Free Speech

Thoughtcrime at Georgetown? "It Is … Wrong for Faculty to Be Thinking—Not Just Speaking—…"

... about there being disproportionate number of black students near the bottom of a class.


I wanted to pass along an exchange I had with a Georgetown law professor, related to the Georgetown adjunct's dismissal for saying to a colleague, "a lot of my lower [graded students] are blacks" (see this post). The professor wrote,

For what it's worth, I think both that the sentiments expressed by the adjunct in that video were wrong, and that the dean was correct to dismiss her.

I responded,

As to the adjunct's sentiments being wrong, do you mean that the factual assertion—that the bottom of the class contains a disproportionate number of black students—is wrong? Or that it's correct but that it's wrong for faculty members to say so?

The faculty member responded in turn,

In my experience, it is factually incorrect. It is also in my view wrong for faculty to be thinking—not just speaking—along those lines, because it will tend to create the very facts that it purports to describe.

I appreciate the disagreement on the factual question. As I mentioned in my original post, there had been nationwide aggregate evidence gathered on this in the 1990s, and discussed seriously in the mid-2000s by scholars with different normative viewpoints. But perhaps things have dramatically changed, or are different at the Georgetown law school. It would be great if Georgetown could shed light on that dispute by distributing aggregate data on its students' grades, broken down by race.

But I'm more interested in the professor's normative judgment: that it is wrong for university faculty to think that such a thing might be the case, to the point that letting slip the fact that you think this is a fireable offense. Indeed, if taken seriously, that normative judgment would preclude any discussion of the factual question, because even open-mindedly considering the factual question whether disproportionate numbers of black students tend to get lower grades would risk "wrong … thinking."

I appreciate that, say, some churches might excommunicate a member for wrong thoughts, or for speech that reveals the presence of wrong thoughts. I just didn't think that this was seen as a proper position for a university.

I recognize, of course, that thoughts lead to deeds, and that thinking in a particular way could lead one, even subconsciously, to illegally discriminate:

  • A professor who is thinking about these racial disparities might come to a black student's paper expecting it to be bad, and subtly undervaluing it as a result.
  • A professor who is thinking about "white privilege" might come to a white student's paper with a sense that the white student has been unfairly getting more than the student deserved, and subtly undervalue the student's work as a result.
  • A professor who is thinking about how conservative evangelical Christians have what the professor thinks to be a foolish worldview and a harmful set of moral beliefs might undervalue that student's paper.
  • A professor who is thinking that Israel is evil might undervalue the paper of a student whom he knows to be of Israeli national origin.
  • A professor who is thinking contemptuous thoughts of Republicans or Democrats might undervalue papers from students who are known to adhere to those parties. (D.C. law, which governs Georgetown, bans discrimination by universities against students based on political party membership, and the First Amendment generally does the same for public universities, such as UCLA.)

There are ways of dealing in part with this problem, of course: One that law schools generally use is blind grading (which also deals with many other forms of bias). But of course that's not perfect, for instance because it doesn't work well in classes, such as many seminars, where students write papers under a professor's close supervision. The regrettable reality is that there sometimes will be subjective, unblinded evaluation of students' work and therefore the risk of all sorts of improper discrimination.

Yet the tradition of American universities is that punishing faculty for "thinking … along [potentially dangerous] lines" is not the right remedy for such problems; likewise for punishing faculty for speaking along such lines. The point of a university is that people can and should think about all the options, dangerous as such thoughts might be, because it is only by considering those options that our knowledge can advance.

As I mentioned in my original post, Georgetown University's official policy statement (based on the Chicago Principles) makes that especially clear:

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.

It's hard to see how punishing "faculty [for] thinking [and] speaking … along [supposedly improper] lines" can be consistent with that statement, or with broader principles of free inquiry.

NEXT: No Sealing of Documents in Dispute Over Settlement of Public School Air Quality Lawsuit

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  1. Forty years ago (and maybe today, though it’s less widespread), that Georgetown professor would have believed that the Rosenbergs were innocent, and that the Soviet Union was outperforming the U.S. economically. Left/liberal academics generally live in a fantasy world, and it’s pointless to have discussions with such people.

    1. Can you name anyone who ever said at any time that the Soviet Union was outperforming the US?

      1. Well, there’s the Harvard professor who wrote in 1984: “the Russian system succeeds because, in contrast with the Western industrial economies, it makes full use of its manpower.”

        1. Does this Harvard professor have a name?

          The problems with the Russian economy were well known since at least the 1950s. In 1975 I heard a sports commentator say on TV that Chicago sports are to sports what Russian agriculture is to agriculture, and he did not mean it as a compliment. So I find it hard to believe that anyone seriously thought the Russians were outperforming us, though I’ll reconsider if you can come up with a better cite than some unnamed Harvard professor.

            1. Ooops… my mistake. Seems that John Kenneth Galbraith also said this:
              He was a real Harvard professor and a well respected economist.

              1. Here’s another great Galbraith line from same article in 1984:

                Since the Russian system functions less than perfectly, some Americans suggest it is in danger of collapse. Writer doubts this.


          1. The CIA has never ceased propagandizing the American public about the immediate danger that Russia (Soviet or otherwise) represents, always in service to our totalitarian elites.

          2. I was being ironic, since I thought every culturally literate person would recognize that quote. Poe’s Law, I guess. In any case, as has been noted, it was John Kenneth Galbraith, Harvard economics professor and president of the American Economics Association. Ready to reconsider? I thought not: willful blindness is pretty much the only that keeps liberals sane.

      2. Actually, this was a matter of some concern at the time, though the view was not at all limited to liberals.

      3. It’s hard to escape the conclusion that the USSR was gaining on the USA during the 1950s and early 1960s and surpassing it in some areas.

        But we are talking about 40 years ago, I guess. Check out Soviet Military Power, published annually by the Defense Intelligence Agency from 1981 to 1991. It insisted the Soviet military threat was profound, that the Soviets were fielding new technologies, and that the USA was falling behind.

  2. The university was late to the game with the “she is factually incorrect as well” argument. At first their statement was to the effect that she should not have said that and was mute on any factual disagreement. People pointed this out and they pivoted their position.

    Her “crime” was noticing and saying something. That is it. She should have just kept her mouth shut and inflated grades because of “systemic racism” or whatever.

    And this is the logical conclusion when liberals believe in fake crap anyhow like “systemic racism”. I’m supposed to believe that there is never any chance an election was rigged, while that same dupe is going on about systemic racism and global warming (errrrr…whatever it is called now).

    1. What scares me is that history is repeating itself — Joe McCarthy went so overboard chasing Commies that the whole thing imploded and legitimate efforts to deal with real Soviet agents were dismissed as part of the discredited witch hunt.

      We’re at the McCarthy level of hysteria chasing racism & sexism and it’s not only going to implode but discredit future legitimate efforts to address real issues of racism & sexism. It’s the adage of the children’s story about “the boy who cried ‘wolf'” — sooner or later, people stop caring.

      For another example of how crazy this stuff has become, see:

      1. I wasn’t paying attention to McCarthy when he was active, but I think woke hysteria is way beyond his level. Today’s nonsense combines the public / student hysteria of the Vietnam War protests with the government hysteria of McCarthy.

        1. Both predate me, but you probably are right.

          I find it disturbingly similar to both the French Reign of Terror and the German Wiemar Republic, and neither of those ended well.

