Hate Speech Laws?

Retired Supreme Court Justice John Paul Stevens reviews Jeremy Waldron’s The Harm in Hate Speech in The New York Review of Books.  In a calm and reasonable discussion of a book on highly divisive topic, Justice Stevens identifies Waldron’s purpose as making a case that the United States should adopt laws regulating hate speech, as a number of other countries have.  Waldron apparently draws on ideas from the philosopher John Rawls to posit that hate speech laws can be part of creating a well-ordered society. Stevens concludes that “…In the end, although the book does not persuade me that it would be wise to outlaw the entire category of hate speech that Waldron describes, he elegantly and convincingly advocates that our leaders should not only avoid the use of hate speech themselves, but also condemn its use by others.

Having read the review, I should now read the book. I intend to try to cram it into my overstuffed schedule. I don’t think I need to read it, though, to be convinced that our leaders should avoid vicious and hateful statements. But that’s a moral judgment, not a legal one. I can refuse to vote for anyone who says anything I find objectionable or for anyone supports or fails to condemn expressions by others that do not meet with my approval. This is, however, entirely separate from the question of whether my disapproval or the disapproval of others should have the force  of law                                                                                                                                                                                

I think the arguments Waldron makes for hate speech laws, as summarized by Justice Stevens, should be taken arguments against those types of laws. I object precisely to the Rawlsian justification. Laws against murder or robbery define objective acts as illegal. But “hate speech” is defined in terms of the social order someone wants to use the laws to create. According to a key sentence in the review, “Waldron believes that we have overprotected speech that not only causes significant harm to the dignity of minority groups but also, more importantly, diminishes the public good of inclusiveness that is an essential attribute of our society.” Here, it seems clear that hate speech laws are not sanctions for objective violations, but political weapons to be wielded by partisans of social reform who manage to get control of the legal machinery.

Respect for the dignity of others, whether as individuals or as categories, is a wonderful moral tenet. Prosecuting people because they are seen as failing to conform to someone’s political program of “inclusiveness” cannot be reconciled with a free society.

My Inequality Course

An article by Charlotte Allen and George Leef, published online at both Minding the Campus and the Pope Center for Higher Education Policy, recently singled out a course I teach, entitled "Wealth, Power, & Inequality," as the only one they could find that provides a balanced approach to teaching about social inequality.  I was pleased by this recognition because my main goal in designing the syllabus and selecting the readings for this course (which was on the books under this title before I began teaching it) was precisely to avoid preaching any particular doctrine to the students. I wanted to present inequality as a subject of debate and a topic that could legitimately be approached from differing perspectives, and not to give them my views or the prevailing views of academia as the "correct" way to think about this controversial issue. I try to give them readings that present arguments that are redistributionist and anti-redistributionist, supply-side and demand-side, statist and libertarian, traditionalist.

Many professors teach from a definite point of view. I think that is legitimate in a marketplace of ideas, but it is also problematic in the contemporary university because too often the market is an intellectual monopoly, in which the lack of competition produces shoddy goods. My own approach is to try to delineate the different points of view and to encourage students to reason for themselves. I will, if asked, tell them what I think and give them my reasons, but if they agree with me it should be because the reasons make sense, not because I'm giving them no alternative. 

Desegregation Nostalgia

In “Making Schools Work,” in the Sunday Review section of the New York Times, David L. Kirp repeats a tale repeatedly told by Gary Orfield and the other advocates of the racial redistribution of public school students through “command and control” techniques. According to this story, coercive redistribution of students was a wonderful success until abandoned in the 1980s. We could repeat this success if only we would return to the policies of earlier years.

One of the problems with this story is that the resegregation of schools resulted, at least in part, from white families and later middle class black families fleeing from school districts in order to escape judicially directed desegregation, leaving the most disadvantaged minority students behind. At the same time, whites decreased as a proportion of public school students in general so that nearly half of all public school students in the U.S. were non-white by 2010. In urban areas, whites were under one-fourth of all public school students. In school districts around the United States that have large minority populations and especially in districts that have large low-income minority populations, there just aren’t enough white students to go around in order to achieve any kind of effective desegregation.

