Free Speech

UCLA Business School Lecturer Placed on Leave for E-Mail to Student Rejecting Request for Exam "Leniency" for "Black Students"

|The Volokh Conspiracy |

Long-time Anderson School of Management lecturer Gordon Klein got an e-mail from a student, whom he had before in another class as well, and with whom he had cordially exchanged e-mails in the past; to quote Inside Higher Ed (Colleen Flaherty),

According to screenshots of the exchange shared with Inside Higher Ed, the group of students asked Klein for a "no-harm" final exam that could only benefit students' grades, and for shortened exams and extended deadlines for final assignments and projects.

In light of recent "traumas, we have been placed in a position where we much choose between actively supporting our black classmates or focusing on finishing up our spring quarter," the students wrote. "We believe that remaining neutral in times of injustice brings power to the oppressor and therefore staying silent is not an option."

Theirs was "not a joint effort to get finals canceled for non-black students," the self-identified allies wrote, "but rather an ask that you exercise compassion and leniency with black students in our major."

Prof. Klein responded:

Thanks for your suggestion in your email below that I give black students special treatment, given the tragedy in Minnesota. Do you know the names of the classmates that are black? How can I identify them since we've been having online classes only? Are there any students that may be of mixed parentage, such as half black-half Asian? What do you suggest I do with respect to them? A full concession or just half? Also, do you have any idea if any students are from Minneapolis? I assume that they probably are especially devastated as well. I am thinking that a white student from there might be possibly even more devastated by this, especially because some might think that they're racist even if they are not. My TA is from Minneapolis, so if you don't know, I can probably ask her. Can you guide me on how you think I should achieve a "no-harm" outcome since our sole course grade is from a final exam only? One last thing strikes me: Remember that MLK famously said that people should not be evaluated based on the "color of their skin." Do you think that your request would run afoul of MLK's admonition? Thanks, G. Klein

Various UCLA students then demanded that he be fired; and for his e-mail alone, as best I can tell from multiple news sources, he has been suspended by the Anderson School. The Foundation for Individual Rights in Education just sent a letter about this to the UCLA legal office:

While some may disagree with Klein's approach, his right to academic freedom encompasses the right to manage the content and direction of his course. Further, his email exchange with the student who proposed an altered schedule and grading policies, with whom Klein had a prior cordial relationship, did not amount to unlawful harassment or discriminatory conduct.

On the contrary, that exchange represented a discussion about university policies and how the institution should respond to the civil unrest following the homicide of George Floyd. Accordingly, UCLA's decision to place Klein on leave is incompatible with the university's First Amendment obligations and the basic tenets of academic freedom. FIRE calls on UCLA to immediately reinstate Klein.

[I.] After Klein Declines to Alter Exam Procedure or Grading for Accounting Course, a Petition Calls for UCLA to Fire Him

The following is our understanding of the pertinent facts. We appreciate that you may have additional information to offer and invite you to share it with us. Please find enclosed an executed waiver authorizing you to share information with FIRE. However, if the facts here are substantially accurate, UCLA must rescind Klein's involuntary leave of absence immediately.

Gordon Klein has been teaching at UCLA in the Anderson School of Management since 1981. He teaches various subjects, including accounting and business law. In 39 years of teaching at UCLA, Klein has never been the subject of a complaint of harassing or discriminatory conduct. During the Spring 2020 quarter, Klein taught a section of Mgt. 127A, Principles of Taxation. The course was conducted entirely online due to the COVID-19 outbreak.

On June 2, Klein received an email from a student in his Principles of Taxation course, asking him to consider making adjustments to the format and grading of his final exam for black students enrolled in the course due to the fear, anxiety, and trauma surrounding the civil unrest in the wake of the homicide of George Floyd. The student's suggestions included a "no-harm exam" (which could only help, not hurt, a students' final grade), a shortened exam, and extended deadlines for exams and other final projects. The email also thanked Klein for the "email [students] received from you about anti-racist resources." According to reports, professors in many departments at UCLA received emails substantially similar to that sent by the student, in which non-black students requested these accommodations in solidarity with their black classmates.

Klein responded thanking the student for his suggestions and calling the events that transpired in Minnesota a "tragedy." However, Klein declined to change the final exam procedures, citing the logistical concerns with identifying which students would be granted such accommodations in a course conducted entirely online due to COVID-19, and with assigning grades without a final exam. {As set forth in the course syllabus, the only performance metric used to determine grades in this course was a curved final exam.}

In keeping with his past correspondence with the student, who had previously taken one of Klein's courses involving legal principles [and with whom Klein had exchanged e-mails before], Klein argued, rhetorically, that if he were to adjust the protocol for black students, then he should do so for students from Minneapolis as well. The student responded, apologizing to Klein "if any of this seemed offensive" to Klein, or "if it seemed like I was asking you to give preferential treatment to people because they are Black." The student went on to say that Klein's efforts "really do help us students during these trying times."

Subsequently, a Change.org petition calling for UCLA to fire Klein—including the text of his email response to the student—appeared online. Later that same day, Klein received an email from the Dean of the Anderson School of Management, Antonio Bernardo, asking Klein for a phone call to discuss emails he was receiving about Klein.

In response, Klein shared with Bernardo the full text of his email exchange with the student. Klein also pointed out that previously he had received a directive from his supervisor in the undergraduate Accounting program that instructors should only adjust final exam policies and protocols based on standard university practices regarding grading[:] {"If students ask for accommodations such as assignment delays or exam  cancellations, I strongly encourage you to follow the normal procedures (accommodations from the CAE office, death/illness in the family, religious observance, etc.)."}

On June 3, Klein was placed on involuntary administrative leave until June 24. The notice states that the leave is necessary to give UCLA the opportunity to consider "allegations regarding behavior made in the course and scope of your position … inconsistent with [UCLA's Faculty Code of Conduct]." The notice does not identify the specific provision of the Faculty Code of Conduct Klein is alleged to have breached. In an email addressed to the UCLA Anderson Community on June 4, Bernardo characterized Klein as having "a disregard for our core principles, including an abuse of power." Bernardo's email did not identify which "core principles" he was referring to, nor articulate how Klein committed an "abuse of power."