          A gay friend of mine was convinced that ACB on SCOTUS would cost him his gay marriage. In Massachusetts. In the gay part of Massachusetts, so gay that crosswalks are painted not to Federal specs (i.e. white lines), but with rainbow colors — which, IMHO, raises serious questions about the standardization of pavement markings, but I digress.

          All I could think was Whiskey Tango Foxtrot….

          1. I hope that nonstandard pavement markings cease to be a thing before self-driving vehicles become common.


        2. public / student hysteria of the Vietnam War protests

          Why do you regard those protests a hysterical? Do you think the Vietnam War was no big deal?

          1. Perhaps you’ve forgotten the Weathermen, Patty Hearst kidnapped by the SLA, and Xerox buying Scientific Data Systems and changing their initials because of the hysteria.

            Perhaps you don’t differentiate mostly peaceful protests from burning/bombing, looting, and murdering.

            1. Wait’ll you hear what was going on in Vietnam.

            2. It’s pretty easy to forget relatively insignificant moments from the past, unless one is a culture warrior obsessed with proving that every new evil is a reborn version of some old evil. As opposed to, I don’t know, just a tiny, actually shrinking, portion of the population doing horrible shit, with no conspiratorial connection between The Weathermen on the one hand and COORS or Antifa on the other, besides the fact that they like violence.

              What’s strange is all this handwringing and the history lessons are intended to foment fear. But a good understanding and reminder of the past informs just how meaningless the concerns are. We survived SLS. We’ll survive Antifa. No reason to live in fear.

      2. We are getting to the 1992-93 levels of PC craziness which is when the public started really paying attention to what was happening mostly on college campuses. Now 30 years later it is playing out in general society, more and more, so the visibility and wackiness is getting more coverage and extreme as the days go by. At least when it was confined to the campus, people could dismiss it as just liberal academics who back then had their hooks in the academia but didn’t (yet) run it lock, stock, and barrel.

        This will probably end like it did back then too. Republicans will capitalize on it and retake the House and Senate. Some battle lines will be drawn and we will revert to cultural cold war again for the better part of a generation. And then sometime around 2038 a liberal will dust of the old PC playbook and try it again…

        1. It didn’t end in 1993 — they just started hiding it better.

      3. “Joe McCarthy went so overboard chasing Commies that the whole thing imploded and legitimate efforts to deal with real Soviet agents were dismissed as part of the discredited witch hunt.”

        He did go overboard, but part of what was going on, was that the government and media really WERE lousy with people working on behalf of the USSR, (Similar to the situation today with the Chicoms.) and those foreign agents had a strong motive to make sure the hunt for them was ‘discredited’.

  3. This particular professor graded class participation. That’s not blind, and a professor who thinks Blacks are inferior could certainly give them lower grades.

    1. You guys really are squirming on this one.

      This professor was feeling “angst” over her black students low grades, it is highly unlikely she is downgrading them based on subjective judgments, likely quite the opposite.

      And if you and the law schools are so confident that the notion that black students are, on average, ‘inferior’ (i.e.: lower grades, less legal acumen) then release of anonymized data should really dispel this nefarious idea.

    2. That would be easy to detect: if the racial outcomes in her class were significantly different from those in large “lecture” (actually Socratic) classes where the grading was blind, that would be very telling. I highly doubt that anyone has ever found such a situation at Georgetown.

      1. Or if they did, they buried it in self defense, and privately flagellated themselves over the wrongthink?

    3. If you read the “math is racist” teaching resources, it talks about how things like “being correct” and “showing your work” are artifacts of white supremacy. Academic achievement has been long linked by these travelers as being “racist” or a “white aspiration” or something like that. The problem here isn’t that a certain race is disproportionately lower on some metric scale (at least in their minds), it is the entire system is based upon incorrect metrics.

      1. EXACTLLY!

        And George Orwell put it best when he said that “freedom is the ability to say that two plus two equals four.”

        This stuff really is alternate dimensions of reality — the “heterosexual white male” version where a lit match into a pail of gasoline results in fire, and alternative versions where entirely different things happen.

        Personally, I think that volatile organic hydrocarbons will burn when ignited — regardless of who ignites them — but perhaps they do something entirely different if a Black lesbian ignites them. It’s just that no one has ever been able to tell me exactly what that is…

    4. “ a professor who thinks Blacks are inferior could certainly give them lower grades.”

      A professor who thinks whites are privileged could give them lower grade as well.

      It’s possible that in order to achieve fairness we need fire all professors who think in these terms.

      1. Do you think whites are privileged?

        1. I think everyone has their own set of advantages and disadvantages.

        2. “Do you think whites are privileged?”

          Before he was murdered, I used to point out that I was the same age as Ennis Cosby, and ask which of us was “privileged”…

        3. I think you’re a racist pig for dividing people into groups based upon their skin color.

          1. US society did the dividing, and white people benefitted.

    5. But there isn’t any evidence that the professor thinks Blacks are inferior from her thoughts or actions. It’s just a fact that Georgetown can’t find a sufficient pool of Black students to admit that meet the same criteria as it’s pool of White and Asian students, so they have lower admissions standards for Blacks. Here’s an excerpt from an article from Clarence Page from 1991:
      “Black students, according to what Maguire, a white student, says he saw, were admitted with an average score of 36 out of a possible 48 on the LSAT while the average score for admitted whites was 43. He also claimed there were ”significant differences” in undergraduate grade point averages: 3.2 out of a possible 4.0 for blacks, compared with 3.7 for whites.”
      Page’s conclusion:
      “So what? It is not news that the test score and grade point averages of black Georgetown applicants is lower than that of whites. Law school deans say 36 is still a pretty good LSAT score and 3.2 is not a bad grade point average.”

      I’m somewhat inclined to agree with Page, after all Georgetown is a private university, unless Black Georgetown law graduates fail to pass the bar in significant numbers, then the policy would be doing them real harm.

      1. Bad grades pretty much disqualify a law school graduate from biglaw employment. I tell young people that, unless you have some reason to think that you will be able to graduate in the top half of a T14 law school, or the top ten percent of the next tier, law school is not cost justified, in terms of either time or money.

        1. I hope your students appreciate the value of your counsel.

          Had I been told this when I was accepted at the law school now rated #20 (although I believe higher at the time), I probably would have made the same decision, but would feel better about it today.

          It wasn’t that I wouldn’t have managed to graduate — they’d have to kill me first — but what my rank in class would have been. And hence my decision that it was a gamble that I was not willing to make. I have long argued that higher education in general should be viewed as a form of gambling….

        2. I’ve told college students thinking about law school to first ask whether they can get into a top-tier law school. If not, then they should really only go if the school is free or mostly free.

          If they do get in a top school, then pull out a coin and flip it three times. If they get three heads, congrats, they get a BigLaw job, will work 60 hour weeks, but be well compensated. But if they get a single tails, then they get $150,000 in debt and job prospects that aren’t that much better than if they had never gone in the first place.

          Of course, the first person I gave that line to ended up at Alston Bird in New York. So it can happen.

        3. You do not have to be in biglaw for law school to be cost justified. There are a lot of second tier public law schools that don’t cost an arm and a leg, and which can lead to gainful employment in a medium or small firm job that pays enough to discharge student debt on a reasonable time frame. Biglaw employment makes up small percentage (~20%) of total private legal jobs.

      2. Yes, it *was* Georgetown that the example was given about — and while there wasn’t a Black student there with a LSAT score over 40 because they’d be in Harvard or Yale if they had that, there wasn’t a White student with a LSAT score under 40.