The principle that schools should not discriminate against minority students was a genuine accomplishment of the post-Brown era. However, desegregation failed to re-design American society not only because of its own unintended consequences, such as middle class flight, but also because the courts from the beginning did not embrace that hubristic goal. As early as the 1968 Green v County School Board of New Kent County Virginia decision, the Supreme Court explicitly stated that desegregation was to undo the damage of de jure segregation, not to remake society. The Green decision also stated that desegregation mandates must be limited in time and must have temporal endpoints. The Court reiterated these points over the course of the following decades, notably in Pasadena v Spangler in 1976 and in Oklahoma City v McDowell in 1991.

At the end of his essay, Kirp speculates that “[i]n theory it’s possible to achieve a fair amount fo integration by crossing city and suburban boundaries…” Anything that we would like to imagine is possible in theory, but, based on past history, I’d suggest that any amount of cross-boundary movement substantial enough to make a difference would result in new waves of flight out of suburban schools near large cities into private schools and more distant suburbs. However, Kirp and I are unlikely to have practical tests of our competing theories. As early as 1974, long before the Court supposedly turned its back on desegregation, the Supreme Court recognized in Miliken v Bradley that the courts cannot order desegregation strategies across district boundaries. Forcing school districts to accept students from families that do not vote for district school board representatives and who do not pay local taxes for schools was pretty clearly unconstitutional, even during what Dr. Kirp recalls as the golden age of desegregation.

The New Minority

Numbers of Births in the United States, April 1, 2010 to July 1, 2011

Source: US Census, Table 4. Cumulative Estimates of the Components of Resident Population Change by Race and Hispanic Origin for the United States: April 1, 2010 to July 1, 2011 (NC-EST2011-04)

The U.S. Census Bureau reported yesterday that  non-white babies (under 1)  in the United States outnumbered white babies for the first time. Although a Wall Street Journal article on this phenomenon denies that this is due to immigration, attributing it instead to higher birth rates among non-whites, I think it can ultimately be traced to post-1965 changes in immigration.  This is because many of the native-born children of Hispanics and Asians (who make up the overwhelming majority of immigrants) are children or grandchildren of immigrants. The consequences of the change are less evident than the causes. Our racial and ethnic categories may simply shift. Many white Hispanics, the largest category of supposed "non-whites," may become effectively indistinguishable from the historic majority population as younger generations of Hispanics adopt English as their dominant language or lose the ability to speak Spanish altogether. Increasing intermarriage, especially among whites and Asians, could well blur the boundaries between those groups, as a co-author and I argued not too long ago.

Our changing demographics do pose some dangers, though. The greatest of these is the threat of ethnic Balkanization. While I see nothing wrong with individuals being proud of a particular heritage, a politics of ethnic identities can only set people against each other. A spoils system of distributing resources and opportunities to achieve some ideal of "diversity" works badly and encourages resentment when it involves only a single historically disadvantaged group and a historically dominant group. When it involves many different groups, consisting of individuals struggling for politically bestowed preference on grounds of categorical underrepresentation, it is a recipe for disaster. In a society consisting of many "minority" groups, the politicization of ancestral identity has real potential to pull the nation apart. 

Urban Decay Chic

Will Doig writes in the online magazine Salon about “Rust Belt chic.” It seems that Rust Belt cities, including Cleveland, St. Louis, and Detroit, have been drawing young people in the 22 to 34 year-old demographic. These new settlers, according to the article, tend to be “knowledge economy” workers, drawn by the romance and trendiness of decay. Doig recognizes that the post-industrial cities have their difficulties, notably “failed schools, violent crime, and the threat of municipal bankruptcy,” but he thinks that hipness might be part of revitalizing cities.

This interested me because New Orleans today is often considered a very “hip” place, as well as one with pre-industrial, as well as post-industrial decay. And the city has in recent years been drawing heavily from that same age cohort of artists, urban farmers, and others who want to be cool in a trendy place. We seem to be pulling in even more of those folks since the big 2005 hurricane, so maybe there is a national fashion for decrepitude, a twenty-first century version of nostalgie de la boue.

