What is the difference between firing tenured professors and removing them from required classes?

Professors Amy Wax and Eric Rasmusen were both prohibited from teaching required classes

|The Volokh Conspiracy |

Recently, Lauren Robel, the provost of Indiana University criticized Professor Eric Rasmusen for, among other things, tweets "slurring women." Robel explains that IU, a state institution, could not remove Rasmusen. Termination, she suggests, would violate the First Amendment.

His latest posts slurring women were picked up by a person with a heavily followed Twitter account, and various officials at Indiana University have been inundated in the last few days with demands that he be fired. We cannot, nor would we, fire Professor Rasmusen for his posts as a private citizen, as vile and stupid as they are, because the First Amendment of the United States Constitution forbids us to do so. That is not a close call.

Instead, the University took other steps to discipline Rasmusen. Specifically, he will be removed from any required classes, and his classes will be graded blindly.

Therefore, the Kelley School is taking a number of steps to ensure that students not add the baggage of bigotry to their learning experience:

  • No student will be forced to take a class from Professor Rasmusen. The Kelley School will provide alternatives to Professor Rasmusen's classes;
  • Professor Rasmusen will use double-blind grading on assignments; if there are components of grading that cannot be subject to a double-blind procedure, the Kelley School will have another faculty member ensure that the grades are not subject to Professor Rasmusen's prejudices.

The University of Pennsylvania Law School issued a similar punishment to Professor Amy Wax. Dean Ted Ruger announced that Wax would no longer be able to teach required first-year classes. Students would have to register for Wax's upper-level electives.

Professors, even with tenure, are not guaranteed certain teaching loads. There is no requirement that a professor teach required courses, or all electives. These sorts of assignments are generally at the discretion of the administration. For these reasons, neither Rasmusen nor Wax could claim that the reassignments violated their teaching contracts–unless their contracts had specific clauses concerning course loads.

UPenn, a private institution, is not required to protect Wax's freedom of speech. Indiana University, a public institution, is bound by the First Amendment.

Robel suggests that this alternate punishment would comply with the First Amendment, while termination would not. She does not explain why. I suspect the answer sounds in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty. (1968)

Garcetti v. Ceballos (2008) described the well-known Pickering balancing test this way:

"The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public."

Here, Rasmusen spoke as a citizen on a matter of public concern. In response, IU took adverse employment actions against him–reassignment of roles and heightened scrutiny. The University likely concluded that it had an "adequate justification" to punish Rasmusen. Why? Rasmusen would cause less of a disruption on campus, the thinking goes, if students were not required to take his class. In contrast, I suspect, the University determined that it lacked an "adequate justification" to fire Rasmusen for his social media postings.

I have doubts about this analysis. As a threshold matter, I question whether Pickering is the appropriate framework to consider the speech rights of tenured academics. But I'll assume that Pickering controls. Under this framework, I question whether the University's actions actually addresses the problem.

There are no allegations (as far as I can tell) that students in Rasmusen's classes complained about his behavior in the classroom. Furthermore, the fairness of Rasmusen's grading was never called into question. Rather, the students complained that Rasmusen's mere presence on campus creates something like a hostile environment. (I table for present purposes the conflicts between hostile work environment jurisprudence and the First Amendment.)

Removing Rasmusen from teaching required classes does not remove the hostile work environment. He can continue to post on social media, and will continue to be present on campus. The University is merely reducing the number of students who have to see Rasmusen in class. But there are no complaints about how he treats students in class.

In short, the selected punishment is not tailored to address the purported problem. Indeed, it does nothing to alleviate the hostile environment claims. A far more narrowly tailored approach exists: allow students to transfer out of Rasmusen's class. The proposed blanket policy is overly broad, and fails to remedy the problem the university identifies.

Rasmusen replies to the allegations here. And Brian Leiter criticizes the provost for commenting at all on Rasmusens speech.