        And you are asking highly-competitive individuals — who know this — to treat each other as equals?!?

        Ain’t gonna happen…

        1. The UPPLACEMENT of students of color is not an unalloyed gift. They still have to beat the fellow at the other law firm who had a 42 LSAT, studied hard, and enjoys kicking Harvard ass. Real life has no “affirmative action” shield for the non-performers.

          1. Sure it does

            You go work for the Federal Gov’t, or a State Gov’t, where your skin color trumps all questions of ability

            1. Those jobs don’t pay like biglaw.

  4. Very dark skinned African immigrants outperformed whites in the 2010 Census. They are top performers, the new Koreans. It will be ironic if they benefit from equity. They have intact patriarchal families. They are Christian. They love America. And they register Republican.

    A white girl was factually correct in identifying with her African ancestry. She got a full ride, and graduated with Magna honors.

    Because all humans came from some chick in Kenya, everyone should identify as African American. She and her homies were using stone tools they carried to break bones of butchered animals for the marrow, a million years ago. She stood up. She had long legs. She was definitely human. And, she was a Democrat, as I call them.

    Equity based on identity is more evidence of the stupidity of the lawyer. This dipshit is intimidating schools with threats of ruinous investigations and litigation. The above Post by Eugene depicting outrageous faculty views is 100% the fault of the toxic rent seeking lawyer.

    Equity is better served by family income, than by identity.

    1. “Their product is crap and defective, annoying, Democrat pinheads with ugly faces.”
      Like RAK David is another hobby horse rider. He really cannot resist.
      Hmmm… obsessive compulsive disorder comes to mind

      1. Don, any point of fact, of law, or of logic?

        1. It is a solid fact. buddy.
          Look at the places where the members of the National Academy of Sciences or the American Academy of Arts and Science.teach.

          1. Weren’t those clubs started by them and don’t they admit only their friends?

            1. Aren’t they mostly white and male? What is up with that?

      2. “Hmmm… obsessive compulsive disorder comes to mind”

        No, look at the paragraphs. It isn’t quite “word salad”, but close.

        1. Same thing, Doctor. Violation of the Fallacy of Irrelevance. Stale KGB argument, calling dissent insane.

        2. Please, look up the diagnosis for OCD.

  5. Everybody knows deep down what the professor said is true and that black students’ underperformance is due, not to fanciful and debunked ideas like ‘stereotype threat’ or ‘implicit bias’, but to their being less intellectually prepared/equipped for the rigor of the schools they attend.

    Those who deny this violate Occam’s razor, and—on the basis of their unhinged beliefs—seek to usher in a banana republic of racial quotas, giveaways and balancing in every sector of society, in perpetuity

    1. I’m not sure “everybody knows this” – read the responses by our liberal colleagues – but it certainly seems to be true to me.
      But simply making these points – or even suggesting them – is not allowed. We are at a point where we cannot even discuss these issues; to even raise a contrarian point leads to charges of “white supremacy”.
      You must believe – not matter the evidence – that any and every racial disparity is due to racism and only racism. End of discussion. You cannot raise other questions. No, nothing about the innate inferiority of black people. That’s a proven falsehood. But asking whether family structure or other cultural factors play a role is simply not allowed. Because that would be imposing “white thinking” on the matter.
      Black school children report they spend about an hour a night studying. White children say 3-4 hours. Asian American children say 4+ hours. Does anyone not see how this isn’t *part* of the problem with black underachievement? Yes, racism is a contributor; but it’s not the only one.
      We’re in quite a mess with this intellectual nonsense. McCarthyism was nothing compare to this suppression of thoughts.

      1. I think many older white liberals deep down feel the same way as this particular professor (who is quite likely a liberal herself) but they have to practice Ketman in most of their public interactions.

        1. True, the previous older liberal generation probably believes this; or at least is willing to allow alternative explanations besides racism to be raised; but they are silent. They’re afraid. So they dissemble: i.e., practice ketman.
          John McWhorter says he receives emails all of the time from fellow academics who are flat out afraid to challenge this “woke religion” (as he calls it).

  6. “One that law schools generally use is blind grading (which also deals with many other forms of bias).”

    I’m interested in the mechanics of how that works.

    “for instance because it doesn’t work well in classes, such as many seminars, where students write papers under a professor’s close supervision.”

    Would it be possible to have a different professor, one who does not participate in the class/seminar grade those papers blind?

    1. When I was in law school, most of the classes were graded solely, or at least primarily, on final exams. You did not write your name on them, you just put a number, and then your name and number on a separate piece of paper some clerk got. The professor only knew she was grading a number, and then reported the grades to the clerk, who then matched them with the names.

    2. I had a similar experience in law school; as you say, blind grading of a final exam for most/all the grade is pretty standard.

      But there were some profs that further included a participation component in their grade. Hard to make that completely blind – although I can think of ways to try to make it reasonbly objective, like “did they read the case they were called on to discuss? Y/N” and go from there.

      1. In a case like this, any racism on the part of the professor would become abundantly clear in the grading.

        You’d see the scores from the blind grading be equal across ethnicities…but the “black” students would always seem to get lower participation grades.

        1. Anonymous grading is the only way to go.

          Where I taught, you could give a boost for class participation in this fashion. You gave the Registrar a list of students by name with the Boost (1/2 or 1 grade, with a ceiling possible) indicated. The REGISTRAR did the adjustments and published the grades. The professor had no idea for whom the boost raised their grade or not. Neither did the student.

          It allowed me to become a real friend to many students. One of my best friends (early on when our ages did not differ much) did poorly in my class but it only affected our relationship in that he took no more of my classes. Forty years later we are still friends.

  7. It’s weird that nobody seems to think what’s obvious to me: that if this is about anything it’s about covering up to protect an educational system that fails black students. Waffling about thoughtcrime is like waffling about Dr Seuss – deliberately making it about something else.

    1. “educational system that fails black students”
      sometimes that is true. Sometimes the inverse is true.
      What is the solution?
      Please suggest that in a subject that has nothing to do with politics, for example chemistry

      1. The biggest solution is fixing inner city schools. I knew several HISD graduates in college whom I found to be consistently behind my friends who received suburban educations. Though I found them just as smart, and their GPAs in the end were comparable, many were forced into remedial classes, as they just could not keep up with college curriculum.

        The difference is in the education. Of course this is easier said than done, as pouring money into failing schools almost never brings improvement.

      2. I doubt the reform of the educational system in the US could be encompassed by a single blog comment. But it’s clear that stuff like this is papering the cracks.

      3. The solution:

        1: Establish vouchers for anyone going to a public school in the bottom 50%. Voucher is 100% of the amount the public school received divided by the number of students. Building maintenance, everything. $ goes directly to home schooling parents, or goes to school of parents choice. No school credentialing, no State judgement of any sort.

        Yes, this means that some kids are going to get screwed over. But the chance of a kid learning without a supportive parent is pretty much 0 anyway, and the quality of the bottom 50% of public schools is so pathetic, that on net this will help a bunch of kids

        2: End all gov’t racism. No “affirmative action”. No student loans or any other Federal funds going to any school that discriminates on “race” (looking at you, Harvard). A school accepts students based on grades + SAT/ACT scores, with some set-aside for student athletes / other special skills (music, acting, art), big donors, and geographic diversity. You do anything else? You don’t get any Federal funds.