The problem with this new population source for otherwise declining cities is that the young, arty people are almost by definition unattached, socially and geographically. They want the experience of living somewhere gritty, but the uprooted life is part of what attracts them. They’re not going to build any kind of lasting communities. They’re also going to grow up. When they do form families, a good place to hang out and be hip is not going to be at the top of their lists of priorities in choosing a place to live.

Commencement

Now that commencement season is here, I’m reminded of some of my favorite quotations on the handing out of credentials.  I think of science fiction writer Ray Bradbury, who once announced “I don’t believe in colleges and universities. I believe in libraries because most students don’t have any money. When I graduated from high school, it was during the Depression and we had no money. I couldn’t go to college, so I went to the library three days a week for 10 years.” Bradbury would have been a great commencement speaker.

Even better than the Bradbury quote, though, is the script of the movie version of The Wizard of Oz, in the scene in which the Scarecrow gets a brain:

Wizard: Why, anybody can have a brain. That's a very mediocre commodity.

Every pusillanimous creature that crawls on the earth or slinks through slimy seas has a brain!

Back where I come from we have universities seats of great learning, where men go to become great thinkers.

When they come out, they think deep thoughts with no more brains than you have.

But they have one thing you haven't got: A diploma!

Therefore, by virtue of the authority vested in me by the Universitatus Committeeatum E Pluribus Unum I hereby confer upon you the honorary degree of Th.D.

Scarecrow: "Th.D."?

Wizard: Yeah, that's "Doctor of Thinkology."

I am not really a disbeliever in higher education and I do think it is possible to get an education in universities and colleges, as long as a student wants to learn and not just get a degree and ignores or avoids the courses of propaganda and preaching. Possible, but not necessary to get that Thinkology certificate.

Contemporary Scholarship

Sociology graduate student Nathan Jurgenson, writing in Inside Higher Ed, makes the argument that academics must make their ideas available and accessible to the public.  He maintains that they must try to communicate more widely in order to make more understandable and relevant to a wider range of people. I tend to agree with him, but not just because this can expand the influence of the putative experts.

I'm frequently called upon to review article and book manuscripts for journals and publishers, and I often wish that the writers would make their work understandable and relevant to a highly specific public: me. Writing is a reflection of thinking and when the writing is unclear, chances are that the thoughts behind the writing are unclear. Most of the articles and books in the social sciences (and, I think, in the humanities) are so clumsily written and badly argued that no one who isn't professionally obligated to read them would do so. Too often, when I can make sense of them, I find few real ideas lurking in the dense prose and statistical manipulations.

The problem with academic writing, I think, goes much deeper than its tendency to be a closed conversation in cloistered circles. The experts often really have nothing to say.

You Can't Say That

Is Black Studies a legitimate academic discipline? This seems like a question one should be able to ask, and a question that different people would answer in different ways.  Naomi Schaefer Riley, formerly a blogger on the Chronicle of Higher Education website, recently learned that this is one of the many questions that simply cannot be asked today, at least not unless you are prepared to answer it in the prescribed fashion.  Admittedly, Riley did express herself strongly, characterizing dissertation topics in this field as "a collection of left-wing victimization claptrap." But she was, after all, writing an opinion piece and this characterization did accurately summarize her opinion of recent scholarship in Black Studies.

Riley's expression of her views turned out to be pretty mild, compared to the reactions of comments and other bloggers on CHE's "Brainstorm" blog. The academic tumult spilled over into other media.  Well, those who disagreed with her had just as much right to voice their views, however vehemently, as she had to voice hers. The big problem was that Ms. Riley experienced more than unpopularity and name-calling. She was fired.

After initially trying to characterize Ms. Riley's post as an "invitation to debate," CHE editor Liz McMillen backed down and said that Riley's blogging did not meet the publication's "basic editorial standards for reporting and fairness in opinion articles." Those "standards" seem to mean not taking unpopular positions, and they did not prohibit another blogger on the same site from publishing bathroom wall-type doggerel personally attacking Riley.

As an outlet for ideas in higher education, I'm afraid CHE has given new insight into the climate of contemporary universities and colleges.  These are not places for free and open inquiry. Stifling conformity, maintained by mandatory outrage, is the order of the day. 

A Kinder, Gentler Soviet Experiment?

