Greg Abbott Violates the 1st Amendment. Again.

Too fitting, alas.

When Curmie uses the term “authoritarian asshole” to describe Texas Governor Greg Abbott, he understands that the noun in question represents an opinion: an opinion shared, he suspects, by the majority of readers of this blog, but an opinion nevertheless.  The adjective, however, must be considered an objective truth.  Abbott thinks everyone should conform to his version of ethics on every possible subject, and he’ll use every resource available to punish them if they don’t.

Abbott, of course, purports to be upholding the principles articulated in the Ten Commandments, but he fares a lot better in the early ones about being Judeo-Christian than the later ones; he’s actually rather a fan of bearing false witness, for example.  Nor are we talking here about things like a restrictive abortion law or requiring age verification to visit pornsites.  The former might be (probably isn’t, but might be) grounded in an understandable belief that human life begins at the embryonic stage of development or earlier.  The latter reflects a reasonable, if logistically futile and constitutionally problematic, intention of keeping pornographic materials out of the hands of minors.

Over the past few weeks, however, Abbott has obviously and blatantly violated the 1^st Amendment protections of pro-Palestinian students and others.  The first round of this debacle came in the form of an executive order in response to anti-semitism.  Problem was, it restricted the speech of a particular group of people—in this case, those supporting Palestinian autonomy—but no one else’s. 

The response from FIRE (that’s the Foundation for Individual Rights and Expression) was, as usual, right on the money.  Here’s the salient part:

Anti-Semitism on campus is a real problem. When anti-Semitic speech crosses beyond the First Amendment’s protection, Texas institutions have a moral and legal obligation to take action. But today’s executive order relies on a definition of anti-Semitism that reaches core political speech, including criticism of Israel. The order also singles out student organizations by name, suggesting these groups should draw official scrutiny on account of their views.

State-mandated campus censorship violates the First Amendment and will not effectively answer anti-Semitism. By chilling campus speech, the executive order threatens to sabotage the transformative power of debate and discussion. That’s in sharp contrast to Texas state law, which wisely recognizes “freedom of speech and assembly as central to the mission of institutions of higher education.” When speech on contentious issues is subject to punishment, minds cannot be changed.  

Curmie would explain that the definition of anti-Semitism in question is included in Texas Government Code Section 448.001; it is ultimately derived from the International Holocaust Remembrance Alliance’s “working definition.”  One might reasonably surmise that such an organization might have a rather broader definition of the term than what might be considered normative.  Even the IHRA, however, includes this proviso: “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic.”

Monday morning Curmie watched a FIRE webinar featuring Alex Morey, that organization’s Vice President of Campus Advocacy; Will Creeley, their Legal Director; and Nico Perrino, their Executive Vice President.  There were several phrases that were repeated multiple times: “viewpoint and content neutral,” “reasonable time, place, and manner restrictions,” “true threats and intimidation,” “severe, persuasive, and objectively offensive.” 

Whatever justification there may have been for Abbott’s executive order, it most certainly was not viewpoint and content neutral: he mentions two student organizations by name, having unilaterally decided they were guilty of violating free speech policies, and insists on revising existing policies to accommodate his desire to stifle the rights of those who don’t share his views. 

Abbott is correct that “from the river to the sea, Palestine shall be free” has been used by Hamas supporters to advocate the elimination of the state of Israel or even of Jews in general, but is neither denotatively problematic (it varies little from “we shall overcome”) nor objectively offensive.  The slogan has also been used by those who simply want a Palestinian homeland out from under the proverbial thumb of Israeli control. 

Creeley, as he had in a Los Angeles Times opinion piece co-written with renowned legal scholar Eugene Volokh cited by Curmie back in December, insisted that… wait for it… context matters.  In the webinar he argued that simply chanting that slogan remains protected speech; doing so while brandishing a weapon or engaging in true threats or intimidation, however, would be a different matter.  Context!

But, as they say in the late-night infomercials, Wait!  That’s not all!  If FIRE was unimpressed with the executive order, they pulled no punches in their commentary on calling in the cops to prevent a protest on April 24, simply because Governor Abbott didn’t like it… and because the University of Texas-Austin President Jay Hartzell is a spineless idiot who cravenly went along.  Dozens of arrests were made, and one photojournalist (ironically enough, from the local Fox affiliate!) was dragged to the ground from behind and detained, although video evidence shows that he was, as instructed, moving back.  In any sane society, that cop would be summarily fired and charged with first-degree assault.  Chances of that happening in Greg Abbott’s Texas: roughly those of Kristi Noem being named PETA’s Person of the Year.

