reveal, if universities declined to host any speakers whom some people consider to have made statements that “possibly amount to hate speech,” then they would have to ban from campus just about everyone who is addressing any important, contentious, sensitive issue. For example,  in the U.S., many critics recently have denounced “Black Lives Matter” protestors as engaging in hate speech, even blaming such speech for allegedly instigating murders of police officers.

Dr. Max Price

Dr. Max Price

Flemming Rose’s speech clearly is not “advocacy of hatred . . . that constitutes incitement to cause harm,”  which the South African Constitution excludes from free speech protection (as quoted in Dr. Price’s letter). First, there is no basis for concluding that Mr. Rose would say anything that could fairly be considered “advocacy of hatred that is based on.religion.” Moreover, even if someone did engage in such “advocacy,” it would still be protected speech, unless it also “constitutes incitement to cause harm.” To the best of my knowledge,  not even Flemming Rose’s most unfair, harshest critics have charged him with “incitement” – a legal term of art that means intentionally spurring on listeners who are supportive of his views to commit harm against third parties, in a context where his sympathizers are actually likely to do so imminently. And if any such charge has been leveled, it would be patently unjustified.

If South Africa withheld free speech protection for non-inciting statements that merely criticize certain religious beliefs, or actions that are based on certain religious beliefs, then it could not protect many views that have been widely aired around the world:  for example,  criticism of’ discriminatory views and actions concerning LGBTQ individuals that are held by many Christian and other denominations and their adherents.

Third, Dr. Price’s invocation of “the rise in extremist terrorist groups” as somehow allegedly justifying suppression of Flemming Rose’s speech is also part of a general pattern that has been used to suppress a wide range of freedom, all over the world, not only in the recent past, but also historically. Ironically, this was precisely the topic of my 2011 Davie Lecture:  the unjustified violations of academic freedom in the name of fighting “the War on Terror.”

Given that this “War” is likely to remain “The New Normal” worldwide, it will remain an all-too-convenient, but unjustified, rationale for suppressing academic and other freedom.  This danger was recognized by none other than the namesake of the TB Davie Memorial Lecture himself. Let me quote a passage from my Davie Lecture, which quoted Dr. Davie’s pertinent observations.

“In his 1948 Inaugural Address, upon being installed as UCT’s Principal and Vice-Chancellor, Dr. Davie noted that `[r]ecent history has…shown …how easily and almost imperceptibly Universities can be deprived of their freedom.’  In words that are chillingly apt today  [almost seven] decades later, he warned: `Controls and restrictions [that are] imposed and accepted under conditions of war are only too meekly submitted to, even when the conditions necessitating their imposition have disappeared.'”

Fourth, I would like to add to the critiques that have already been made of Dr. Price’s argument that proceeding with Flemming Rose’s lecture “might retard rather than advance academic freedom.”  This reminds me of the much-maligned statement by a U.S. military official during the Vietnam War, that “we had to destroy the village in order to save it.”

It is also the same argument that the U.S. Supreme Court unanimously rejected in the landmark 1997 case of Reno v. ACLU, in which the Court for the first time upheld freedom of speech for the then-new medium of online expression. The U.S. government had argued that individuals might avoid an uncensored Internet “because of the risk of exposing themselves or their children to harmful material,” and therefore that censorship could have a net positive impact on free speech. The Court resoundingly repudiated this Through-the-Looking-Glass argument for the same reason that it is unpersuasive in the current context:

“We find this argument singularly unpersuasive…[I]n the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.”

Fifth and finally, I am troubled by the ongoing threat to academic freedom that Dr. Price’s letter signals. On the one hand, he  asserts that UCT “hope[s] never again to have to interfere with an invitation to deliver a lecture on academic freedom.” On the other hand, though, he later endorses  “a considered version of academic freedom that is avowedly sensitive to the concurrent rights to dignity and freedom from harm.” In other words, it is only his version – or UCT’s “official” version – of academic freedom that will be honored, not that of the AFC, or the viewpoint-neutral version that would be consistent with the South African Constitution and UCT’s own proud traditions, as exemplified by TB Davie.