We know that Joseph Stalin ordered the murders of millions of people, but in a few individual cases his responsibility remains unclear. He probably had Sergei Kirov killed in order in order to create a pretext for the purges of the 1930s. He also might have been behind the death of the writer Maxim Gorky. Now, Russian historian Lev Lurie is giving new life to long-standing speculations that Stalin had Lenin poisoned, according to an article by Jacob Heilbrunn in The National Interest.

This possibility leads Heilbrunn to wonder what might have happened if Lenin had survived long enough to pass on the leadership of the USSR to someone less psychopathic than the "Great Architect of Communism." "Might the Soviet experiment, as it was known," Heilbrunn asks, "have turned out differently in the event of Lenin's ruling the Soviet Union for several more decades? Could he have made a go of the enterprise? Would Trotsky and Bukharin have been promoted rather than Stalin, and would a kinder, gentler Soviet Union have emerged?"

One of the problems with alternative history is that there is simply no way of knowing how things would have turned out if events had followed a different path. The USSR under Trotsky or Bukharin could conceivably have resulted in a less brutal regime. But the danger in this sort of speculation is that it leads us to the conclusion that persecution and mass murder were not consequences of the Communist system per se, but of a single individual who perverted the system.

While we don't have an alternative Soviet Union to serve as a basis of comparison, though, we do have other Communist states, including the short-lived regime of Bela Kun in Hungary, China under Mao, and Fidel Castro's Cuba. These have all been cases of highly repressive regimes and China, an "experiment" on the scale of the Soviet one, is perhaps the nation that comes closest to the USSR (and Nazi Germany, a different kind of "experiment") in sheer numbers of human beings eliminated. As Heilbrunn notes, responding to his own question, "[t]he preponderance of the evidence suggests that communist regimes based on Leninist principles quickly devolved into totalitarian societies."

Totalitarianism derives from the logic of social revolution. The complete reorganization of relations among people requires a program of unlimited coercion carried out by political agents. A social revolution, in other words, necessitates subordinating all connections among human beings to the dictates of planning by governmental bureaucracy. Stalin managed to prevail in the bureaucratic struggle for supremacy by agreeing to serve in the then unglamorous office of general secretary, which enabled him to fill positions with his collaborators. Both his ruthlessness and his organizational skills suited him to the intense bureaucratic competition of an environment in which political power was everything.  Stalin didn't simply happen to grab control. He triumphed in the Bolshevik setting because he was so well adapted to it. 

Genealogy in the Era of Diversity

My grandfather used to enjoy driving around the back roads of Louisiana. When he’d see some old folks sitting on rocking chairs out on their porch, he’d often pull over to chat.  The most common topic of conversation was: who were your parents and who are your kin? Since almost everyone was related (often in multiple ways), this was how they worked out exactly how they were connected to each other. My grandfather had memorized an elaborate ancestral tree, and this type of knowledge was pretty widespread among the older people, so he and his new contacts could generally end up classifying each other as cousins.

For all his detailed command of our family history, a few of his claims in this area always seemed to me vague and speculative. In particular, he used to assure me that we were “part Choctaw.” This was not entirely implausible. There are still a few Choctaw left in my ancestral region on the northeastern side of Lake Ponchartrain and there were more a couple of hundred years ago. But although my grandfather could recite a long list of fathers and mothers going back to the first arrival in this country in the seventeenth century, he never could identify that Choctaw forbear precisely. I always thought that he might, on occasions, allow his love of a good story to interfere with strict adherence to the truth. At any rate, if we do have any Amerindian background, I’m sure that any genetic traces have been lost in the larger pool of inheritance, and I certainly retain no cultural traits from our putative Choctaw heritage.

Recently, I’ve been reminded of my grandfather's genealogical expertise and occasional genealogical creativity by the Elizabeth Warren affair. Ms. Warren is the blonde-haired, blue-eyed Democratic candidate for the Senate seat in Massachusetts. In the course of her campaign against Republican Scott Brown, it has become public knowledge that Harvard University, where she taught law, formerly listed her as a “minority” on the basis of her supposed Native American ancestry, as did the American Association of Law Schools from the mid-1980s to the mid-1990s.