[II.] Klein's Email Exchange Is Protected by the First Amendment and Academic Freedom

… It has long been settled law that the First Amendment is binding on public colleges like UCLA…. UCLA also promises its faculty freedom of expression within its Faculty Code of Conduct, the same policy Klein is alleged to have violated. The Code states that "a major responsibility of the administration is to protect and encourage the faculty in its teaching, learning, research, and public service." This includes support for "free inquiry, and [the] exchange of ideas," and the "enjoyment of constitutionally protected freedom of expression." …

"[T]he argument that teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction" is "totally unpersuasive." Hardy v. Jefferson Cmty. College, 260 F.3d 671, 680 (6th Cir. 2001).  To be sure, in Garcetti v. Ceballos, the Supreme Court upheld the power of non-academic government employers to regulate their employees' speech that is pursuant to their employment duties. 547 U.S. 410, 421 (2006). The Garcetti court, however, reserved the question of "whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching." Id. at 425. As Justice Souter's opinion stressed, that ruling should not be read to "imperil First Amendment protection of academic freedom in public colleges and universities," which freedom encompasses "the teaching of a public university professor." Id. at 438 (Souter, J., dissenting). Accordingly, the United States Court of Appeals for the Ninth Circuit—the decisions of which are binding on the University of California—has expressly recognized that expression "related to scholarship or teaching" falls outside of Garcetti. Demers v. Austin, 746 F.3d 402, 406 (9th Cir. 2014) (emphasis added).

UCLA also has a contractual obligation to protect academic freedom. See, e.g., McAdams v. Marquette Univ., 2018 WI 88 (2018) (a private university breached its contract with a professor over a personal blog post because, by virtue of its adoption of the AAUP's standards on academic freedom, the post was "a contractually-disqualified basis for discipline").

UCLA explicitly promises freedom of teaching in its academic freedom policy, which states: "The University of California is committed to upholding and preserving principles of academic freedom. These principles reflect the University's fundamental mission, which is to discover knowledge and to disseminate it to its students and to society at large. The principles of academic freedom protect freedom of inquiry and research, freedom of teaching, and freedom of expression and publication." … Likewise, UCLA's own Faculty Code of Conduct—under which Klein is being investigated—expressly guarantees to faculty members the "freedom to address any matter of institutional policy or action as a member of the faculty[.]" …

Klein's email exchange with the student falls squarely within the rights afforded to him as a faculty member and member of the university community. His remarks undoubtedly address matters related to scholarship or teaching. While others within the university community might well reach a different conclusion or believe Klein's justification to be in error, the act of sharing his rationale does not amount to harassment, nor does it fall into any other exception for unprotected speech. As a result, it remains well within the scope of speech "related to scholarship or teaching" protected by the First Amendment. Demers, 746 F.3d at 406.

{The student chose to reach out to Klein to send the form email—apparently sent by students across several departments on campus—perhaps because they two had a pre-existing relationship based on the student's enrollment in a prior course taught by Klein. As a result, it is doubtful that the solicited response could be said to be so "severe, pervasive, and objectively offensive" to deny the student equal access to an educational opportunity or benefit. Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 633 (1999). This is also evident in the second email sent by the student, in which the student thanked Klein for the other efforts he made to address student concerns about the current events surrounding police brutality and racism, including sending students anti-racist resources. A student who has been "effectively" barred from "access to an educational opportunity or benefit" does not continue the cordial conversation.}

Some—like those who signed the Change.org petition calling for UCLA to fire Klein—may feel that his statements concerning the important social and political issues being discussed across the country were in poor taste or phrased indelicately. However, speech does not lose its protection on the basis that it offends others. Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973) ("[T]he mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of 'conventions of decency.'").

Klein's email was responsive to a student with whom he had carried on a candid, cordial relationship. His response, relating to matters of both institutional policy and broader issues of profound public importance, does not lose its protection for being blunt or indelicate, as "the desire to maintain a sedate academic environment does not justify limitations on a teacher's freedom to express himself on political issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms." Rodriguez v. Maricopa County Community College District, 605 F.3d 703, 708–09 (9th Cir. 2009) (professor's "racially-charged emails" sent to every employee in the college district remained protected speech, as the First Amendment "embraces such a heated exchange of views, even …  when they concern sensitive topics like race, where the risk of conflict and insult is high.").

Even if Klein had said nothing, his refusal to depart from the course schedule and grading mechanism cannot be said to violate university policy. The course schedule was established by the university and the grading criteria set forth by the course syllabus. Just as academic freedom protects his right to include pedagogically-relevant content and discussion, it also protects his right to administer final exams and evaluate those exams consistent with university policy.

Moreover, acceding to the student's request would have placed Klein at odds with university policy, including those which prohibit discrimination. UCLA's policies prohibit "evaluation of student work by criteria not directly reflective of course performance," (Part II(A)(1)(d), "failure to … hold examinations as scheduled" (Part II(A)(1)(c)), and "[d]iscrimination … against a student … for reasons of race, color," or membership in another protected class (Part II(A)(2).)

Surely, UCLA does not intend to send the message that its faculty members must grant or deny privileges or obligations based on race. Likewise, on June 2, when the student proposed this altered final exam format, Klein had already received instruction from his superior in the undergraduate accounting department, Judson Claskey, not to deviate from standard examination procedures other than for reasons that UCLA instructors would typically do so, such as if a student suffered a loss in the family or had a medical emergency. It cannot be that UCLA expects its faculty to engage in insubordination, and punishes them when they follow UCLA's directives and policy.

