Brandeis University Trying To Discipline Professor

for saying (in a Latin American politics class) that "Mexican migrants in the United States are sometimes referred to pejoratively as 'wetbacks'"? That's what the Foundation for Individual Rights in Education reports, though pointing out that Brandeis hasn't even explicitly said exactly what speech of his was found to be "racial[ly] harass[ing]." FIRE (which I've found to be consistently factually credible) also points to Brandeis faculty committees that strongly condemn the procedures that the university has used, and argue — quite correctly, if the facts are as they are described — that this is a serious violation of academic freedom.

I should note that I'm not as hostile as the faculty committees are to the administration's decision to place a monitor in the professor's class. It seems to me that people who pay one's salary to teach are entitled to know what one is teaching. And if the monitor was looking for, say, targeted personal insults of individual students (if that were the allegation), that would be a plausible thing for the monitor to do (though my view is that recording the class would be a less disruptive way of doing that). Likewise, if there were simply reports that the professor was teaching in a confusing and ineffective way, the administration should be entitled to look in on the classes and see whether they can offer the professor constructive advice, or perhaps evaluate the teaching to see if the professor falls below minimum tenure standards (or perhaps should be reassigned to teaching some other class in which he does better).

The trouble is that the administration seems to be using a vague and potentially extremely broad definition of what the professor is not supposed to be saying — it's not just the monitoring, but monitoring coupled with (1) the threat of punishment for speech for which a professor ought not be punished, (2) a finding of racial harassment based on the earlier statements, and (3) seemingly serious procedural failings in the process the administration has used. Looks like very bad stuff, given the facts reported on the FIRE site and the documents to which it links.

UPDATE: Prof. Margaret Soltan (at George Washington University) blogged several weeks ago about the controversy (and also here); I haven't read all the details, but I thought I'd forward the link. Thanks to reader Cactus Jack for the pointer.

FURTHER UPDATE: I have more about the facts, and the problems with Brandeis' actions, here.

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Don't Say This, I Won't Tell You What:

In Russian fairy tales, some powerful person sometimes sends the hero off on a quest by saying, "Go there, I don't know where, bring that, I don't know what." Somehow the hero manages, but that's because it's a fairy tale.

I've been reminded of this by reading the accounts of the Brandeis administration's finding that Prof. Donald Hindley was guilty of "racial harassment" because he said ... well, the administration isn't saying exactly what he supposedly said. Press accounts agree that it involves (at least) the use of the word "wetback," but the context is far from clear. Since my earlier post, I've looked a bit at the coverage in university newspapers, and here's what I see:

1. Hindley's account:

Hindley defended his discussion of the term, saying he had used it to describe racism of a certain historical period. Throughout American history, he said, "When Mexicans come north as illegal immigrants, we call them wetbacks." ...

"[Administrator Jesse Simone, who was questioning Hindley,] said, 'Did you use the word wetback?' Well, I teach Latin American politics and I'm currently teaching Mexican politics, and of course I use the word wetbacks, [but] not in any derogatory sense," Hindley said ....

Hindley said Simone also asked if he had referred to "young, white males having contact with women of color," which he said he had.

2. From the same article, a statement by Lily Adams, a student of Hindley's who defended him:

Adams also denied Hindley had used the term in an offensive context. "If he had made comments that were legitimately racist, the whole class would have complained,' she said, adding, It was never him saying, 'This is what I call them,' or, 'This is an appropriate term.'"

3. From an article in a different student newspaper (thanks to Prof. Margaret Soltan (University Diaries) for the pointer), here's the student's account:

Jane [the complaining student's pseudonym] explained that her complaints dealt with alleged insensitivity by Hindley to the issues in his class, including usage of the terms "mi petite negrita" and "wetbacks."

"The thing that pushed me over the edge was a story about a Brandeis student that he had who came from an elite Mexican family. He said, 'he came here and he paid his way.... but when he came back here, his back was still wet,'" said Jane. "That was the day I came to my professor and said, 'this is crazy.' These flippant remarks, he doesn't see that they affect other people — it's a joke, to him."