Angel Eduardo’s piece on the FIRE website is headlined, “Texas tramples First Amendment rights with police crackdown of pro-Palestinian protests,” and is accompanied by the photo you see to the right.  It doesn’t get any better for Abbott and his minions later in the article.

First, there’s the re-visiting of the executive order:

Threatening expulsion for expression that some — or even many — may find offensive is a speech-chilling encroachment on students’ First Amendment rights. This is especially true when “anti-Semitism” is defined to target core political speech — such as criticism of Israel — which FIRE has warned Abbott’s order effectively does.

Then comes the link to a letter from FIRE’s Jessie Appleby to UT President Hartzell.  She gets right to the point, decrying in the first paragraph the university’s 

... outrageous and unnecessary use of riot police yesterday afternoon to forcibly disperse students and faculty engaged in a peaceful Gaza solidarity walk-out on campus, taking journalists covering the event with them.  UT Austin, at the direction of Governor Greg Abbott, appears to have preemptively banned peaceful pro-Palestinian protesters due solely to their views rather than for any actionable misconduct.

Tell us what you really think, Jessie!  She’s not done, though: 

UT Austin’s disproportionate response to a seemingly peaceful protest, on expressly viewpoint-based grounds, raises serious constitutional concerns. As a public institution, any university restriction on student expression must comport with the First Amendment’s “bedrock principle” of viewpoint neutrality…. rules must be viewpoint- and content-neutral, narrowly tailored to serve a significant government interest, leave open ample alternative channels for communication, and—perhaps most importantly—not selectively enforced based on a speaker’s viewpoint.

Moreover, 

Texas law is clear: Outdoor common areas on state university campuses are traditional public forums open for “any person to engage in expressive activities in those areas of the institution’s campus freely…. A peaceful protest in an area of a state university that is open to public expression is not unlawful “occupation”—protesters cannot unlawfully occupy a space by engaging in expressive activity they have every right to pursue in a space in which they have every right to be….

UT Austin has abdicated its constitutional and state-mandated obligations to protect expressive rights on its campus.

That pretty well sums up Appleby’s letter, but Eduardo has yet more in his article.  He includes one last jab, linking to a video from a mere six months ago, in which UT Vice President for Legal Affairs and General Counsel Amanda Cochran-McCall says “state law in Texas actually allows members of the public just like our university community to come onto campus and use our common outdoor areas for speech activity.”  Eduardo wonders “what changed?”  The answer, as he well knows, is that, like Elon Musk, Greg Abbott is profoundly interested in free speech for anyone who agrees with him; everyone else… well…

Curmie has followed FIRE for a decade or more, and has never seen a more thoroughgoing and incisive excoriation of a university’s willing capitulation to a politician more interested in shutting down opposition to his personal perspectives than in obeying the US Constitution, or indeed Texas law.

Curmie expected no better from Greg Abbott.  He’d hoped for more from UT officials, but is well aware that competent and conscientious university administrators are approximately as plentiful as honest men in Diogenes’ world.

Note: none of the foregoing is intended to take a stance in the ongoing hostilities between Israel and Hamas.  Curmie stands by his earlier commentary; that’s it.  Nor does this essay express any opinions on pro-Palestinian protests on other campuses.  Curmie is a Confucian, remember, Gentle Reader?  Every case is different.

The Implications of Returning Reggie Bush’s Heisman

 

Reggie Bush: He’s baaaaaaack.

Former University of Southern California tailback Reggie Bush had his 2005 Heisman Trophy returned to him this week.  It had been “voluntarily” returned when it became clear that Bush had received improper payments to play at USC and therefore shouldn’t have had a college career at all.

The reaction to this reversal has been disquietingly positive.  Indeed, Curmie can’t find anyone other than Jack Marshall of Ethics Alarms (and some of his readers, including Curmie) who thinks this decision is a travesty.  All the talking heads on ESPN nod in agreement as insufferable blowhard Stephen A. Smith intones that the action was “long overdue.”  Various other sports sites generated pretty much the same responses.

Bah.  Humbug.

Reggie Bush was indeed an incredible college football player.  He was a logical choice to win the Heisman in 2005, and he did so over some rather stiff competition.  But that was before it was revealed that he and his family had accepted payments they were fully aware were contrary to NCAA rules.  We’re not talking about buying the kid an unauthorized pizza, here, Gentle Reader.  These were serious charges, and whatever Bush may say now about his innocence, it’s unlikely that USC would have put up so little resistance had they not been pretty certain that there was a fair amount of fire to accompany all that smoke.