[III.] UCLA Must Uphold Its Obligations and Express Commitments and Reinstate Klein

In times of great social and political upheaval, our governmental and educational institutions face substantial pressure to foreclose on expression protected by the First Amendment. This, however, is when institutions must be most vigilant in refusing to do so.

Penalizing protected expression is not a cure for addressing the underlying challenges faced by society, and abandoning a robust defense of freedom of expression will inure to the detriment of the rights possessed by students and faculty across the political, social, and ideological spectrum. The mere initiation of an investigation, even if discipline is not ultimately meted out, sends the message that the university may punish protected expression. The chilling effect engendered by that conduct itself violates the First Amendment, and undermines UCLA's laudable commitment to the expressive rights of its faculty members and students….

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  1. I was in law school during the Rodney King riots, which happened just before finals. All finals were postponed for two weeks — for everyone. Some clueless white students in the back cheered, but it was the right thing to do.

    1. If you were in law school in LA then there was probably concern that you would be taking finals while your school was being burned down. If not then the decision was completely ridiculous.

  2. UCLA – who cares?

    1. I graduated from UCLA after coming back from a short trip to SE Asia. Chemistry Department, which never discussed politics in class and, as best as I could tell, had no position.

      1. How could you attend classes at a university that has no position (location)?

        1. Virtually…

  3. This cult sucks. Why can’t I be in a world being taken over by one of those more stereotypical cults that doesn’t hate and want to ban sex and with beautiful brainwashed babes and nifty uniforms. Instead we get all these frumpy people who are as ugly on the outside as they are on the inside and scream at and annoy you with whiny pitched voices all the time.

    1. The irony of this coming from a member of the Trump Cult is noteworthy.

      1. Last I checked every corporation and their mother isn’t bending the knee virtue signaling about how much they love Trump. If he had as much pull as the current SJW craze then you might have a point.

        1. Nah, y’all prefer hats.

          1. And you prefer destroying people for wrongthink.

            1. Funny, I never argued for that.

              1. Silence is violence.

        2. What scares me is that there *are* nutcases on the right and enough of this stuff is going to provoke one of them to do something really bad. And who will be left with enough respect to calm things down?

  4. It is Bernardo who needs to be disciplined.

  5. I think the title of this post should be revised to read, “UCLA Business School Lecture Place on Leave for [Thoroughly Unprofessional and Contemptuous] E-mail to Student Rejecting Request for Exam Leniency…”

    There is no doubt in my mind that the professor should have been free to decline not to extend the requested “exam leniency.” He did not need to convey his rejection of this request in the manner that he chose.

    It may be difficult for university professors to understand this – having been on the short end of this kind of completely unmerited contempt – but you are not the center of the universe. You are not some paragons of knowledge and virtue that the rest of us are obliged to acknowledge. You have no right to address non-professors with this kind of contempt, and you should hold yourself to a higher standard of professionalism than this.

    I would never write an e-mail like this to a professional colleague, subordinate attorney, or senior attorney to myself. This professor is entitled to his views, but he is not entitled to be a dick about it.

    1. I had the exact same reaction (and groaned because I have colleagues who would have done the same thing to similar requests). Plenty of ways to explain why the request is impractical or otherwise is rejected, but that response reeks of eff-you, punk, for daring to question how I run the class.

    2. So, you say that “he did not need to convey his rejection of this request in the manner that he chose. […] This professor is entitled to his views, but he is not entitled to be a dick about it.” But why is he not entitled to choose the manner in which he replies? Is there some sort of “can’t be a dick” regulation lurking out there?

      A week ago, I witnessed the burning of the business owned by someone whose opinion was disliked by a handful of hotheads. I haven’t seen such whitecapping since the 1960s when racial minorities were similarly “encouraged” to keep their views to themselves. And back then, my parents reminded me that a group had “encouraged” them to keep silent back in the 1930s. Perhaps being a dick — and perhaps even a dick with a stick — is the right thing to do, even if some folks disagree.

      1. Yes, being a dick to black students is morally equivalent to fighting the nazis. Excellent analogy.

        1. I think you mis-typed “Being a dick to white students who are white knighting for black people because they think black people are incapable”.

    3. Point out where in the letter he was ‘unprofessional’. He wasn’t unprofessional. Unprofessional would be him typing. ‘Nope libtards Nahnahnahnahnah!’

      He was stern and systematically pointed out flaws in their arguments that make them look ridiculous because they are ridiculous and they threw a tantrum because thats what they always do.

      We’ve gotten to this point because of people like you who want to coddle these animals on two legs as much as possible.

      1. Amen!

      2. This person for President!

    4. I’m sure it’s a neutrally-applied principle, and they routinely suspend all professors who send slightly sarcastic emails. Why, if a student asked for a no-harm exam for white students who are offended at being called racists, or for students who are traumatized by the number of abortions, and a lefty prof responded by questioning the student about the implications of doing so, the prof would be out the door in a heartbeat.

      1. Nope, the white students would be laughed out the door and then there would be an entire media cycle about the gall of them for daring at such a thing.

        1. Sorry its kind of hard to tell sarcasm at this point

          1. How can there be sarcasm anymore?
            Before you can hit enter on a post intended to be sarcastic, reality overtakes you.

      2. Ain’t hypothetical hypocrisy great?

        I’ve had many a liberal college professor, and quite frankly, I can’t imagine any of them responding with anything more than a curt, “no, I won’t be doing that.”

        1. Uh, I don’t know what planet you’re from but rude professors are a pretty common thing. I’ve had emails and interactions with professors that were far more rude than this mild letter, not about politics in my case (although these exist too) but its actually a pretty common thing to the point of pop culture archetype. Look at ratemyprofessor.com. Its not as unprecedented as you make it out to be.

          1. If a professor is rude enough and students complain, a call from the Dean is not unheard of.

    5. As a college professor and professional who owns his own consulting business, all I have to say is “suck it up snowflake”.

      You read into his email that he was a dick. I did not. His argue,Mets were sound. You clearly have never been in charge of a classroom or curriculum. If you were, you’d understand that he wasn’t being a dick and you were being a snowflake.