Jane also makes other allegations (and the article also notes that "[d]espite her complaints, Jane said she may take another course with Hindley, because 'I won't have to do work'").

4. From the same article that quotes Jane, a quote from student Ramon de Jesus, and a respone from Jane:

"I think that the allegations which are being made against Hindley are being done so by someone who is taking things out of context. It is interesting that the person whom you interviewed almost brushes context off as if it does not matter, when in fact, it is extremely important," said Ramon de Jesus '08.

"If context were not important, everything anyone ever said could be misconstrued one way or another. As a student of color who has taken both Latin American Politics classes with Hindley, I can honestly say that the man is not racist."

He added "I'm not in a Hindley class currently, but if given the opportunity I would sign up for another one."

Regarding Hindley's statements, "sure there is context, but it should be treated gently, especially with students from so many different cultures," said Jane.

"You have Latin American students, Mexican students ... there are Jewish students, homosexual students, black students — you're just running the gamut in this classroom. I would think that would call for extra sensitivity, but I guess he doesn't think so," she said.

Now the Brandeis administration obviously thinks that what Hindley said was impermissible, and indeed "racial harassment." It thinks that professors shouldn't say such things. But what is it that they shouldn't say?

If Brandeis thinks Hindley said "wetback" in the context as he describes it, then I take it that Brandeis's view is that professors should never use such terms in class — perhaps not even in direct quotes, and certainly not (as Hindley says he did) in made-up quotes characterizing what people think. If Brandeis thinks Hindley said "wetback" as part of a humorous aside, then I take it that Brandeis's view is that professors shouldn't say such things in class in a humorous context. If Brandeis thinks Hindley said "wetback" in a way that endorsed the view that illegal immigrants (or illegal immigrants from Mexico) are bad people, then I take it that Brandeis's view is that professors shouldn't express such views in class using pejorative terms. Or perhaps Brandeis thinks any condemnation of illegal immigrants (or illegal immigrants from Mexico), whether or not using the term "wetback" (a term that the administration didn't even mention in any of the documents I've seen from it), is a view professors shouldn't express in class.

But how on earth is a professor to know what he shouldn't be saying when the University doesn't even reveal what led to this high-profile discipline? And how are faculty members — and students and alumni and others — to know whether the University's action invades academic freedom, promotes good teaching, or whatever else without knowing what it is that Hindley supposedly said?

Nor is the University's explanation for its silence remotely justifiable. As best I can tell from the accounts, the University's argument is that it can't describe what specifically was said because it needs to protect the student's confidentiality — but if this was supposedly said in open class, why would revealing the statement jeopardize the student's confidentiality? (The article that quotes Jane quotes her as saying that she "came to [her] professor and said, 'this is crazy'"; presumably she means someone other than Hindley when she says "my professor," but if she did tell him, then I'm still more baffled by how there could be any risk to the student's confidentiality here.)

Finally, I realize that the administration might conclude that it can't specifically identify exactly what was said, but that it can figure out the general gist sufficiently to conclude that a racial harassment finding is warranted. Fine — but tell us what that gist is, so that professors can know what they shouldn't say, and so that others can evaluate the administration's actions. But the administration didn't do even that.

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Saying "Jehovah" at Brandeis?

Let's briefly recap the situation: A professor is found guilty of "racial harassment," apparently because he mentioned the term "wetback" in class. He says he wasn't trying to be offensive towards Mexicans or Mexican-Americans (illegal immigrant, legal immigrant, or otherwise), but was merely discussing and condemning some people's attitudes towards them. The student who apparently complained hasn't been quoted as squarely disagreeing with him, but perhaps she does.

The university refuses to publicly say what it thinks the professor said. Is it missing the use/mention distinction? Is it imitating Monty Python? Does it take the view that both using (in the sense of endorsing the message of) and mentioning (in the sense of quoting or describing) the word "wetback" is racial harassment? Does it conclude, as a factual matter, that the professor actually used the term, rather than just mentioning it? Even if he did use it, is he found guilty of racial harassment because he expressed an idea using epithets, or because the idea he expressed — and is Brandeis's view that the racially harassing and therefore prohibited idea is hostility to Mexican-Americans, hostility to Mexican immigrants, or hostility to Mexican illegal immigrants?