        Note: something like the Texas top 10% program is allowed. But not the racist part where they picked other lower performing people with preferred skin colors and let them in.

        3: Complete Federal ban on CRT. As in, if you push any of it, you can’t have any Federal $. It’s racist, evil, and wrong

        tl;dr: Everyone gets treated as an individual. Let the chips fall where they may. But stop letting the teachers unions screw over the most vulnerable.

    2. It’s weird that nobody seems to think what’s obvious to me

      That’s because what’s “obvious” to you is generally complete and utter nonsense.

      an educational system that fails black students

      City student passes 3 classes in four years, ranks near top half of class with 0.13 GPA

      Here we have a clear illustration of why the “educational system” is not what is failing black students (at least not to any greater degree than it is failing all students). Those prone to pushing a contrary narrative will of course point to the abysmal performance of the student body as a whole and draw the knee-jerk conclusion that obviously it’s a systemic problem, while ignoring the real culprit: Culture. The fact that this student spent 3 years mostly not even attending high school, and consequently failing nearly all of his classes, and his mother was either completely unaware of any of it (according to her) or simply did not care is…unfortunately…an all too common phenomenon in inner-city black households. Note also that there are black students who do succeed, and that they do so within the same educational system as those who do not.

  8. One fact fits all of your options; Georgetown is racist.

    1. Perhaps it is trying out to be the official school of a conservative blog that publishes vile racial slurs weekly, often gratuitously?

      1. His alternate hobby horse with a padded saddle.

    2. That seems to be the case.

  9. The Georgetown professor’s answer makes it clear that, even if he thought that the sentiments were correct, he would say that they were incorrect. And probably oppose revealing actual statistics.

    If he thought that they were factually incorrect, then that would be his main point, and the university would post the statistics.

    So he has confirmed the sentiments.

    1. If the fired professor sues Georgetown, wouldn’t the actual statistics be a discovery document? And if so, what’s to prevent her from releasing them?

      This could get interesting…

      1. The adjunct is an at-will employee. What is the basis of the lawsuit? unless the term of employment is contractually guaranteed.

        1. And ven if there was a contact for a fixed term, Georgetown would be well-advised to simply pay off the prof through the end of the semester (or whatever the term is, it’s probably not 10 years). Still a lot cheaper than discovery!

        2. “The adjunct is an at-will employee. What is the basis of the lawsuit?”

          Libel and Defamation come to immediate mind.

        3. DC law prohibits private employers from political discrimination

          Even against “at will” employees

      2. Do you notice that whenever you post ‘this could get interesting’ it never, ever, ever does?

  10. I’m reminded of a story that I was told about the former Soviet Union — the police had arrested some prostitutes and an American reporter was asking the police leader about it.

    The reporter was told that the was no prostitutes in the Soviet Union because under communism, everyone’s needs were met without having to resort to prostitution.

    The officer then added “those are just whores. We’ll have them mop the station house floor and then let them go.”

    That dual level of thinking was apparently necessary in the former Soviet Union — and in American academia today….

  11. In other sort of related news because our country is in the middle of a morality play featuring so-called “racism” and its effects. The media reports of rioting, violence, and armed insurrection from this weekends activities.

    Oh wait, there was all that going on but the old dog whistle words were used once again. These were “activists” who “appeared to be armed” (photos show them clearly carrying rifles), “mostly peaceful” “activists” doing things like smashing windows and burning down buildings, and “property crimes” which is cover for broken windows, looted businesses, and graffiti. And yet another courthouse almost burned to the ground, but that doesn’t deserve any reporting.

    And the left is perplexed on why people on the right could care less about the capitol hill event…

    1. Jimmy, the truly scary thing is that the left has lost control over its own Brownshirts. Even *that* didn’t happen in the Wiemar Republic and I don’t know how Barrack O’ Biden & Co can possibly govern long-term as they can’t possibly go far enough to the left to appease these thugs.

      I also know that there are unhinged people on the right — I’ve personally stomped on a few of them — and with enough provocation, I am worried as to what one of these loose cannons might do…

      This is not good…

  12. Again, Eugene, you are taking a minute point of dispute and launching off in the entirely wrong direction.

    When a white professor believes that they are perceiving disproportionately poor performance among their black students, they ought to take stock of the situation. First, they should ask, “Is my perception accurate?” And, if it is, they should ask themselves whether there is something about their method of instruction or evaluation that is creating that result. Only when they have properly determined that they are perceiving an objectively demonstrable phenomenon that does not itself reflect their own biases and discrimination does it become appropriate to voice their “concerns” over the phenomenon, as though it were reality.

    This, I believe, is essentially what the Georgetown professor is getting at, when they say that it may be inappropriate to “think” that their black students are performing less well than their non-black students. If you jump too quickly to that conclusion, you may overlook how you yourself are creating or perpetuating that phenomenon.

    For instance, at my law school, there was a law professor of some repute who felt he could teach any introductory 1L course. But he had apparently caught some flak for taking a tone-deaf approach to teaching criminal law, specifically when it came to the subject of rape. As a consequence, after a certain point, he was not permitted to teach criminal law (though he continued to teach on a variety of subjects he found of interest).

    It is not hard to imagine being a female student of this professor and finding his cavalierly sexist approach to rape as not just problematic, but as a cause for disengaging from the course generally. Such a student might be disinclined to entertain this professor’s eccentricities, to prepare fully for classes, to be otherwise engaged in the subject, etc. And if he were to observe how his female students performed in his criminal law class – i.e., performing worse overall than his male students – I think we’d be able to point out to him a potential cause for this pattern, apart from any putative “mismatch” among the female students or some inherent inferiority on the subject. He has alienated his female students by being a male chauvinist, we’d be able to suggest. It’s not actually that mysterious.

    I’d say the same would possibly be true for your own students, Eugene, particularly those who are LGBTQ and familiar with how you’ve written on subjects adjacent to LGBTQ issues. There is, for instance, a line of cases in First Amendment law that break very strangely when you overlook the role that anti-LGBTQ biases may have played in the analysis. And there is every reason to expect that the current Supreme Court will continue to extend some of the tenuous lines drawn in those earlier cases in the coming years. If you were to teach these cases (existing or new) as part of an actually coherent theory of the First Amendment, your LGBTQ students – or at least, the perceptive ones – may wonder why you are not attending to the implicit biases and discriminatory framing that the justices are using to reach their desired outcome. They may attempt to raise this with you, in discussion, and you might deflect or dismiss their concerns (which is usually how law professors address intellectual disagreements with their students). And if you were to do that, I don’t think it would be surprising to find that those LGBTQ students might then disengage from your course and lose respect for your theories – resulting, ultimately, in a lower grade. Again, what would that show? That your LGBTQ students were “mismatched”? Or that you had failed them?

    1. A wall of tedious apologia for unhinged and censorious behavior

        1. So is admitting that student fail by their own doing.

        2. Yes. But good editing makes it easier.

        3. No, Simon, what your problem is is that thinking is hard. And you’re happy to defend those incapable of doing it

          Starting with yourself

    2. Any evidence to support the shocking claim that women and gays can’t perform well if they disagree with the professor on certain subjects?

      Even if true, a professor doesn’t fail his students by holding contrary views.

      1. That isn’t the claim I was making, so there’s no need for me to adduce evidence to that effect.

        1. Okay, I will assume that your believe in the diminished academic abilities of women and gays is just an irrational bias.

