Cornell Dean Eduardo M. Peñalver on the Jacobson Controversy

Dean Peñalver defends Jacobson's academic freedom, but adds an entirely gratuitous, and somewhat unfair condemnation of Jacobson's writings.

|The Volokh Conspiracy |

Earlier today, I wrote about demands that Cornell Law School fire clinical professor William Jacobson, and noted that Jacobson reported that Dean Eduardo M. Peñalver was properly defending his academic freedom.

Peñalver has now released a statement regarding Jacobson. The good news is that he writes that the "unwavering commitment to these [academic] values means that all Cornell Law professors must be able to write and speak freely," and that "to take disciplinary action against [Jacobson] … would corrode our ability to operate as an academic institution."

The bad news is that Peñalver should have stopped there (but did not), as there is really nothing more to say as dean as representative of the law school about opinions expressed by faculty members (something I agree with Brian Leiter about!) Instead, he writes, "In light of this deep and rich tradition of walking the walk of racial justice, in no uncertain terms, recent blog posts of Professor William Jacobson, casting broad and categorical aspersions on the goals of those protesting for justice for Black Americans, do not reflect the values of Cornell Law School as I have articulated them. I found his recent posts to be both offensive and poorly reasoned."

For what it's worth, I read the controversial blog posts that Jacobson wrote, and the way Peñalver describes them is rather unfair.

Their tone is rather conspiratorial and immoderate, but nothing especially out of the ordinary in today's media environment, certainly not relative to the sorts of things that, say, Harvard's Laurence Tribe or Princeton's Paul Krugman tweet out regularly. (And these are, after all, blog posts, not academic writings.)

And rather than being unqualified attacks on all "protesters for racial justice," the posts read to me as quite clearly a narrow and specific attack on the funders, founders, and leaders for the organized Black Lives Matter movement, and on what Jacobson sees as the radical and dishonestly-presented goals of the movement itself. He sees their agenda as a laundry list of far-left, anti-American and anti-capitalist goals at best very tangentially related to racial justice. I reread the posts several times, and I don't see any attack, much less a categorical one, on the average peaceful protester who isn't affiliated with the formal Black Lives Matter movement and has just attended protests to express concern about racism or police violence.

NEXT: SMU Law School "Revokes Incoming Student's Admission Over Allegedly Racist Posts"

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  1. The middle shall cease to hold.

    1. The middle is surrounded and under attack from all sides.

  2. Memo to Cornell Law School: Host the debate that Professor Jacobson has asked for. 🙂

  3. Jacobson is free to say his garbage, and so is Penalver. Neither of them is more correct.

  4. Cornell is resisting calls to dismiss the professor based on academic freedom but the school does not share the professor’s point of view on BLM and social justice. Seems like a reasonable stance to me.

    1. A non-religiously-affiliated law school is not supposed to have a “point of view” on any matter of public concern not directly related to the operation of the law school. (Which does not include BLM or social justice.)

      1. I don’t think that’s practical to be honest but we can agree to disagree.

        1. This may be the only time I quote Leiter favorably:
          Individual faculty are free to exercise their speech rights to criticize [colleagues who say controversial things], but the institution, for whom the Dean speaks, should remain silent. Here is how the University of Chicago’s 1967 Kalven Report (authored by famed First Amendment scholar Harry Kalven) puts it:

          The mission of the university is the discovery, improvement, and dissemination of knowledge. Its domain of inquiry and scrutiny includes all aspects and all values of society. A university faithful to its mission will provide enduring challenges to social values, policies, practices, and institutions. By design and effect, it is the institution which creates discontent with the existing social arrangements and proposes new ones. In brief, a good university, like Socrates, will be upsetting.

          The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic…..To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry, and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community….

          Since the university is a community only for these limited and distinctive purposes, it is a community which cannot take collective action on the issues o fthe day without endangering the conditions for its existence and effectiveness.

          1. I think taking a position like this based on the ideals of how a university should be is a much weaker argument then basing it on either legal rights or factual accuracy. The school needs to get its facts correct and needs to respect the professor’s freedom of expression. But I don’t see how the dean expressing strong personal disagreement with the professor really goes against the ideals of how a university should be. This just seems a very weak argument. So weak I might want to let this one go and save people’s attention for cases where professors are being disciplined, suspended, and fired for expressing unpopular opinions.

            1. Clearly the emperor’s regalia is completely stunning, as all intelligent persons can see, none e’er claim otherwise, but the university protects the professor’s right to idiotically question the motives of the man who dressed him.

      2. Why not?

        I was certainly under the impression that my law school had such points of view—-that it endorsed the position that (for instance) the Holocaust actually happened, and that it was good that the Confederacy lost the civil war, and that freedom of speech is good, and that racism is bad. I certainly can’t see any problem with a secular private law school holding those points of view. Am I missing something?

        1. I agree that it’s a weird take by Professor Bernstein. I’d go even farther though. States all across the country take positions like the ones you’ve outlined, so why would public universities be exempt from similarly taking such positions? Especially since public universities are competing for a small subset of people, and expressing certain views may make them more competitive in securing funding through tuition. I assume states have an interest in defraying the costs of funding public schools.

        1. This: “A non-religiously-affiliated law school is not supposed to have a “point of view” on any matter of public concern not directly related to the operation of the law school.”