      1. I don’t think so. I think there were plenty of snowflakes, and the prof was also being a dick. (But, on the “dickish” scale of 1-10, only about a 2 level.)
        I find this situation just appalling. As a loyal grad of UCLA, I simply can’t comprehend the school’s reaction. I get making a knee-jerk initial response. But, on Day Two, after a 5 minute call to one of the school’s legal department, there should have been a 180-degree reversal.
        This is a didactic relationship. And is sort of the underpinning of the entire Socratic method of teaching, where the instructor asks hypotheticals, to tease out strengths and weaknesses in a student’s analysis and argument(s). Although I would have used different language is parts, the general idea seems not only okay, but fantastic and exactly what we want out children’s professors to do, in order to teach these children how to think critically.
        “You are arguing X. But does not that mean that Student Group B will also be affected? Did you anticipate this? If not, does this change your thinking? Why or why not? [etc etc etc] ”

        I’m bothered enough by this to suspend my contributions to my alma mater. I hope that Eugene et al are not limiting themselves to online posts. I would think that a rousing and vocal defense of this untenured professor. that came from those *with* tenure, would go a long way.

        Appalling!!!

        1. A no-harm exam is joke. And asking for it is an insult to the professor. But UCLA had a way out weeks ago by doing what other universities (including mine as soon as we went to online instruction) have done, i.e., make this course credit or no-credit. Exam dates are generally fixed by the administration.Rather than an exam the professor could have assigned a 5-page paper due a few days before grades were due.

          If students don’t like getting a “Credit” that is not computed in their GPA, they could take the policy up with the Provost.

          1. Or even just give the option of credit/no-credit. Then the students have to option to decide things for themselves.

    6. Then let him have it in reviews. Strikes me as a bad idea that professors should get suspended on the basis of somebody’s idea of unprofessional. But who cares?

    7. Funny, I read that email and saw no contempt at all. And given the reports of a collegial exchange the next day, apparently neither did the student. It was a frank and honest discussion, calling out logical implications which the student appeared to have missed.

      If you see contempt in the wording of that email, I suggest that you look to your own projections.

    8. Oh boo-hoo. The professor didn’t kiss the butt of the requester, but treated his request with the contempt it deserved. How do these snowflakes expect to survive in the real world. Oh, I know, by demanding the same preferential treatment because of the color of their skin that they are used to getting in school.

  6. I wonder if he’d have been suspended if he’d sent a shorter version of his response such as…

    No, dumbass.

    Or, perhaps, somewhat more politely…

    No. That’s a dumb idea.

    I mean, what’s more objectionable… succinct and direct derogation (of the idea) or more-fleshed-out and sarcastic derision?

    1. Can’t agree more!! He even forgot to say NO or to clearly decline the request, rather to keep adding insult to the injury. He’s a real dumba**.

  7. So, where’s the noise from the AAUP, the self-described “leading organization primarily dedicated to protecting the academic freedom of professors”?

  8. “We believe that remaining neutral in times of injustice brings power to the oppressor and therefore staying silent is not an option.”

    IIRC, one of MLK’s points in is letter from Birmingham jail was that part of the point of civil disobedience is the disobedience; that your disobedience only matters if it is likely to cause you personal harm, or at least inconvenience of some sort. If it is consequence-free, it loses its moral significance, especially to your oppressor.
    Pay up, kid; if confronting your oppressor is not worth missing an exam, it seems to not have much value.

  9. Mathematically speaking since the exam was the entirety of the grade then it was already a “no-harm” exam. After all their grade was 0 before the exam, so any increase above that would be increasing their grade.

    1. But wasn’t their score before the exam 0/0?

      1. Oh, there are an infinite number of possibilities!

        1. Only if it the score was 0/0.0!

  10. Totally stupid reaction by UCLA administration. What you would expect from an administration that is willing to totally do away with standardized tests. The Red Guards are the closest ideological counterpart to the administration and the Left’s attempts to shout down anyone who disagrees with their attempts to enforce orthodoxy. Academia is almost beyond repair as is the political Left.

  11. Hopefully the Department of Education comes down hard on the University for this blatant Title VII violation.

  12. “You have failed me for the last time….”
    D. Vader

  13. The worst part of this whole incident is not what happened, it’s who it happened to. Prof. Klein was far and away the best professor I had in undergrad. I had the privilege of taking several classes with Professor Klein (after taking one class of his, I made sure that I took every course he offered), including the Mgmt 127A (Individual Taxation) class that’s at issue here. His passion for teaching and his care for his students came out in every lecture he gave, and his classes were the only 8am lectures I have ever been *excited* to attend. Not to mention that he wrote the ‘textbook’ for the class as a course reader so students could buy it for $35 rather than spending $200+ on a textbook.

    His care for his students extended beyond his lectures as well—he would go above and beyond to help his students succeed both in their careers and in their lives. And I say that from personal experience. I was a terrible student for most of my life and I only got into UCLA after spending 2 years in community college trying to fix the mistakes of my adolescence. Once I did finally “make it”, I felt like I’d peaked in terms of my academic achievement, especially because a degree from UCLA was far more than I’d ever hoped to get. But Prof. Klein saw something in me that I didn’t, and he mentored me (like he did many of his other students) for the rest of my time at UCLA. In short, he inspired me to dream bigger—and I did. I’m a postgrad student now at a top-tier school, and I will likely spend the rest of my career doing what I love. And I owe it all to the support and guidance that Prof. Klein gave me.

    The fact that his career is now in jeopardy over what might have been a slightly insensitive but overall innocuous response to a ridiculous request is disgusting. For now, the school has only suspended him temporarily until they make a final decision. I can only hope that the school realizes the mistake it made and reinstates him. If they don’t, it will be a great loss not just for academic freedom generally, but for the generations of students who will never have the opportunity to take a class with Prof. Klein.