Update: In the comments, Hans Bader flagged Levin v. Harleston, 966 F.2d 85 (2d Cir. 1992). A professor at the City University of New York (yes, that bastion of free speech, CUNY) published "denigrating comments concerning the intelligence and social characteristics of blacks." In response, CUNY "created an 'alternative' section of Philosophy 101 for those of Levin's students who might want to transfer out of his class." Both the District Court, and the Second Circuit, found that the creation of the "shadow" class violated the First Amendment. Here is an excerpt:

Formation of the alternative sections would not be unlawful if done to further a legitimate educational interest that outweighed the infringement on Professor Levin's First Amendment rights. See Carroll v. Blinken, 957 F.2d 991, 1001 (2d Cir.1992). However, although appellants contended below that they created the alternative sections because Professor Levin's expression of his theories outside the classroom harmed the students and the educational process within the classroom, the district court saw no evidence that this was a factually valid concern. Given the complete lack of evidence to support appellants' claim of a legitimate educational interest, we are unable to say that the district court erred.

Appellants contend that "[s]ince, by definition, alternative class sections presuppose that Professor Levin will continue to teach a class section, the creation of such sections cannot, as a matter of law, constitute an infringement of Professor Levin's First Amendment rights." We disagree. Appellants' encouragement of the continued erosion in the size of Professor Levin's class if he does not mend his extracurricular ways is the antithesis of freedom of expression.

Because the alternative sections continue to exist, that part of the district court's judgment permanently enjoining appellants "from creating or maintaining `shadow' or `parallel' sections of his classes predicated solely upon Professor Levin's protected expression of ideas,"was warranted and is affirmed. Contrary to appellants' contention, this order is not too ambiguous to be enforced. The constitutionality of a shadow class organized solely because of Professor Levin's extra-curricular statements was the precise issue that was litigated below. Appellants cannot be unaware of exactly what they are forbidden from doing. In view of the shadow classes' continued existence, there is nothing abstract about the steps appellants must take to eliminate their chilling effect on Professor Levin's extracurricular activities.

I welcome other thoughts on this case.

 

 

 

NEXT: Wild Deeds

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  1. Rasmusen’s initial post and his subsequent reply warrant writing, “what is your source for this claim” over and over again in the margin. I do not see a single reference to any scholarly literature for any of the factual assertions that he makes. My 10 yr old nephew also has opinions about the differences between girls and boys … I tend to expect something more than an opinion from tenured professors. The university should have used the opportunity to demonstrate to its students how academics ought to approach contentious issues, responding to Rasmusen with references to the scholarly debate related to the issue.

    1. Similarly, Marxist professors, and anti-white and anti-Christian professors can be easily shown to make all sorts of assertions which have either no scientific backing or are contrary to long-established standards and norms.

      Rasmussen is correct that affirmative action is bigotry and racism. I doubt he is right about gay teachers at any grade level, unless he is justifying it with the same rationale as saying that women like to have bosses — men do too. Does he really mean that no one except eunuchs should teach grade school and high school? I kinda doubt it.

      But he is a lot less offensive than Marxists, who excuse and even applaud a system which murdered 100 million people last century and continues murdering them today.

      1. You continue to not know what Marxist means in the context of a professor.

        Hint: They’re not pro-USSR.

        1. Presumably they share some sort of the same views as Karl Marx:

          What is the worldly religion of the Jew? Huckstering. What is his worldly God? Money

          It is now completely clear to me that [Lassalle], as is proved by his cranial formation and his hair, descends from the Negroes who had joined Moses’ exodus from Egypt, assuming that his mother or grandmother on the paternal side had not interbred with a n*****. Now this union of Judaism and Germanism with a basic Negro substance must produce a peculiar product.

    2. I do not see a single reference to any scholarly literature for any of the factual assertions that he makes.

      Google “Greater Male Variability Hypothesis”

      (My original post is “awaiting moderation” presumably because I included four links. My experience with this is that moderation never arrives.)

      1. The moderator, Mr. Godot, will be reviewing your post momentarily.

      2. I’m familiar with the hypothesis. Academic discussion, however, is not like an internet chat thread. You do not just make claims and then tell others to go and find the supporting evidence themselves (although the tweeting academic tends to destroy this line). Furthermore, Rasmusen said in his response that “Geniuses are overwhelmingly male…” That is a factual claim. I do not know what the precise definition of “overwhelmingly” is as used by Rasmusen, nor do I know what criteria he is using to determine who is and is not a genius. Furthermore, is he referring to geniuses in America, or does he mean global levels of geniuses? Rasmusen may in fact be correct in his claim, but I would expect an academic to reference the empirical research from which this claim is made (as well as define the concepts being used).

