Hill's hope that the Rhodes Trust will bring transparency to what happened (which would include revealing the improper leaker's identity) seems far-fetched. But Yale's silence is harder to excuse. Even if (as is likely, given campus politics) the Yale administration is afraid to be perceived as caring about Patrick Witt, the university's silence about such a flagrant violation of the school's sexual harassment and assault policy stands in stark contrast to the administration's loquaciousness about the policy in general. Ironically, on Tuesday, Yale president Richard Levin penned a university-wide e-mail hailing Deputy Provost Stephanie Spangler for producing a "comprehensive, semi-annual report of complaints of sexual misconduct and related remedial actions."

Politics, Procedures, Pretenses, But No Due Process?

Levin noted that the Yale administration "thought it was important to provide greater transparency about the entire array of concerns--including verbal harassment and sexual assault--to motivate the Yale community to improve our campus climate." After some standard boilerplate ("let us join together unified in a common commitment to proper behavior and mutual respect"; "there is no place for any form of sexual misconduct on our campus"), Levin got to the heart of the matter: "The new procedures and services we have put in place are necessary, but they are not sufficient."

The Witt affair, of course, exposed to the world the shortcomings of those procedures even as they currently exist. Yale's "informal complaint" procedure ensures limited or no investigation and allows the process to begin on the basis of an accuser's "worry." The university's formal complaint procedure, meanwhile, promises the accuser "considerable control . . . as the process unfolds," culminating in judgment by an unfair, preponderance-of-evidence standard.

Yet according to Levin, these procedures, wildly tilted in favor of the accuser, are "not sufficient."

In her report, Spangler spoke much more bluntly about the "informal" complaint process from which the improper leak sprung. The deputy provost dropped any pretense that Yale seeks to provide due process or find the truth. Instead, she affirmed that the informal complaint procedure's "goal is to achieve a resolution that is desired by the [accuser]," so that accusers can "regain their sense of wellbeing," even though the process provides no mechanism for determining whether the accuser is telling the truth. In fact, the process seems all but designed to ensure that the truth won't be discovered, especially if the accuser is less than truthful. According to Spangler, Yale wants the informal complaint procedure to give the accuser "choice of and control over the process." This goal is incompatible with providing due process to the accused.

Sexual Assault Statistics

Spangler's report details thirteen allegations of sexual assault by Yale undergraduates from 1 July through 31 December 2011. Since Yale currently enrolls 5322 undergraduates, the report suggests that 0.24 percent of Yale students reported a sexual assault over this six-month period.

The FBI crime statistics for the last six months of 2011 aren't currently available. But during the period from 1 January through 30 June 2011, New Haven, with a population of around 130,000, experienced 25 reports of sexual assault. That means 0.02 percent of New Haven residents reported a sexual assault over this six-month period. Making the not unreasonable assumption that instances of sexual assault in New Haven were about the same in the second half of 2011, per capita reports of sexual assault on the Yale campus were 10-12 times greater than those in New Haven.

How, possibly, could Yale have a rate of sexual assault many times greater than the city the FBI has billed the fourth most dangerous city in the country? Spangler provides an answer, buried in a footnote on the last page of her document: "This report uses a more expansive definition of sexual assault" than required under federal law (or that any police department anywhere in the country employs). Moreover, none of the 13 Yale students who alleged sexual assault even filed a formal complaint at Yale--much less reported the alleged crime to police. As a result, no medical or criminal investigations of their cases ever occurred. When the allegations remained confidential, this didn't pose much of a problem for the accused. For Witt, obviously, the outcome was much different.

Tricky Terminology in the Times

When Times readers learned from Richard Perez-Pena that "a fellow student had accused Witt of sexual assault," how many of them realized that Yale was actually using an "expansive definition" of this otherwise commonly-understood term? How many readers further realized that Yale had designed the procedure about which Perez-Pena wrote so as to give Witt's accuser "control over the process," including limited or no investigation? And how many readers could have dreamed that the procedures guiding the allegation against Witt have produced the extraordinary claim that sexual assault is far, far more common on this Ivy League campus than in the fourth most dangerous city in the country? And since the Times went to print without ever speaking to Witt or (it seems) anyone sympathetic to him in the Athletic Department, didn't the paper at the very least have an obligation to provide the context that would explain the highly unusual procedures and definitions that Yale features?

While President Levin and Deputy Provost Spangler are cowards on the issue of due process, there's no reason to believe that they share the indifference of a figure like the Times' Perez-Pena or the malevolence of someone like Poynter source/seminar instructor Wendy Murphy. Rather, they appear to have embraced a thesis common among both the professoriate and "victims' rights" groups: that the way to persuade more real victims of sexual assault to report the crime is to jerry-rig procedures to make it more likely that those who do file reports will prevail, whether in court or before campus "judicial" tribunals. This mindset, however well-intentioned, contradicts any reasonable definition of due process and presumption of innocence. That President Levin seems prepared to further abandon these bedrock American principles, as he implied he will do in his campus-wide e-mail, is a sad commentary on the state of higher education.

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KC Johnson is a Professor of History at Brooklyn College and the CUNY Graduate Center, and author of the blog Durham-in-Wonderland. He is co-author, with Stuart Taylor Jr., of "Until Proven Innocent."

                                 By Nathan Harden

These days, the agenda of the academic elite can be boiled down to a few liberal buzzwords. The most important buzzword is "diversity," which is usually nothing more than a code word for reverse discrimination and skin-deep identity politics. Recently, at Northwestern, they held a "race caucus" where 150 people gathered to discuss their experiences with discrimination on campus. Students then gathered at the school's House of African-American Affairs to form a new group called "The Collective." It was an ironic venue for the first meeting since the purpose of the group is to encourage "desegregation" on campus. In keeping with this ironic approach to fighting racial injustice, Columbia University president Lee Bollinger recently celebrated Martin Luther King's dream of racial equality by promoting institutionalized racism in the form of racial preferences in college admissions.

A third buzzword on the left's checklist is "tolerance," a value paradoxically enforced by silencing those who disagree with the prevailing liberal orthodoxy. Robert Klein Engler--a conservative professor at Roosevelt University--was fired after telling a politically incorrect joke that offended someone in his class. The university called him to appear before an investigatory committee, but refused to even inform him what the charges against him were. Meanwhile the University of Michigan was busy planning an alumni field trip to the communist dictatorship of Cuba, where, presumably, sophisticated alumni, who swear by the principle of academic freedom, could gain appreciation for authentic Cuban culture by interacting with locals pre-screened by the Cuban government. They could then move on to relax on sunny beaches pre-selected for American visitors by Fidel and Co. Nothing signals a support for tolerance like vacationing in a land where even leaving the country is a privilege forbidden to everyday citizens.

A fourth buzzword on the list is "open-mindedness," which means embracing moral relativism and occasionally submitting to weird sexual agendas in the classroom. At Western Nevada College, students were instructed to masturbate twice as often as normal, and to report detailed accounts of their sexual lives. Female students were told, write down "your views of your breasts and vulva," and were given the instruction: "Your orgasms. Draw them!" At the University of Winchester in England, professor Eric Anderson claims that it is natural for men to cheat on their partners. Those who practice monogamy, he says, are subjecting themselves to "socially-compelled sexual incarceration." After studying these stimulating topics, and learning to embrace the total liberation of the libido, students may find it informative to contemplate social factors behind a recent study by Dr. Maura L. Gillison of Ohio State University, in which she reports that 7% of U.S. teens and adults now carry the sexually-transmitted, cancer-causing HPV virus in their mouths.

Here Comes the Plug

The above stories might seem alarming, but as editor of The College Fix (you are now passing the shameless plug)--a campus news site that features original, student-reported news from around the nation--these are the kinds of stories I encounter every day. In fact, all of these stories were culled from just the last few weeks' worth of articles on our site. It's no secret that the left dominates academia. But it's only by reading the details that one realizes how bad things really are.

Students come to us to share their stories. They tell us about the latest wacky diversity agenda on campus, or the latest scheme to demonize capitalism. They report when college administrators try to suppress free speech or undermine student groups whose beliefs don't mesh with the prevailing liberal groupthink. Their stories confirm that those entrusted with training up the leaders of tomorrow are, oftentimes, doing a lousy job. 

When we debate the value of a college education, we often speak in terms of high tuition costs, escalating levels of college debt, and uncertain unemployment prospects. But no debate about the value of college is complete without a discussion of values. What colleges are teaching is at least as important is how much we are paying them to teach.

The political indoctrination and moral assault that students are subjected to at most schools--that's the real rip-off. It's bad enough that you may have to pay a small fortune to send your kids to college. Worse yet when you consider that the ideology pounded into their brains for four years may well contradict all the principles you hold most dear.

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Nathan Harden is editor of The College Fix and a Robert Novak fellow at the Phillips Foundation. Follow him on Twitter: @nathanharden

In his testimony at the preliminary hearing for Tim Curley and Gary Schultz, McQueary said he believes he saw Sandusky sexually molesting a boy in the shower but was not 100 percent sure it was intercourse.

McQueary said he peeked into the shower several times and saw Sandusky with his hands wrapped around the waist of a boy he estimated to be 10 or 12 years old. He said both were naked, the boy was facing the wall, and that the last time he looked in, Sandusky and the boy had separated.

"I know they saw me," McQueary said. "They looked directly in my eye, both of them."

Tim Curley and Gary Schultz have both insisted publicly that, when McQueary told them in 2002 what had disturbed him, he did not mention anal rape, as some newspaper accounts reported.  McQueary had told his story first to Coach Paterno in 2002, and Coach Paterno's recollection of their meeting characterized McQueary's report similarly.  Here is what Joe Paterno said on November 6, 2011, about their 2002 meeting:

As my grand jury testimony stated, I was informed in 2002 by an assistant coach that he had witnessed an incident in the shower of our locker room facility. It was obvious that the witness was distraught over what he saw, but he at no time related to me the very specific actions contained in the Grand Jury report. Regardless, it was clear that the witness saw something inappropriate involving Mr. Sandusky. As Coach Sandusky was retired from our coaching staff at that time, I referred the matter to university administrators.

The grand jury accepted McQueary's graphic report as a faithful account of what happened and what he told about it to Paterno, to the Athletic Director, Tim Curley, and to Gary Schultz, the senior vice-president.  Curley, Schultz, and Paterno remembered the conversations with McCreary differently.  According to all three of them, McQueary said nothing about anal rape, only that Sandusky and a preadolescent boy were showering together in the shower room and "horsing around."  Because the grand jury believed that McQueary was telling the truth and that Curley and Schultz were lying to minimize disreputable behavior at the University, it indicted Curley and Schultz for perjury.  Whether or not they committed perjury has nothing to do with whatever Sandusky did or did not do to a boy in the shower room.  (The grand jury did not explain why it did not also indict Coach Joe Paterno for perjury; his report of his conversation with McQueary was identical to the accounts given by Curley and Schultz.)

