The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Georgetown University Law Center is one of the top-ranked law schools in the country. And throughout my career, I have been fortunate to have many interactions with GULC. I presented there a dozen times, have published in three of their journals, and am a non-resident scholar at the Georgetown Center for the Constitution. But if GULC continues on its current trajectory, I may no longer be able to speak, publish, or affiliate with the university. To be sure, Georgetown is not the only law school in such a precarious state. Rather, Georgetown is a canary in the coal mine. Recent events have revealed dangerous trends in legal academia.
Let's start with the incident involving Professors Sandra Sellers and David Batson. GULC students shared a 40-second clip of the pair talking.
.@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
I've since learned some more context about the recording. At this point in the semester, the class had already drawn to a close. Sellers and Batson were in the process of grading the final assignments. And, like most people today, they were using Zoom to discuss their work. The professors were having what they thought was a confidential discussion about grades. Sellers said:
"You know what? I hate to say this. 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."
However, Sellers and (the aptly named) Batson didn't realize that their discussion would be saved on the Georgetown streaming server. The 40-second clip came around the 1:13:00 mark of a lengthy meeting. (You can see the timestamps on the left side of the screen.) Apparently, the video was on the server for about two weeks, and no one noticed. Then, at some point, one student found it, and shared the clip with others. And the recording snowballed from there.
I think the most important word in Sellers's brief remarks is "angst." Why does Sellers have angst? She does not say, but we can speculate about several possibilities. Perhaps she was concerned about performance by black students and would like them to do better, but didn't know how to help. Or she may be doubting herself about why Black students are not performing better
There is another possibility. I think all professors–especially those in small classes without blind grading–are tuned into the campus culture concerning race. A professor who gives lower grades to Black students may be seen as giving lower grades because the students are Black. Under anti-racism teaching, unequal results are prima facie evidence of systemic racism. Sellers may have angst because she is worried that her grading will be viewed as racist. These fears may be what "drives [her] crazy." Sellers may have been articulating a worry that all academics face: how would you handle allegations of racism, and minority students underperforming? If Sellers had this fear, her concerns were well-founded. The mere discussion of racial disparities in grading resulted in her immediate termination. This decision poses a dilemma. If it is impossible to discuss race-based disparities in grading, how can those disparities be addressed? The answer, of course, is that those issues can be discussed–but only by those with the proper motivations.
Consider the Georgetown Law Journal. (I published in GULC's flagship journal in 2019). There are three ways to join the journal. First, 50% of members "will be selected solely on the basis of their Write On packet scores." The policy states that "[t]he Write On packet score will weight students' case comment score 60% and their Bluebook test 40%." For this first category, grades play no part in the process. Second, 20% of members "will be selected on the basis of a formula that weighs Write On scores and grades equally." And third, 30% of members "will be selected solely on the basis of a Personal Diversity Statement, provided that they have reached a certain threshold score on their Write On submission." For this category, grades play no role in admission. And, presumably, the "threshold" for the Write On score in the third category is lower than the threshold in the first category. The Journal explains that "[t]he exact threshold score will vary from year to year, dependent on both the number of candidates who participate in the Write On Competition and the number of candidates who opt-in to apply to GLJ." In short, nearly a third of the members will be admitted entirely on the basis of a diversity statement, without regard to grades, and who are likely subject to a lower Write On packet threshold.
This policy did not emerge out of thin air. Rather, I suspect the editors crafted these three specific paths after much deliberation. And part of those deliberations likely reflected a conversation on how to admit a more diverse class of members. Imagine for a moment, if you will, a potential conversation between three editors.
Editor A: We need to increase the number of minority members on the journal.
Editor B: I agree. But our current policy is not yielding the critical mass we need.
Editor C: You're right. There are not enough minority applicants who can "grade on" to the journal.
Editor A: I know. It gives me angst when I review a minority student's application and see a low class rank. It drives me crazy!
Editor B: I have an idea. What if we admit a third of the members without regard to grades, based solely on the diversity statement. That process will let us admit more qualified minority members.
Editor C: But what about the write-on? Shouldn't we ensure that members have some minimal qualifications to write a case note and to bluebook?
Editor A: Well, we can consider the diversity statement alongside the Write On score. And we can adopt the same threshold that we use for traditional write-on students.