        My own view is that if he wants to shield himself with the protections of tenure and academic freedom, then he ought to act like an academic, referencing the research that has led him to his conclusions. This is how issues are discussed in the scholarly literature, which Rasmusen has published in extensively (in the field of economics).

        1. My own view is that if he wants to shield himself with the protections of tenure and academic freedom, then he ought to act like an academic, referencing the research that has led him to his conclusions.

          A reference in the tweet to “Greater Male Variability Hypothesis,” thus leading the reader to the scholarly literature, would have been expected from someone who was not trying to be inflammatory. However, the existence of such literature has not reduced the outrage directed toward others who have referred to this theory in a positive manner. Nor did the existence of such literature soften the response from the provost, who is no doubt aware of it, and in any case the absence of references should not result in condemnation of a scientifically defensible statement.

        2. Correct me if I’m wrong but the comments in question were on Twitter. In other words, it exactly was “like an internet chat thread”.

          And while I would hope that most academic chat threads might mention more sources than the average flamewar, Twitter doesn’t exactly support standard footnoting protocols. Twitter is not the same as publication in an academic journal. It’s unreasonable to expect academics to behave as if it were.

        3. “What is the difference between firing tenured professors and removing them from required classes?”

          There are two major differences. (1) You still get paid. (2) You don’t have to teach those boring intro sections anymore, the ones filled by students just trying to get their basic courses out of the way. Instead you only get students who find you or your ideas interesting. All in all, not the worst outcome in the world. Oh, oh, a third one! (3) You probably won’t be called on to sit in terrible committee meetings anymore.

          Of course most of your colleagues will hate you, or at least have to pretend to, so there’s that.

      3. You are correct – no post with more than a single hyperlink is ever released from “moderation”.

  2. A side issue for sure, but I’m always amazed that US universities don’t use blind grading as a matter of course. We did it for the last 30 years or so, and it is of course also the gold standard for academic publishing (though there, of course, double-blind is the preferable option, which doesn’t work for course work, as desirable as this would be in a world where students also grade academics)

    1. It’s clear “hostile environment” has gone wayyyy beyond dealing with pervasive and repeated harassment, and is now just the unfortunate result of rewarding censorious desires, a-swooning, with government action.

      Time to grab the whole thing and toss it, just preserving the nasty harassment stuff.

      Already it creeps to escape these sophistry-created containment domains.

      Ahhh who cares. History has no examples of charismatics misusing the power of The People to decide who should and should not be censored.

  3. Everybody looks bad here.

    The professor for allegedly acting bad. (I haven’t read his offensive statements.)

    Tenure is antiquated and should no longer exist.

    University intolerance for offensive views is unforgivable.

    1. Setting up shadow classes for a professor’s students (alternative classes for students who seek to avoid the professor) based on a professor’s beliefs is problematic from a First Amendment perspective, see Levin v. Harleston, 966 F.2d 85 (2d Cir. 1992) (appeals court ruled that the First Amendment was violated by a college setting up shadow classes for a professor whose writings denigrated blacks).

  4. I look forward to similar non-firings for all Marxist professors., all racist and bigoted anti-white/Asian and anti-Christian professors, and all others who offend anybody at any time.

    1. Go back to Biola and await your replacement, clinger.

      Thought I’d get that in before the rev did.

      1. You had me going for a minute there — well done!

    2. A post so good you decided to post it again at more length 12 minutes later!

  5. The odd thing about the “punishment” is that the outcome may be, to some extent, a reward.

    * The professor now can only teach electives rather than required classes. Many, though not all, professors love to teach elective which are generally in their area of specialization and would prefer to avoid large freshman year undergraduate classes or service classes.
    * A portion of the burden of grading is shifted way from the “punished” professor to someone else. Grading is one of the less attractive tasks associated with teaching. While it is probably better for a professor the be forced to see how students actually performed on tests, actual grading is boring, repetive and needs to be done under time constraints. If given the choice, lots of profs would like to shift it to someone else like a teaching assistant.