Questionable Indictments

                                       By Charlotte Allen

It's happening, almost overnight: what could be the collapse of the near-monopoly that traditional brick-and-mortar colleges and universities currently enjoy as respected credentialing institutions whose degrees and grades mean something to employers.

The most dramatic development, just a few days ago, was the decision of robotics-expert Sebastian Thrun to resign from his position as a tenured professor of computer science at Stanford in order to start an online university he calls Udacity that he hopes will reach hundreds of thousands of students who either can't afford Stanford's $40,000-a-year tuition or who can't travel thousands of miles to one of the bricks-and-mortar classes he used to teach.

This past fall Thrun and Peter Norvig, research director at Google (where Thrun also works, designing cars that drive themselves), teamed up to teach online and free of charge one of their regular Stanford courses, Introduction to Artificial Intelligence, not just to Stanford students but to anyone who wanted to take them. Not only would the online students sit through Thrun and Norvig's lectures, but the two instructors would test them via quizzes and written assignments, grade their work, and assign them a class ranking. Only Stanford students would be eligible to receive Stanford credit for the course, but non-Stanfordians would receive a "statement of achievement" that, together with their grades and class rankings, could be used to demonstrate that they had mastered the Stanford-level material in the course.

Thrun and Norvig's bricks-and-mortar course, designed for graduate students and advanced-level undergraduates, had always been one of Stanford's largest and most popular, with nearly 200 students from a range of disciplines signing up every time the two instructors offered the course. But the enrollment in last fall's online version was exponential: 160,000 students from 190 countries registered, with about 20,000 of them completing the coursework and receiving grades that were generally on a par with those of the 175 Stanford students who took the bricks-and-mortars version.

In addition the University of Freiburg sponsored the course for 54 students at several German universities, proctoring the exams and offering its own credits. What was essentially happening--and it was a revolutionary development--was that Thrun himself, not Stanford, was certifying tens of thousands of students' mastery of an elite-university-level body of scientific material that could serve as a gateway to even more sophisticated AI courses or a good job.

Although he will remain in Stanford's computer-science department as a non-tenured research professor, Thrun has declared that he "can't teach at Stanford again." Hence, Udacity. Its premier course, titled "Building a Search Engine," to be taught by  David Evans, a computer-science professor at the University of Virginia and also free of charge, is expected to have enrolled 200,000 students by the time it opens in late February. The course promises to teach the basics of computer programming to novices in just seven weeks. Thrun himself will teach a more advanced course, "Programming a Robotic Car" (Thrun invented a self-driving car for Google).

The Thrun-Norvig course of last fall represented just one of a growing number of efforts by top universities to open their students' learning experiences to the general public. Stanford, for example, offered two other free online courses in computer science this past fall and has added eight more starting in January. Indeed several elite private institutions, including Harvard and Yale, have been offering free online courses to non-students for the past several years (although the courses lack the grading and other feedback that the Thrun-Norvig course featured).

Harvard had earlier tried to sell online courses but discovered that few people wanted to pay for learning experiences that offered no college credits. MIT's OpenCourseWare program, in which the university puts all the teaching materials for its undergraduate and graduate courses online, has been in existence since 2001 and has attracted more than 100,000 users. In December MIT announced plans to expand OpenCourseWare by launching a project to be called MITx, that would also offer free online courses.

Bypassing official university structures to demonstrate academic competency is not a new phenomenon. In early January the Chronicle of Higher Education reported about the growing use of Boy Scout-style digital "badges" that certify the recipient's specific educational skills. A free online education provider, Khan Academy, issues dozens of badges, some of them attesting to relatively simple achievements as watching a series of educational videos, and others requiring the recipient to demonstrate high levels of math competency or fine-grained technical skills such as video-editing. MIT intends for its MITx program to follow the Khan Academy's lead--and also that of Udacity--in allowing takers of MITx courses to qualify for certificates for a modest fee, although the certificates would be issued by an independent entity to be created, not MIT itself.

According to Chronicle reporter Jeffrey Young, hundreds of education providers traditional and non-traditional hope to partake in a $2 million grant partly sponsored by the MacArthur Foundation that would fund experiments with online badge certification. Young wrote: "Employers might prefer a world of badges to the current system. After all, traditional college diplomas look elegant when hung on the wall, but they contain very little detail about what the recipient learned."

Besides threatening to up-end universities' traditional control of educational credentials, Thrun may also drastically change the shape of for-profit education. Udacity is being operated by Know Labs, a Thrun-founded for-profit enterprise funded by the venture-capital firm Charles River Ventures. Know Labs' ultimate aim, according to Thrun, is to offer high-quality online courses that will be either free or cheap (the company is in the process of developing a business model).

Thrun has estimated, for example, that if he and Norvig had charged only $1 apiece to all 160,000 enrollees in their artificial-intelligence course last fall, they could have easily recouped their costs. By contrast, the majority of existing for-profit colleges charge relatively high tuition that has made those institutions highly dependent upon their students' federal grants and loans. It's unlikely that anyone would have to borrow in order to take an Udacity course.

Critics may argue that substituting a jerry-built edifice of badges and technical certificates for brick-and-mortar learning deprives young people of the liberal-arts schooling that has traditional developed such hard-to-quantify skills as analyzing problems and thinking critically. But the opposite may be equally true: that acquiring vocational skills such as computer programming via such outfits as Udacity may free up students to use their time in traditional colleges to focus on the liberal arts. And in any event, one non-traditional entity, StraighterLine, which specializes in $99 online courses that can be transferred to its partner colleges for credit, is already developing a course it plans to call "Critical Thinking."

                                         By John S. Rosenberg

When Justice John Paul Stevens retired from the Supreme Court in 2010 ABC News noted that over the course of his 34 years on the Court he "became a hero to liberals[,]  voting to ... uphold affirmative action" and other liberal causes. Now he has written an autobiography, Five Chiefs: A Supreme Court Memoir, ruminating on that long, liberal career. Regarding affirmative action, however, those ruminations are misleadingly selective.

U.S. News World Report interviewed Justice Stevens a few days ago about his memoir, claiming that he "gives candid views of the five chief justices he has worked with, as well as his take on some of the most significant cases in U.S. history." I don't know about the other "most significant cases," but Justice Stevens' very brief references to affirmative action in Five Chiefs and his comments about it to U.S. News are considerably less than candid.

His comments in the book are limited to a few sentences about Grutter, where he endorsed Justice O'Connor's rejection of "language in the Court's earlier opinions that suggested that remedying past discrimination was the only permissible justification for race-based governmental action." There was, of course, considerably more than "language" to that effect in those earlier opinions, but leave that aside. The point Stevens is at pains to make here is that the Court had finally

endorsed the views that I had unsuccessfully espoused in an earlier case that involved a black high school teacher in Jackson, Michigan. The Court's holding -- that the law school had a compelling interest in attaining a diverse student body -- emphasizes the future rather than the past.

Stevens has been singing this same tune for quite a while. Shortly after swearing in the current Chief Justice, Justice Stevens emphasized the importance of "a flexible approach to the law" to a Fordham law school audience, adding that "learning on the bench has been one of the most important and rewarding aspects of my own experience over the last 35 years." His example: "With respect to the constitutionality of affirmative action," he said, "we have learned that justification based on past sins may be less persuasive than those predicated on anticipated future benefits." Left unstated was who "we" are.

Looking to the Future, Not the Law

Stevens made that same point, and only that point, in his U.S. News interview, where his affirmative action comments consisted entirely of the following exchange:

Have you changed your view on affirmative action?

I had to make decisions in different contexts. And in some of the early affirmative action cases, Congress had passed a statute that was very poorly considered. In early cases, the courts seemed to think of affirmative action merely as a remedy for past wrongdoing.

What should they have done instead?

Looked at the benefit that affirmative action could produce for the future.

This "different contexts" explanation of his earlier views -- which he failed to mention were the opposite of his later views -- is disingenuous at best. That "very poorly considered statute" was, of course, the Civil Rights Act of 1964, perhaps one of the best considered pieces of legislation in our history, and in any event it is unseemly for a Supreme Court justice to blame opinions he now regrets on shoddy work by Congress. "Different contexts," in short, doesn't begin to describe or explain the radical transformation of Justice Stevens' approach to governmental thumbs on the racial scale, especially when the reversal of his earlier views cannot be explained by any changes in the 1964 act, whose relevant text didn't change.

Justice Stevens was correct to note that in Grutter the Court accepted the argument of his 1986 dissent in Wygant v. Jackson Board of Education that "diversity" can justify governmental distribution of benefits and burdens based on race. What he did not mention is that Wygant was decided eleven years after he had been appointed to the Court and that it was the first time he ever approved a racial classification. Indeed, over the course of his first decade on the Court Stevens had, in the words of a scholarly survey of his decisions on race, "seemed destined to be one of the Supreme Court's most vigorous opponents of affirmative action."

A year after his appointment Justice Stevens joined the opinion of the Court in McDonald v. Santa Fe Transportation Co., which held that the Civil Rights Acts of 1866 and 1964 protected whites as well as blacks from discrimination. Two years later, in a long concurring opinion in Bakke, he offered a penetrating, compelling criticism of the "diversity" road on which the Court had, he then thought, disastrously embarked. That criticism was based on a thoroughly researched and entirely persuasive analysis of the legislative history, intent, and clear text of that same Civil Rights Act of 1964 that he now derides as "poorly constructed."

Here is a powerfully argued excerpt from Stevens' concurrence (emphasis added but citations omitted):

Section 601 of the Civil Rights Act of 1964 ... provides:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

The University, through its special admissions policy, excluded Bakke from participation in its program of medical education because of his race. The University also acknowledges that it was, and still is, receiving federal financial assistance. The plain language of the statute therefore requires affirmance of the judgment below. A different result cannot be justified unless that language misstates the actual intent of the Congress that enacted the statute or the statute is not enforceable in a private action. Neither conclusion is warranted.

....

Petitioner contends, however, that exclusion of applicants on the basis of race does not violate Title VI if the exclusion carries with it no racial stigma. No such qualification or limitation of 601's categorical prohibition of "exclusion" is justified by the statute or its history. The language of the entire section is perfectly clear; the words that follow "excluded from" do not modify or qualify the explicit outlawing of any exclusion on the stated grounds.

The only suggestion that the Civil Rights Act would allow discrimination against whites, Stevens emphasized, "came from opponents of the legislation." He quoted the following, for example, from a Congressional opponent:

Presumably, the college would have to have a "racially balanced" staff from the dean's office to the cafeteria....