      2. In my Seminars the students who most vehemently disagreed with me got uniformly high grades because, I surmise, they knew I would require then to be “convincing” even if they did not change my mind. A challenge they took and for which they were rewarded.

    3. By affirmatively asserting you believe that behavior for white professors should somehow be different from behavior for black professors (“when a white professor”), you are engaging in overt, intentional transracial discrimination that violates the Civil Rights act in exactly the same way, and for exactly the same reasons, that the Supreme Court found that rules and norms based on the idea that behavior for men should somehow be different from behavior for women constitutes illegal transgender discrimination.

      You are using this forum to advocate for illegal racial discrimination. I urge you to seek therapy to overcome your bigoted, hateful racial stereotypes before they cause your employer to be at the receiving end of a racial discrimination lawsuit and you to be at the receiving end of a firing.

      1. There’s no reason why a non-white professor shouldn’t engage in exactly the same kind of exercise, if they see a pattern of under-performance among their students based on race, gender, etc. I am just addressing the hypothetical situation presented.

        In any event, it’s a bit peculiar to argue that the general instruction, “white people should think about how they can be less racist toward non-white people” could itself constitute a violation of the Civil Rights Act.

        1. But wasn’t it precisely the point of Bostock that if you follow the Civil Rights Act’s text to its full logical conclusion, ignoring the intent of its framers, it protects practices that its framers would have regarded as not merely peculiar, but downright queer? Wasn’t that what Bostock was all about?

    4. I suspect one reason 1A cases involving gay issues break differently than some other 1A cases is religion is involved. Resolving a conflicts between freedom of speech and freedom of religion is not as easy as a simple 1A case absent any religious considerations.

      1. That is how it is framed, yes.

        But putting it that way over-simplifies the analysis. You’ll find in the cases a kind of solicitude for the free-speech and free-exercise claims of anti-LGBTQ parties that is hard to make sense of unless you presume already that being LGBTQ is the sort of thing people might reasonably “disagree” about. That is to say, the claim that requiring the admission of LGBTQ people into the Boy Scouts or into a St. Patrick’s Day parade meaningfully interferes with the freedom of expressive association of those groups/organizers only makes sense if you already take for granted that somehow including them carries expressive content. Does it? Any more so than admitting women, black people, Protestants, people with facial blemishes?

        The “wedding photographer” case or whatever other case the Court uses to set the new line will run similarly. We’ll have someone who says that being hired to provide a given service by the wrong people somehow interferes with their rights of free speech and free exercise. They will not be required to explain how the agency relationship affects the analysis. They will not be expected to explain what specific tenet of their faith requires them to shun employment by LGBTQ people. The former nuance will be ignored, the latter protected by the broad umbrella of something’s being “sincerely held” – i.e., “I sincerely believe that Jesus would not want me to photograph a same-sex couple’s wedding,” or, “I sincerely believe that Allah compels me not to provide life-saving care to a transgendered person,” or whatnot.

        And the tension in these cases will always be clear if you just switch some of the values around. The courts will not acknowledge a “sincerely held belief” that one should not hire or work for an anti-LGBTQ Christian. They will not treat seriously the right of LGBTQ people or their allies to rid their spaces of homophobes. The Christian will have the right to evict an LGBTQ tenant simply for being LGBTQ, while the LGBTQ landlord will be required to “accommodate” the religious beliefs of the Christian who would never extend them the same courtesy.

        This is not what the Constitution requires.

        1. I wouldn’t try wearing the Orange in a St. Paddy’s Day parade

        2. Tedious. The problem is when the law confuses what we “should” do and what we “must” do.

        3. “[acting] LGBTQ is the sort of thing people might reasonably “disagree” about”

          Yes, it is. I may judge anyone’s actions. I may disagree with anyone’s actions. I may refuse to support, defend, or celebrate anyone’s actions.

          LGBTQ is about ACTING, not “being.” Unless it’s rape, then you are chosing to act.

          And yes, I have at least much right to chose to not have anything to do with you, as you have to chose to act “in accordance with your nature.”

          I don’t care what’s going on inside your pathetic little head. It’s none of my business. But I am most certainly allowed to care about what you do.

          And the 1st Amendment protects MY RIGHT to do so, no matter how much that hurts your feelings

    5. O, for goodness’ sakes, grow up. When I was at Yale, one of my history professors said that “B.C.E.” stood for “before the common error.” Somehow I managed to finish college, go to law school, find jobs, raise a family, etc.

      1. And if you were anything like a good student, I’m sure you can think of an example or two where you found your professor so wrong-headed or obnoxious that any passion you may have brought to the subject was enervated by having to listen to their lectures and conform your thinking to their own. You may have elected to do so excellently, or you may have simply decided that you had better things to do with your intellectual energy than follow the hobgoblin down its dead-end paths.

        So, what I am saying is that it shouldn’t be surprising that, in situations where that obnoxiousness is borne of an apparent racist or sexist, etc., bias, it may tend to cause students to disengage in a systematic way.

        It’s not about “snowflakes” or “victims”; it’s just observing how higher education works and how professors tend to engage their students (or not).

        1. You have given another example of assuming the answer and explaining why it is so.
          Some students fail of their own accord. Some even choose to fail.

        2. I had a crappy, feminist con law professor. She was terrible. I was so pissed at all the topics that she skipped just so we could devote the class to abortion rights that I took a class in political and civil rights. Good thing too. The professor was the brilliant David Goldberger. It was one of my favorite classes.

          1. Did she cover the Dred Scot decision? No law school course does.

        3. Bzzt

          When my professor was wrongheaded, I argued with him. Because I’m not a pathetic suckup, or loser

    6. “But he had apparently caught some flak for taking a tone-deaf approach to teaching criminal law, specifically when it came to the subject of rape.”

      Heaven forbid he prepare defense attorneys to defend their presumed innocent clients in what is an adversarial proceeding. Heaven forbid that the accused rapist even get a defense at all…

      NB: That largely is where the legal profession is going — that certain people, accused of certain things, aren’t entitled to a defense (at any price). I’ve personally encountered this (on a very different issue) and it’s the sort of thing that truly shatters your faith in the concept of a justice system.

      It’s why I will — at all costs — never serve on a jury again. I don’t believe in the legitimacy of the system anymore…

    7. “not attending to the implicit biases ”
      another example of conveniently assuming the answer to fit your politics.

    8. When a white professor believes that they are perceiving disproportionately poor performance among their black students

      You’ve discredited yourself right off the bat with this “perceiving” nonsense. They’re either performing poorly in disproportionate numbers, or they’re not.

      And, if it is, they should ask themselves whether there is something about their method of instruction or evaluation that is creating that result.

      If the disproportionately underperforming students are receiving exactly the same instruction as those who are not underperforming…because they’re all in the same class…then that question is already answered.

      The remainder of your clap-trap is even less worthy of serious consideration.

    9. >> When a white professor believes that they are perceiving disproportionately poor performance among their black students, they ought to take stock of the situation. First, they should ask, “Is my perception accurate?”

      Yes, it is

      >> And, if it is, they should ask themselves whether there is something about their method of instruction or evaluation that is creating that result.

      Yeah, they’re evaluating based on merit, not being racist a giving plus points for skin color

      >> Only when they have properly determined that they are perceiving an objectively demonstrable phenomenon that does not itself reflect their own biases and discrimination does it become appropriate to voice their “concerns” over the phenomenon, as though it were reality.