    Now it may be that in this case the “punished” professor actually likes grading or teaching required undergraduate courses. But it seems to me that in many cases, other profs would be grousing the at was in fact rewarded.

    1. That was kind of my reaction: As somebody in the normal workforce, where workload and pay are at least somewhat related, I’m having trouble figuring out in what sense this is a punishment.

      I mean, OK, perhaps he’s a masochist, but this wasn’t stated.

      1. I’m having trouble figuring out in what sense this is a punishment.

        It is at least the formal indication of a public reprimand, which is something most people do not relish. In the case of Amy Wax, she had enjoyed teaching her first year Civil Procedure class and when that was taken from her she felt it as a penalty.

    2. While I am not familiar with the policies of the university in question, professor pay is often on a per-class basis, and larger classes pay better.

      The only way that this isn’t a reward is if this will mean a drastic pay cut for the professors in question.

      1. It is normally considered a violation of tenure policy to reduce a professor’s pay.

  6. Was a big fan of wax now i gotta look into this Ramussen guy. Would conservative white students be reasonable in thinking that smug lefty professors—who make denigrating comments on the regular—would discriminate against them? Idk. The provost would probably say that without individualize evidence of such discriminatory behavior, such a fear is unwarranted. But somehow this same reasoning doesnt run the other way.

    The article he posted was also unobjectionable. There is a moutain of literature on Big 5 personality differences btwn genders as well as the Greater Male Variability Hypothesis (higher concentration of men at the extreme tails of a given trait, like intelligence).

    1. The article he posted was also unobjectionable.

      Saying that women are probably destroying academia is unobjectionable? This is supported by a mountain of literature?

  7. One of the things Rasmusen was condemned for was this tweet:

    “Geniuses are overwhelmingly male because they combine outlier high IQ with moderately low agreeableness and moderately low conscientiousness.”

    He’s obviously trying to ruffle feathers because this statement, though a legitimate scientific belief, is exactly the kind of statement that forced Lawrence Summers to resign as president of Harvard. Furthermore, he accompanied this tweet with the title of the article it was drawn from: Are Women Destroying Academia? Probably, implying that he thought that women should be excluded from academia. Then he claimed he was being mistreated in that he is not opposed to women in academia, pointing with approval to his wife’s higher education. He deserves no sympathy since the two statements are contradictory. Rasmusen enjoys engaging with his foes by making provocative statements such as opposition to affirmative action, and espousing a traditional Christian view of homosexuality, but he took it too far in this case.

    1. On his website, Rasmusen makes note of how his number of Twitter followers has grown. He provides links to major media stories about him, writes comments for so reporters will have something to quote, posts emails from those supporting him, and includes a section with his own thoughts during the “kerfluffle” (his term), such as how to handle media inquiries.

      If there is one thing that transcends partisan divisions, it’s celebrity status and having the spotlight on you for a brief moment in time.

      1. If there is one thing that transcends partisan divisions, it’s celebrity status and having the spotlight on you for a brief moment in time

        In the case of Rasmusen, the goal seems to be one continuous spotlight. Perhaps this is too harsh. Those with true conviction about debatable matters should not feel that PC requires them to stifle themselves. On the other hand Rasmusen’s approach not only indulges a desire to be the center of attention but also no doubt results in greatly enhanced speaking fees and book sales.

    2. Would academic teaching slots drawn by lot from the population at large be to your preference? If you are going to throw out the relevant population because it doesn’t conform to your desires, why go half measures.

      1. Is this a response to my post? I don’t follow.

        1. I think his point is that if you’re not selecting for outliers in academia then you’re necessarily selecting randomly, and if you’re doing that you might as well go all the way and randomly select from the general population.

          It’s essentially an argument that if you don’t want to maximize on one trait (here, genius) then you can’t maximize on a mixture of traits (intelligence + agreeableness + conscientiousness – neuroticism). I don’t find it even remotely convincing because it’s a fallacy of excluding the middle, but I think that’s the argument.

          1. My comment referred to the Greater Male Variability Hypothesis as the subject of “a legitimate scientific belief” so I don’t see how he could have concluded that my point was to disagree with the hypothesis. Rather it was to disagree with Rasmusen permitting the inference to be made that he is opposed to women in academia.