The effect of this title, if enacted into law, will interject race as a factor in every decision involving the selection of an individual.... The concept of "racial imbalance" would hover like a black cloud over every transaction....

Justice Stevens rejected this view root and branch, quoting extensively from the record of debates to show that Congress quite clearly imposed a colorblind standard that barred discrimination for or against any race and that precluded the kind of imposed "racial balancing" feared by the Act's critics. "Our Constitution is colorblind," he quoted Sen. Pastore (D, RI) exclaiming (along with many others), "and so must be our government."

The Ban on Racial Favoritism was 'Crystal Clear'

In short, Stevens concluded, the Civil Rights Act's prohibition of racial favoritism by the government was "crystal clear." Nothing, he insisted,

justifies the conclusion that the broad language of 601 should not be given its natural meaning. We are dealing with a distinct statutory prohibition, enacted at a particular time with particular concerns in mind; neither its language nor any prior interpretation suggests that its place in the Civil Rights Act, won after long debate, is simply that of a constitutional appendage. In unmistakable terms, the Act prohibits the exclusion of individuals from federally funded programs because of their race. As succinctly phrased during the Senate debate, under Title VI, it is not "permissible to say 'yes' to one person, but to say 'no' to another person, only because of the color of his skin."

Justice Stevens consistently opposed racial classification and preference for over a decade. In a sharply worded dissent in Fullilove v. Klutznick (1980), for example, he strenuously objected to a racial set-aside program, noting that allowing such a race-based program could create "a permanent source of justification for grants of special privileges." Racial classifications, he argued, "are simply too pernicious to permit any but the most exact connection between justification and classification. Quite obviously, the history of discrimination against black citizens in America cannot justify a grant of privileges to Eskimos or Indians." Indeed, he concluded, "the very attempt to define with precision a beneficiary's qualifying racial characteristics is repugnant to our constitutional ideals."

In short, it is clear beyond cavil that Justice Stevens' decade-long belief that race-based affirmation action violates the "plain meaning" of Congress's "perfectly clear," "crystal clear" "distinct statutory prohibition" was not dictated by deference to a "poorly considered" Civil Rights Act. Those "crystal clear," "perfectly clear" words, after all, didn't change. Justice Stevens simply changed his mind, contributing significantly to an expansion of racial preference that ironically resulted in the fears of the opponents of the Civil Rights Act that it would lead to "racial balancing" proving more prescient than the denials of its supporters.

Everyone, of course, is entitled to change his mind. Learning, as Justice Stevens stated, requires that flexibility. But Supreme Court justices are not just anyone.

Because their opinions become law, when they change their minds they are obligated to provide reasons. And when their "learning" leads not to a deeper understanding of such substantively opaque terms as "due process" or even "equal protection" but, as with Justice Stevens, leads him to abandoning a long-held deference to an unchanged "crystal clear" legislative prohibition, he owes us an explanation that is totally absent from both his memoir and his U.S. News interview.

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John S. Rosenberg is a lapsed historian blogging at Discriminations.

Every decade or so, Charles Murray writes a blockbuster book captivating America. First came Losing Ground, focusing attention on our dysfunctional system of public assistance, and, along with Richard Herrnstein, The Bell Curve, a controversial but rigorous examination of the role played by cognitive endowments in American life. I suspect his new book, Coming Apart: The State of White America, 1960-2010, will be another mega hit. Based on a quick read, Murray demonstrates the growing gaps between affluent upper-middle-class Americans and their blue-collar, lower-income counterparts. He confines his analysis to whites to avoid all sorts of unrelated side issues, including the tendency to see the growing gap between Americans as primarily a problem of race, ethnicity or bias.

Murray's thesis is simple: a powerful new class has emerged in America, based on cognitive and educational homogamy--the interbreeding of individuals with like characteristics. Colleges and universities have played a key role--particularly the elite institutions, which attract almost no one outside the top ten percent of the nation's cognitive talent. (Fifty years ago, only three percent of Americans graduated from college, and the elite institutions tended to attract the well-connected and the economically successful, not necessarily the brightest.) These institutions now function as sorting mechanisms. The exceptionally bright now tend to meet and then marry similarly bright partners. In addition to building a culture vastly different from that of mainstream America, they perpetuate the advantages that high levels of cognitive skills offer. As a result, Murray concludes, "Highly disproportionate numbers of exceptionally able children in the next generation will come from parents in the upper-middle class, and more specifically from parents who are already part of the broad elite." As the new class pulls away from mainstream America, so does the discouraged underclass--now made up of all ethnicities--giving up on work, family and community.

We must begin, of course, with primary and secondary education. The quality of public schools in the relatively down-market areas in which most blue-collar folks live has declined by almost any measure over the past half century, while the affluent suburban schools that the upper middle class attend have probably suffered less. The good quality, mostly inner-city Catholic schools that many students from blue-collar families attended have had significant enrollment declines since 1950. The gap between the affluent and less affluent with respect to preparation for college, in short, has almost certainly widened.

At the college level, as Murray demonstrates, the gap between the academic record of entering students at, say, Harvard, the University of Michigan, and Kansas State University in 1950 was probably noticeable and real, but much less than it is today. Harvard today can have an all-valedictorian class if it wishes, but that was not so in 1950. Kansas State is lucky today, I suspect, if two percent of those enrolled were at the top of their high school class.

One reason for this is that the top universities have not expanded enrollments. Harvard, if it did not want to expand in Massachusetts, could have developed Harvard of the South and Harvard of the West, but it did not--it no doubt felt that would hurt its prestige. Access has been a lower priority than maintaining selectivity and top college rankings. As the demand for higher education rose, more students have attended schools of lesser distinction--Western Michigan University instead of the University of Michigan, for example.

Statistical evidence shows the gap within the higher education sector has grown. Spending per student has grown much more at the elite private schools than at even respected flagship universities, and many blue-collar workers attend community colleges where per-student spending has remained relatively flat over time. In the first US News & World Report rankings using current methodology in 1988, there were eight public universities in the top 25 national institutions but now only three. Excepting the service academies, there are only no public institutions in the top 40 in the current Forbes rankings. The better private schools, while using financial aid to ease the burden of low-income students, nonetheless favor students with good academic promise, a group excluding many blue-collar kids attending mediocre public primary and secondary schools.

Moreover, the income advantage associated with college credentials has grown dramatically. The conventional view is that "in this high tech age, we need more highly skilled workers requiring a college degree." Yet, judging from a look at data on the PayScale.com web site, I suspect a majority of the recent increase in the number of college-degree holders in often low-paying jobs (historically held by high school grads) has come from blue collar-intensive schools like Cleveland State University, whose enrollments have soared since 1950. Supply has created its own demand, so even bars can insist on college degrees for bartenders (we have 107,000 of them).

We now have two tiers of higher education: first, truly elite private schools (and maybe a dozen or so public flagship universities like the universities of Michigan, Illinois, Virginia, North Carolina, and California--several campuses) whose graduates are sought for good managerial, technical and professional jobs. Second, we have the non-highly selective schools, mostly public, but also less distinguished private schools as well as some for profit institutions. The students going to the first group of schools--10 to 15 percent of the total--far outdistance the others, career-wise. No longer is a college degree itself almost automatically a ticket to a privileged life.

Building on Murray's insights, I would note that endemic certification inflation largely reflects public policy. Too many kids go to college because of large government subsidies, watering down educational quality and giving us too many college graduates for the good jobs available. Griggs v. Duke Power and some legislative actions have eroded one means, employment testing, that bright kids from blue-collar families once had to certify their competency for responsible jobs to potential employers, because companies are fearful of legal liabilities. And, of course, our public K-12 schools have become more unequal in their results because of injudicious public policies, including allowing labor unions de facto veto power over meaningful reforms like vouchers and other pro-competitive measures.

To me, however, inequality itself is far from a dirty word--differences in income, for example, are vital to providing the incentives that propel prosperity. Yet the evidence that equality of opportunity--not results--is in decline is disheartening. Murray's book tells a compelling, if sometimes, depressing story. Like him, I believe that that higher education has been more part of the problem, rather than the solution, in America's "coming apart."

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Richard Vedder is director of the Center for College Affordability and Productivity, teaches at Ohio University and is an adjunct scholar at the American Enterprise Institute.

An attorney analyzing the decision, however, probably would have been surprised to see that the works of history upon which the Montana court relied were all published before 1977. She might even have wondered whether the court's reliance on older works suggested that it had ignored newer, perhaps contradictory, publications. But for anyone familiar with how the contemporary academy approaches U.S. history, the court's inability to find recent relevant works could have come as no surprise at all.

The study of U.S. history has transformed in the last two generations, with emphasis on staffing positions in race, class, or gender leading to dramatic declines in fields viewed as more "traditional," such as U.S. political, constitutional, diplomatic, and military history. And even those latter areas have been "re-visioned," in the word coined by an advocate of the transformation, Illinois history professor Mark Leff, to make their approach more accommodating to the dominant race/class/gender paradigm. In the new academy, political histories of state governments--of the type cited and used effectively by the Montana Supreme Court--were among the first to go. The Montana court had to turn to Fritz, an emeritus professor, because the University of Montana History Department no longer features a specialist in Montana history (nor, for that matter, does it have a professor whose research interests, like those of Fritz, deal with U.S. military history, a topic that has fallen out of fashion in the contemporary academy).

To take the nature of the U.S. history positions in one major department as an example of the new staffing patterns: the University of Michigan, once home to Dexter and then Bradford Perkins, was a pioneer in the study of U.S. diplomatic history. Now the department's 29 professors whose research focuses on U.S. history after 1789 include only one whose scholarship has focused on U.S. foreign relations--Penny von Eschen, a perfect example of the "re-visioning" approach. (Her most recent book is Satchmo Blows Up the World: Jazz Ambassadors Play the Cold War.) In contrast to this 1-in-29 ratio, Michigan has hired ten Americanists (including von Eschen) whose research, according to their department profiles, focuses on issues of race; and eight Americanists whose research focuses on issues of gender. The department has more specialists in the history of Native Americans than U.S. foreign relations.

It's true, of course, that departments heavy in African-American historians might have lots of scholars who focus on such topics as a sympathetic portrayal of Ward Connerly's efforts against racial preferences. Or a department heavy in women's historians might have lots of scholars who focus on such topics as a study of grassroots pro-life women, as part of a project suggesting that feminists don't speak for a majority of U.S. women. But in the real world, figures with such interests would have almost no chance of being hired for an African-American history or gender history line.