      Since it is reality, and it’s not the professor’s fault, the statement was entirely appropriate

      >> But he had apparently caught some flak for taking a tone-deaf approach to teaching criminal law, specifically when it came to the subject of rape. As a consequence, after a certain point, he was not permitted to teach criminal law (though he continued to teach on a variety of subjects he found of interest).

      >> It is not hard to imagine being a female student of this professor and finding his cavalierly sexist approach to rape as not just problematic, but as a cause for disengaging from the course generally.

      If you wish to be a lawyer, you have to be able to put your emotions and feelings on the back burner. Any female student who had that problem was learned that she had no business becoming a lawyer.

      He should have kept on teaching the class.

      The same goes from the rest of your whinging BS. Whah, whah, he hurt my feelings!

      Your feelings are meaningless garbage. Take care of them in your own time. If you can’t, you’re not an adult, and you have no business being a lawyer

  13. It sounds like the professor was suggesting that thinking black students get lower grades is wrong even if there’s evidence to support it.

    If true, is appears that this professor allows his religion to affect his teaching.

    1. I think the professor would accept or allow the statement if the lower grades were cited as examples of how “white supremacy” and institutional racism hurts black students. Because the instructor didn’t qualify her statement it was interpreted as her blaming the students for their poorer grades. Blaming black students for their failures is simply, right now, not acceptable. Racism is the only acceptable cause for any racial disparity.
      This is the “woke religion” that doesn’t allow apostasy in action.

    2. “Freedom is the ability to say that 2 + 2 = 4….”

          1. Have you seen that video? Very funny.

            1. I hadn’t seen it. It’s hilarious.

  14. Will Georgetown punish black students who claim that black students are disproportionately underrepresented not just in high grades but in faculty, course content, and admissions as well?

    After all, the same argument applies. Such thoughts are every bit as normatively wrong because just thinking these things, let alone saying them out loud, will tend to create the very situation thought about.

    If not, then what we havw here is a Bostock situation. Georgetown considers discrimination thoughts to be black thoughts, and considers that it normally wrong for white people to think, let alone behave, like black people – racial norms that operate exactly like the gender norms (it’s notmatively wrong for men to behave like women or vice versa) that the Supreme Court found constituted gender discrimination in Bostock.

    I imagine that in recwnt years various black individuals and associations have complained and discussed a great deal about blacks being disproportionately underrepresented in various aspects of Georgetown life.

    Unless Georgetown treats these communications when made by black students and faculty members in exactly the same way as when made by white ones – as harassing communications that tend to destroy racial harmony on campus, cause people discomfort, and create a chilling atmosphere in violation of the University’s harassment code – then it seems to me the professor has a very straightforward Bostock claim.

  15. If a professor/instructor thinks that black students are underperforming or failing due to institutional racism at the school (or in the country) then that too is wrong?
    It is wrong – a fireable offense – to think and/or say that black students in a particular class or field are underperforming even if they are? Even if the reason is racism?
    That’s going to clear out a lot of faculty lounges.

  16. If it is indeed true that Black students at GULC do not have lower grade distributions than their White peers, then it would behoove GULC to publicize the true statistics as aggressively as possible. Otherwise, Black students may be disadvantaged in interviews with employers who value academic performance and mistakenly assume that Black students do worse. After all, if an adjunct who teaches 1Ls can arrive at a false conclusion about Black students’ academic performance, then it is almost certain that some employers share the same misapprehension.

    I assume also that their Law Review, unlike most other T14 schools’ law reviews, does not have a diversity criterion for membership, because GULC’s “under-represented minority” 1Ls do just as well in their classes as White students. (Or perhaps they do have a diversity criterion, but it is in no way aimed at Black students.)

    1. Your suggestion is knowingly disingenuous and is designed to falsely “prove” that black students are inferior. If black law students at Georgetown get lower grades, it is not because they have lower ability, but because they are discriminated against and/or under-prepared as the result of racism.

      1. I have yet to see proof that black students perform better or worse than expected which I view as part of the problem.

        1. The statistics are not published because they would inevitably be misused by racists to prove whatever narrative suits them about black persons.

          1. That is really funny.

          2. Just as you would and are doing so now

      2. I am an empiricist.
        Let’s see the numbers first and then make up excuses and reasons for them later.

      3. If black law students at Georgetown get lower grades, it is not because they have lower ability, but because they are discriminated against and/or under-prepared as the result of racism.

        Obviously. And if they get lower grades even with blind grading, that proves just how insidious and thoroughgoing the racism actually is.

      4. or under-prepared as the result of racism

        It’s good to see you acknowledge that the liberal policies that have resulted in so many black students being underprepared for the challenges of post-secondary education are in fact a form of racism.

  17. Interesting EV comment in his post.

    “I appreciate that, say, some churches might excommunicate a member for wrong thoughts, or for speech that reveals the presence of wrong thoughts. I just didn’t think that this was seen as a proper position for a university.”

    Just did a google search on the term “woke as religion’ and only got 106,000,000 hits. It use to be I only had to welcome our new overlords; now I have to welcome our new clerics.

    1. Politics and religion aren’t just similar. They are the same phenomenon. Giant clusters of ideas designed to rope people in to aid in spreading them, to grab the one ring of power, that allows them to go beyond mere speech to gain converts.

      The purpose of speech is to change behaviors in others, but that’s not the only way.

  18. Blacks underperforming? Inconceivable!

  19. The person you talked to somehow psionically knows the grades she gave out? Lol wtf is wrong with these people? These are professors? Sounds more like mental patients.

    1. A person I knew told me once it’s terrible to be in a mental institution, where you are expected to say certain things to be judged ok to be released.

      What does this say about our society?

      Before people jump to answer, the shoe is simply on the other foot for the first time, ever.

  20. I thought the entire exchange between two Georgetown professors was completely overblown. People think all kinds of thoughts. There is nothing particularly wrong with that. They say their thoughts. There is nothing particularly wrong with that either, according to 1-A. The law says I have to tolerate odious speech, so there is that. I don’t know what the law school was thinking in terminating the professor, but whatever.

    It is when thought is translated to concrete actions…then we have problems. Think Robert Bowers.

    The best thing that could happen is to release the objective data. Then we will know whether the professor was right or not. What happens if she is right, and the data supports her statements? Then what?

    1. But her statements concern her observations of her own classes. Even if grading is blind she likely can find out after the grades are in. How likely is it that she is wrong about her own classes?

  21. It’s hard to see how punishing “faculty [for] thinking [and] speaking … along [supposedly improper] lines” can be consistent with that statement, or with broader principles of free inquiry.

    They would probably reply that she was not punished for what she said but for being a racist. So it’s OK to argue for any point of view in the abstract but it’s not OK to be an adherent of denounced philosophies. After all, members of the University community receive the broadest possible latitude, but this does not extend to tolerating those who are obviously racist.

  22. I think there’s a deeper level of problem here. Assume that the goal of a student at law school is to graduate with good grades, as opposed to learning about law, or confirming that one has a particular level of knowledge. The grades given by a professor are effectively based on that professor’s preference, as opposed to being based on performance of any kind. And so the only reason that black students would be in the bottom of her class, is *if she put them there*, not because of anything the students did. Therefore, even though her statement might be an accurate description of her class, her statement is also effectively a confession of racism on her part, because the distribution of grades in her class is itself evidence of racism on her part.