It is not clear that dubious ethnic claims played a part in Warren’s hiring by Harvard or that the misleading official identification originated with her, although it is hard for me to see where Harvard or the AALS would have obtained this information, if not from her. I also think that she might have corrected the AALS description before it ran for a decade. But rather than level accusations of fraud against Ms. Warren, I’d rather consider this as an instance of the absurdity of the “diversity” ideology that encourages selective interpretations of ancestry. For all I know, Harvard and the AALS may well define “Native American” as anyone with a pre-Columbian ancestor, in which case a Nordic-looking woman with no tribal connections could well be a “minority.” I’d guess that the university and the association have no clear definition of who falls within a category, so that she’s probably in the clear. The bigger problem is the desperate institutional effort to classify as many people as “minorities” as possible in order to increase diversity ratings.

My own children, in addition to their Louisiana background, are also half-Filipino. I usually tell them not to list themselves on applications as “Asian” because being Asian is generally more of a disadvantage than being white in systems of selection by racial and ethnic categories. If they're looking to fit into the diversity slots, they could conceivably use their mother’s maiden name and claim to be “Hispanic-surnamed." Or maybe they could just be Choctaw. In today’s world, genealogy has many more uses than just making connections with your kinfolk.

Totalitarianism Revived

In an article in World Affairs, Alan Johnson asks how Communism could be making a comeback among a cadre of intellectuals after the ideology's history of misery and mass murder during the twentieth century. Johnson maintains that the new Communists have little interest in history, which explains their ability to overlook the atrocities of Stalinism and Maoism. They also, in his view, have no clear plan for the future. The appeal of Communism, he argues, lies in Communists' identification of all the problems of modern society as interlinked and systemic. If "the system," as it currently exists, is the source of all problems, then the answer to all problems must be to have a revolution that will completely replace the system with some new state of affairs.

I suppose we are fortunate that most of the new Communists Johnson names are abstruse theorists unlikely to have any impact outside of seminar rooms.  But this "systemic" perspective is clearly an instance of what the sociologist Gideon Sjoberg approvingly called the "countersystem" approach in the social sciences, looking at current reality as an interlinked web of "social problems" and imagining a completely different organization of human relations. This, I would argue, was precisely why Communism always became totalitarian whenever its adherents achieved power: because they treated human societies not as products of history or as living associations among human beings, but as abstract patterns to be totally redesigned by planners of a new system.  

Taking a Stand

An article in Inside Higher Ed poses the question of whether college faculties should vote to take institutional stands on public issues. The publication reports the events at William Mitchell College of Law in Minnesota, where the faculty voted 24-7 in favor of a resolution opposing a proposed amendment to the state constitution to ban same-sex marriage. As the article discusses, this is an instance of a continuing debate on the rights and responsibilities of educational organizations regarding public issues.

One of those who argued against institutions taking positions cited the 1967 report of the Kalven Committee on the University's Role in Political and Social Action, one of my own favorite documents. Under the chairmanship of Harry Kalven, this University of Chicago faculty committee came to the conclusion that teaching and scholarship, the legitimate purposes of higher education, could be fostered only by allowing all individuals to think for themselves.  Kalven's committee wrote that "there is no mechanism by which it [the university] can reach a collective position without inhibiting that full freedom of dissent on which it thrives. It cannot insist that all of its members favor a given view of social policy; if it takes collective action, therefore, it does so at the price of censuring any minority who do not agree with the view adopted. In brief, it is a community which cannot resort to majority vote to reach positions on public issues." In the case of William Mitchell College, it is perfectly legitimate for most or even all of those at the college to decide they are against the amendment, to voice this opinion publicly, and to campaign for their chosen position. But when they vote on it as an organizational resolution, they impose the majority opinion as a standard of political correctness.

"Taking a stand" sounds bold, but there is nothing courageous about proclaiming popular ideas to be official policy.  If anything, expressing institutional approval for those who think the "right" way  creates an environment in which cowardice and conformity thrive.  In saying this, I'm not suggesting that our colleges are somehow above politics or that higher education should be unconcerned with the issues of our day.  But those issues are best addressed when we respect the rights of individuals to think for themselves. And our colleges show that respect when they strive for institutional neutrality in social and political controversies.