One-sided scholarly approaches tend to produce one-sided views on contemporary political and public policy issues. In recent years, controversies in the history departments at Duke and the University of Iowa revealed that neither department had even one registered Republican. Political registration figures are the crudest possible measurement of a faculty's pedagogical breadth, but a partisan ratio of dozens-to-zero raises some troubling questions about the open-mindedness of a department's hiring process. So too did the justifications offered for the imbalance. Iowa's Sarah Hanley rationalized, "I don't think there is a downside [to having a department that, according to a survey done by the local newspaper, had 22 registered Democrats and zero registered Republicans]. If it is a downside, then it would be a downside to have states to be so-called blue or so-called red. It would be casting a pall on the democratic system where people are free to choose." The then-chairman of Duke's history department, John Thompson, dismissed findings that his department had 32 registered Democrats and zero registered Republicans, on grounds that "the interesting thing about the United States is that the political spectrum is very narrow."

This type of comment is exactly what would be expected in an environment characterized by faculty groupthink--the common assumption that all thinking people chose to be Democrats (full disclosure: I'm a registered and partisan Democrat), the law of group polarization producing extreme arguments on the merits of affiliating with the Democrats.

The increasingly one-sided conception of the profession has appeared most distinctly when national historical organizations have placed their members' partisan interests ahead of a commitment to historical ideals. During the second Bush term, for instance, historians were pressing for increased access to government documents from an administration notoriously indifferent to open government. Any claim that the chief purpose of the request was academic rather than political, however, was undermined in 2007, when the American Historical Association approved a "Resolution on United States Government Practices Inimical to the Values of the Historical Profession." The resolution called on all AHA members "to do whatever they can to bring the Iraq war to a speedy conclusion." That was a perfectly appropriate goal for partisan Democrats. But for historians? And why would any administration want to increase access to government documents for a profession whose major national organization demanded that its members seek to undermine a key foreign policy goal of the President?

Similarly, last year during the William Cronon controversy in Wisconsin, the American Historical Association issued an official statement demanding that the GOP withdraw its open-records request, offering the following reasoning. "The purpose of the state's Open Records Law is to promote informed public conversation. Historians vigorously support the freedom of information act traditions of the United States of which this law is a part. In this case, however, the law has been invoked to do the opposite: to find a pretext for discrediting a scholar who has taken a public position. This inquiry will damage, rather than promote, public conversation." Shutting down any inquiry into Cronon, even if it meant advocating a narrowing of the state's Open Records Law, was a perfectly appropriate goal for partisan Democrats opposed to the Walker administration. But for historians?

There are few areas in which the groupthink academy has had a more disastrous impact than the study of U.S. history. One-sidedness has its costs, however, in terms of influence outside the Ivory Tower. Courts or politicians who rely on the opinions of professors who now qualify as "mainstream" U.S. historians do so at their own peril.

                                      By Charlotte Allen

It may be inevitable: "gainful employment" rules for law schools. "Gainful employment" is a term of art coined in the wake of the U.S. Education Department's regulations last June governing for-profit colleges and similar vocational institutions from which many students emerge with student-loan debt and few prospects for working at jobs they were trained for. It now turns out that America's law schools have a few things in common with the proprietary sector: Both feature sky-high tuition relative to students' ability to pay without taking on substantial debt, and many former students of both kinds of institutions have trouble earning enough money to pay back the loans made or guaranteed by the federal government that taxpayers must eventually cover.

Federal regulation of law schools sounds fairly drastic--but so is the current crisis in legal education. Here are some hard facts: Law-school tuition has skyrocketed over the past two decades. During the 1980s the average annual tuition at a private law school was $13,500. Now it tops $40,000. Law-school debt has also risen quickly. Students at private law schools currently borrow an average of $92,000 to finance their three years of legal education, while students at public law schools borrow an average of $59,000. Those amounts dwarf the average $14,000 that students at career colleges borrow to pay for two-year associate degrees. Meanwhile, because of the recession and the growing practice of outsourcing routine legal work to temporary employees, many of them abroad, the number of full-time U.S. legal jobs has declined by 15,000, according to a Northwestern University survey. Meanwhile, the number of U.S. law schools--and law-school graduates--is burgeoning. The American Bar Association (ABA) accredits 200 law schools, and about 20 more brand-new schools are in the ABA's accreditation pipeline. Altogether the law schools churn out about 45,000 graduates a year, all competing for only 30,000 new job openings annually. That's 1.5 fledgling attorneys for every available job that actually requires them to use their degree.  

Furthermore--and this is what has led to all the cries for "transparency"--law schools have been accused of fudging their post-graduate employment numbers so as to game the U.S. News & World Report rankings. While the ABA operates as law schools' official accreditor, U.S. News, with its rankings of the schools and its division of them into four "tiers" presumably based on their relative quality, is their unofficial accreditor. Because law schools, along with the universities to which they are attached crave their students' tuition dollars (law schools, where expensive labs are nonexistent and large lecture courses are the rule, tend to be cash cows for their host campuses), the schools scramble to hoist themselves onto U.S. News's coveted first and second tiers. One way to do this is to boast a high percentage in this crucial category that counts for one-seventh of the U.S. News ranking: "graduates known to be employed within nine months after graduation."

Fudging the Facts

The "known" in the phrase "known to be employed" is the operative word. Law schools send their recent graduates surveys using questions devised by the ABA and the National Association for Law Placement. The graduates then self-report their employment, if any, and the school calculates the percentage of those who responded who say they have jobs and submits it to U.S. News. Graduates who fail to respond to the survey or who can't be located don't count. Furthermore, any kind of job counts as "employment," even a job that requires no legal training. In a Jan. 8 story for the New York Times, reporter David Segal wrote: "Waiting tables at Applebee's? You're employed. Stocking aisles at Home Depot? You're working, too."

Even top-rated law schools seem to engage in this sort of fudging. Segal reported that Georgetown University's law school, safely in the top tier with a No. 14 ranking, last year sent an e-mail to its graduates who were "still seeking employment" offering them $20-and-hour temporary jobs in the admissions office for the six weeks encompassing Feb. 15, the cut-off date under U.S. News's nine-month rule. (Georgetown maintained that it did not count those graduates as "employed" for purposes of the survey.) As might be easily predicted from these loosey-goosey controls on survey accuracy, even the lowest-tiered law schools report astonishingly high levels of employment for their graduates. In 1997, the first year that U.S. News adopted the nine-month test, the average employment rate 84 percent, Segal reported. Last year that number had jumped to 93 percent, with some schools reporting 99 percent and 100 percent employment.

Furthermore, many law schools report starting salaries for their graduates that seem unrealistically high, given the current dismal market. In a July 16, 2011 story for the New York Times Segal noted that New York Law School (NYLS), a third-tier institution in lower Manhattan with a U.S. News ranking of No. 134, told the magazine that the median annual salary nine months after its Class of 2009 graduated was $160,000--the same figure cited by Yale and Harvard, which ranked No. 1 and No. 2 for that year. Only the largest and most prestigious law firms pay three-figure salaries to brand-new lawyers, and they hire most of them from top-tier, not third-tier law schools. In an interview with Segal, then-NYLS Dean Richard Matasar stood by the figure but pointed out that on its website the school explicitly points out that most of its graduates find jobs at smaller firms that pay between $35,000 and $75,000 a year. Still, NYLS conceded that only 26 percent of the 300 of its graduates who reported being employed included information about their salaries. So even the $35,000-$75,000 that NYLS cites are less than reliable numbers. Meanwhile NYLS charges around $48,000 a year in tuition, more than Harvard. 

Playing the Blame Game

Since it's estimated that a law graduate needs to earn $65,000 at a bare minimum in order to pay down a student-loan debt in the $100,000 range, there's quite a bit of anger among unemployed and under-employed young lawyers burdened with staggering loans that, like other federal student loans, can't be discharged in bankruptcy. Class-action lawsuits alleging fraud and misrepresentation have been filed by graduates of NYLS and the Thomas M. Cooley Law School, based in Lansing, Michigan. Until recently Cooley was on the fourth and bottom tier of the U.S. News rankings, but it now has no ranking at all because of failure to submit sufficient information. (Cooley has at least the virtue of being relatively cheap for a private institution, with tuition for full-time students at around $30,000 a year.) The blog Above the Law reports that the lawyers who launched the NYLS and Cooley suits plan to sue fifteen more law schools that have reported post-graduate employment rates ranging from 88 percent to 100 percent--rates that the lawyers say amount to misrepresentation. Some of the schools are attached to well-respected universities such as Hofstra and Villanova. The average debt load for the 2009 graduates of those schools is $108,829. Another currently unranked but formerly fourth-tier law school, Thomas Jefferson in San Diego, became the subject of a class-action suit for fraud and false advertising filed by 2008 graduate Anna Alaburda last May. Thomas Jefferson reported for U.S. News's 2011 evaluations that 92.1 percent of its graduates were employed nine months after obtaining their degrees.

If the former law students blame the law schools for allegedly misleading them into mortgaging their futures for nonexistent cushy jobs, the law schools blame U.S. News and the outsize importance that its readers--potential students and potential donors--place upon the rankings, which can mean millions of dollars in gained or lost revenue. Thomas Jefferson, for example, maintains that it has meticulously abided by U.S. News's reporting guidelines, even though 25 percent of its graduates could not be located in typical surveys. In a July 18 demurrer--a legal document arguing that Alaburda failed to state a case--lawyers for Thomas Jefferson pointed out that U.S. News had also published the school's honestly reported bar-passage rates, which during the years that Alaburda applied to and attended the school were less than 50 percent (they have substantially increased since then). Any college graduate could do the math and see that numerous Thomas Jefferson alums weren't practicing law right after graduation during those years, the school's lawyers argued. Alaburda "pleads that she relied exclusively or primarily on the data in a summary chart published in a popular magazine, misunderstood it, made no further inquiries, and then spent tens of thousands of dollars on her legal education," they wrote.

U.S. News in turn blames the ABA. In an interview with Segal, Robert Morse, who oversees the magazine's law school rankings, conceded that his editors could demand better data from the schools. "But we'd have to create a whole new definition of 'employed,' and it would be awkward if U.S. News imposed that definition by itself. It would be preferable if the ABA took a leadership role in this." The ABA, for its part, blames law-school applicants themselves, who have known or should have known that the U.S. legal market has been depressed ever since the recession began in 2007--but decided to try to beat the odds anyway and load themselves with debt during the process. ABA president William Robinson, in a Jan. 4 interview with the Chicago Tribune, said, "It's inconceivable to me that someone with a college education, or a graduate level education, would not know before deciding to go to law school that the economy has declined over the last several years and that the job market out there is not as opportune as it might have been five, six, seven, eight years ago....We're not talking about kids making these decisions."