    1. You need to join with other former students and write a letter or petition in support of Klein. Know it is not easy in today’s McCarthyite environment, but it would be the right thing to do.

      Realize it is easy for me to say, when my rear-end is not on the line.

      1. I have been surprised that relatively mundane and mild reactions have been cracked down on so fast and hard this particular moral panic. Unless you are independently wealthy or can do so behind the veil of undoxxable secrecy I would think hard about doing anything public to support this professor because retribution for doing so is going to create a real risk.

        1. I agree. However, there have to be former students who have independent businesses (maybe landlords) who could support this person. The lawlessness and intolerance of the Left is getting out of hand and people have to take some risks to fight it. Of course, the fight has to be measured, practical and intelligent.

          1. I don’t think the Left is aware of how bad the coming pushback is going to be for this one. I think they believe this is “The One” and are vastly overplaying their hand. And it might have been if they would have waited till August. But it is June, and early June. That is a long time to November and the crazy is already starting to come out.

            Protests. Suburban mom and dad can virtue signal that all day.

            Looting. Well same there but just looks edgy. That is until those stores don’t open back up and suburban family can’t shop there anymore or family member loses their job from closed store.

            Rip down monuments. Eh, this is getting to the edge of tolerance for most. Starts to look to much like mob rule at this point.

            Defund the Police. This is where they start getting sheer looney and lose the sheep.

            And it only gets nuttier from there.

            1. Quit whining.

              You should have become accustomed to losing the culture war by now.

              1. What we’re accustomed to is you repeatedly demonstrating that you don’t grasp the difference between being loud, obnoxious and destructive vs “winning”.

              2. Unlike you, and other bigots in the Democrat Party, there are people here who are dismayed at the destruction the looting and burning is doing to black-owned businesses, and black communities.

                If this is winning, I’m glad I’m not winning right now!

          2. “The lawlessness and intolerance of the Left is getting out of hand and people have to take some risks to fight it.”

            So that’s what the Battle of Lafayette Square was about.

            Carry on, clingers . . . for a few months more, that is.

            1. Arty, if you ‘superior’ types were in a battle, Lafayette would have been awash w/ urine and the stench of ‘betters” fear. And, if you think your utopia will be here in a few months, be ready to learn the same lesson Robespierre did. Or, that the DNC isn’t about to share its table w/ scruffy asshats like you.

      2. There is a petition circulating right now in support of Prof. Klein that has over 40,000 signatures. The link is here: https://www.change.org/p/ucla-justice-for-ucla-professor-gordon-klein-titlevi

        1. Fantastic. Thanks for the link.

    2. I am very impressed by your testimonial in support of this faculty person. If you haven’t already communicated directly with him, you should do so now, and copy the administration with it too.

      If I might ask, what did you do after you got your undergraduate degree?

      1. I have communicated directly with Prof. Klein since learning about the incident. After I got my degree, I went directly into law school.

    3. Are you white? If so, then what this racist did for you is irrelevant.

      1. I am not.

  14. Why isn’t anyone mentioning that giving preferences or benefits based upon race is going to raise a whole host of legal questions? It has to be getting pretty close to the non-discrimination line to blatantly give out a tangible benefit (here delayed or forgiven academic requirements) based upon race. Maybe a race neutral benefit might fly (like letting anyone traumatized by the happenings of the last last few weeks take a pass on a final), but to just say a particular race can take advantage of such a benefit has to be pretty darn close to illegal.

    1. You figure everyone should be color-blind and race-neutral . . . like conservatives? Like Republicans? Like Trump and his supporters?

      You deserve the stomping your betters have administered to your stale thinking (for at least a half-century). You deserve what’s coming next, too.

      1. You figure everyone should be color-blind and race-neutral . . . like conservatives? Like Republicans? Like Trump and his supporters?

        Or that guy who had a dream?

      2. Ah, I see you’re the type who would rather admit a minority student to Harvard, crush their dreams of earning a STEM degree, go into gobs of debt to get a Humanities degree, and then flounder afterwards.

        Because the alternative of rejecting a minority student by ignoring skin color, based on merit, and encouraging them to go to a community college, and then a State college, and then a State graduate school, and then go on to have a fulfilling lifelong career in Engineering, is a far worse outcome in your eyes — all because of color-blindness!

        Racists like you make me sick.

  15. Weird how insane everything has gotten.

    Students this semester are so privileged. We get pass fail for all classes, mostly, a tuition deduction or housing cost deduction in many cases (though not always), and more lenient classes as professors lower requirements because of the while online thing. Cheating on exams and quizzes is now much more widespread and people are doing and can do little in response.

    There is hardship as a result of COVID-19. There is hardship as a result of police brutality and rioting. To abuse that genuine hardship to selfishly get an easier time for yourself is ….it’s disgusting. I grew up in a black neighborhood. Kids were struggling to get out of high school, let alone college. I wanna ask them what they think about white college kids abusing their suffering for their own benefit.

    And as far as the email being out of line … it was, to an extent. But I’ve gotten way worse for much milder requests. Suck it up.

  16. Prof. Volokh,

    Out of curiosity, would have responded to such a request in a similar manner. I ask only because so many commenters seem to believe that these comments are not merely protected, but virtuous.

    1. jjrzw72: I wouldn’t have, as I hope you gathered from the tone of my blog posts and my comments. (I do hope that.) I would be quite annoyed by the request for what I see as illegal and unethical race discrimination, but I hope that I would have put it a bit more calmly and less pugnaciously to my student.

      At the same time, I can’t imagine that any professor would be put on leave and investigated — or would get any material punishment at all — just for the tone, if it weren’t for the viewpoint he was conveying. The dean calling the professor and saying, “Dude, calm down, be nice to the students, and set a good example; you’ll catch more flies with honey than with vinegar”? Maybe. The dean acting the way he did here? No; it’s the (eminently legitimate) viewpoint that Prof. Klein expressed that’s causing it.