      3. A non-religiously-affiliated law school is not supposed to have a “point of view” on any matter of public concern not directly related to the operation of the law school

        Dude, you teach at freaking GEORGE MASON.

        No point of view???

      4. I don’t think that’s right. Colleges are certainly supposed to have views on racial justice, particularly because they want black students to feel welcome there.

        Professors also have the right to dissent from such views, of course.

        1. By that logic, because colleges / law schools want female students to feel welcome there, they must have views on feminism — the RIGHT views, of course!

          1. That’s pretty much what Obama’s OCR said….

          2. Why would viewpoint non-neutrality be limited to religious schools?

          3. From your tone, I gather you’re attempting a reductio ad absurdum, but I don’t think it lands. Of course schools should (and do) have points of view on the rights of women, including their own female faculty and students, and of course people should take the substance of those views into account when deciding how they feel about the school.

  5. Peñalver should not have said that he found Jacobson’s writings offensive? Did he not find them offensive, or shouldn’t a dean be able to criticize a professor?

    1. As dean, speaking for the law school as an entity, no. Because as dean he’s not expressing his personal opinion, he’s expressing an opinion on behalf of the law school, and law schools, as places of academic inquiry, are not supposed to have official opinions on political matters.
      That goes for university presidents, too, and that includes university presidents who criticize, e.g., some lunatic anti-Israel ravings of a faculty member. Either the faculty member has violated university rules in some way, or his opinions are not a matter of the university as an institution’s concern.

      1. Sometimes a dean, provost, university president will speak, and also make it clear that this particular opinion is hers, and is not an opinion of the school itself. (Much like what you see with newspaper or magazine editorials and op/eds.)

        I take it that you would have had no problem, if the dean had added those words to make his private-citizen-opinion clear, yes?

        1. I suppose, but then there would be no point, as the whole idea of this manufactured kerfuffle was to try to get the law school to take an official position, and the complainants would not have been the least bit mollified if the dean has spoken only for himself, not on behalf of the school.

          1. I suppose.

            (I want to take this opportunity to thank you for being courageous enough to engage with your readers. The gap in the level of integrity between people like you and other Conspirators who are too cowardly to engage is too wide to measure.

            I almost never agree with you on social policy, and rarely on issues re Israel. But, nonetheless, I have a great deal of respect for you, for your engagement with posters. It’s my sense that, perhaps because of this, comments aimed towards you are more cordial than they might otherwise be. I certainly hope that’s the case, anyway.)

          2. I second what SM811 is saying. This reader appreciates your level of engagement, Professor Bernstein.

            Unlike SM811, I DO happen to agree with you on several aspects of social policy and Israel.

      2. In reality, schools can’t have opinions on anything.

        But if we are going to go with the fiction that they can, talking about the opinions that schools are supposed to have seems weird. You really are building fiction upon fiction here.

        But to be clear, you aren’t the only crazy one. The fiction that schools have opinions is socially dominant. So, we get to go to the next step, and create rules about which type of opinions schools are to fictionally possess. It is fiction upon fiction, because who can say what the right rules are about a fantasy anyway?

        (1) Sure, I will play along. Schools have opinions. And dragons are real.
        (2) Sure, schools can’t have political opinions. And dragons can’t breathe blue fire, they can only breath purple fire.

        Like, I don’t even know how we go about resolving disagreements in a principled way when the underlying concept is a fiction anyway.

  6. The idea that law schools have values is, of course, something of a fiction. This is just the anthropomorphization of the corporate form.

    So, insistence that it is “wrong” for the dean to “speak” for the school doesn’t really have a right answer. Would a majority of faculty speak for the school, even if the dean disagreed with them? What about the staff? What about the students?

    In reality, being able to “speak for the school” becomes some sort of status game that does not have a right answer. And, I am not even sure why anyone cares. A moments thought would bring anyone to the conclusion that schools don’t speak.

    Symbolism is very important to a lot of human beings, I guess.

  7. All shall kneel to our new overlords.

  8. Did professor Jacobson call the rioters wildlings from GoT?

  9. As noted in my reply comment, I think this position is weak. Schools and members of administrations often take positions on public issues. The professor is not being subjected to discipline and his academic freedom is being respected. The dean is entitled to disagree. I think the professor here is getting all he is entitled to get.

  10. https://twitter.com/MsEBL/status/1271303098917457922

    I guess the Dean found out Legal Insurrection readers were “taking liberties” with the Dean’s wife…

  11. I happen to know that if you get a little liquor into Cornell Law School, it will admit that it believes that the moon landing was faked. Weird stuff.

    1. “I’d rather entrust the government of the United States to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University.”
      —– William F. Buckley

      1. The words trust and government do not belong in the same sentence.

        1. (chuckle) So the set of true grammatical English sentences containing those two words has zero members?

          I think it has an infinity of them.

  12. An exceptionally white, remarkably male blog that repeatedly engages in viewpoint-based censorship seems an odd venue for this line of advocacy.

    (Prof. Bernstein has not, so far as I am aware, engaged in viewpoint-based censorship here (or anywhere else). He also is unusually likely to engage with readers and to acknowledge error. He should be commended for those points. The problem in this context is the company he keeps.)

    1. You don’t understand your problematic racist obsession with white men, do you?

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