    I feel like the rot set in earlier, unnoticed, with law schools’ emphasis on curving grades. And to be fair, that made a certain amount of sense, since most practicing lawyers spend their time competing with other lawyers – the goal is to win, not to achieve some mythical “correct” understanding of the law. But the result of uncoupling grades from objective standards is to fall back on the subjective standard of “how well everyone else performs”. If a particular group of students has suffered from a background that made them less prepared for law school, then clearly they will do less well relative to students from a more privileged background. The rest is left as an exercise for the reader.

    The natural continuation of this trend will be to ensure that law firm hiring (and judicial clerkships) take diversity into account. Bar passage rates will eventually need to be brought in line. After that, what about judges: how do they treat “diverse” plaintiffs and trial lawyers? What about appellate decisions: how do they treat “diverse” plaintiffs, trial lawyers, trial judges, and appellate lawyers? What about panels and en banc hearings: in addition to all the other aspects, how do they treat the opinions of their “diverse” members? If studies aren’t already done about these things, it’s only a matter of time.

    Ultimately, this will lead to an answer about why Clarence Thomas writes so many solo dissents. It isn’t because he has an idiosyncratic view of the law. And it isn’t because he was so scarred by having his honesty called into question at his confirmation hearing, that he will no longer put his name on anything that he doesn’t believe to be 100% true. It’s because the other Supreme Court justices are racist.

    Or at least, that would be the case if the people making this type of argument had any type of intellectual integrity.

    1. It does appear that black conservatives (or gay, female, trans?) are the only group that isn’t suffering from institutional racism or prejudice.
      As you point out, if this argument or view was fairly and equally applied then the only reason Thomas can’t convince the whites on the Court to go allow with his views on precedent or immunity or abortion is because they’re racist. And the reason that liberal academics denounce his views is also because of white supremacist thinking.
      I cant imagine why that’s not happening.

    2. “the only reason that black students would be in the bottom of her class, is *if she put them there*, not because of anything the students did. Therefore, even though her statement might be an accurate description of her class, her statement is also effectively a confession of racism on her part”
      A championship example of begging the question.

      You obviously know why UC Berkeley fails 30% of students taking organic chemistry

      1. Even more so than math if there is one place where you have to show your work it is organic.

    3. “Ultimately, this will lead to an answer about why Clarence Thomas writes so many solo dissents. It isn’t because he has an idiosyncratic view of the law. And it isn’t because he was so scarred by having his honesty called into question at his confirmation hearing, that he will no longer put his name on anything that he doesn’t believe to be 100% true. It’s because the other Supreme Court justices are racist.”

      Priceless! 🙂 🙂 🙂

  23. -isms are folk statistics, mostly true most of the time. Woke is denial.

  24. The right likes to claim that the left engages in identity politics. But in this case it isn’t someone from the left calling for “…distributing aggregate data on its students’ grades, broken down by race.”

    1. There’s a factual dispute here; if we are to resolve it, we would need to see facts.

      1. If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table while yelling “Racism!” (which will make both the facts and the law irrelevant).

  25. I taught law for 38 years. I always had a number of Black students in my Civil Procedure class. An occasional Black student did very well (i.e., top 10%-one graduated first in the class) though it probably helped that we had an evening program and the evening student Blacks had better credentials and would have been admitted at higher ranking schools if they could have afforded to go full time.

    Some Blacks managed to finish in the middle of the class and mostly did pretty well in practice after graduation. The were serious about their studies and had a pretty good idea of what they wanted from a law degree.

    Regrettably the majority of the Black students ended up in the bottom 20% of the class, not only in civil procedure but in all first year classes. (Grading was anonymous and entirely based on final examinations for all first year courses.) This occurred even though the school had a rather robust program of helping the minority students both during the summer before law school started and during the school year. The results were generally predictable since their undergraduate g.p.a.s and LSAT scores were mostly substantially below the median of the class and those scores are fairly predictable as to how students will do in law school. Many of them flunked out after the first year but some of the others managed to graduate though very low in the class and had trouble passing the bar.

    I got to know many of the Black students through helping them with their studies. They were nice people and I was troubled when, after much effort, they were unable to make it.

    I can imagine Professor Sellars was disappointed to experience the same pattern that I experienced for almost four decades. That she was fired because she expressed her sadness in the results is a shame.

    1. You are brave to write that. The real problem that you are describing is “mismatching.” But some of the people here will accuse you if being a racist and a hateful bigot.

      1. If that actually is Paul McKaskle then he’s retired and can’t get canceled too hard.

    2. I am wondering why blacks in the evening program had better credentials. Was this peculiar to the particular program, or might it be something more general?

      What’s interesting here is that there is a general impression/prejudice that evening program students aren’t as good as general program students. Perhaps this prejudice isn’t fair.

      I am wondering if some of the students in the bottom 20% might simply be late bloomers and might be better off delaying a bit and going into an evening program than going right from college to law school and then struggling to make it and then failing. I don’t know. Perhaps this might be a possible legitimate, pragmatic, non-ideological way to get a better overall graduation rate.

      1. Of course, if you can’t discuss things like this, no solutions are possible.

      2. People are generally in an evening program because they’re working full-time jobs. It’s common for people doing law as a second career. Therefore, they’re already established in the area, possibly with families, and they would prioritize going to school in the same area over going to a better school but having to move a significant distance.

      3. I suspect there are a couple factors:

        –Law school admissions are generally highly competitive and sorted by criteria such as LSAT score and undergraduate GPA (UPGA). Law schools are stratified by how selective their admissions are. These criteria have pretty good predictive value of outcomes: how the student will fare in law school, bar passage, etc.

        –Law school itself is highly competitive: classes are usually graded on a curve and class rank is extremely important.

        –Law schools have long been attempting to increase the number of black students. In practical terms, this leads them to admit black students who would not meet their usual admissions criteria. It starts with the elite schools and cascades down.

        –This leads to the well-known “mismatch” phenomenon in which black students targeted by the admissions process attend a law school that is slightly more challenging than they would have attended otherwise. They are less prepared to compete and succeed than their white classmates who did meet those criteria. As pointed out by other commenters, this is insidious.

        –The ABA wants law school to be a full-time endeavor and basically requires law schools to limit evening program attendance to students who already live in the area and have full-time jobs.

        –In practical terms evening applicants are from a different, very local student pool that is not as stratified as that applying the “normal” full-time program.

        –In addition, evening programs themselves tend to be less competitive: there is less use of grades to sort the students and the set of outcomes is different.

        –So there is probably little or no “mismatch” and if there were it would be smoothed out and not be as consequential.

      4. Some (not all) evening students, Black or White, had better undergraduate gpa and LSAT scores than the law school overall averages because they couldn’t afford to stop working to attend law school. They tended to be older, had families and some were professionals such as M.D.s. The “higher ranked” law schools nearby were full-time day only programs so our evening program was the best available to them. Incidentally, the law school no longer has an evening program.

        Many of the Black students who did relatively well (even in the full time day program) tended to be somewhat older (just my recollection, I have no data) and so it is possible that some who did poorly might have done better if they had worked for a few years. They also might have had some savings which surely would have helped. The University didn’t have a large endowment so scholarship money was limited.

        I might add that while the LSAT is generally the best predictor of law school success it isn’t perfect. I have known students (Black and White) with poor LSAT scores who did well in law school and later in practice. (And there were some students with very high LSAT scores who flunked out.)