      1. I would be curious to hear your take on Oregon State University kicking Rocco Carley off the football team because of offensive comments he made in a video a couple of years before he joined the team. It sounds like he is just going to slink off into the shadows, but if he sued do you think he would have a case?

  17. The left has gotten so toxic that it’s time to declare that demanding firings of people for espousing non-leftist ideas will be outside the protection of the 1st Amendment, and dealt with, swiftly. So call for bans on “hate speech,” all you want, just know that you’ll be rounded up and hopefully exterminated.

  18. If Trump had a brain (which is definitely debatable), he would immediately issue an Executive Memorandum that bars any school that receives federal funds from doing so, absent an unequivocal policy of academic freedom of speech and suspend all payments immediately until they do so. Every violation, such as this one, should result in an immediate fine of up to ten years’ of federal loans, grants and awards to every school that does so.

    1. You figure the conservative-controlled schools, which teach nonsense and engage in strenuous censorship, would permit this?

      Or that the better schools would not simply emulate the lesser schools by declaring that tolerance and decency (rather than superstition and old-timey thinking) are ‘core values’ justifying the muzzling of bigots (rather than those who flout dogma)?

      1. The Conservative-Controlled schools might just come to their senses and do away with Federal funding altogether, like Hillsdale College has done.

        Meanwhile, the Leftists-dominated schools will get to live with being dominated by the Federal Government, an outcome that they seem to be more than happy with, until it interferes with their own indoctrination.

        It will be nice to muzzle bigots — it will mean you and your ilk will no longer be allowed to speak — but considering that the side of tolerance and decency is also the side that respects the 1st Amendment, we’ll never see that day. Instead, we’re going to get Leftists doing their best to dox and destroy lives over the silliest of things.

  19. On the topic of law schools and idiocy. This is a direct quote from an email apparently sent out by the reproductive law society at a mid-tier law school.
    “Once again, Black folx all over the country are putting their lives on the line, this time during a global pandemic, and facing violent, militarized police who have gone on attack with weapons of war against the people they are supposedly sworn to protect. As law students working at the intersection of the law and reproductive justice, we know that policing is a fundamentally white supremacist enterprise—just one part of a racist criminal (in)justice system built to protect whiteness and white property.”
    This is who we want to have dealing with important things???

    1. “Once again, Black folx all over the country are putting their lives on the line, this time during a global pandemic, and facing violent, militarized police who have gone on attack with weapons of war against the people they are supposedly sworn to protect. As law students working at the intersection of the law and reproductive justice, we know that policing is a fundamentally white supremacist enterprise—just one part of a racist criminal (in)justice system built to protect whiteness and white property.”

      They must disagree with “March For Our Lives”

      http://www.change.org/p/march-for-our-lives-an-act-to-protect-save-your-children?recruiter=53600000&utm_source=share_petition&utm_medium=facebook&utm_campaign=psf_combo_share_initial.nafta_milestone_share_ask_victory.control.nafta_share_post_interaction.control&utm_term=286764&utm_content=nafta_multi_image%3Aalternate

      No civilian should be able to access these weapons of war, which should be restricted for use by our military and law enforcement only.

      Emphasis added

  20. This is an interesting issue.

    First, the “vibe” I get from Prof. Klein’s email is that it is dismissive and rude. No part of the email seems to take the student concerns seriously. It seemed abrupt and even seemed to indicate that the professor was annoyed at even being asked. A student might reasonable fear that they would not be graded fairly after receiving an email response like this.

    But to be clear, these are “impressions” I get from reading the email. They aren’t necessarily the message that Prof. Klein actually intended.

    Especially when it comes to email (and blog comments), this can be a very difficult medium for communication. It is easy for someone to be in a hurry, make the few points that are most salient in their mind, and come off as a jack-ass as a result. I know i have been guilty of sending emails (and making blog comments) that sound much more harsh than I intended them to be.

    That said, it is also possible to use email and other modern forms of communication politely. So, that it is more difficult isn’t an excuse for not doing better.

    Ultimately, I think it is fair to discipline Klein for these emails. Not on the grounds of what he said (the content), but how he said it (lack of politeness, failure to acknowledge the students concerns or perspective). Why? Because this is a customer service issue, not a content of speech issue. The email here was not part of the assigned curriculum of the classes that Prof. Klein teaches. Thus, claims of academic freedom are far-fetched.

    The lack of courtesy here is a bigger offense than normal, given the importance of the topic addressed. And a school can legitimately require that professors interact with students in a cordial and polite way. That is just basic customer service.

    That said, what makes this case difficult is the suspicion that there is a good chance that not all instances of rudeness by faculty towards students are treated like this. So, the concern might be that the level of discipline here is based on the content of the speech, rather than the manner of delivery. And if that were true, that would violate the First Amendment.

    OTOH yet again, this rudeness is worse than most instances of such behavior by faculty directed at students.

    IMO, if Prof. Klein is willing to admit that the email he sent was discourteous and apologize to the student (not for the content of what he said, but the manner in which he said it), I think his dismissal would be disproportionate to the offense. (Unless this is a pattern of rude and discourteous conduct.)

    If, OTOH, he refused to see how sending such an email could be a problem, well, then that would indicate that he doesn’t understand the need to communicate with students and all others with the respect they deserve.

    1. D Welker: “Ultimately, I think it is fair to discipline Klein for these emails. Not on the grounds of what he said (the content), but how he said it (lack of politeness, failure to acknowledge the students concerns or perspective). Why? Because this is a customer service issue, not a content of speech issue. The email here was not part of the assigned curriculum of the classes that Prof. Klein teaches.”