Editor B: I am not so sure. I fear that threshold may be too restrictive, and reduce the number of minority members.
Editor C: We can adopt a lower threshold for the diversity statement applicants.
Editor A: Hold on. We can't put that in our policy. What if we say something like, "[t]he exact threshold score will vary from year to year, dependent on both the number of candidates who participate in the Write On Competition and the number of candidates who opt-in to apply to GLJ." That language gives us some wiggle room, and will allow our successors flexibility to vary the level from year to year.
Editor B: Agreed.
Editor A: This solution will address my angst.
Here, the imagined editors discussed the racial disparities in grading. And, I suspect, this conversation would be completely acceptable because they had the correct motivations. Admissions officers at schools nationwide no doubt have these sorts of conversations on a daily basis, with respect to undergraduate GPA and LSAT scores of minority students. Again, these discussions are permissible when used to promote certain goals.
Now, I don't think Professor Sellers was talking about race in the same context as our three imagined editors. Her off-the-cuff, out-of-context remarks failed to register the right anti-racist tones. But, at bottom, she expressed concern of what would happen if Black students performed at the bottom of her class.
Dean Treanor said he fired Professor Sellers for "engag[ing] in a conversation that included reprehensible statements concerning the evaluation of Black students." As best as I can tell, the investigation was limited to watching the video, and asking Sellers to explain her statement. The Dean did not conduct any investigation to determine what grades Sellers gave to Black students. Nor was there an investigation into whether Sellers graded Black students unfairly. The termination was based entirely on Sellers's private conversation that was inadvertently recorded. I agree with Eugene that this termination is inconsistent with the University's policies on free speech.
Shortly after Dean Treanor terminated Professor Sellers, he sent an email to the Georgetown community. A current student forwarded it to me. Treanor proposed several "items that will be implemented in the next few months."
First, the Dean is considering whether he should make "non-discrimination training . . . programs mandatory for all faculty." At present, "non-discrimination and anti-harassment training is required for new full-time hires." At most universities, all employees are required to take many types of training. For example, I have to take an annual Title IX course. The instruction is fairly routine. I read some slides, answer some questions, and move on. I suspect Georgetown employees are already required to complete such mundane training.
Dean Treanor, however, may have other types of classes in mind. Anti-racist training, which is gaining in currency, takes on a very different form. Here, employees are required to have that difficult "conversation" about race. In general, conversations are two-way exchanges. But these exercises are often one-way monologues. There is a dogma, and the failure to accept that dogma is prima facie evidence of racism. I imagine that many tenured faculty members will chafe at having to attend these sorts of indoctrination sessions. But the old guard may not be able to resist the sweeping currents.
Second, the administration "will be re-examining the past teaching evaluations of all faculty currently teaching, starting with the past three years." Presumably, the re-examination can go beyond three years. Dean Treanor explains that "[t]his second look will allow us to ensure that we have responded appropriately to any reports of discrimination or harassment."
I always read my teaching evaluations very carefully. Over the past decade years, I have read north of 1,000 evaluations. And I am one of the few professors who shares his evaluations. Still, these submissions are of very, very limited utility. These comments are anonymous, and are usually completed towards the end of the semester when students are stressed and unhappy. In my experience, the students who leave the most detailed comments are those who are most aggrieved. Now, all of my classes are on YouTube. It is very simple for an aggrieved student to provide a time-stamp when they complain about something specific. But they never do. Rather, the anonymous comments invariably refer to some nebulous conduct at some indeterminate time that bothered them. I struggle, mightily, to determine what exactly the student is referring to. Sometimes I figure it out. Other times I have no clue.
Now, consider the GULC policy. An administrator will review 3-year old anonymous evaluations to find any allegations of "discrimination or harassment." Imagine another conversation.
Associate Dean X: Professor Y, in 2018, a student wrote you made an "inappropriate comment" about race when you were teaching affirmative action cases.
Professor Y: That class was three years ago. I have no clue what the student was referring to.
Associate Dean X: Well, we still need to address the comment, whatever it is. We'd like you to attend an anti-racism counseling session.
Professor Y: How is that fair?
Associate Dean X: Perception is sometimes more important than reality. You need to address how students perceive you, regardless of how you actually behaved.