In light of the positive experience that I was so honored to enjoy as a prior Davie Lecturer -the same positive experience that Kenan Malik described in his response to Dr. Price’s letter – and in the constant hope that “more speech” will prevail over censorship, I respectfully urge reconsideration of the decision not only to “disinvite” Flemming Rose from giving the Lecture, but also apparently to exclude him from speaking at UCT altogether, even as part of a debate or panel presentation. I don’t think that bringing any speaker to campus could reasonably be viewed as anointing that speaker “as the chosen champion of the University of Cape Town,” as Dr. Price says. Certainly, when I had the privilege of delivering the Davie Lecture, I saw myself as the champion only of my own views on academic freedom; I did not see myself as even a spokesperson for UCT, let alone its “champion.” By continuing to create fora for discussion and debate by and with speakers expressing a range of views – including such an important thinker, writer, and activist as Flemming Rose — UCT itself would continue as “the chosen champion” of academic freedom.

 Very truly yours,

 Nadine Strossen

John Marshall Harlan II Professor of Law,  New York Law School

Immediate Past President, American Civil Liberties Union (1991-2008)

APPENDIX   Read More

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UCLA Law Review Vol. 61, Issue 5

Volume 61, Issue 5 (June 2014)
Articles

Opinions First—Argument Afterwards Daniel J. Bussel 1194
How the California Supreme Court Actually Works: A Reply to Professor Bussel Goodwin Liu 1246
The Best of All Possible Worlds? A Rejoinder to Justice Liu Daniel J. Bussel 1270
Deprivative Recognition Erez Aloni 1276
Immigration Detention as Punishment César Cuauhtémoc García Hernández 1346
Toward a Theory of Equitable Federated Regionalism in Public Education Erika K. Wilson 1416
The Dark Side of the First Amendment Steven H. Shiffrin 1480

 

Comments

Misdiagnosing the Impact of Neuroimages in the Courtroom So Yeon Choe 1502
Under the (Territorial) Sea: Reforming U.S. Mining Law for Earth’s Final Frontier James D. Friedland 1548

 

 

 

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Diabetic Kids, All Kids, and School Nurses

Much to the relief of many parents whose children have diabetes, the California Supreme Court ruled recently in American Nurses Ass’n v. Torlakson that insulin shots can be administered by school personnel who volunteer and get trained for the job. School nurses, the court ruled, are not required under state law. That’s a good thing for the kids who attend the 95% of California public schools that have no fulltime school nurse. It’s good for their parents as well, since some schools were telling parents to come to school to give their kids their shots, something most employed parents had difficulty doing without upsetting their employers.

But to say, as the American Diabetes Association does, that the decision should make parents of diabetic kids feel confident that their child is in good hands at school is a bit of an overstatement. Whether they can get a routine shot of insulin isn’t the only health issue that kids with diabetes face during the school day. Some will face emergency health issues specific to diabetes, including hypoglycemia and hyperglycemia. Sometimes, it may take someone with medical training to know whether a shot should be administered at all or if it’s time to do something else, such as calling the ambulance. Diabetic kids also face health issues that other kids face. Like other kids, they fall off of climbing equipment and run into each other, and they may need to be assessed for concussions. Like other kids, they may get too hot when their team is practicing in hot weather, and someone with training will know best whether to get emergency medical care.  Like other kids, they may get sick at school and need to be assessed for whether they need an hour on a couch or a call to a parent. Just as important, someone needs to figure out if it’s time to sound the alert about a communicable disease at the school.

The California legislature apparently decided that school nurses aren’t necessary because of the expense. And indeed it may be difficult to justify spending money on nurses when paying for teachers sometimes seems like a luxury. But what the parents of those California kids with diabetes know, as does the American Diabetes Association, is that a nurse is a better and safer alternative for the kids than a volunteer staff member, even one who is trained. Looking carefully at the diabetic kids, further, helps us understand that school nurses are a very good idea for all of the kids, not just those with chronic conditions. This happens a lot when a person has a disability – solving that person’s problem can improve the lives of others. (Think about curb cuts for wheelchairs the next time you’re pushing a stroller or pulling a piece of luggage on wheels.) All parents, not only those with diabetic kids, need to have confidence that someone at the child’s school is capable of paying attention to serious medical issues. It’s a good issue for parents to join together to solve.

 

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The Stanford Law Review Online: School Security Considerations After Newtown

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Jason P. Nance entitled School Security Considerations After Newtown. Professor Nance writes that strict school security measures may be ineffective but have a balkanizing effect:

On December 14, 2012, and in the weeks thereafter, our country mourned the deaths of twenty children and six educators who were brutally shot and killed at Sandy Hook Elementary School in Newtown, Connecticut. Since that horrific event, parents, educators, and lawmakers have understandably turned their attention to implementing stronger school security measures to prevent such atrocities from happening again. In fact, many states have enacted or proposed legislation to provide additional funds to schools for metal detectors, surveillance cameras, bulletproof glass, locked gates, and law enforcement officers. Because increased security measures are unlikely to prevent someone determined to commit a violent act at school from succeeding, funding currently dedicated to school security can be put to better use by implementing alternative programs in schools that promote peaceful resolution of conflict.

