The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The New York Times (Michael Levenson) reports:
Georgetown University Law Center said on Thursday that it had fired an adjunct professor who made "abhorrent" remarks about Black students on a video call and had placed another adjunct who was on the call with her on administrative leave.
The two adjunct professors, Sandra A. Sellers and David C. Batson, seemed to be unaware they were being recorded, according to a roughly 40-second clip of their conversation that generated widespread outrage after it was shared online.
In the clip, Ms. Sellers … discussed the evaluation of Black students with Mr. Batson after their virtual class had ended ….
"You know what? I hate to say this," Ms. Sellers said on the video. "I end up having this angst every semester that a lot of my lower ones are Blacks — happens almost every semester. And it's like, 'Oh, come on.' You know? You get some really good ones. But there are also usually some that are just plain at the bottom. It drives me crazy."
As she spoke, Mr. Batson murmured, "Mm-hmm," but did not challenge her remarks.
What appears to be the video is here:
.@GeorgetownLaw negotiations Professors Sandra Sellers and David Batson being openly racist on a recorded Zoom call.
Beyond unacceptable. pic.twitter.com/q5MoWjBok8
— Hassan Ahmad (@hahmad1996) March 10, 2021
You can draw what conclusions you like about the tone of the conversation (which is of course a casual conversation, not a formally planned presentation). But I wanted to speak to the broader factual matter that the remarks raise—whether a disproportionate share of students at the bottom of the class in top law schools are indeed black.
There appears to be some data on this; here, for instance, is an observation from Yale law professors Ian Ayres & Richard R.W. Brooks in Does Affirmative Action Reduce the Number of Black Lawyers?, 57 Stanford Law Review 1807 (2005):
With the exception of traditionally black law schools (where blacks still make up 43.8% of the student body), the median black law school grade point average is at the 6.7th percentile of white law students. This means that only 6.7% of whites have lower grades than 50% of blacks. One finds a similar result at the other end of the distribution—as only 7.5% of blacks have grades that are higher than the white median.
This is data from the 1990s, but I have heard no evidence that the results are vastly different today; my colleague Rick Sander tells me that newer data has not been generally made available by administrators. Sander's theory is that this gap is a predictable consequence of race-based affirmative action:
- The usual predictors (the LSAT score and the undergraduate GPA) do a pretty good job of predicting law school performance; not perfect, of course, but the correlation is quite substantial.
- Therefore, if you let in any group with considerably lower predictors, they'll on average do worse than their peers (including on blind-graded exams, which are common in law schools), and will be particularly likely to fall near the bottom of the class.
- Race-based affirmative action programs in many law schools tend to let in black students with considerably lower predictors than other students; indeed, such programs are structured precisely to do that.
To quote Sander's testimony to the Commission on Civil Rights:
It's important to note that this performance gap has nothing to do with race per se; whites who attend law schools where their credentials are far below most of their peers have pretty much the same types of troubles. The performance gap is a function of preferences [i.e., race-based preferences in the admission. -EV].
Sander adds to me that, "My work found that virtually all of the black-white grade gap disappeared when one controlled for LSAT scores and undergraduate grades."
Now others take different views, and point to other possible reason for black students tending to cluster near the bottom of the class in most schools. Ayres & Brooks, for instance, write, "If not mismatch, then what explains black underperformance in law schools? One possibility is stereotype threat [presumably stemming from black students' being affected by the stereotype of blacks as less academically successful -EV] …. [S]tereotype threat is activated by the … subtle and pervasive mechanism of contending with situations in which one knows one can be viewed through the lens of a negative stereotype. It has little to do with expectations of poor performance and everything to do with the contextual environment that black law students face. 'Stereotype threat follows its targets onto campus, affecting behaviors of theirs that are as varied as participating in class, seeking help from faculty, contact with students in other groups, and so on.'"
But in any event the phenomenon of a disproportionate number of black students being near the bottom of the class at many law schools appears to be real. (This is of course an average effect; the actual grades differ by student and by school. Schools that don't have race-based admissions preferences, or that have smaller race-based preferences, might lack such an effect, or have a much smaller effect. My own UC campuses, for instance, are forbidden by law from offering race-based preferences; to the extent such a prohibition is complied with, one would expect both black students' predictors and their grades there to be much closer to the overall class median. I don't know what the actual statistics are for UC law schools, or for my UCLA law school in particular; to my knowledge, such numbers are generally not publicized.)
And this phenomenon is a serious matter for professors to consider, whether in considering affirmative action programs, strategies to fight "stereotype threat," or whatever else. It is also something that professors should feel free to talk about, and academic freedom principles indeed protect them in talking about it. To quote Georgetown University's official policy statement (based on the Chicago Principles),
Georgetown University is committed to free and open inquiry, deliberation and debate in all matters, and the untrammeled verbal and nonverbal expression of ideas. It is Georgetown University's policy to provide all members of the University community, including faculty, students, and staff, the broadest possible latitude to speak, write, listen, challenge, and learn.
