Confucius and the Fourth Circuit

Twentysomething years ago, a few months after completing my PhD, I got a phone call from my mentor in Asian theatre, who, upon learning my job search wasn’t going as well as I might have hoped, asked if I wanted to teach a couple sections of the university’s Eastern Civilizations course. I asked if I was really qualified to teach such a course. His response: “You know something, and you can read.”

 

Based largely on his recommendation, I got an interview for the position. I made no attempt to conceal my ignorance of a lot of what I’d be teaching. But the department had struggled with grad students who had lost control of their classrooms, and I’d taught full-time for ten years before entering the doctoral program; I got the job. The head of the Eastern Civ program closed the interview with “There are some books in my office you’ll want to read before you start.” I knew something, and I could read. 

That’s relevant to my consideration of the recent ruling of the Fourth Circuit Court of Appeals in Porter v. Board of Trustees of North Carolina State University, in which a tenured faculty member claimed to have been punished for arguing against certain initiatives undertaken by his department. I’m no lawyer, so there’s some legalese I’m not so sure about, and I have no interest in chasing down all the precedents cited by either the majority or the dissent to see if they really say what these judges say they say. But I know something and I can read. 

More to the point, one of the texts I taught in that Eastern Civ course was Confucius’s Analects, which I had to get to know a lot better than I did previously in order to teach it to someone else. One of the central tenets of Confucian thought was his argument against having too many laws, as no one could possibly predict all the various special circumstances surrounding every dispute. Context matters; timing matters; motives matter. Confucius’s solution was to turn everything over to a wise counselor (like him) who would weigh all the relevant elements on a case by case basis. That’s not the way our justice system works, nor would it be practical, but it’s easy to see its appeal… in theory, at least. 

Significantly, Confucius’s reservations about laws’ inability to anticipate all the possible combinations of circumstances are the first cousin if not the sibling of what Jack Marshall of Ethics Alarms calls the “ethics incompleteness principle,” which asserts that there “are always anomalies on the periphery of every normative system, no matter how sound or well articulated.” 

An extension of this is that what is lawful and what is just are related but inevitably not identical concepts. The problem is magnified when it’s not just the law, but previous court decisions, that are ambiguous. Where, for example, does the First Amendment’s guarantee of free expression leave off and an employer’s desire for a congenial and (generally speaking) united workplace begin? Does it matter if the employer is a government agency? If it’s a university? If the alleged miscreant has tenure? If the place is just a little awkward as opposed to a war zone? Is academic freedom a relevant concern? The answer to the first question appears to be “well, it depends”; all of the seemingly disjunctive questions would appear to be best answered by “sort of.” 

The basic facts are these: Stephen Porter teaches statistics in the Department of Leadership, Policy and Adult & Higher Education at North Carolina State University. He claims to have been punished—not fired, exactly, but ostracized and placed in a situation which could likely result in his position being retrenched—for being outspoken about what he perceived to be an abandonment of “rigorous methodological analysis in favor of results-driven work aimed at furthering a highly dogmatic view of ‘diversity,’ ‘equity,’ and ‘inclusion.’” 

Porter says that three moments between 2016 and 2018 are at the center of his claim. The first came in the spring of 2016, when he objected to the addition of a question about diversity on student evaluation forms because he believed the question to be insufficiently researched. 

The second occasion was two years later, when he sent an email to departmental colleagues linking to an article in Inside Higher Ed which criticized a departmental search led by Alyssa Rockenbach. Porter appended the comment, “Did you all see this? … This kind of publicity will make sure we rocket to number 1 in the rankings. Keep up the good work, Alyssa!” 

In a subsequent meeting with Penny Pasque, then the department chair, Porter argued that Rockenbach had “cut corners” in vetting a candidate “out of a desire to hire a Black scholar whose work focused on racial issues.” (That candidate, by the way, had been fired from his previous position for financial misconduct.) 

That fall, Porter published a brief blog piece entitled “ASHE Has Become a Woke Joke.” His commentary concluded, “I prefer conferences where 1) the attendees and presenters are smarter than me and 2) I constantly learn new things. That’s why I stopped attending ASHE several years ago and switched to AEFP.” [ASHE is the Association for the Study of Higher Education; AEFP is the Association for Education Finance and Policy.] 

Finally, that fall, the department considered hiring a new faculty member. Pasque changed what was originally scheduled as a meeting of the HEPA (the Higher Education Program Area) faculty to discuss the candidate, and, with only a small number of faculty present in a virtual meeting, proposed that Porter leave HEPA. 

Feeling ambushed, Porter responded, “Give me a fucking break, folks. I was the one who said [the potential hire] should come. And now I’m the bad guy because I don’t want to leave Higher Ed for a non-existent program area.” This, of course, led to further tensions, including a reprimand for his language. Things escalated from there, and Porter was involuntarily removed from HEPA and de facto prevented from having advisees because of “lack of collegiality” and complaints from graduate students (that would be a grand total of two of the sixty grad students, by the way). 