He concludes:

The events at Newtown have caused all of us to deeply consider how to keep students safe at school. A natural response to this atrocity is to demand that lawmakers and school administrators invest our limited public funds into strict security measures. But this strategy is misguided. Empirical evidence suggests that these additional investments in security equipment and law enforcement officers may lead to further disparities along racial and economic lines. Further, it is imperative that all constituencies understand that there are more effective ways to address violence than resorting to coercive measures that harm the educational environment. Indeed, schools can make a tremendous impact in the lives of students by teaching students appropriate ways to resolve conflict and making them feel respected, trusted, and cared for. These are the types of schools that can make a real difference in the lives of students.

Read the full article, School Security Considerations After Newtown at the Stanford Law Review Online.

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Stanford Law Review Online: The Violence Against Women Act and Double Jeopardy in Higher Education

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Andrew Kloster entitled The Violence Against Women Act and Double Jeopardy in Higher Education. Mr. Kloster argues that proposed changes to the Violence Against Women Act have potentially serious implications for persons accused committing sexual assault in university proceedings:

The reauthorization of the Violence Against Women Act (VAWA), set to expire this year, has elicited predictable partisan rancor. While there is little chance of the reauthorization being enacted by Congress so close to an election, the Senate draft includes a provision that raises interesting issues for the rights of students involved in sexual assault disciplinary proceedings on campus. The Senate version of VAWA could arguably condition a university’s receipt of federal funds on a requirement that the university always provide an appeal right for both accuser and accused. Setting aside the massive rise in federal micromanagement of college disciplinary proceedings, the proposed language in VAWA raises serious, unsettled issues of the application of double jeopardy principles in the higher education context.

He concludes:

Whatever the legal basis, it is clear that both Congress and the Department of Education ought to take seriously the risk that mandating that all universities receiving federal funds afford a dual appeal right in college disciplinary proceedings violates fundamental notions of fairness and legal norms prohibiting double jeopardy. College disciplinary hearings are serious matters that retain very few specific procedural safeguards for accused students, and permitting “do-overs” (let alone mandating them) does incredible damage to the fundamental rights of students.

Read the full article, The Violence Against Women Act and Double Jeopardy in Higher Education at the Stanford Law Review Online.

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Diversity Day!

“Mom,” said my fourteen-year-old daughter. “What can I be for Diversity Day without being racist?”

As a good, progressive private school, my daughter’s school prides itself on its commitment to “diversity.” And like schools everywhere, it has a Spirit Week during which students and staff are instructed to do wacky things together in the service of building school spirit. Pajama Day! Crazy Hair Day! Superhero Day! This year, for some reason, the two mandates collided. Thus we got Diversity Day.

Someone, fortunately, had made a stab at thinking things through. We parents got an email from a school administrator warning us, “This is NOT a day to try to be someone else.” At least no one is going to show up in blackface, I thought with relief.

But what is Diversity Day supposed to be about? According to the email, “It is a day to celebrate a core aspect of the School’s mission by giving students the opportunity to celebrate their own cultural and/or family traditions. . . a day to express a certain amount of pride and respect for their families and backgrounds.”

Great, but there is complexity on top of complexity here. Begin with the fact that among the children of the Northern California professional-managerial class, there are hardly any who would claim a single “cultural and/or family tradition” for “their own.” These are kids with hyphenated last names and hyphenated backgrounds. The email to parents says, “They need to express themselves in a way that would make their grandparents proud of who they are.” Yes, but which grandparents? And who “are” these kids? Do they – or we – yet know? Yes, they have studied slavery and the Holocaust at school. My daughter and I have had lively discussions about President Andrew Jackson and his role in the Trail of Tears. But these children are fourteen and privileged and they live in the Bay Area; they are only now beginning to come into personal contact with the sharp edges of racism. I’m sure the parents of the eighth-grade black boys have already had several painful talks about being deferential and making no sudden movements when around strange white people or police officers. But I’m lucky; as mother of a girl, I only (!) have to worry about sex.

As in: “None of my friends think Asian boys are hot,” says my daughter. Some boy in her class has declared, “Black girls aren’t hot unless they look white.” To which my (black, curvy) daughter said sorrowfully, “I would have thought black girls would be attractive because they’re curvy.” We talk about the politics of personal ads; it seems grown-ups are also not quite post-racial in this area. And we try to unpack what “hotness” is supposed to mean, anyway.

