TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Thursday, September 21, 2017

Controversy Over Law Profs' Op-Ed On The Breakdown Of The 'Bourgeois Culture' Shifts From Penn To San Diego

USD (2016)Following up on my previous posts:

San Diego Dean Stephen Ferruolo has issed this statement:

I want to thank the student groups, as well as the many individual students, faculty and other members of the USD law school community who have spoken or written to me to express their concerns about the article written by USD School of Law Professor Larry Alexander, along with University of Pennsylvania Professor Amy Wax, and their subsequent interviews about the article.

As I said in my remarks at 1L Orientation, I am committed, as Dean of USD School of Law, to ensuring that there are opportunities for respectful discussion of important issues and for everyone's voices to be heard. The rights we must respect in an academic community include freedom of speech and academic freedom, and those rights and freedoms extend to every member of our community. No less importantly, however, in exercising our rights and expressing our views, we must be sensitive to all the members of our community, especially those who may feel vulnerable, marginalized or fearful that they are not welcomed. We must recognize that, for many students, racial discrimination and cultural subordination are not academic theories, they reflect the students’ personal experiences.

USD School of Law supports the rights of its faculty to comment as individuals on matters of public interest. When professors speak and write, they speak in their personal capacities and not for or on behalf of the law school or the university. The views expressed by Professor Alexander were his personal views. I personally do not agree with those views, nor do I believe that they are representative of the views of our law school community.

I realize that my words alone will not address the concerns expressed by so many in the law school community. It is my responsibility to lead this community in responding in constructive and concrete ways that will keep us united and reflect our shared values. Working with representatives from BLSA and others, I have already given my full support to several important initiatives, including expanding the law school’s curriculum to offer additional courses addressing the issues of discrimination and civil rights, inviting prominent speakers to give lectures and hold workshops, initiating small group discussions with faculty and administrators to improve racial and cultural sensitivity, and designing and introducing new training programs on the issues of diversity and inclusion for all our community. In addition, I am establishing a working group, consisting of students, faculty and administrators, to join me in developing an action plan to ensure that the law school’s commitment to diversity and inclusion remains strong and irrefutable. I will be reporting to you again after the working group has held its first meeting.

Update:  For more law prof reactions, see here.

http://taxprof.typepad.com/taxprof_blog/2017/09/controversy-over-law-profs-op-ed-on-the-breakdown-of-the-bourgeois-culture-shifts-from-penn-to-san-d.html

Legal Education | Permalink

Comments

Sniveling, gutless statement.

Posted by: Actual Lawyer | Sep 21, 2017 7:01:40 AM

So he issued a CYA memo that says while I disagree with what was said they have the right to say it. This is more than we have seen from other places. At least a small step in the right direction

Posted by: Old Guy | Sep 21, 2017 7:24:31 AM

At the core of the Wax-Alexander op-ed is the premise that during America’s great golden age – the “late 1940s to the mid-1960s” – a single cultural script held sway:

“Get married before you have children and strive to stay married for their sake. Get the education you need for gainful employment, work hard, and avoid idleness. Go the extra mile for your employer or client. Be a patriot, ready to serve the country. Be neighborly, civic-minded, and charitable. Avoid coarse language in public. Be respectful of authority. Eschew substance abuse and crime.”

This script, they assert, “could be followed by people of all backgrounds and abilities.” It was in significant part responsible for “the productivity, educational gains, and social coherence of that period.”

Let’s be clear: I like that script. I agree with that script. I endorse that script.

But their description of the cultural script of the late 1940s to mid-1960s is incomplete. Blacks and other minorities were subordinate and were supposed to stay that way. Women were supposed to stay home, take care of the children, and not become law professors. Children who inherited an attraction to others of the same sex were supposed to hide who they were and lurk in the shadows for the rest of their lives. It’s true that the part of the script they articulate “could be followed by people of all backgrounds and abilities,” but for those who were not straight white men, the result was not nearly as wonderful, no matter how hard they worked, no matter how hard they stuck to the script.

The Wax-Alexander response is two-fold. Yes, they admit, there were problems, but they’re well on their way to being solved. The problem now – the problem that continues to make America a less good place – is “an obsession with race, ethnicity, gender, and now sexual preference.” As Wax wrote when Mr. Trump won in November, “one of the reasons for Trump’s popularity is that he has tried to scale some of the walls of political correctness. People are tired of all the victimology and identity politics, which distorts and casts a pall over every conversation.” People are tired of being reminded that women still make only 70% of what men make. People are tired of being reminded that “between 1983 and 2013, the wealth of median Black and Latino households decreased by 75% (from $6,800 to $1,700) and 50% (from $4,000 to $2,000), respectively, while median White household wealth rose by 14% (from $102,200 to $116,800).” (Forbes Magazine, Sep. 11, 2017)

Really. Why can’t we just move on and stop obsessing about these things? Why can’t we just Make America Great Again?

Mr. Trump, of course, will take us back to the cultural script of which they are so enamored. He will stick with his wives (all three) for the sake of the children. He will go the extra mile for others. He will teach us how to be neighborly, civic-minded, and charitable. He will avoid coarse language in public.

Then I remember Prof. Wax telling us that if any of her children followed her advice (“Get married before you have children”) with someone of the wrong sex, she would disown him. (St. John’s University School of Law, November 12, 2010).

Sigh….

But that, of course, is just freedom of speech. Why should anyone object?