            1. Leaving the variability business aside, let’s stop pretending you need to be a genius to be a college professor.

              I’ve known more than a few who weren’t.

  8. Regardless of what people may call him for writing that “Geniuses are overwhelmingly male because they combine outlier high IQ with moderately low agreeableness and moderately low conscientiousness,” there is some (but not conclusive evidence) that a greater proportion of those in the highest reaches of test-measured IQ are male, but that doesn’t mean that females cannot be good and effective and productive professors (or lawyers or doctors).

    For example, Wikipedia reports (with many different citations) that:
    * “Other research has concluded that there is larger variability in male scores compared to female scores, which results in more males than females in the top and bottom of the IQ distribution”
    * “Some studies have identified the degree of IQ variance as a difference between males and females. Males tend to show greater variability on many traits; for example having both highest and lowest scores on tests of cognitive abilities.”
    * despite average sex differences being small and relatively stable over time, test score variances of males were generally larger than those of females.”
    * “males were more variable than females on tests of quantitative reasoning, spatial visualisation, spelling, and general knowledge.”
    * “with the exception of performance on tests of reading comprehension, perceptual speed, and associative memory, more males than females were observed among high-scoring individuals.”

    But even assuming, for the sake of argument, that males are over represented in the highest reaches of test-measured IQ, that doesn’t mean that females cannot be good professors for at least two reasons, or that he would discriminate against females.

    FIRST, consider an analogy. While many would agree that African Americans are over represented in the highest reaches of the ability to play basketball (and perhaps football), that certainly doesn’t mean that Caucasian (or even Asian) persons cannot play on professional basketball teams.

    It would also suggest that even coaches who might believe that African Americans are over represented in the highest reaches of the ability to play basketball would not discriminate against white or Asian players in selecting persons for a team, giving them playing time on the court, etc.

    SECOND, we could probably all recognize that one does not have to be a genius – in the highest reaches of test-measured IQ – to be a good professor. Indeed, while most professors are probably well above average in test-measured IQ, most are not in the genius range.

    PUBLIC INTEREST LAW PROFESSOR JOHN BANZHAF

    1. But even assuming, for the sake of argument, that males are over represented in the highest reaches of test-measured IQ, that doesn’t mean that … he would discriminate against females.

      But referencing, with apparent approval, an article entitled Are Women Destroying Academia? Probably does imply or at least raise the question as to whether he would discriminate against females in order to save academia.

      1. But since when does raising a question entitle you to resolve it negatively without further evidence?

        1. But since when does raising a question entitle you to resolve it negatively without further evidence?

          The question raised was whether women are destroying academia, and the answer given was “yes.” Therefore it seems reasonable for people to have inferred that Rasmusen believed (but was willing to be convinced otherwise) that action should be taken to avoid the destruction of academia in this manner. If this had been in the context of a formal debate, then likely such a proposition as a debate resolution would have (or should have) raised no real concerns, but he was an economics professor and was not conducting such a debate.

          Furthermore, his other apparently demeaning tweets about women, such as: “I just realized—Women’s Studies and Home Ec are the same thing. They are both meant to teach a woman how to live her life. It’s just that only one of them keeps its promise,” together with a reference in another tweet to women as the “weaker sex,” could reasonably cause the average woman to believe that he harbored animosity toward women and to conclude that he did believe that women are destroying academia and that something should be done about it.

    2. To make your basketball analogy relevant you need to add the presumption that the over-representation is bad and the NBA would be better if it reflected society at large. Now you have mixed NBA/WNBA teams with a racial make-up of society at large. Can you make the case you are fielding the best possible teams under those conditions?

    3. But Rasmussen is not being punished for being wrong, he’s being punished for being a heretic.

      The best evidence (simplified) is that his claims are not being refuted, but that he is being punished for making the claim itself. More specifically, he’s not even being punished for making the claims he made, but for arguments that could be inferred from the arguments he made.

      “We’re not punishing you for what you said, were punishing you because we think that people who say what you said also say things that are punishable, even though we’ve never seen you say those things.”

  9. In short, the selected punishment is not tailored to address the purported problem. Indeed, it does nothing to alleviate the hostile environment claims.