Cross-posted from NAS.
                                          By Peter Wood

Several weeks ago, KC Johnson--a scholar I much admire, not least for his fearless dedication to principle--published an essay on Minding the Campus under the title, "Keeton Defense Contradicts NAS Principles."  We offered Professor Johnson the opportunity to re-post his article or contribute a further statement on the NAS website.  He accepted and posted both the article and an addendum of about the same length as his original. 

I would like to respond in defense of the NAS's position.  But, first, for those who haven't followed the controversy, a summary.

Keeton So Far

It concerns a court case in Georgia.  Jennifer Keeton was a graduate student at Augusta State University (ASU) where she began studying for a degree in Counselor Education in fall 2009.  She completed two regular semesters and two summer sessions but was then dismissed from the program because she refused to participate in a "remediation plan" that was designed either to change her views on homosexuality or convince her to misrepresent those views.  Miss Keeton, citing her Christian beliefs, held that homosexuality is a form of "identity confusion," and had stated this view in class.  The faculty members involved rejected her view and cited it as "a violation of the codes of ethics to which counselors and counselors-in-training are required to adhere."  The remediation plan to which she was assigned singled out Miss Keeton's view that homosexuality is a "lifestyle," and posited that "sexual orientation is not a lifestyle or choice, but a state of being."   (The quotations are from Keeton's complaint in U.S. District Court, July 21, 2010.)

The National Association of Scholars along with the Foundation for Individual Rights in Education (FIRE) filed an amicus brief on behalf of Keeton.  It was drafted by Eugene Volokh and filed in October 2010.  We argued that Keeton's First Amendment rights had indeed been trampled.  The brief said that the First Amendment presumptively forbids imposing special obligations on university students who express particular viewpoints; that the lower court had erred in equating ASU's retaliation against Keeton with normal curricular decisions; and that the lower court's decision--to rely on "academic standards" as a tool for barring disfavored speech--would justify a vast range of restrictions on intellectual freedom. 

When the 11th Circuit panel handed down its decision, NAS reiterated these points.  We think the panel made a mistake.  One dimension of the mistake is that it would force Christians, like Miss Keeton, who believe that homosexuality is immoral, to either tailor their beliefs to ACA standards or similar doctrinaire social positions, or else forego careers in the counseling profession.  That is, of course, just one consequence.  The 11th Circuit panel's decision opens the door for colleges and universities to de-select students holding any beliefs that happen to be in disfavor with the factions that dominate the increasingly ideological academic and professional associations.  It doesn't take much imagination to see where this leads. 

Professor Johnson's Criticisms of NAS

Professor Johnson's criticisms should be read in full in his own words, but for the sake of brevity, I will summarize.  He makes two main points.  First, the panel's ruling would not exclude "Christians" from the counseling profession.  Second, the NAS's position in the Keeton case contradicts NAS's own defense of equal treatment for all on campus. 

My Response

The first criticism is simply a matter of whether the word "Christians" is taken to mean "all Christians" or "some Christians."  I would have thought that both context and common sense would have favored the latter reading.  There are clearly many Christian denominations that have embraced contemporary views of homosexuality.  In New York City, it is easy to find Christian churches flying the rainbow gay flag.  But there are also many denominations that have stayed with traditional Christian teachings that homosexual behavior is always wrong.  Keeton comes from a branch of Christianity of that type.  I don't know the proportions of the denominations on either side, but I'll stick with the view that there are substantial numbers of Christians who would be excluded from the counseling profession if the 11th Circuit panel's decision stands.

Is the NAS, by defending Keeton's right to express her views on homosexuality, forsaking its defense of equal treatment for all on campus?  Not at all.  We defended Keeton because she was (and at the moment still is) the object of an abuse of academic power.  She should have the right to hold and express her views on homosexuality without having to give up her educational and career aspirations.  It is plain that her views are indeed in conflict with the American Counseling Association's Code of Ethics, and that this Code has been given further force by the counseling education accreditation body, CACREP.  But existence of a bureaucratic apparatus to enforce a form of political correctness does not change its ideological character.

The court in this case has given extraordinary deference to the mechanism by which mere opinions are elevated to the status of professional standards.  There is no deep and compelling reason why all members of the counseling profession should be made to hew to a single view of homosexuality.  Realistically, the vast majority of people seeking professional careers in counseling in the United States today are going to be not only relaxed about homosexuality, but also enthusiastic about the principle of affirming the sexual orientations of clients.   But does the counseling profession have any room at all for the minority who have dissenting opinions?   We think it should, and that universities offering graduate instruction in this field should champion the principle of intellectual diversity, even if that means challenging the edicts of accreditors and professional associations.  Those edicts should not outweigh the First Amendment or a student's freedom of conscience. 

"Equal treatment" in this case means protecting those who espouse unpopular views, even highly disfavored ones.  Keeton posed no threat to other students or to potential clients.  She wore her views openly and gave fair warning to anyone who disagreed with her.  She should not have been denied the opportunity to complete her degree program merely because she espouses an unpopular opinion. 

An Emotionally Charged Issue

The treatment of gays and lesbians, as well as other sexual minorities, remains a fraught issue in American society.  We have no wish to stereotype the contending views and the NAS does not take positions on matters outside higher education.  We do not advocate for or against the view that counselors should affirm the sexual orientation of their clients.  Our position, rather, is that universities should leave their students free to decide.  The error of Augusta State University--a public institution--was to impose its own doctrinal position on Miss Keeton. 

Professor Johnson thinks that doctrine well founded and consonant with the way in which the counseling profession should go about his work.  He may be right.  But the wholesomeness of the doctrine is not the issue.  The issue is rather whether a public university should be imposing a doctrine at all.

The argument that it should impose this particular doctrine--that counselors should affirm the sexuality of their clients--is that it embodies a correct standard of professional practice.  Not to impose it would be to accede to a form of malpractice. 

The argument against imposing this particular doctrine is that it is indeed "doctrine"--an attempt to foreclose discussion on a matter that remains intellectually and morally unsettled.

We realize that to say an issue is "unsettled" pleases neither of the sides who are invested in the view that they have the right answer and that all reasonable people ought to be compelled by reason and evidence to agree with them.  NAS, however, is determined to favor First Amendment freedom, even in circumstances where individuals for whom we have the highest respect regard the views to be protected as undeserving. 

What's Next

Keeton is appealing the panel's decision by asking the 11th Circuit to give her case full consideration.  Her lawyers are focusing on the questions: (1) "Whether a state university may require a student to promise to sincerely convey a controversial moral judgment that the student disbelieves as a condition of receipt of a state education;" and (2) whether persons have a right against state-compelled speech in any context other than one in which the state makes their presence mandatory."   That is to say, the appeal narrows the dispute from whether Keeton's First Amendment rights were violated to the more specific question of whether a state university has the power to require from a student a sincere promise to uphold a "controversial moral judgment."

This might sound dry, but the matter at stake is one of real importance.  As Keeton's petition to the 11th Circuit for a re-hearing eloquently puts it: 

This case presents a rare instance of blatant, express, and coercive reeducation that should be intolerable across the political spectrum. A business school could not require its students to "affirm" capitalism or disavow socialism as a condition of receipt of an education. A geology department could not require its students to affirm--or deny--the reality of global warming to avoid expulsion. A law school could not require its students to affirm--or deny--the interpretive or moral legitimacy of the Supreme Court's substantive due process jurisprudence, nor require students to promise to defend--or oppose--the death penalty in their future professional efforts. A medical school could not require its students to affirm--or deny--female circumcision or sex-change operations. A political science department could not require its students to affirm any particular school of political thought or civic policy proposal. Nor could any of these educators require students to give a running account of the status of their beliefs, and make "correct" beliefs and a promise of ideological cooperation (instead of academic performance) the condition of continuing receipt of a State education.

The ASU faculty's conduct in this case is a renunciation of individual conscience and academic freedom, and is intolerable under the First Amendment.

Can Keeton be required "to announce the morality of homosexual sex to clients seeking such approval?"  The 11th Circuit panel said yes.  But this kind of compulsion is deeply at odds with ordinary ideas of American freedom.  If one is seeking to join an organization that has an official creed--be it a church or a group organized to save wildlife, promote the rights of sexual minorities, or advance gun ownership--it would be perfectly reasonable to expect that agreement with the creed would be a condition of membership.  Universities have, within a limited sphere, a right to creeds of their own, as when they demand acceptance of principles of academic integrity as a condition of admission.  But this zone of enforced agreement should not extend to matters of moral judgment beyond the competence of the university to decide. 

Conventional opinion now favors the view that homosexuality is simply part of the natural range of human variation.  Conventional opinion might well be right, but that is not really any kind of argument against the right of a minority to hold a dissenting view. 

Perhaps the most disturbing part of this case is that ASU presented Keeton with an alternative.  According to ASU officials, she was free to hold her personal beliefs so long as she promised to lie about them in her dealings with clients.  The counsel for the University officials explained:

"[I]s it a requirement that the counselor lie? Absolutely."

 And:

"She doesn't have to believe it. But she does have to tell the client that [it's okay to be gay]."

It is hard to think of more vivid evidence that a university has crossed a line that should never be crossed when it conceives of its academic standards as a requirement to lie.

-------------------------------
Peter Wood is President of the National Association of Scholars.

                                         By Robert Weissberg

The campus diversity warriors are once again pounding at the gates. This time the pounding comes from on high--the American Political Science Association (APSA) itself. It is a serious clamor: a 76 page report called Political Science in the 21^st Century authored by fourteen professors, many from elite research-oriented schools such as Berkeley and UCLA. The report received National Science Foundation money plus ample professional funding.

It is a curious document since nearly every university, top to bottom, has for decades sought diversity, and has even been willing to over-pay and compromise traditional academic standards. The Task Force includes Diane Pinderhuges, past president of the APSA and my former colleague (and friend) for 20-plus years. The two of us regularly sat in the same room discussing how our department could be more inclusive and heard all the administration entreatments to hire yet more blacks and Hispanics.

The obvious question, then, is why yet one more plea is necessary, given that scores of university bureaucrats are already striving to admit more minority graduate students and hire more black and Hispanic professors, and once hired, help them get tenure. Moreover, since many those currently admitted to graduate school or hired are barely qualified, the additional recruits will bring even more problems (many of these potential recruits will also have ample better-paying private sector opportunities). What can possibly necessitate yet more inclusionary vigor? Have these fourteen academics discovered a better solution to a seemingly intractable problem?

Nothing in the real world justifies the report, but that said, Political Science in the 21^st Century is still worth scrutinizing for informing us about the latest wrinkle in what might be called, "The Life of the Diversity Mind." Most important, for those uncomfortable with incessant demands for inclusion uber alles, the report provides advance warning in what seems to be a long war of attrition.