It’s also true that the likelihood that Bush wasn’t the only Heisman winner to have broken NCAA rules approaches ontological certainty.  Curmie can think of at least three specific individuals whose guilt has been established to a degree that far exceeds “preponderance of evidence” and is very close to “beyond reasonable doubt” if it hasn’t crossed that threshold, as well.  That doesn’t matter.  It’s the equivalent of getting stopped for going 80 in a 55.  Complaining that other cars were going just as fast isn’t going to get you out of a ticket.  Were you speeding, and not just by a little bit?  Yes?  Then sit down and shut up.

Of course, Bush and USC have been lobbying to get this reversal for some time, and Bush himself staked a claim to a position in the Narcissist’s Hall of Fame by suing the NCAA for defamation for implying (not even saying outright) what virtually everyone believes to be true: that Bush was engaged in “pay-for-play arrangements.”  The statement also says that “Previous penalties, including those that are several years old, will not be re-evaluated or reconsidered based on the recent changes to NIL rules.”  (Yes, they lied.)

Of course, with the advent of NIL (name, image, and likeness) deals, pay-for-play is pretty much happening at every college or university with Division I athletic programs (and probably others, too).  What Bush did (okay, allegedly did) nearly two decades ago would almost certainly be permissible now.  That, coupled with a threat from the likes of 2012 Heisman recipient Johnny Manziel that he’d boycott future Heisman ceremonies until Bush’s award was reinstated, gave the movement some steam.  But seriously… when, exactly, did Manziel develop those “morals and values” he describes in his tweet (or whatever those things are called now)?

Here’s the thing: ex post facto works both ways.  You can’t be charged with a crime that wasn’t a crime when you did it, and you can’t avoid at least ethical responsibility for something that was illegal when you did it but might not be now.  The Heisman Trust’s action (which we can be assured was with the concurrence of the NCAA if not indeed at their behest) is not a pardon; it’s not an act of forgiveness.  It’s a denial of reality: Bush cheated and, unlike USC (which had to surrender scholarships and vacate victories, including the 2004 national championship and the entire 2005 season), is now effectively unpunished.

But this brings up another twist.  As of now, at least, Bush has his Heisman back, but USC still doesn’t have its national championship, which was stripped from them for one reason only: Reggie Bush played on that team.  

Curmie, having grown up in Central New York, became a fan of the local Division I team, the Syracuse Orangemen, in the 1970s.  Twentysomething years later, he enrolled in the PhD program at the University of Kansas, and he’s been a loyal Jayhawk ever since.  The NCAA has stripped victories from the basketball programs at both of those schools.  The Syracuse case involves more moving parts, but the KU case pretty much boils down to one thing: improper payments made to power forward Silvio DeSousa.  There are lots of twists and turns there, including the claim that the university was unaware of an Adidas rep’s shenanigans, but it’s not Curmie’s intention to re-adjudicate that case.  

What is significant, however, is that the NCAA invalidated 15 Kansas wins: the games in which DeSousa played before being retroactively ruled ineligible by the same organization that had previously declared him eligible.  As it happens, the Jayhawks had just recently passed the University of Kentucky to become the NCAA’s winningest team in history; the NCAA verdict put the Wildcats back on top. 

Does this really matter?  No, not really.  But it does put the NCAA in a bit of an ethical bind.  If the organization at the very least signed off on re-instating Bush’s Heisman because what he did is legal now, then the same argument should logically hold for the USC team on which he played, and for the Kansas basketball team.  (Perhaps the Syracuse team should be included, as well, although there were allegations in that case other than pay-to-play.) The list of other programs similarly affected is plenty long; no need to enumerate them all.  It should be noted that those teams have already paid a price in terms of scholarships, recruitment restrictions, and the simple fact that elite players want to be assured they’ll be seen in the post-season.

Of course, there are few organizations of any kind in the world as incompetent, corrupt, and whimsical as the NCAA.  How will they handle this situation?  Curmie’s guess is that they’ll do nothing… at least until someone else sues them.

On the Faux Controversy over Taylor Swift's Lyrics

Taylor Swift is making news again.  Shocking, huh?

Her newest deluxe album, “The Dead Poets Department: The Anthology,” dropped last week to much applause from Curmie’s Swiftie friends and no little jabbering from those whose primary aspiration is apparently to claim victimhood.  