Going forward, students will now be able to weaponize teaching evaluations. They get a free shot to make anonymous, unsubstantiated attacks on professors. Tenured professors in the past have been able to safely ignore teaching evaluations. No longer. An untenured professors will dread receiving a scarlet R in their evaluations. Fortunately, the current semester is on Zoom. In theory at least, Deans can ferret out false reports by going through recordings. But that process is too labor-intensive. And punishment may be doled out based on the flimsiest of evidence. This second policy is either a complete farce, or absolutely chilling. I am leaning towards virtue signaling, but time will tell.
Third, the Dean will "provid[e] grants for faculty members who wish to work over the summer to develop curricular materials addressing racial justice, racial inequities, and the experiences and agency of traditionally marginalized groups." The Dean explains that he is "especially interested in developing new materials that can be incorporated into the courses they and others already teach." Translation: a required course on critical racial studies. The Dean writes:
For example, the SBA, BLSA, and our other affinity groups have recommended that the Law Center mandate a critical race theory unit in all first-year criminal justice courses, and consider establishing a two-credit racial justice requirement for all students. At the start of the academic year [that is, before the Sellers incident], I charged the Academic Standards Committee with considering this proposal; they hope to make a recommendation to the faculty by the end of this academic year.
A handful of other other schools have adopted this mandatory class. Georgetown is likely next. Again, these classes are not about having a conversation. Students will understand that there is a right answer and a wrong answer to contested issues of social policy. And if you hold the wrong views, you are a racist. Imagine a student who champions Justice Thomas's views of affirmative action. Instead of receiving an F, perhaps shunned students will have to wear a Scarlet R.
The Dean alludes to a fourth change that is "not a matter of decanal authority and will take time." Treanor writes, "Other student requests include making faculty attention to diversity, equity, and inclusion an explicit part of our tenure standards, hiring practices, and salary reviews." Treanor said he was "beginning conversations about those requests with the relevant faculty committees as part of the Law Center's faculty governance processes."
Generally, tenure standards are premised on three factors: scholarship, teaching, and service (such as serving on committees, etc.). These categories are broad, but they allow faculty members to gain tenure by pursuing a wide range of intellectual pursuits. Professors can write about what they want, teach how they want, and perform service according to their judgment about what is in the best interest of the school. But at all junctures, professors can choose their own adventure. The tenure process is stressful, but liberating.
Treanor's change would radically alter this three legged stool. When a Dean says "diversity, equity, and inclusion," he is referring to very specific ideological commitments. "Diversity" does not mean diversity of thought. This fourth leg would mandate conformity of thought at every stage of the tenure process. Professors will no longer have the autonomy to challenge dogmas and pursue truth and knowledge as they see it. There will be lines that cannot be crossed. "Equity" does not refer to equality in the sense that people ought to be treated equally. Rather, anti-racism requires unequal treatment to address inequality. Professors who disagree with that dogma, and view anti-racism as racist, will be excoriated. And "inclusion" requires the exclusion of ideas inconsistent with diversity and equity. This proposal would allow the University to deny tenure to a professor because of insufficient commitment to anti-racist ideals. Indeed, a tenured professor could be disciplined for committing some sort of ill-defined microaggression. And potential hires would be required to adopt a very specific understanding of social issues, or be immediately disqualified. And do not think these forms of retribution are limited to conservative faculty members. Recently, the CUNY Law Dean–the wokest of wokes–cancelled herself for a single comment. (I will discuss that incident in due course).
Thankfully, Dean Treanor lacks the unilateral authority to make these changes. But how can the professors on the relevant committees say no? The Dean already signaled that he wants to move in this direction. And students will pressure the relevant professors to rubber stamp the changes. After all, what professor would want to be seen as part of systemic racism. Generally, matters of faculty governance are not disclosed to students until the internal processes are complete. But the Dean jumped the gun. By announcing the policy, Treanor settled the matter.
The Georgetown University Law Center is in a precarious state. Junior faculty members will be required to conform to standards inconsistent with free thought and exchange. Senior faculty members who resist will be forced out, quietly or overtly. And the most outraged students now have absolute control over the law school. Any demand they make, no matter how unreasonable, must be accommodated. Again, GULC is the canary in the coal mine. These changes will soon trickle down throughout the rankings–unless an administration is willing to say no to groups. I doubt many deans have that intestinal fortitude to say a student's offense is unreasonable. Indeed, their own jobs may be on the line. I fear for the state of the legal academy.