    3. Good post, thank you for that.
      Racism – both historic (as Faulkner said, “The past isn’t dead; it’s not even past”) and present – is still a contributor to black underachievement, to the racial disparities we see across the country, e.g., drop out rates, et cetera. We can’t just simply point to other factors – family structure, et cetera – as the cause.
      But we can’t simply point to racism either. We need a “third way” at looking at this because these are our fellow Americans, our fellow human beings. They are not things – blacks over here and white over there – but actual humans. We simply cannot treat people as means – which is too often what the left wants to do – where we say this person has “privilege” and this person doesn’t because they come from groups of people. When you do that you lost sight of the individual; that person becomes a means and is treated not as a full human being but as a thing.
      These are ugly mean times. It needs to stop. On all sides.

  26. Amazing what an 85 IQ will do to you.

  27. This is the enduring legacy of “affirmative action”, a policy which may be one of the most effectively racist policies in the United States in the last 50 years.

    There’s a simple truth here. Students undergraduate grades in college and their LSAT scores can be highly predictive of their grades in law school. Regardless of race.

    How do you “make” one “race” consistently look bad in law school? Elevate sufficient numbers of that race who have sub-par undergraduate grades and LSAT scores into the law school. Then via the previous predictive model, you’ll have “poor performing students predominantly of one race”. But not because they ARE of that race. But because the school SELECTED for sub-par grades for that category. It’s insidious.

    But the other students love it. It’s so much easier to be in the top 50% when the law school has “selected” a sizable percentage of students with subpar grades. And it insidiously reinforces any hidden prejudices.

    Meanwhile the “selected” students are in the bottom 20% (on average) of their law school class. They could be doing wonderful things elsewhere, at the top of their school or class. But the “affirmative action” has failed them utterly.

  28. The objective fact doesn’t imply a philosophy or conduct. It’s entirely possible that black students tend to be graded worse than white students because professors are subconsciously biased against them – bias that will obviously remain subconscious, and hence continue, as long as professors continue not to think about it.

    In general, whatever the reason may be, people have to identify problems in order to solve them. Problems that remain unidentified remain unsolved. This means that we ought to expect that if there is ever going to be any progress, people have to be free to identify, think about, and discuss problems before possible causes and solutions can be looked into.

    It’s also perfectly reasonable to infer that the reason people don’t want problems discussed is that they don’t want rhem solved – that is, they want the status quo to continue. And they are simply cloaking their desire for the status quo not to change and for black students to continue to have low grades – and for white students to continue to keep their priveleges – in woke-sounding gobbledygook, for purposes of deception.

    1. It’s entirely possible that black students tend to be graded worse than white students because professors are subconsciously biased against them – bias that will obviously remain subconscious, and hence continue, as long as professors continue not to think about it.

      That argument falls apart if they are graded worse even when the professors don’t know their race–as happens in law schools that base grades entirely on exams and where exams are graded blind, always the case at my school.

      1. *as was* the case at my school

      2. I have no interest in advancing or defending a particular position on this particular problem, nor in discussing yours.

        I am simply pointing out that acknowledging and discussing the existence of a problem doesn’t tend in general to lead to its perpetuation. To the contrary, refusing to acknowledge and discuss tbe existence of a problem is much more likely to lead to its perpetuation.

    2. That’s possible. But I think low grades may also result from the very efforts to remedy the problem. I am analogizing here to what happens at big law firms where there is lower retention of and (to the extent it is quantifiable) achievement by black lawyers. All big law firms are publicly committed to increasing diversity and facilitating the success of black lawyers (which is important to various stakeholders including clients) so this is puzzling. But the following perversities occur:

      –Black junior associates are targeted for mentoring that may be oppressive and overbearing. (Whereas a white junior associate may be free to develop relationships organically.)

      –There is concern about remedying objective flaws in black junior associates’ work and presentation, which may lead to more official attention being given to those flaws. (Whereas a white junior associate may coast or escape official notice.)

      –Black junior associates are effectively required to join various committees, affinity groups, and outreach organizations, which may drain their time–it is hard to bill a respectable number of hours and enjoy life when you are tied up with the Black Lawyers Division of the county bar association, the firm’s Diversity Committee, the African-American Pre-Law Mentoring Initiative at a local college, various Young Black Professionals networking events, etc. (Whereas a white junior associate can concentrate on billing and leading a fulfilling personal life.)

  29. Say a professor is an open, active, current member of the KKK? Fire or keep?

    I would decide based on the teaching practice. Are his students learning. Assess before and after his course.

    Today, there is an Amazon style, consumer is king view at schools. Learning is painful, with pain and amount of knowledge acquired correlating highly. Is it possible that the greater the vitriol directed at the teacher, the better the teacher is. If the students get agitated, I might point to their desirability to employers and to graduate programs.

    I visited Japanese schools. Students, at age 10, are working at full speed, until they drop at 9 PM. They are likely two years ahead of ours. Their average student probably knows a lot more than our honor students. Then, India had more honor students than we have children.

    Education lawyers have killed our schools, made them consumer experiences, where feel good, and self esteem are a priority. Our appallingly bad schools are 100% the fault of the lawyer and its intimidating investigations and ruinous litigation.

    1. And you honestly think that supply greatly exceeding demand had/has nothing to do with this?

      Wait until 2026 when the children not born in 2008 won’t be turning 18…

      1. Good point. See the fundamentals of demography.

        That also means the open border of the Democrat is not just to import more fraudulent votes, but to fill seats in Democrat schools, to enlarge the teachers union. Thus lawyer initindation of our schools. Say to a student, stop making a fool of yourself, get fired.

  30. Prof. Volokh, aren’t you misrepresenting what the professor actually said in your exchange? Unless you’re not including a relevant portion, the professor only said that thinking along those lines was wrong, not that it should be punished. But you repeatedly adduce the word punished before the taped-together quote, as if it represented their clearly expressed thought.

    I interpreted their statement along the lines of your well-reasoned thought experiment into the negative consequences such thoughts might lead to, which one might agree or disagree with. Anyway, I thought it unfair to imply that they were calling for punishment for thought crime when none of the quotes you provide suggest that link. Saying something is wrong does not mean one thinks it must be punished.

    1. Apologies for a few errors and mistaken word choices, I’m not used to posting comments here and did not realize it wasn’t possible to edit them. From what I gather the word “adduce” in particular can’t be used in the sense I meant, which was to put adjacent to. I also realized I phrased the whole thing more as an accusation than I would have liked.

  31. So far, the Conspirators and their carefully cultivated class of conservative commenters appear to have avoided the gratuitous use of a vile racial slur in this discussion. And it has been nearly a week since this blog’s most recent publication of that racial slur. Are we observing progress? Is this group of right-wingers educable? Or it is just learning to hide its previously exhibited bigotry?

    If this blog is becoming less bigoted, that is welcome progress.

    1. Hi, Artie. Is true that Democrats have a 70%+ bastardy rate, and a 4 fold higher rate of violent crime? Is true that the poverty rate of Democrats in 2019 reached record lows from the policies of President Trump, the greatest, most accomplished President since Washington founded the nation and the very best friend to Democrats?

  32. The reason that a certain group of students performs worse is that same group is admitted to the university based on affirmative action not test scores or being a good student etc.

    Who knew that these measurements are more important than skin color when it comes to academic success?


  33. Apparently her collogue has been fired for failure to interrupt a woman and failure to mansplain.

  34. Not long ago I generally thought highly of professors as proponents of reason and free thinking, the type of people who could brainstorm ideas to test through logic and scientific method. No longer.

    1. Maybe they can, but they would be well-advised not to do it for all subjects.

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