At the center of what passes for controversy is a lyric in the song “I Hate It Here”: “My friends used to play a game where / We would pick a decade / We wished we could live in instead of this / I’d say the 1830s but without all the racists / And getting married off for the highest bid.”

Yes, Gentle Reader, the righteous dudgeon is thick on the ground about that “1830s but without all the racists” business.  Anyone with a modicum of skill at interpreting text, of course, would realize that the line in question anticipates the revelation: “Everyone would look down ‘cause it wasn’t fun now / Seems like it was never even fun back then / Nostalgia is a mind’s trick / If I’d been there, I’d hate it / It was freezing in the palace.” 

The first thing to notice is the last line, suggesting that a little girl’s fantasies involved being a princess.  Stop the presses!  But the narrator figure’s thinking has evolved since childhood; she now recognizes that wishing for the 1830s without racism and without arranged or forced marriages is rather like yearning for the NBA without all the tall guys.  Nostalgia, especially for a period long before one’s own lifetime, is indeed a “mind’s trick.”

To be fair, there’s not a lot in the 1830s to get excited about.  It is certainly passing strange that a song referencing that decade would be included in an album with a title invoking dead poets.  There were some significant composers (Wagner, Verdi, Berlioz, Chopin, et al.), and the careers of novelists Charles Dickens and George Sand were beginning to take off; Büchner and Gogol wrote plays that are still part of the canon.  But poets?  Of the “big six” Romantic poets, only Wordsworth was still alive in 1830, and whereas Poe undoubtedly wrote some of the poems for which he is now famous in that decade, most weren’t published until the ‘40s.  Walt Whitman was a tween in 1830; Emily Dickinson wasn’t born until December of that year.

One might almost suspect that the 1830s was chosen as the decade to reference in “I Hate It Here” more because it fit the scansion than for any particular attribute.  Stuff like that happens sometimes, one might dare to presume.

Ah, but that would leave the Perpetually Aggrieved with nothing to whine about, and we can’t have that, now, can we?  So we read that Swift “draws backlash,” “faces controversy,” and so on.  According to Snopes, someone with the X handle @ghostijn, “garnered more than 6.3 million views and 25,000 likes, as of this writing,” which was four days ago.  The post was apparently taken down and then reposted: you can see it here if you really care to.  It quotes the lines in question with the commentary: “y’all..😭 there are so many wrong things about this.”

Curmie, apparently being rather slow on the uptake, would settle for one thing wrong; he can’t handle “so many things.”  But all I can see is a lyricist setting up a reversal to acknowledge that our fantasies about other times and places almost invariably leave out the bad stuff: racism, marriage for sale, poverty, disease, etc.  And we tend to place ourselves in privileged positions—it’s unlikely that too many little girls of any race or nationality choose to be scullery maids in their fantasy worlds.

A completely imagined universe, however, one with “a better planet [where] only the gentle survived,” is another thing altogether.  The “secret gardens,” where Swift holds the only key to the entrance: those are controllable, and there can be no intrusion of injustice or pestilence or sorrow.  We have all escaped to such a world as a break from quotidian reality; as long as we don’t live there, the mental health benefits outweigh any downside.

In short, there is nothing in these lyrics to get upset about.  But you knew that, Gentle Reader.

Curmie repeats what he said in an earlier post, that he is no Swiftie.  He couldn’t hum one of her tunes if his life depended on it.  And she’s certainly made some mistakes in her romantic life (unlike the rest of us!).  But she seems to be a genuinely good person in a world in which “billionaire” and “narcissistic asshole” have become virtual synonyms.  Her songs strike a chord especially but not exclusively with women of her generation, and she is a worthy role model for younger girls.  She’ll be writing and singing hit songs long after her detractors’ proverbial 15 minutes of fame have passed into the ether.

And that’s a good thing.

Why There’s a Teacher Shortage: Exhibit A

One of Curmie’s friends and former students (we’ll call him L for the purposes of this post) teaches theatre in a public school.  He recently posted on Facebook about a confrontation he’d had with the father of one of his students.  The boy had failed to do three significant assignments, and, curiously enough, his grade reflected that fact.

Ah, but you see, the lad is an athlete, and a failing grade made him academically ineligible.  So Dad screams for “about 15 minutes.”  My friend responded like this: “I want him to be able to play […], too. I understand how important it is for him to have that outlet. But if I want lights on in my house, I gotta pay bills. If I wanna drive a car, I gotta pay to put gas in the car. So, if _______ wants to play […] then he’s gonna need to stop being lazy and do what is required in this class. Not to mention the other three classes he is failing.” 