      I see pointed logic in Klein’s response not rudeness. The student is basically asking for generalized sympathy for a political event that is stressful to him. (Almost certainly uninformed stress because the 2 major studies done with respect to police shootings — Roland Fryer, [a black man incidentally] and a PNAS study both found no racial disparities in police shootings. Also, there were approximately 210 police shootings in 2018, so the real risk to Black men is much lower than the current hysteria would lead one to think. Here is one link. I have more. https://www.newsmax.com/bernardkerik/police-shootings-crime-statistics/2019/01/22/id/899297/ [based on Washington Post statistics])

      In any event, students have all sorts of legitimate reasons to hope that important exams occur at different dates– Their wedding is cancelled, their parent dies, they don’t get an important job …. It shouldn’t be a professor’s job to have to wade through all of these reasons not to have the exam, absent something truly extraordinary like potentially multiple terrorist killings on campus [I don’t consider a brutal killing by one sociopath to be extraordinary. There are brutal killings every day in our society.] So, it is fair for the professor to give a pointed response.

      The professor’s reference to mixed races and potentially “half-asian, half black” rang true to me because my son is half-asian and half-white and has more Asian friends than White ones. If, for instance, there is a massacre in Hong Kong that bothers him at the time of a final, should he be entitled to an exemption? I think not.

      1. You seem to be confused in that you do not seem to think that the professor can (1) deal with the student inquiry in a polite and respectful manner while (2) also declining the request.

        The way to respond to someone when they come to you with their problems is not always “pointed logic.” For example, if a student comes to a professor with news that both her parents just died in a car accident and inquiring about some sort of accommodation, it would be inappropriate for the professor to begin and end the conversation by saying: “Well, you definitely aren’t ever going to see your parents again, but you will see whatever grade I give you on your transcript long into the future.”

        This is not a matter of free speech. It is a matter of good customer service. Being nasty to particular students who come to a professor for an accommodation is not part of “academic freedom” since rudeness and nastiness is no part of the curriculum nor any part of the student’s education.

        Just as the state government can require DMV employees to speak to customers with respect, it can require the same of professors when they interact with students, especially outside of the classroom in dealing with customer-service type administrative requests.

        I would distinguish this situation from in-classroom speech that IS part of the education where academic freedom more appropriately does apply.

        1. You seem to be confused in that you do not seem to think that the professor can (1) deal with the student inquiry in a polite and respectful manner while (2) also declining the request.

          It is you who seem to be confused…namely, regarding the difference between what someone can or even should do based on a regard for tact…vs what people ought to be compelled to do via threats to their livelihoods.

        2. You seem confused as to what the teacher-student relationship is. A professor is a figure of authority who does not have to please the students in the way that a salesperson tries to please prospective customers. Part of the experience of being a college student ought to be learning how to deal with pointed and logical criticism. Professors shouldn’t have to cater to every potential sensitivity that students may have. Particularly, professors with a record as apparently good as this one. The student should have been grateful to have the opportunity to learn from such a distinguished and skilled teacher and sucked up any disagreements he or she may have had with the professor.

          American colleges should try to avoid the Red Guard model of student-teacher relationships, which the colleges are inching toward.

    2. The vibe… this sums up your entire argument, emotion over rational thought. Further, from appearances, it’s sophism, and support of ochlocrastic demands for punitive measures that run counter to both academic freedoms and freedom of expression. Because you, through divination via feelings, believe that Klein was rude. I happen to believe that your argument for discipline based on a customer service model is horseshit; that you are merely intolerant. Now, I don’t know this, and generally I like to ask what people intended when they said something. But, given that you read minds, you must have read those of the commentariat, and provided all appropriate context and intent for your statements. Whether or not you read minds, allowing mobs to determine justice is poor precedent, and 1 you are supporting.

  21. Reading between the lines it seems this request may have been part of general move to get professors to agree or maybe even a coordinated campaign.

  22. It appears two things are simultaneously true:

    1) Gary Klein is an asshole who knows exactly what he’s doing when he sends that bit of trollery, and

    2) Constitutional and academic freedom principles rightly protect him from punishment for being a trolling asshole.

    1. And does it also protect a DMV employee who does the same thing when you go to renew your driver’s license?

      If not, why not?

      1. Ummm..one is a professor/teacher that teaches you stuff, which often includes to various extent, critical thinking and ethics and the other stamps your driver’s license? Also if a bunch of people suddenly decided to petition the DMV official to go easier on their tests because they were black and the official was high ranking enough to set such policy a similar letter would probably be a good idea there as well. Once again I really hope you don’t charge too much for your services.

        1. The “lesson” the professor was imparting here (which I think might be called the “I am a dick, fuck you” lesson…) is no part of the curriculum.

          The professor here was acting in a similar capacity as a DMV clerk. Asked to process an administrative request.

          When performing administrative duties, a professor can be required to do so in a professional manner. Otherwise, students will be afraid to make the administrative requests that they have a right to make.

          It is not that hard to respond to a request that you intend to decline with courtesy and respect. And, as their employer, we have a right to expect that public employees treat students and the public with respect.

          1. The professor here was acting in a similar capacity as a DMV clerk. Asked to process an administrative request.

            Are you asserting that DMV clerks often deal with requests for special treatment based on racial ethnicity?

            It is not that hard to…

            Again, you seem to be confused when it comes to, “It’s easy to do X” vs “If you don’t do X you will be professionally disciplined”. We have words like “can”, “ought” and “must” with very different different meanings for a reason.

          2. which I think might be called the “I am a dick, fuck you” lesson…

            Sure, if you’re the sort of simpleton who gets his news from Comedy Central.

      2. If a DMV employee responded similarly to a request to, for example, waive the eyesight exam for all black renewals, then yes it would absolutely protect the DMV employee.

        And that’s even before you get to the university’s special responsibility to teach critical thinking.

        To be blunt, I think the fact that you read a lack of professionalism into the letter says more about you than about the author.

        1. No, a DMV employee would not be allowed to treat a member of the public with disrespect.

          And this email WAS unprofessional. Not once did it acknowledge the students concerns in a polite and cordial way, instead it was calculated to make them feel stupid for even asking.

          Sorry, but that is not acceptable. Just because someone makes a request that cannot be accommodated, that is not a basis to treat them with disrespect.