No-one knows. No-one knows what is and is not allowed for Brandeis professors who teach controversial subjects. No-one can sensibly evaluate the merits of Brandeis's professor speech code. That's what critics of Brandeis have been saying.

Now here's the response from Brandeis's Provost and Senior Vice President for Academic Affairs:

7:51 a.m. January 29, 2008

Dear Faculty Colleagues,

I am well aware that many of you are concerned about the investigatory process and outcome following a complaint by a student last semester against a member of our faculty. As a member of the faculty and as an administrator, I share with all of you the goal and expectation that our university policies reflect our core values of academic freedom, the right of our students to a learning environment that is free of harassment, and the right to privacy in personnel matters.

As you know, the University is legally required to have a non-discrimination and harassment policy. Our policy and investigatory procedures were substantially revised in 2006, following extensive discussions with the Faculty Senate. These procedures instructed the investigation conducted last semester and that case is now considered closed. Because of our obligation to ensure confidentiality, I have been unwilling to comment publicly about this case, despite the misrepresentations of the investigatory process and outcomes that are now widely circulated in the media.

Some of you have expressed confusion concerning what constitutes racially harassing speech and how the University conducts a legally required investigation. As a community, we can all agree that this confusion is not healthy and that we must work together to understand both our legal and academic responsibilities. I have been and will continue to work with the Faculty Senate Council regarding programs for the faculty that increase our internal capacity for understanding diversity issues.

I am saddened by the pain that our community has experienced recently and I want to open up channels for constructive dialogue. The spirit and specifics of our current policy reflects thoughtful discussions between the faculty and university administrators. I expect that such conversations will continue to inform this and other university policies in the future.

Sincerely,

Marty Wyngaarden Krauss
Provost and Senior Vice President for Academic Affairs

Ah, you'll surely say — now everything is fine! The confusion is unhealthy, and the community's pain is saddening, but the Senior Vice President for Academic Affairs will work with the faculty regarding programs that increase everyone's internal capacity for understanding diversity issues. Not only that, but she'll open up channels for constructive dialogue (though apparently not about this incident, since this case is now considered closed).

Look: This is an issue that goes to the heart of Brandeis's role as a center for learning and teaching, and its credibility as a center for learning and teaching. And the University's response is that the "case is now considered closed," and no further information is forthcoming (except perhaps through future "programs that increase our internal capacity for understanding diversity issues"). Nor is the confidentiality argument plausible — the question is what the university thinks the professor (who has spoken publicly on the matter) said in class in front of many students.

Is it really so much to ask the university to reveal this one simple factual finding? Or is the university worried about what this factual finding will say about it and the rules that it is actually applying?

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Calling Brandeis Professors and Students:

If any of you are Brandeis professors or students, and thus have a special perspective on the Hindley controversy -- for instance, know something about the facts that the posts haven't discussed, or know something about public reaction to the question -- could you please post it in the comments below? Likewise, if you know some Brandeis professors and students, and can get something from them that you can post, then please do post it here. I'd love to know more than what is said the reports I've read.

If you do not have any special Brandeis-specific knowledge on this, and just want to speak to the merits of the question, please post your comments at the other post on the subject. Thanks!

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Better Not Denigrate Religions / Disabilities / Veteran Status / Sexual Orientation / Etc. at Your University:

I just looked at Brandeis's "harassment"-based speech code, which is available at the FIRE site; here's what it threatens to punish students (not just teachers) for saying (I excerpt the most troubling parts) -- and unfortunately such broad codes, drawn from hostile work environment law, are present at many universities:

[V]iolations of this policy will not be tolerated and may result in corrective actions up to and including dismissal from school ....

This policy applies to all Brandeis students, faculty and staff....