Why should any department double or even triple its efforts to hire more blacks and Hispanics when demand already outstrips supply? Might the reason be that newly emerging problems requiring expertise are currently in short supply, for example, hiring Middle Eastern experts in the wake of 9/11? The report's justification is remarkably vacuous: demography is altering the political landscape, and the profession must adjust. In their words, "Is political science positioned to embrace and incorporate the changing demographics, increasing multicultural diversity, and ever-growing disparities in the concentration of wealth present in many nation-states? Can political science do so within its research, teaching, and professional development."  A bit further on, "Task Force assessed the practice of political science to determine whether it is living up to its full potential as a scholarly discipline to enrich the discourse, broaden the understanding, and model the behavior necessary to build strong nation-states in a rapidly changing world where population shifts and related issues regarding race, ethnicity, immigration, and equal opportunity structure some of the most significant conflicts affecting politics and policymaking."

Professional sounding verbiage aside, this is an unmitigated race-based view of knowledge. In effect, the world is increasingly dominated by people of color, and only people of color can understand the transformation. Let there be no misunderstanding, whites are inherently unable to grapple with this altered new world order, the scholarly equivalent of saying that since whites lack "soul" they cannot relate to Hip Hop or Rap. Again, in their own words, "Moreover, who does political science does not currently include scholars with backgrounds from the full range of positionalities (sic) including race, class, gender, and sexual orientation that are often the most marginalized in societies." So forget about whites becoming experts on black politics as home-grown Americans once mastered Soviet politics. Race may be socially constructed but not when it comes to employment. Whites are disqualified since they lack the "positionalities."

To appreciate the absurdity of this view, imagine if black or Latino/a political scientists were told that they could not, say, study Swedish politics since only Nordic types could relate to fellow Norsepeople? Might a single homosexual experience qualify one to study gay politics? We are not being sarcastic--this is intellectual biology-based apartheid.  

It gets worse. Not only are whites, males and heterosexuals unqualified to understand blacks, women and gays, but not even science can overcome this limitation. Yet again, in their own words, "The tendency to accept its approaches as 'objective' science, for example, tend to inhibit the development of a more critical debate about the potential phenomenological bases of much empirical social science." In the search for truth the researcher's genes (or for gays, just preference) trump the scientific method. Truth is a matter of authenticity, something that comes with certain chromosomes and enzymes, not something  uncovered by experiments and statistical analysis. To paraphrase Descartes, "I know because of who I am."

But, obstacles arise in today's intellectual climate--top graduate schools demand rigorous training in the scientific approach, including statistics, and these requirements can be barriers to black and Hispanic students despite their otherwise vital inborn abilities. The report's solution is to expand the definition of "training" to include approaches seldom found in research-oriented Ph.D. programs. "Methodological training must also be much more inclusive of critical analytical approaches and more self-reflective of potential biases in the use of accepted methodological categories." In practice this new training will resemble Critical Race Theory--the endless search and destroy missions to expose unearned "white privilege" everywhere. Now while white graduate students master Intermediate Statistics, students from historically disadvantaged groups pass the methodology requirement by learning about the inherent racism of the SAT.  

And what happens when the freshly minted faculty are hired and must compete with "privileged" professors skilled in the latest scientific skills? This is especially troublesome since top journals use anonymous reviews and accepting race/ethnic screeds will inevitably lower the journal's prestige. Again, no problem: "Departments should also be more inclusive of the types of journals valued in the assessment of scholarly productivity." And these alternative approaches should also be amply funded--"Faculties must receive substantial technical, institutional, and departmental support if alternative strategies are to be widely developed, implemented, and assessed." As an academic lifer, let me translate: the MasterCard approach to research funding--you cannot be turned down.

Let me be blunt. More than access is involved here. The report is an attack on the very essence of the modern university, at least those precincts committed to the pursuit of objective scientific truth. These academics are putting jobs for fellow tribe members ahead of the search for truth. The Rev. Al Sharpton in a tweed sport coat. Perhaps a decade-long frustration of receiving what appears to be only crumbs from the table has instilled a smoldering tribe-based hatred for those who have succeeded in ways that these self-defined outsiders do not grasp. They want to replace "The data show...." with "I feel this to be the truth and don't contradict me since my genes tell me that...."

That the American Political Science Association legitimizes this profoundly anti-scientific and racialist ("white knowledge, black knowledge") view, and the National Science Foundation funds it, is remarkable. Alas, this is not one more crackpot idea destined to fade once the adults catch wind of it. Those committed to biology diversity hardly need much encouragement. In fact, almost immediately after the report's release, Wheelock College, in Boston, Mass., announced a new Political Science major based on the report to put "the voices, experiences, and struggles of marginalized groups at the center of scholarly inquiry."  According to the Chair of the Political Science Department,  "For us, the major will take the issues they say are ignored -- race, inequality, gender, marginalization -- and make them front and center."

Needless to say, Wheelock will not set the standard for Yale or Harvard. Traditional political science will be safe at top schools. But, far more likely will be the spread of this new approach to third- and fourth-tier schools, schools that often attract large numbers of black and Hispanic students. Now, rather than learn traditional political science, even a bit of the scientific method, they will just have their victimhood certified and legitimized. Replacing "How a bill becomes a law" will be, "How white-dominated institution pass laws to sustain institutional racism and inequality." Yet one more time, the substitution of ideological claptrap will further debilitate youngsters who need real knowledge, not just empty slogans.

These are the opening statements of a luncheon debate co-sponsored by the Manhattan Institute's Center for the American University and the John William Pope Center for Higher Education Policy.  The debate, held January 11 at the Harvard Club In New York City, pitted George Leef, research director of the Pope Center, against Peter Sacks, economist and author of Tearing Down the Gates: Confronting the Class Divide in American Education.  The moderator was Howard Husock, Manhattan Institute's vice president for policy research.

YES--George Leef

In my time this afternoon, I hope to persuade you that the United States has greatly oversold higher education.

We have done that through heavy government subsidies and extravagant rhetoric from both politicians and higher education leaders that created the impression that high-paying jobs were waiting for anyone who completed a college degree.

Just as we caused a destructive, resource-wasting housing bubble by pushing the idea that home ownership was good for almost everyone, so have we caused a resource-wasting higher education bubble.  Large numbers of people have gone to college and obtained degrees costing a great deal of money and time, only to find that there aren't nearly enough of those good jobs to go around.

The analogy to the housing bubble isn't perfect, however.  At least the houses that were built were generally of good construction.

It's common in public policy issues for the enthusiasts for some idea to exaggerate the benefits that will supposedly come from their favored policy while underestimating if not entirely overlooking the costs and new problems it will cause.  That was the case with the housing bubble and it's equally so with our great leap forward to get more and more people through college.

The first benefit of going to college is that it supposedly leads to higher lifetime earnings, since on average, those who have college degrees earn significantly more than do people who don't.

It is a mistake to assume that just because, on average, people who obtained college degrees in the past have enjoyed higher earnings, individuals who will get college degrees in the future will also enjoy the same "earnings premium."

We know that many college graduates have to accept jobs that don't call for any academic preparation whatsoever, and don't pay more just because the worker happens to have a degree.

Last year, the Center for College Affordability and Productivity released a paper documenting the large percentages of people who have bachelors degrees (or higher) working in jobs that most high schoolers could easily do: customer service reps, cashiers, taxi drivers, and so on.

Quoting from that report.  "More than one third of current working graduates are in jobs that do not require a degree and the proportion appears to be rising rapidly....60 percent of the increased college graduate population between 1992 and 2008 ended up in these lower skill jobs."

The labor market is glutted with people holding college credentials.  Just because a country "produces" a lot of college grads does not mean there will be commensurate jobs for them. 

A second common belief is that it's advantageous for a country to have a high rate of college completion because it improves economic competitiveness.  Conversely, a country that falls behind in this regard faces a dim economic future.

In an address to Congress in 2009, President Obama latched onto that idea, calling for a national goal of being first in the world in terms of college graduates by 2025.

The trouble with that notion is that there is no necessary connection between a nation's "educational attainment" level and the vitality of its economy.

In her book Does Education Matter?--Myths about education and economic growth, University of London professor Alison Wolf examined the supposed connection between education and economic growth.  She wrote, "Two naive beliefs have a distorting influence (on public policy) - the belief in a simple, direct relationship between the amount of education in a society and its future growth rate, and the belief that governments can fine-tune education expenditures to maximize that rate of growth. Neither is correct."

Wolf provided examples of nations that have "invested" heavily in higher education yet have listless economies (such as Egypt) and others that do little to promote higher education yet enjoy very productive and growing economies (such as Switzerland).

Conclusion: putting lots of people through college is neither a necessary nor a sufficient condition for rapid economic growth.

Now I'll mention two costs.

One cost of the expansion of college has been a corresponding decline in academic standards.

As college enrollments rose in the 70s, 80s, and 90s, K-12 standards were falling, with the result that an ever-increasing proportion of college students entered with weak academic skills and often an attitude that was indifferent toward learning.

In a 1997 article, Montana State English professor Paul Trout called them "disengaged" students and explained how they put downward pressure on academic rigor and upward pressure on grades - to keep them content and enrolled.

The National Assessment of Adult Literacy provides evidence of falling college standards.  In the 1992 study, only 40 percent of college graduates were assessed as "proficient" in prose literacy; by the 2003 study, that figure had fallen to just 31 percent.

And putting a quantitative peak on the mountain of anecdotal evidence that many students just coast along to their degrees, last year's book Academically Adrift showed that a large percentage of college students learn essentially nothing.

A second cost is credential inflation.  The more college grads in the labor force, the more employers require job applicants to have college credentials, even for jobs that call for no academic preparation.

James Engell and Anthony Dangerfield wrote in their book Saving Higher Education in the Era of Money, "The United States has become the most rigidly credentialized society in the world.  A BA is required for jobs that by no stretch of imagination require two years of full-time training, let alone four."

Credential inflation is hard on poor people who are prevented from competing for jobs they could do and hardest of all on poor people who spend money they need for other things on college credentials, only to wind up in low-pay jobs anyway.

I hope you'll now agree that we've oversold college.

***

NO--Peter Sacks

                                         By Charlotte Allen

There's something even worse than undergraduate debt. It's graduate-school debt. According to the American Student Assistance website, which uses figures from such sources as the National Center for Education Statistics, the College Board, and the nonprofit Finaid.org, 60 percent of recipients of bachelor's' degrees borrowed to fund their education during the 2000s, with the average debt load per borrower on graduation close to $23,000 by 2007. By 2010 that figure had jumped to more than $25,000 per borrower, according to the Institute for College Access's Project on Student Debt.