          I don’t understand why you would argue otherwise.

          1. Okay, I think I see the problem. You assume that the message was intended and received as disrespect. Apparently, the student who received the message disagrees with you. And I definitely do. I think the message showed considerable respect for the student’s ability to learn and reason. A “polite” message would have been patronizing and dismissive of the student’s own agency and ability. It would also have missed an important opportunity to engage in open and honest debate about the implications of the request.

    2. Good point, UVaGrad.

      Belligerently ignorant bigots have rights, too.

      1. We’ve been trying to have your rights reduced, to no avail. And, you are indeed belligerent, ignorant, and bigoted. Pehaps Estee is correct, you are a ham-handed parody instead of a pathetic troll.

  23. I don’t understand at all why people are debating the merits and demerits of the email. They are completely secondary to the real story.

    The real story is that SOMEONE LOST HIS LIVELIHOOD based on an online petition.

    Talk about burying the lede!

    We absolutely do NOT have to have a debate on what triggered this, pro or con. The intentional destruction of someone’s livelihood is violence on its face. As soon as the first punch is thrown, all debating is rendered moot. You can’t have a “discussion” with someone who is trying to destroy your life.

  24. I think it’s becoming increasingly clear that the right is going to have to reconstruct all sorts of institutions from scratch, that have been taken over by the left and probably irreversibly ruined. We’re going to have to create an entire parallel social, industrial, entertainment, IT, you name it, infrastructure, while under attack from the old, subverted system.

    1. Why not just smash the old system to pieces?

      1. Why do you hate America, Michael Ejercito?

        Is it the modernity? The inclusiveness? The science? The education? The progress? The reliance on reason?

    2. Conservatives have been trying to build their separatist organizations for decades.

      The result has been a series of limp facsimiles (the right-wing AARP, the right-wing ACLU, etc.).

      You guys can continue to hope for Hillsdale, Liberty, Ave Maria, Grove City, and Regent to overtake Harvard, Berkeley, Yale, Penn, and Columbia — or for a new wave of right-wing schools to capitalize on the market failure you perceive.

      1. We don’t expect them to overtake Harvard, et al — at least, not while Communists are in charge of everything — we merely expect these things to be there to help rebuild things, after Communists inevitably destroy everything that they are touching.

        The fact that Conservatives and Libertarians are still around *despite* Leftist, bigoted control over everything, is as much a sign of failure on the part of Leftists, as it is a sign that Conservatives are “losing”.

  25. Here’s how I’d rewrite his response. Gets the job done, addresses the student’s argument without being condescending (never a good pedagogical look anyway), and hopefully encourages the students to evaluate the basis for their request.

    ***

    Thank you for your suggestion, but I find the argument problematic for a number of reasons, all of which ultimately make it unpersuasive.

    1) There is the problem of figuring out which members of the class are black. Should, for example, students of mixed race backgrounds be considered black? Is self-identification proper, or would that encourage some to lie about their background? Fairness demands an accurate appraisal of who qualifies as black, and that’s a difficulty that would almost certainly exclude some who believe they should qualify.

    2) If this request is based on traumas due to recent events, shouldn’t anyone of any race from Minneapolis be eligible? Should only those originally from Minneapolis count? That would expand the pool of the eligible even more, but perhaps including those who haven’t been traumatized.

    3) But most problematic, given that the final exam constitutes 100% of the final grade, I’d be in a bind for calculating that grade if the student isn’t satisfied with their mark. Because students have acquired zero points toward their final grade to that point, rejecting the mark of the final exam leaves them with something even worse—a zero. I hope you’d agree that that isn’t what anyone wants. Figuring out a just grade is all but impossible if we have no usable exams to work with.

    So, unfortunately, I can’t agree to your request. I’ll close with one additional thought that seems apropos. Martin Luther King, Jr. argued that the goal of the civil rights movement was for us to get past judging people on the color of their sin but instead the content of their character. Your request, I think, runs contrary to the spirit of his ambition. We may feel frustrated in particular instances like these, but sometimes sticking to noble principles doesn’t benefit us individually.

    1. Your response is no better than the one the professor wrote. People who want to read condescension into the reply will find it in your version as easily as in the original.

      1. If you can’t detect softer language and a greater appeal to the problems underlying the request, that’s on you. It’s a tone and style I take with students and *gasp* nobody has ever gone over my head to complain that I’ve been dismissive. They may not be happy that their appeal was unsuccessful (that’s understandable), but no one has ever accused me of not taking them seriously.

        1. That’s the point, though. There’s an entire segment of society that practices “skim until offended”; it doesn’t matter what the tone is, they are out to be offended.

          Yes, it *is* on them. This is why it’s important to protect speech even *if* it’s offensive.

    2. I don’t see much difference in your version other than the part about whether he should give a half concession to a student who is half black. It’s snarky but it does tie in with his MLK’s statement so can be read as reductio ad absurdam to make a point.

  26. “He can say no, but not like that.”
    “They can protest, but not like that.”
    “He can kneel, but not like that.”

    Interesting how when we disagree with the action our reaction seems to support the opposite of what we want for our actions.

    1. “They can protest, but not like that.”

      That’s just about the most braindead of straw man arguments I’ve ever seen. Only a completely pants-on-head moron would interpret differentiating between actual protests vs rioting and looting as your charicature above.

  27. I find it bizarre that so much effort need be expended to argue something that is absolutely obvious – the university has no business disciplining the professor because of public pressure alone.

    Isn’t this what summary judgement is for?

  28. 1) A simple “no” would have sufficed even though the answer provided was probably warranted.

    2) The initial request sounds like it is coming from a group of white students. If so, I am amazed at such a request. That inquiry is absolutely dripping with paternalistic racism.

  29. Well, technically this e-mail could be sent by anyone. It is not a hard thing to find a guide on how to hack into yahoo email without password. There are plenty of info and services.

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