L got literally dozens of positive responses: “likes,” “loves,” and comments, including from Curmie. Indeed, although he’d done some great work as an actor for me, and had subsequently had no little success in the professional world, I’ve never been prouder of him.

What he described, of course, is a familiar situation to anyone who has taught for even a short while. Some students—especially but by no means exclusively athletes—not only want, but expect, special treatment. Their parents do, too. Sometimes their coaches get into the act. I once had a “student-athlete” bring his position coach along to whine about his grade. The latter demanded that I change the grade of his star player. Yes, demanded. Not “asked if there was anything that could be done,” demanded. I told him to get out of my office, that I wouldn’t discuss grades with anyone but the student himself. He went stomping down to the department chair’s office while I told the student that there was no way I’d change his grade.

The student had a D on one hour-exam and failed the other two. He routinely failed the reading quizzes. He didn’t write either of the two required papers. He got something like a 21 (yes, out of 100) on the final exam. Plus, we had a departmental policy that no one with seven or more absences—including excused absences—would pass the course. I can’t remember exactly how many he had… eleven, maybe? Ah, but he seized on that: one of those absences should have been excused, you see. Note that the policy doesn’t differentiate between excused and unexcused absences, that he’d still be over the limit, and that with those other scores he’d have failed even with a perfect attendance record. Oh, and the reason he missed class on that one occasion was that he was in court, being convicted of a violent crime.

The good news in this scenario was that my department chair had my back. Yes, that should be expected, but it isn’t always the case, especially if we’re talking about a star athlete, or the kid of some influential politician or wealthy donor or whatever. I don’t know if they tried to bully the dean when neither my chair nor I would give in, but if they did, he sent them packing, too.

This being a rather perspicacious readership, I suspect you know where this is heading, don’t you, Gentle Reader? I’ve been lucky enough to have spent virtually my entire career in places where I was trusted to do my job; my grading decisions were always final. But it is not always thus, as my former student discovered.

The school administration—as is too often the case, a perfect storm of cowardice (a.k.a. weeniedom), sloth, and stupidity—made my friend change the kid’s grade. Apparently, they exerted similar pressure on the other three teachers, as well, as the lad miraculously became eligible again. I’m not sure of the exact circumstances, and the Facebook post that reveals that sports (or maybe just parental bellicosity?) will always trump classwork at that particular school has been taken down. Maybe my friend capitulated to pressure; maybe the administrators just changed the grades themselves.

Anyway, I apparently saw the post in question only after it had been up for a while. I was about to tell my friend to get the hell out of that school, but then I looked at the other comments. At least a dozen other teachers, some of whom had also been my students, chimed in the they had endured similar situations at their schools, often several times. It didn’t matter where they taught, or what they taught, or how long they’d taught: same story. Students were not allowed to fail, no matter what they did…, or, more likely, didn’t do. And any attempt to apply any academic standards whatsoever must be quashed.

On the one hand, it was heartening to see my friend get support, or at least commiseration, from so many fellow travelers. On the other hand, it was chilling to see the ubiquity of the problem. It’s bad enough at the college level, where I taught. Certainly the fact that I doubted not merely the competence, but the integrity, of people up the food chain from me (different folks from the administrator(s) I mentioned earlier) was a factor in my decision to retire when I did. It’s even worse in the secondary schools.

Still, the comment that most caught my eye wasn’t one of solidarity. I can’t quote it directly, but the substance was that since my friend can’t do anything about the current situation, he should just document it and move on, because one of his students might need similar… erm… “assistance” in the future: if the administration can change grades so X can play his sport, they can change grades so Y can be in the musical.

I can certainly understand that argument as a survival tactic. It is, in some ways, equitable, but it is also an option unavailable to someone who teaches history or biology. Plus, of course, it serves to legitimize an irresponsible, anti-intellectual, and unethical process. Still, it is a metaphorical arrow in L’s quiver, whether he would ever use it or not, and he would probably be wise to let the administration know it’s there. I’m enough of a Confucian to believe that every situation is different, and it’s not difficult to imagine a scenario in which such a strategy might be at least ethically neutral.

Ultimately, all I can do is to hope that L finds a responsible way to move forward. The professions (both theatre and teaching) need people like him. He’s a good man and apparently a good teacher, too. But I couldn’t blame him if he decided that quitting would be the only ethical choice.

This is another piece originally posted on Ethics Alarms.  There are some comments there if you’re interested.  They’re also there if you’re not interested.