Yet even these hard conversations are only tiny forays into the maelstrom of identity. High school and college, these days, are where the racial decisions really begin to bite for privileged kids. That accords, anyway, with the accounts of my “of color” students in their Critical Race Theory journals, who report being shocked when college classmates suddenly insisted on knowing “What are you?” or “Where are you from? No, really?” College is when those with complex identities and backgrounds are pressured by others to choose, to align, to make a stand.

Add to this confusion our national culture’s own vexed commitment to “diversity,” that peppy, All-American solution to the tragedy of racial subordination. Diversity is great because everyone has it already! Also, it’s good for everybody, since the corporate world, the military, and advertising can’t be wrong! But as Sheila Foster pointed out long ago, the downside of diversity is its emptiness; it can mean all things to all people and therefore nothing at all. And since everybody is different from everybody else, diversity is kinda automatic, no? “Should I just go as myself?” wonders my daughter. I respond, “If it’s their mission, then why isn’t every day Diversity Day?”

The truth, of course, is that race is the elephant in the diversity room. What we really care about when we talk about “diversity” is race and ethnicity, with perhaps a nod to gender, sexuality, and disability. But within the diversity framework, this commitment becomes fraught. When corrective justice was the paradigm, it made sense to put race and ethnicity at the center; flute players and yoga practitioners have not been targets for society-wide discrimination. If diversity for its own sake is the new goal, however, what do race and ethnicity become but skin color, eye shape, and quaint native costumes? Thus does Diversity Day pull us, ironically, toward the post-racial fantasy in which Martin Luther King, Jr. Day really is no different from St. Patrick’s Day in the United States: just another chance to be sold fun foods and drinks, and to feel good about how we are all the same beneath our superficial differences.

And I would be fine with that, were my daughter actually growing up in a world where no one would make her hotness depend on how “white” she looks.

Well, by the time she’s ready to go to college, of course, no doubt the Supreme Court will have ruled that diversity is not a compelling state interest after all and that higher education admissions in public schools must be race-blind. The question will be what these well-meaning private schools should do with their Diversity Days. New awkward rituals await, I’m sure.

But perhaps an awkward commitment to justice is better than no commitment at all.

P.S. I know: All these race problems are supposed to disappear in twenty-five years or less. Our innocent, colorblind children are going to lead us into the promised land. OK, I’ll wait.

P.P.S. Oh, and for those who want to know — She’s going to wear a pink triangle.

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“Low-Cost” Baccalaureate Degrees: Will You Soon Pay for What You Get, at Least in Texas?

Colleges and universities across the country are trying to find ways to curb, or off-set, increasingly prohibitive tuition costs.  But Texas Governor Rick Perry has thrown down the gauntlet by challenging that state’s public universities (and the nation) to come up with a baccalaureate degree that cost students only $10,000.  The current yearly in-state tuition at Texas universities ranges from $15, 348 to $25,477.  These figures include tuition, fees, book, board and transportation.

This week Texas Commission of Higher Education, Raymund A. Paredes, declared that Perry’s proposal is “highly feasible.”  He argues that the goal is “about making sure we have a range of options for young people so they can select a path to a baccalaureate that makes the most sense to them.”  According to the Texas Higher Education Coordinating Board, this clearly and consciously “stripped-down degree” would account for ten percent of the total baccalaureate degrees from Texas schools.  The more pressing question, however, is which students are most likely to “opt” for the “low-cost” degree.  The obvious answer is low income students who also just happen to be disproportionately non-white.

What is not addressed by either the Coordinating Board or Commissioner Paredes is the long-term consequence of opting fora low-cost degree.  What happens when students with low-cost degrees apply to graduate and professional schools?  Will their degrees be considered competitive or will these graduates be consigned to jobs that nominally require a college degree?  Will they become second-class college graduates – educated cashiers at fast food restaurants?

Most of us in higher education readily admit that tuition costs are too high and that we need to think about cost-cutting measures.  But hopefully few of us want any variation of the Texas two-tier model, for if Texas has its way “low-cost” JD and MD degrees may not be far behind.  I doubt that anyone wants to be treated by a physician with a low-cost medical degree, and I certainly would not want to be represented by a lawyer with a low-cost law degree.  In the meantime in an attempt to off-set costs we set universities where increasing few teachers are tenured and language or classic departments and/or programs are gutted with little thought about their educational value.