    It does alleviate the hostile environment claims, assuming that the school typically sets up just enough classes to accommodate the number of students who need to take the required course. If everybody tries to avoid Rasmusen’s class those last to register will be out of luck and have to take his class. Presumably Rasmusen will be replaced by a different instructor. Same with Amy Wax, who taught a class that had to be taken in the first year. (I have much more sympathy for Wax’s comments about “bourgeois values” that provoked the original protest, although I think that she, too, enjoys a good brawl. She exposed herself unnecessarily to charges of disclosing student grades when she said that she had rarely seen a black student at Penn in the top half of the class.)

    A far more narrowly tailored approach exists: allow students to transfer out of Rasmusen’s class.

    Then the school has to make available an extra class, meaning extra expense for the school. Suppose there are 100 students and they want to have a class size of 25. They set up four classes and close registration for a class when it reaches 25. You are suggesting that they (a) would need to set up five classes, (b) would have to pay an additional instructor, and (c) would have to allow an average class size of 20. Why should the school have to take on this additional expense?

    1. Because it was their idea in the first place to penalize Rasmusen for constitutionally protected speech?

      1. Because it was their idea in the first place to penalize Rasmusen for constitutionally protected speech?

        The provost stated that, in her view, women students “could reasonably be concerned that someone with Professor Rasmusen’s expressed prejudices and biases would not give them a fair shake in his classes, and that his expressed biases would infect his perceptions of their work. Given the strength and longstanding nature of his views, these concerns are reasonable.”

        If she is correct would you nevertheless consider Rasmusen’s speech to be constitutionally protected with the result that the provost should not be permitted to remove him from required classes? Whether she was correct is a question for the trier of fact. Does the provost have to wait for that judgement?

        1. How does one reasonably infer a prejudice or bias when the facts used to derive a conclusion are presented?

          Do automotive engineers have a prejudice against cast iron because they don’t use it in truck frames? Or do they evaluate each material for its specific and only use cast iron in engine blocks?

          1. How does one reasonably infer a prejudice or bias when the facts used to derive a conclusion are presented?

            But the objectionable part of Rasmusen’s tweet did not present facts used to derive a conclusion. It simply presented this text: Are Women Destroying Academia? Probably without any explanation. Wouldn’t one expect that someone holding such a belief would be biased against women in academia (believing his bias to be fully justified), assuming that he valued academia highly?

  10. I love how the Left set themselves up as the champions of science and Darwinism then run like little children from the implications.

    How come evolution affects and leads to variation of every species on earth except humans? Did Darwin wave his magic wand one day and prevent natural selection from changing anything in humans and humans alone except skin color?

    How come males and females are different for every species on earth except humans where they’re supposedly identical down to the last gluon?

    Why do we cry over the disappearance of obscure subpecies of gnats, mosquitoes, and other assorted vermin when theres plenty of population in other branches that will take their place? But then every human is supposed to be interchangeable with every other human and every population is interchangeable with every other population, and if say a group like Europeans are shrinking thats fine because everybody is the same and it doesn’t matter, except when it comes to getting movie roles or sweet jobs where you have to have quotas based on skin color, genitalia, and sexual orientation?

  11. Rasmusen also tweeted this:

    We should also think about the duty of the strong to protect the weak rather than look the other way when they hear rumors. Men have not protected the weaker sex as they should have, and this is part of a general decline in our feelings of duty towards women.

    which was a response to this tweet by Nicholas A. Christakis‏ (he of the Yale Halloween costume controversy):

    See the pain and sorrow, and so much else, all around us and for so long. And always the abuse of the weak by the strong. For shame!

    which in turn referred to a series of tweets condemning the failure to protect women from being sexually assaulted. So the term “weaker sex” referred to a physical weakness vis-à-vis men, not an intellectual or constitutional one. Apart from Rasmusen’s apparent indifference to the likelihood that what he wrote would be misinterpreted, does his tweet deserve condemnation? Maybe the term is inseparable from the demeaning connotation.

  12. What is the difference between Richard Spencer and a Conspirator?

    The answer is “everything’ . . . if the Richard Spencer is the former Secretary of the Navy.

  13. Time to update the old saying: Those who can, do. Those who can’t, teach. And those who can’t teach go into administration and censor people who are smarter than them. Which is everyone.