Harassment, whether sexual or based on an individual’s protected class status (of race, color, ancestry, religious creed, gender identity and expression, national or ethnic origin, sex, sexual orientation, age, genetic information, disability, Vietnam Era veteran, qualified special, disabled veteran or other eligible veteran status or any other category protected by law) is a form of discrimination and will not be tolerated. It is regarded as harassment when conduct: has the purpose or effect of unreasonably interfering with a person's education or work performance by creating an intimidating, hostile or offensive environment in which to work, study or live ....

Harassment may occur between supervisor/supervisee, faculty/student, within peer groups, or with third parties.

Examples Of Harassment

Depending on the circumstances, conduct which may constitute sexual harassment includes but is not limited to: ...

• ... [D]isplaying of sexually suggestive objects, pictures, cartoons or posters, suggestive or obscene letters or emails, notes, invitations or gifts;
• Making or using derogatory comments, epithets, slurs or jokes with a sexual content; ...
• Displaying, sending, forwarding, downloading or otherwise distributing sexual materials via the internet, computer or email ...

Examples of Other Forms of Harassment/Discrimination

There are other forms of harassment/discrimination as well that create a hostile educational or work environment on the basis of race, color, ancestry, religious creed, gender identity and expression, national or ethnic origin, sex, sexual orientation, age, genetic information, disability, Vietnam Era veteran, qualified special, disabled veteran or other eligible veteran status or any other category protected by federal or state law (together, “protected class status”).

Depending on the circumstances, the following are examples of behaviors that may constitute harassment/discrimination under this policy. This is not an exhaustive list:

• Jokes, comments or innuendoes that make fun of, denigrate or are based on an individual’s or group’s protected class status;
• Epithets or slurs based on an individual’s or group’s protected class status;
• Objects, posters, cartoons or pictures which make fun of, denigrate or are based on an individual’s or group’s protected class status whether directed to an individual, placed on University premises or displayed or circulated on campus;
• Displaying, sending, forwarding, downloading or otherwise distributing materials via the internet, computer, or email that make fun of, denigrate or are based on protected class status;
• Other verbal or physical conduct that denigrates or shows hostility or aversion towards an individual or group based on protected class status....

The University may take action on conduct that it deems to be inappropriate, regardless of whether it rises to the level of a violation of law.

These are not limited to statements said to a particular offended person. (In fact, one provision that I don't include above covers "Unwelcome sexual conduct toward an individual, including offensive comments, touching or sexual propositions"; no such limitation appears in the items I quote above.) Nor is there any exception for statements that are part of political, social, or religious debate, or for that matter of friendly conversation that happens to be overheard by others.

So if you distribute materials that make fun of Scientologists (which are based on "a protected class status," namely religion), and this is found to "unreasonably interfer[e] with a person's education ... by creating ... [an] offensive environment in which to work, study or live"), you're guilty. Likewise if you denigrate or show hostility towards fundamentalist Christians, or extremist Muslims, or veterans, or gays, or people who have certain disabilities (or for that matter certain "genetic information").

Likewise if someone concludes that your "sexually suggestive" objects, pictures, or cartoons "unreasonably interfer[e] with [their] education" (for instance, because they are very offended by sexual content, and see it in the dorms often, whether on people's T-shirts or doors). Likewise if people feel such "unreasonabl[e] interfer[ence]" because they overhear people's "jokes with a sexual content" (or should that be limited just to "derogatory jokes with a sexual content").

What constitutes an "abusive or offensive" environment? When does political or religious commentary "unreasonably interfer[e] with [people's] education"? Say that someone feels genuinely upset by the fact that others have the temerity to harshly condemn fundamentalist Christianity or extremist Islam or who knows what else, whether in student newspaper articles, at demonstrations, or in overheard conversations, and finds it hard to be excited about school as a result. Does that qualify?

Of course, I quite doubt that the policy is enforced often, or evenhandedly. But it's out there whenever someone (a student, a student group, or the administration) wants to make trouble for others who express certain kinds of views. Not what we ought to have at universities that try to take free speech and academic freedom, it seems to me. But inevitable once one asserts a supposed civil right to be free from "harassment," defined to include speech (including speech not directed at the offended person) that might offend based on race, religion, sex, and the like.

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ACLU of Massachusetts Condemns Brandeis University

in the Hindley "wetback" matter.

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