It is time we ask ourselves a hard question the answer to which we might not want to know: whether the  popular American notion that college should be available for anyone who has the money (or can borrow the cost of tuition) contributes to the high cost of a college education.  In many countries with quality higher education systems, only the most talented need apply, and the costs are low.  But before we can even think about limiting access to higher education we need to (re)commit to providing better primary and secondary education for everyone in this country.  Only then can we focus on how to ensure that truly talented individuals obtain a college degree without being burdened with a life-time of debt.  In the meantime, folks in Texas may have to “settle” for second-class degrees.

This is my final post on Concurring Opinions.  Sorry I did not have time to post and provoke more.  I’ve really enjoyed my month’s stint.

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Socializing Students to the Practice of Law

When I was in private practice, I never gave much thought to how law schools prepare students for a career in the legal profession. I was fortunate to have a very positive law school experience and even more fortunate to end up in a small practice group within a big law firm that took pride in training its young associates. (I also had a wonderful mentor during my judicial clerkship experience.) As a result, I never felt unprepared for the practice of law.

It was not until I left practice and started teaching that I truly appreciated the gap between legal education and legal practice. I know that statement is not a new revelation; many have discussed the lack of practical skills imparted to students during their three years of law school (see, e.g., here, here, here and here). And I do not make it to criticize legal education (for the most recent critique, see here).  Although some things could be done differently (for a collection of articles on legal education reform, see here), I believe that teaching students critical analytical skills provides a solid foundation for legal practice and inculcates a skill set that translates beyond the legal profession (see here and here). I raise it, however, to share my recent, very enjoyable experience with third year law students in Business Planning.

This fall, I co-taught Business Planning with my colleague, Dan Goldberg, who focuses his teaching and scholarship on tax law. Dan and I worked together to prepare lesson plans and assignments, and we co-taught each class meeting. In fact, we structured the class to simulate a small law firm; Dan and I played the role of the tax and corporate partners, and the students played corporate associates.  (For a discussion of training law students to be more client ready, see here.)

The class started with one of the law firm’s long-time individual clients seeking the law firm’s assistance in structuring a new business venture among the firm’s client and two other individuals. The students confronted ethical issues presented by this request and then helped the individuals evaluate their entity choice options from tax, governance and general business perspectives. This exercise introduced students to business plans, balance sheets and organizational documents. The hypothetical law firm and student associates served as counsel to the newly-formed business entity during the remainder of the semester, and they helped this hypothetical client work through liquidity and growth issues, an unsolicited purchase offer and an initial public offering.

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Are You a Winner?

Two lucky people woke up this morning mega millionaires. After yesterday’s lottery ticket buying frenzy, one winning ticket was sold in Idaho and the other in Washington (see here). The winners will share equally the $355 million jackpot.

Sounds like a dream coming true, right? Unfortunately, for many lottery winners, winning the lottery eventually leads to bankruptcy (see here, here and here). Statistics tend to show that a good portion of lottery winners file chapter 7 or chapter 13 personal bankruptcy cases within five years of receiving their jackpots (see here and here). In one sense, the tale of doom attached to big lottery winnings seems similar to the ploy of telling a bride that rain on her wedding day signals good luck—it makes those of us who didn’t win feel a little better. In another sense, however, it highlights a real problem in our approach to financial education.

Yesterday, the American Bankruptcy Institute reported a significant increase in overall personal bankruptcy filings. Undoubtedly, some of those filings are the direct result of the recession, and some filings stem from similar unforeseen changes in circumstances, such as divorce and serious health problems. But many personal bankruptcies involve honest, unsophisticated individuals who simply do not understand or have the skill set to manage their personal finances. Yes, these individuals should take responsibility for their finances, but they also need training and resources to be successful in that endeavor. Studies suggest that many high school graduates do not understand how credit cards and other basic financial instruments work (see herehere and here), yet most carry credit and debit cards in their wallets.

I appreciate the enormous challenges facing the U.S. education system. As we evaluate these challenges, however, we need to consider financial education as part of the core curriculum. We also need to continue working to provide meaningful financial education to adults (for an interesting study concerning financial education and bankruptcy, see here). Although the 2005 amendments to the U.S. Bankruptcy Code incorporate a consumer education component, that requirement has become little more than the potential debtor sitting in front of a computer screen and answering a few questions in order to be able to file her bankruptcy petition (for other perspectives, see here, here and here; for an excellent study regarding the impact of the 2005 amendments on consumer debtors, see here). I hope that as the economy recovers, so too do our financial education initiatives  (see here and here) so that more individuals have a real chance at sustainable financial health.