  14. I checked out the Twitter user with a large following. Turns out to be a woman who seeks out obnoxious Tinder profiles and tweets them under then name I Rate Dogs.

  15. Funny how liberal academia believes these two contradictory things are true at the same time:

    1. There are no cognitive differences between men and women whatsoever, any suggestion of which is offensive

    2. Women’s and men’s brains are different, because transgender people have a woman’s brain in a man’s body (or visa versa). Any suggestion otherwise is offensive

    1. All right. This wins Idiotic Comment of the Year.

  16. “Geniuses are overwhelmingly male because they combine outlier high IQ with moderately low agreeableness and moderately low conscientiousness”

    Isn’t this pro-woman and anti-male?

    He seems to be saying that geniuses are smart but lazy and anti-social, unlike smart women.

    1. Isn’t this pro-woman and anti-male?

      From the article:

      …geniuses are overwhelmingly male because they combine outlier high IQ with moderately low Agreeableness and moderately low Conscientiousness. This means they are clever enough to solve a difficult problem, but being low in rule-following, can also “think outside the box.” And, being low in Agreeableness, they don’t care about offending people, which original ideas always do.

      An aspect of Agreeableness is empathy—being concerned with the feelings of others and being able to guess what they might be. Dutton shows that people who are high in “systematizing” (which males typically are compared to females, with systematizing being vital to problem solving) tend to be low in empathy. Thus, Dutton argues, you don’t get many women geniuses because their IQ range is more bunched towards the mean; and also because they are too high in Agreeableness and Consciousness.

      It then goes on to say that because women are higher in Agreeableness and Conscientiousness they tend to be hired for the administrative positions because they come across as better people to work with. Once they achieve institutional dominance they impede and obstruct the genius types whom they don’t understand, in part by mandating an environment inimical to the way that the genius types typically achieve their breakthroughs. Hence they are destroying academia.

      1. That sounds more like an argument that women are stifling academic research and innovation, not that they’re destroying the teaching aspect of academia.

        So you have to see academia as split into at least two areas – teaching and research – and this argument only applies to the research part, with no commentary on teaching itself.

        1. Yes, I believe the argument is that women are stifling academic research and innovation. The implication is that they should be excluded from the academy. I don’t think that the effect on teaching is a major part of it.

  17. Thanks to Reason and Mr. Blackman for this excellent article examining the various laws and regulations affecting freedom of speech, and how universities (both private and government) react to speech some don’t like, and where the lines have been drawn by the courts. Blackman’s analysis is excellent IMHO, speaking as a layman and not a lawyer.

    Blackman humbly asks for other thoughts on the case. I welcome more thoughts from him, especially his thoughts on what the law should be, with any tipping of the scales when there are questions of conflicts of freedoms, towards more freedom, and less government. The question that always pops up in my mind, is why less government in education wouldn’t be a grand thing for our freedom, prosperity and education. Many of these government school problems wouldn’t exist without government schools, and either don’t exist in private schools, or would be handed with far less use of force against people.

  18. The Volokh Conspiracy, so quick to object to motive, statement, and conduct in other contexts, seems not only to omit any discouraging word with respect to Prof. Rasmusen’s stylings on gender, sexual orientation, and other subjects but also to engage in linguistic gymnastics to avoid advancing anything that might be interpreted as a criticism of Prof. Rasmusen.

    This may be how Federalist Society credentials are polished, culture wars lost, and doors to strong law faculties closed.

    1. to avoid advancing anything that might be interpreted as a criticism of Prof. Rasmusen.

      I guess you missed the posts suggesting that Rasmusen seems to be motivated by a desire for attention and increased speaking fees, that his tweets about women are demeaning, and that he deserves no sympathy since his remarks are contradictory.

      1. Are you referring to Conspirator posts or to comments?

  19. Helluva comentariat we got here. From the Bell Curve to women’s IQ, ya’ll got some pretty sweet 1800s morality with a patina of genetics here.
    Yeah, true believers in science think blacks and women are dumber. Listen to yourselves. And read some of the countervailing papers. Telling you only validate papers in one direction. Almost as though that’s the outcome you feel, and just want some justification. But you know what facts don’t care about?