Those numbers sound bad, but what if you go on to obtain a master's degree, adding another one or two years' worth of education to your resume? According to American Student Assistance, nearly half of those who obtained master-of-science degrees during the late 2000s borrowed to finance their schooling, and their average cumulative debt load for those two years was $29,975--on top of what they already owed for their bachelor's degrees. Of recipients of master-of-arts degrees, degrees that typically qualify their holders mostly for low-paying teaching jobs at community colleges and private high schools, 61 percent borrowed to finance their two additional years of education, with a per-borrower average debt of $29,975.

Now let's factor in two additional pieces of data that bring home what it means to owe $45,000 for your Ph.D. after the ceremonies are over and you've stashed your doctoral gown inside its garment bag. First, you are likely to be as much as a decade older than your college classmates who collected only a bachelor's degree before setting out on a career path. According to the National Science Foundation, the median time spent registered in graduate school in order to earn a doctorate is 7.5 years. The median age of recipients of Ph.D.'s in science and engineering is 31.8 years. Among recipients of Ph.D.'s in the humanities the median age is 34.6 years. That is because it takes an average of nine years in school to earn a doctorate in the humanities. The total average time from receipt of bachelor's degree to receipt of doctoral degree is about eleven years in the humanities and nearly eight years in science and engineering.

Men and women outside academia who are in their early thirties are typically feeling ready, or even more than ready, to buy homes and start families. They are also typically feeling financially able to shoulder those new financial burdens, with careers nailed down and netting them decent incomes, most student loans paid off, and savings accumulated for down payments. Not so the members of their age cohorts who chose to go to graduate school instead. They are at the bottom of their career ladders and salary scales, just as their college classmates who didn't attend graduate school were ten years ago--except that the Ph.D.-holders now owe on average nearly twice as much in student debt as their former classmates. Holders of doctorates do earn more than holders of bachelor's and master's degrees, but not much more. The average starting salary of an assistant professor on the tenure track, for example, can be as low as $37,500 a year and almost never tops $60,000. A study cited by the Economist in 2010 found that a Ph.D. gives its holder only a 3 percent earnings premium over a master's degree, which takes only one or two years to complete. The study noted that in some fields, such as mathematics, computing, social sciences, and languages, holders of doctorates earn no more than holders of master's degrees. They have also incurred the opportunity cost of foregoing years of income that would have helped them pay off existing student loans.

Think Twice about Doing This

It gets worse. Doctoral programs are essentially vocational training--for the job of college professor. But the training is so time-consuming and exacts such a psychic toll, with Ph.D. students struggling for years to squeeze in research on their dissertations as they cope with the backbreaking hours and abject penury of a teaching assistant, that the dropout rate is extraordinary. Only about 57 percent of students who enroll in doctoral programs complete their degrees, according to a 2007 report from the Council on Graduate Programs. Students in the humanities, especially English and history, fare the worst, with about a 49 percent completion rate. In the humanities the dropouts tend to cluster in the later years of the program when the students finally run out of money and hope. That translates into up to a decade wasted in academia with nothing to show for those years except forgone earnings elsewhere and in many cases, more debt.

Those who do manage to collect their doctorates--at about age 35 for the humanities--face a further horror. There are very few jobs, or at least very few of those full-time, tenure-track teaching jobs, even at $37,500 a year, for which their highly specialized education has prepared them. The humanities, as ever, occupy the bottom of the misery index. The Modern Language Association, the leading professional organization for English and foreign-language professors, projects one-third fewer professorial job openings during the academic year 2011-12 than during 2007-08--and that's a slight improvement over last academic year. Yet the STEM fields (science, technology, engineering, and mathematics), where financial support from universities is higher and doctorates get completed more quickly, don't offer significantly better job prospects for their newly minted Ph.D.'s. The typical career path for nearly half of them these days doesn't start with a tenure-track assistant professorship but with two, four, or even more years as a lowly "postdoc" laboratory researcher earning a starting salary of about $42,000 a year. That doesn't help pay down student loans very quickly.

What to do about this? "The gigantic indebtedness of graduate students threatens to turn them into intellectual sharecroppers," Leonard Cassuto, an English professor at Fordham University, wrote recently in the Chronicle of Higher Education. Cassuto's proffered suggestions--that the government pay for graduate education and that universities hire more tenure-track professors--don't sound realistic in these economically pinched times. A more practical suggestion would be for more college graduates to think twice about enrolling in grad school. If $25,000 in student loans sounds daunting, why boost that figure to $45,000--especially since the jobs won't be there to enable you to pay it back?

                                     By Harvey A. Silverglate

Although our beleaguered universities continue their seemingly inexorable march from being institutions of higher education to resembling, more and more, political and social re-education camps for the young, every now and then the students demonstrate that they remain well ahead of campus administrations and faculties when it comes to appreciating the true role of our colleges and universities:  It appears that our universities' efforts at attitudinal indoctrination have not been wholly successful.

We see the latest example at Harvard in an editorial in the college newspaper The Harvard Crimson. Headlined "A University, Not A Think Tank: Harvard should not issue a formal position on inequality" (The Harvard Crimson, December 14, 2011), the undergraduate journalists take their professors to task for continuing on the perilous journey of politicizing the institution by seeking to have the school, in the editorial's words, "use its position to make a statement against social inequalities."

The Crimson editorial argues that Harvard's primary responsibility is "to promote free discourse," and that the university's taking a formal and official position on "contemporary political issues...such as inequality" would inevitably move it in the direction of, for example, "endors[ing] a presidential candidate, or impos[ing] a political litmus test for faculty."

In fact, this would hardly be the first time that the student journalists had to lecture their teachers on the contours of intellectual freedom and of the dangers in crossing the line from education to indoctrination. Whether defending a student's right to parody seemingly incompetent administrators at the Business School, or castigating the attempted imposition of a racial speech code at the law school, the student editors of the Crimson have for the most part eloquently defended intellectual freedom against those who would constrain it.

But the push against open discourse and intellectual vibrancy at the university has been strong over the last two decades, as university administrators and faculty have made a veritable tradition of betraying these seemingly sacrosanct principles. In 2006 the faculty managed to drive out the university president, Lawrence Summers, for suggesting the existence of scientific evidence of women scientists' gender-based overall predisposition not to perform at the highest levels, in contrast to their male counterparts. In 2009, the Dean of the Law School publicly embarrassed and castigated a student for a controversial private e-mail expressing the student's interest in seeing more scientific research results on the hot-button issue of race and intelligence. And at the beginning of the last semester, the Harvard College Dean of Freshmen sought to impose on all new arrivals a "Freshman Pledge." As explained in this space this past September, it was only because of considerable push-back that the dean retreated from his insistence that the oath be posted at every freshman dorm entryway with a signature line for every student, so that everyone would see which students were, and which were not, prepared to publicly declare their fealty to the notion that "the exercise of kindness holds a place on a par with intellectual attainment," thereby "upholding the values of the College" that include "inclusiveness and civility." (For a longer discussion of Harvard's new tradition of betraying free speech, see this piece by Daniel R. Schwartz.)

And so even though the Dean of Freshmen failed (for the current year only - he vowed to return to the issue at the start of fall semester later this year) to stampede first-year students into pledging to kindness and inclusiveness as essential and mandated values rather than mere personal preferences, the acting chair of a major department tried to pledge the entire institution into solidarity with a social and political movement.

And unfortunately, we cannot be overly confident that the Crimson will maintain its longstanding policy as a bulwark against administrative and faculty overreach. In the last year alone, Harvard's highly regarded student newspaper ("The University Daily Since 1873," blares the masthead proudly) has failed twice to defend freedom of conscience at Harvard. In response to the pledge controversy, rather than support former Dean Harry Lewis's unmitigated position against the pledge, the Crimson editorial board called for the imposition of amoral code. The code would, said the editors, represent "an explicit affirmation of the moral value set that should guide the Harvard community;" such "codification of morality" being necessary to "truly bring integrity, respect, compassion, and kindness on par with success."

And two days earlier, the student editors reminded the faculty of the proper academic and intellectual mission of the liberal arts university, the same editorial page supported the December 6^th vote of the Harvard College faculty to exclude from the Harvard Summer School catalogue two economics courses taught by Indian economist Subramanian Swamy. The reasons for Swamy's effective expulsion from the faculty was his authorship of an editorial--for a newspaper in his native India--urging the Indian government to take drastic steps in response to Muslim extremism. This action by the faculty was taken at the behest of Comparative Religion Professor Diana L. Eck, who strained laughably to characterize Swamy's newspaper column as something more sinister and dangerous than mere speech. This time the Crimson editorialists bit: "Swamy's op-ed clearly constitutes hate speech, by even the most lenient definition," they wrote. "As a matter of principle, there is no place for hate speech in the Harvard community." While a clear misreading of the article--Swamy's piece may seem radical, but calling it hate-speech is quite a stretch, and calling it incitement absurd--what neither Professor Eck and her faculty colleagues, nor the student editorialists understood, of course, was that in the society outside of the ivy gates, "hate speech" is accorded vigorous constitutional protection.

As the Crimson editorial's warning to the university not to go overboard in adopting formal institutional positions on such political issues and economic inequality demonstrates, the students are still ahead of their teachers when it comes to preserving the academy's unique devotion to freedom of thought and speech, and to intellectual pluralism. However, as the Swamy and pledge editorials equally show, even student editors are not completely immune from the increasingly dangerous politicization of the academy that threatens academic freedom and, indeed, the whole concept of a liberal arts education. The danger, of course, is that within another generation, the constant pressure from faculty and administration to water down the liberal arts university's traditional mission will have converted the students into unquestioning followers of their politicized elders.

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Harvey A. Silverglate (www.harveysilverglate.com), a Boston trial lawyer and a graduate of Harvard Law School, is the co-author of The Shadow University: The Betrayal of Liberty on America's Campuses (Free Press 1998; Harper Perennial paperback 1999), and the co-founder and current Chairman of The Foundation for Individual Rights in Education (www.thefire.org).Thanks go to research assistant Daniel Schwartz.

                By Kate Hamilton

Cross-posted from National Association of Scholars.

Fall 2011 has seen some major milestones for the SAT/ACT optional movement. DePaul University, for instance, initiated its first admission cycle sans test requirement. Clark University announced last month that it will offer test-optional admissions for the incoming class of 2013.