The ideas of different members of the University community will often and naturally conflict. It is not the proper role of a University to insulate individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Deliberation or debate may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or ill conceived.
It is for the individual members of the University community, not for the University as an institution, to judge the value of ideas, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting those arguments and ideas that they oppose…. [C]oncerns about civility and mutual respect can never be used as a justification for closing off the discussion of ideas, no matter how offensive or disagreeable those ideas may be to some members of our community.
And these free-and-open-inquiry principles on their face apply to all modes of speech, including casual conversations, and not just formal academic papers. Among other things, much thinking about research, teaching strategies, proposed changes to faculty policies, and the like starts in casual conversations. Conversely, punishing people for discussing such facts in casual conversations is quite likely to deter faculty (and students) from discussing them in other contexts as well.
Here is the letter from the Georgetown University Law Center dean, which doesn't seem to discuss whether the professors' factual assertions were accurate (or also just what "bystander responsibility" should be required—is there a call for faculty members to be obligated to report each other's supposedly racist statements?):
As I wrote to you last night, I am appalled that two members of our faculty engaged in a conversation that included reprehensible statements concerning the evaluation of Black students. I have further reviewed the incident and have now spoken to Professor Sellers and Professor Batson, giving each the opportunity to provide any additional context. I informed Professor Sellers that I was terminating her relationship with Georgetown Law effective immediately. During our conversation, she told me that she had intended to resign. As a result of my decision, Professor Sellers is no longer affiliated with Georgetown Law. Professor Batson has been placed on administrative leave pending the investigation by the Office of Diversity, Equity and Affirmative Action, the results of which will inform our next steps. Until the completion of the investigation, Professor Batson will have no further involvement with the course in which the incident arose.
We are taking significant steps to ensure that all students in this class are fairly graded without the input of Professor Sellers or Professor Batson.
This is by no means the end of our work to address the many structural issues of racism reflected in this painful incident, including explicit and implicit bias, bystander responsibility, and the need for more comprehensive anti-bias training. This is a matter of great concern to me. I will be writing to you soon with a range of actions and changes that we will implement to address these issues. I will also send information about a listening session for the Georgetown Law student community that we plan to hold tomorrow.
And here is a letter from black professors at the Georgetown law school:
We, the undersigned Georgetown University Law Center Black faculty, condemn the statements reportedly made by one of the school's adjunct professors deriding the capabilities of Black students in her class. Her taped Zoom comments reveal what we see as an underlying, damaging perception of Black law students that is grounded in white supremacist thought. Our classrooms should be intellectual and humane spaces for learning and growth. Every student deserves to be free of pre-set notions of their intellectual capabilities.
The content of the video is now widely-reported. In the taped meeting, the professor recounted how "some" Black students did well in her course but emphasized over and again that "a lot" were "at the bottom" each year. Racializing student performance casually was in itself unnecessary and recklessly conjured centuries old expectations of Black intellectual capacity and performance. What the professor failed apparently to consider is that, given the makeup of our diverse student body, white students also routinely fall at the bottom of class curves. In singling out Black students, the professor flagrantly and unfairly stigmatized them and in the process both revealed and propagated racial, and overtly white supremacist stereotypes about the intellectual ability of Black students.
The professor's comments also raise serious concerns about whether her own bias may be driving the outcomes she observed in her class. Broad statements as to the intellectual ability of students based on their race reflect more poorly on the speaker than those spoken of. Such beliefs spur behavior that is unlikely to create a fair playing field for all students in the classroom. If you expect Black students to behave poorly, your classroom performance as a professor and your grading can operate to confirm that bias. Your Black students then suffer irreparable harm as they experience the consequences of poor grades driven by racial bias. Such students find it harder to obtain letters of recommendation or pursue opportunities such as law review positions, externships, and ultimately, employment.
From what we understand, the professor's comments also brutally undermine our Black students' freedom to focus on learning. We are deeply concerned that our Black students will (rationally) spend their time worried that their law professors may hold white supremacist viewpoints. Many will preemptively strategize how and in what ways to approach faculty who in fact are employed to educate and promote their well-being. They will worry if their class performance will be assessed through a racialized lens. Responding to anti-Black racism and bias regularly consumes our Black law students' time and energy. It is demoralizing, and it is unfair. They deserve the same opportunities as other students to pursue excellence.
We stand in support of our Black law students. We welcome the investigation of this incident and the professor's past grading practices by the University's Office of Institutional Diversity, Equity & Affirmative Action.
We also look to these moments as an opportunity to not simply ensure accountability, but also to effectuate lasting systemic and institutional growth. We hope that this is a moment of reckoning for the Georgetown Law community.
While reprehensible, the professor's reported statements were not unique even if not typically spoken. The legacy of white supremacy is insidious and can explicitly and implicitly impact and infect some of our most vulnerable spaces and venerable institutions. Any law professor who operates from unspoken white supremacist notions of intellectual ability, whether intentional or not, should aspire to the same rigor and thoughtfulness that they professedly demand of their students. They must examine their own flawed thought patterns and correct them.