    This wasn’t even about the truth of the professor’s statements, but ya’ll had to go for the gusto.

    1. Helluva comentariat we got here. From the Bell Curve to women’s IQ, ya’ll got some pretty sweet 1800s morality with a patina of genetics here.

      I assume that your point is that it has been scientifically demonstrated beyond a reasonable doubt that the Greater Male Variability Hypothesis is pseudoscience, and that anybody suggesting otherwise must be motivated by rank sexism, immorality, and desire for a certain outcome. Can you provide a reference to a scientific source saying anything close to this, or even saying that the matter is closed?

      Yeah, true believers in science think blacks and women are dumber.

      Which comment talks about blacks and/or women being dumber? Actually the hypothesis is that men are dumber since the women are bunched toward the middle and the least intelligent are predominantly men.

      This wasn’t even about the truth of the professor’s statements, but ya’ll had to go for the gusto.

      What does this even mean?

      1. Yeah, I get you’re into the manosphere, but having done some poking around I don’t think it’s pseudoscience, but certainly not yet supported enough to use it as a fact.

        In any Affirmative Action post, you get the Bell Curve, in any post about sexual assault, you get women are generally liars, and now we get ‘women aren’t dumber, just don’t expect any geniuses!’

        Weird how privileged white males get from all this ‘science.’

    2. >Helluva comentariat we got here. From the Bell Curve to women’s IQ, ya’ll got some pretty sweet 1800s morality with a patina of genetics here.

      Morality has nothing to do with it.

      >Yeah, true believers in science think blacks and women are dumber. Listen to yourselves.

      Yeah, a lot of true believers in science do. It’s the most logical fit for the data.

      >And read some of the countervailing papers. Telling you only validate papers in one direction.

      I’d be happy to check out any scientific studies you want to link. But you should also come to terms with the fact that there is quite a bit of evidence pointing to the following facts: 1) intelligence is a meaningful metric and can be more-or-less measured, 2) intelligence is highly heritable, 3) about 80% of someone’s adult intelligence can be explained by genetics, 4) there are a number of genes linked with positive/negative impacts to intelligence and 5) those genes are not equally distributed among populations.

      >Almost as though that’s the outcome you feel, and just want some justification. But you know what facts don’t care about?

      I think you’re guilty of this, not the IQ realists. After all, you’re the one who brought up morality. Reality doesn’t conform to 21st century Western concepts of how the world should be.

  20. It is instructive that those seeking to prop up this professor focus on his comments about women while ignoring his expressed opinion that homosexual teachers should not be teachers consequent to promiscuity, or ickyness, or something.

    (Prof. Rasmusen’s take on the Catholic Church must be fascinating.)

    Did Prof. Rasmusen comment at the Conspiracy years ago? I recall encountering his comments somewhere, and he seems a natural to follow the Conspiracy.

  21. Thank you, Professor Blackman. I haven’t read the opinions yet, but I shared this post with Provost Robel and said that it looked like I was in a stronger legal position than she was. She’s reasonably civilized— she sent me her proclamation before she published it, which is part of the “rules of the game” for this sort of conflict, however much each may excoriate the other— so I’m trying to obey those unwritten rules too. She thanked me, and we emailed back and forth a couple of short messages. She has a big meeting coming up in December to explain the legalities to all the b-school faculty. Even I am invited.

  22. How does a double blind grading procedure “punish” a professor exactly? The professor doesn’t lose their position or any of their salary. Also, making it so that students have a choice about whether to take a professor or not also doesn’t punish the professor. Professors do not have a “property interest” or a “liberty interest” in compelling students to take particular classes they teach. Indeed, what is wrong with a “free market” approach to education, where students have the ability to choose their professors?

    Here, the professor allegedly wrote statements to the effect that: “he believes that black students are generally unqualified for attendance at elite institutions, and are generally inferior academically to white students.”

    Assuming, arguendo, that this is a correct characterization of his statements, then black students should have the option of taking this professors classes or not in order graduate. And although the professor’s statements have to do with the abilities of blacks in general, a rational student would be worried that such stereotypes might bias his grading of them individually, making a double blind grading procedure a reasonable assurance to such students that they will be graded fairly.

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