In his new book released this fall titled SAT Wars, sociologist Joseph A. Soares of Wake Forest University hails the success of test-optional admission policies. Wake Forest was the first of the top 30 U.S. News schools to go test-optional and is one of the most vocal cheerleaders of the movement through its blog Rethinking Admissions.  According to Soares, adopting policies that allow applicants to opt out of reporting their scores has successfully resulted in diversifying these campuses by race, gender, ethnicity, and class (groups he claims are excluded unfairly for underperforming on standardized tests) without compromising overall academic quality.

By all appearances, requirements for standardized testing in higher ed admissions is on the long and ragged road out the door.  To date nearly 850 colleges and universities (40% of all accredited, bachelor-degree granting schools in the country) have already bidden farewell to the test requirement in some form or another. 53 of these institutions are currently listed in the top tier on the "Best Liberal Arts Colleges" list published by U.S. News and World Report including Bowdoin, Smith, Bates, Holy Cross, and Mount Holyoke Colleges. Even some of U.S. News' high ranking national universities, such as Wake Forest University, Worcester Polytechnic Institute and American University, are categorized as test-optional.  It now seems likely that this trend will only gain in popularity and momentum in the coming years.

SAT and/or ACT may not be required by school for some or all applicants, and in some cases, data may not have been submitted in form requested by U.S. News. SAT and/or ACT information displayed is for fewer than 67 percent of enrolled freshmen.

Keeping quiet can seal your fate if you are a professor facing a campus kangaroo court after being accused of racial "harassment" over your classroom speech. Free-speech advocates use adverse publicity to save wrongly-accused professors from being convicted and fired. They put to good use Justice Brandeis's observation that publicity cures social evils, just as sunlight is a disinfectant.

But as the plight of Lawrence Connell at Widener University illustrates, if an accused professor speaks up, resulting in possible adverse publicity for his accusers, he risks being punished for "retaliation" against them, even when harassment charge is baseless. Connell was convicted of "retaliation" because he and his lawyer denounced meritless racial harassment charges against him over his classroom teaching. Retaliation charges have become a growing threat to academic freedom, fueled by court rulings that provide murky and conflicting guidance as to what speech can constitute illegal "retaliation."

Connell, who is white, was charged with racial harassment and removed from Widener's campus because he discussed hypothetical crimes in his criminal law class, including the imaginary killing of the law school dean, Linda Ammons, who happens to be black. (He was also accused of harassment because he "expressed his philosophical concerns about the fairness and utility of hate crime" laws).

But there was never any evidence that Connell used the dean in these hypotheticals because of her race. (Comments are not "racial harassment" unless they target a victim based on her race, and are severe and pervasive, according to Caver v. City of Trenton, a ruling by the appeals court that has jurisdiction over Widener.) Far from being a racist, Connell had spent 15 years successfully working to save the life of a black man who had been sentenced to die after he was convicted of murder by an all-white jury.

Leading law professors submitted affidavits in support of Connell pointing out that discussing hypothetical crimes against law deans was standard practice in criminal law classes. George Washington University's Orin Kerr noted that "one of the common ways that law professors keep students mildly entertained in class is by posing hypotheticals involving their professors and the Dean. . . . students just love it. If you teach first-year criminal law," "that means you spend a lot of time imagining your colleagues meeting horrible fates." In Bauer v. Sampson, a court ruled that depicting a college official's imaginary death was protected by the First Amendment.

After Connell was exonerated by a committee of law professors, the charges against him were resubmitted to a disciplinary panel including Dean Ammons herself, another Widener administrator, and a professor hand-picked by Ammons.

While even this panel was forced to concede that Connell had not committed racial harassment, it found him guilty of two acts of "retaliation": the first was an email protesting his innocence after he was suspended and banned from campus, and the second was his lawyer's public statement that he was preparing to sue over the unfounded allegations. The email called the accusations against him "preposterous" and said that they were made by "two unnamed students from my Criminal Law class of spring 2010" who "falsely" quoted and took "out of context" his classroom "remarks." The panel deemed the email to be illegal retaliation, even though the email did not even name the accusers, because the email supposedly had the "foreseeable effect of identifying the complainants." (The email led to students speculating about who the complainants were, and a complainant suspected that others "believed that she was one of the complaining students."). Connell was then suspended for a year without pay. As a condition of reinstatement, he must undergo psychiatric treatment, and be deemed sufficiently "cured" before he is allowed to return to his classroom.

Connell's email did not constitute "retaliation" under controlling legal authority. But Widener was able to claim otherwise with a straight face, by cherry-picking language from court rulings it selectively cited. First, it recited the vague, broad definition of retaliation from the Supreme Court's decision in Burlington Northern v. White (2006): conduct that "could well dissuade a reasonable worker from making or supporting a charge of discrimination." The email, it suggested, could dissuade complaints by making complainants uncomfortable or inciting ostracism against them.

But Widener ignored language in that court ruling saying that mild expressions of hostility in response to a complaint do not rise to the level of "retaliation." The Supreme Court declared that "snubbing by supervisors or co-workers" or "petty slights" in response to a complaint do not rise to the level of retaliation, since they would not be "material" enough to dissuade a "reasonable" person from complaining. If actual snubbing is not retaliation, Connell's email can't qualify based on Widener's speculation that it could lead to snubbing. The Supreme Court also said that only "significant" rather than "trivial harms" constitute retaliation, and that "sporadic" "abusive language" or "occasional teasing" does not qualify.

Second, Widener cited a ruling from a Midwestern appeals court (which has no jurisdiction over Widener), that rejected a challenge to a professor's discipline for publicly criticizing a harassment complaint. That disturbing ruling, Bonnell v. Lorenzo, essentially held that bans on "retaliation" trump the First Amendment, menacing academic freedom.

In doing so, Widener ignored other First Amendment rulings limiting the reach of retaliation law. For example, in BE&K Construction Co. v. NLRB (2002), the Supreme Court held that an employer's reasonable, but unsuccessful, lawsuit was protected by the First Amendment's petition clause even if it had a "retaliatory motive." In Bain v. City of Springfield (1997), the Massachusetts Supreme Court ruled that a mayor was entitled to publicly denounce a sexual harassment complaint against him, even if that could dissuade the filing of harassment charges, since retaliation prohibitions are limited by "constitutional guarantees of freedom of speech. The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech." Similarly, in Brooks v. City of San Mateo (2000), the Ninth Circuit held that "retaliation" could not be found based on "mere ostracism" or employees' refusal to associate with an employee after she brought an unsuccessful harassment complaint, citing a potential clash with the "First Amendment freedom of association."

In short, contrary to what a Florida trial judge recently suggested, there is no blanket exception to the First Amendment for speech that is "discriminatory" or "retaliatory." In DeJohn v. Temple University (2008), the federal appeals court with jurisdiction over Widener invalidated a college sexual-harassment policy that restricted academic speech, noting that "there is no 'harassment exception' to the First Amendment's Free Speech Clause," and "no categorical rule . . . divests `harassing' speech as defined by federal anti-discrimination statutes, of First Amendment protection." Similarly, White v. Lee (2000) rejected liability for speech that allegedly incited discrimination, holding that the anti-discrimination provisions contained in the Fair Housing Act did not override free speech protections. That appeals-court ruling held that citizens could not be investigated under the Fair Housing Act, even if their speech was bigoted, and led to a city blocking a housing project for the disabled. If the First Amendment protects speech that incites actual discrimination, it certainly protects speech that merely unintentionally incites snubbing of a discrimination complainant. In Rodriguez v. Maricopa County Community College (2010), an appeals court, citing the First Amendment, dismissed a racial harassment lawsuit against a white professor over his racially-charged anti-immigration emails. 

While Widener's claim that Connell's email was "retaliation" was a tortured reading of the law, it reflects what retaliation ought to mean to some left-leaning lawyers who counsel universities. (Other academics, like Richard Osborne at Mesabi Community College, have also been punished for "retaliation" for speaking out vigorously in their own defense; Osborne's punishment was rescinded only after he brought a free-speech lawsuit.) To these lawyers, current legal rules privilege white male faculty at the expense of minority complainants, giving them insufficient protection.

When law professors at the Volokh law blog condemned Widener's treatment of Connell, most of its lawyer readers disagreed with Widener's "retaliation" finding in the comment thread. But a liberal employment lawyer who represents universities disagreed, arguing that Widener was not only permitted but legally "compelled to punish" Connell for "retaliation." Brushing aside the arguments of many other lawyers pointing out that Connell's email did not legally amount to "retaliation," that commenter, who represents employers, argued that simply proclaiming your innocence without even mentioning the name of your accuser can be retaliation. He claimed that Connell, who had received high marks for his teaching (and successfully handled high-profile cases in court), was a "warped," "underachieving white male" who should have been fired. People wrongly accused of harassment, he said, should just keep their "mouth shut and let the process" work, "not contact" potentially helpful witnesses, and "say nothing to anyone." He argued, "when you are accused of race and sex discrimination, it is best to be silent . . . And you should keep silent unless and until you have been exonerated." (That is a prescription for disaster in dealing with a campus kangaroo court, or in getting sympathetic witnesses to come forward to rebut a claim that a professor's classroom remarks created a racially-harassing "classroom climate"). Exuding racial grievance against whites, he depicted those who disagreed with him as racists, and called the conservative Connell an "anti-black bigot," citing the alleged existence of "OBVIOUS historical antipathy between conservatives (especially white male ones) and minorities" -- even as he claimed that jurors were legally "required" to find O.J. Simpson not guilty. As a commenter observed in response, lawyers like this are "part of the whole victimhood industry, . . . 'advising' clients to genuflect before the gods of political correctness, lest they be harmed."

Employment lawyers are a lopsidedly liberal lot. In my employment-law class at Harvard Law School, my classmates were overwhelmingly hostile to employers in harassment and retaliation cases. Ironically, some of those classmates now have jobs representing employers and advising them on their legal responsibilities. Their advice may well be colored by their ideology, and may lead to their clients firing innocent employees as "harassers" or "retaliators." Moreover, broad legal definitions of "harassment" and "retaliation" create more lawsuits, and thus more demand for these lawyers' services, benefiting them financially.

There is a final reason why Widener's finding that Connell engaged in illegal retaliation was erroneous: the complainants' allegations were legally unreasonable and thus not protected against "retaliation." Retaliation against a harassment complainant is not legally prohibited if the complaint was based only on trivially-offensive speech, as the Supreme Court made clear in Clark County School District v. Breeden (2001). Thus, a complaint about a single racist utterance was not protected against retaliation, according to an appeals court in Jordan v. Alternative Resources, because it could not reasonably be perceived as illegal harassment. No reasonable person would think that Connell's perfectly-defensible classroom remarks were illegal racial harassment. (Note that while unreasonable charges are not protected if made to an employer, they are protected if made to a civil-rights agency; agency complaints are generally protected even if false).