Posted by: Theodore Seto | Sep 21, 2017 7:25:24 AM

Theodore plays the tiresome Trump card to demonstrate how morally superior he (thinks) he is. Waxman-Alexander wrote an interesting op-ed. Feel free to disagree. Leave it at that. Add another law and discrimination course? That'll really prepare his students for the work world. Not.

Posted by: Actual Lawyer | Sep 21, 2017 8:16:02 AM

"But that, of course, is just freedom of speech. Why should anyone object?"

Right on, Ted. And it's not just free speech that has to go, but it is time to gut the whole First Amendment with its antiquated religion clauses.
Yet, you might want to think about the cognitive dissonance embedded in the time periods referenced in your first paragraph and your sixth. Just sayin’.
But good on you for keeping the 70% canard alive!

Posted by: Mike Petrik | Sep 21, 2017 8:42:59 AM

"o less importantly, however, in exercising our rights and expressing our views, we must be sensitive to all the members of our community, especially those who may feel vulnerable, marginalized or fearful that they are not welcomed. "

I find the Dean's comments insensitive. As I'm a member of a marginalized community, the Dean should retract his statement. And apologize. Immediately.

Posted by: Ed | Sep 21, 2017 8:55:34 AM

Is anyone else tired of the outrage layered over outrage? Students and far-leftists are outraged by an anodyne op ed in a crappy regional paper that no one reads; Brian Leiter is outraged at a dean's only somewhat-less-anodyne message. Now can someone please get outraged by Leiter's outrage? I think "we" need to collectively go have a nap, have a chamomile tea, squeeze a stress ball, take some Paxil. There are surely bigger problems in the world on which to expend our angry selves.

Posted by: Jason Yackee | Sep 21, 2017 9:26:12 AM

Leiter's outrage is well-placed...The broader implications of this dean's actions for academia are just too serious to ignore, particularly in the current environment where the historically fundamental tenet of free speech, let alone freedom of academic thought and expression, is being eroded daily from within. Imagine a world where academic social scientists are actively prevented from, or are attacked for conducting objective, serious studies into areas that could yield answers that a certain identity group might find uncomfortable...sound familiar?

Posted by: Anon | Sep 21, 2017 12:16:54 PM

"I think 'we' need to collectively...take some Paxil." Paxil is an SSRI indicated for depression and a variety of anxiety disorders, not outrage. Also SSRIs cause sexual dysfunction. Probably not a good idea for everyone to go on Paxil.

Posted by: anon JD/MD | Sep 21, 2017 1:45:33 PM

If you're not outraged that a Dean has denounced a faculty member's opinions, implying that he is a racist and other things unwelcome in their community, then either (a) you don't know what academic freedom is, or (b) you don't care about it. Good luck to you when your Dean decides to denounce your scholarship, while pretending to affirm your free speech rights.

Posted by: Brian | Sep 21, 2017 2:29:14 PM

The only outrage that I've detected is the outrage expressed by those who would deny two people from expressing their personal opinions.

Posted by: tuphat | Sep 21, 2017 9:50:57 PM

Unlike Prof Caron, Dr Leiter won't let you post comments on his blog.

Posted by: Enrique | Sep 21, 2017 11:00:12 PM

Moderating comments is time-consuming, Enrique, and the very fact that your off-topic and irrelevant remark was approved by the Blog Emperor is itself indicative of the problem: the Blog Emperor turned Dean doesn't really have time to moderate comments responsibly, hence the appearance of your irrelevant remark.

Posted by: Brian | Sep 22, 2017 4:18:35 AM

"But their description of the cultural script of the late 1940s to mid-1960s is incomplete. "

Perhaps because that part of the culture is not the part that they believe was beneficial and wish to retain? But that won't stop the hysterical from reading it into their intent and going hyperbolic.

Posted by: ruralcounsel | Sep 22, 2017 4:21:50 AM

To those outraged by the dean's message, it's important to note that academic freedom simply means the ability to voice your thoughts without retribution. If we're going to cast criticism as retribution, then universities have much larger problems than this scuffle. While I think it would have been wiser for the dean to have separated out his disagreement with the authors' article from review of the curriculum, I don't see what he's written as an attack on academic freedom. Might it chill some speech? Yes, but any criticism has the potential to chill speech, and he has as much right as his faculty to criticize someone else's writings. His words have more weight because of his position, but the same could be said of his support of an individual's right to speak regardless of what anyone else in the university thinks.

Posted by: Micah | Sep 22, 2017 4:48:36 AM

@Mr. Theodore Seto wrote,
"People are tired of being reminded that women still make only 70% of what men make. People are tired of being reminded that “between 1983 and 2013, the wealth of median Black and Latino households decreased by 75% (from $6,800 to $1,700) and 50% (from $4,000 to $2,000), respectively, while median White household wealth rose by 14% (from $102,200 to $116,800).” (Forbes Magazine, Sep. 11, 2017)"

Life on the democrat plantation is hell, I tell you what.

Posted by: Denver | Sep 22, 2017 6:33:39 AM

I have answered your call Jason.

Posted by: Steve Diamond | Sep 22, 2017 6:47:51 AM

@anonJD/MD,
The concept of “sexual dysfunction” is inimical to enlightened thinking. It presupposes a normative sexual functionality that is inevitably infected by the very same bigoted bourgeois values endorsed by Professor Wax. Besides, the chief purpose of drugs is consonant with the chief purpose of sex – recreation. Everyone with a modern college education knows that. Geesh.

Posted by: Mike Petrik | Sep 22, 2017 9:50:07 AM