Porter claimed his comments were protected speech, and that the university violated his First Amendment rights; he sued the university and several individuals. The university saw things otherwise. The Fourth Circuit, by a vote of 2-1, agreed with the university. Unsurprisingly, for different and predictable reasons, both FIRE (who had filed an amicus brief on Porter’s behalf) and Jonathan Turley disagreed. 

Here’s where my “knowing something” becomes relevant. Curmie has no opinion about whether the relevant precedent is Pickering v. Board of Education or Garcetti v. Ceballos, but he does know how universities operate. Let’s start with a couple of points that clearly work against Porter. 

First, the chances that he’s an asshole as opposed to merely someone whose political stances the administration doesn’t like is quite high. He says his response to that student evaluation question was “was amicable in tone, although perhaps embarrassing” to the person presenting the proposal. That’s clearly a subjective, self-serving, and retrospective view (not discounting the possibility that it’s also accurate). 

And sending a taunting email to a colleague who has been embarrassed in a national publication, especially when the anonymous source for the article is quite likely to be Porter himself, is more than a little unprofessional. Copying the rest of the department only aggravates the situation. 

Secondly, Porter’s blog post did indeed damage the reputation of the university, even if he has a point, since it led to a rebuttal from the president of an important professional organization in the field in her keynote address. The old adage of “don’t shit where you eat” is advice Porter does not seem to have taken to heart. 

And it’s pretty clear that Porter did little to mend the fences with his departmental colleagues when warned that failure to do so would have repercussions. 

But there are considerations in the other direction, too. (If there are lawyers reading this and Curmie is screwing up the legal arguments, please correct him.) First off, being a curmudgeon is (I trust, given my sobriquet) not illegal, and comments remain protected speech except in specific instances—sedition, incitement, slander, etc. (There’s another exception we’ll come to in a moment.) 

The fact that Porter is a tenured faculty member at a state university carries three (count ‘em, three!) protections. 1). Whereas most businesses have the authority to sanction employee speech (“you can say what you want, you just can’t do so and work for us”), there’s a specific exemption for university faculty, at least in certain circumstances. 2). Private enterprises, including universities, have at least some authority to maintain their own rules, provided they are clearly stated and equitably enforced, but state universities do not have this freedom. 3). Tenure brings with it the full degree of academic freedom, which has come to include the ability to criticize the decisions of their administration. 

The majority decision rests, apparently, on two foundations. One is that the presumed lack of chronological propinquity between the blog post and the department chair’s response, and between Porter’s outburst in the meeting and his removal from HEPA indicates that the latter is not a direct result of the former. Here’s where quoting Dr. Porter directly (from a different context) seems the appropriate rejoinder: “Give me a fucking break, folks!” Of course it was retaliation. The court’s argument that the time lapse means anything suggests an ignorance of both the way universities operate and, indeed, of human nature. (It also doesn’t speak well for Porter’s legal team.) 

The other argument is that Porter was speaking as an employee, and is therefore not entitled to the First Amendment protections he would have as a private citizen. (This is why Elon Musk had the legal right to fire that engineer who told him the truth instead of what he wanted to hear.) Indeed, Porter supposedly said he was “just doing [his] job” in questioning the student evaluation proposal. If nothing else, this comment elicited one of my all-time favorite lines in judicial decisions: in his dissent, Judge Julius N. Richardson writes, “Superman deflects praise by saying that he’s ‘just doing his job,’ even though the citizens of Metropolis never cut him a paycheck.” 

In fact, that episode could be interpreted either way. Yes, Porter was acting as an employee in one sense, but as a statistician with a particular interest in this kind of survey, he was employing his particular skills. Does this qualify as his “research,” which would make his speech protected? I’m gonna call this one a wash. 

The blog post would seem to meet the requirements of protected speech: it’s written as a private citizen, expressing an opinion on an area of public interest. (I’m interested, and I have no connections, positive or negative, to the organization in question.) Still, the blog does identify Porter as a faculty member at North Carolina State… or at least it does now; I presume it did when the essay was posted. Does that mean he was functioning as an employee? I don’t think so, but one could make the case. 

Finally, there’s the business about the new hire and the ensuing brouhaha. Here, there’s no question that Porter was uncivil, but he was certainly provoked. Curmie is pretty certain he never told colleagues to “give me a fucking break,” but substituting “damned” for “fucking” would increase the likelihood he’s uttered that sentence fairly significantly. 

Yes, Porter was “uncollegial” at that moment, but Curmie offers the following in response. We’re talking about a one instance (or perhaps two or three, if we include the other incidents) over the period of several years. This does not a pattern make. (Yes, there may have been other incidents that didn’t make it to the court case.) 

Collegiality is, of course, a good thing in general terms, and it is essential to some degree in some disciplines: in my field, theatre, for instance, if the director and designers can’t get along, it will indeed affect the work product of the institution. But even here, there’s no need to like each other, just to work collaboratively. I don’t know enough about what people in a Leadership, Policy and Adult & Higher Education department do, but from an outsider’s perspective, it doesn’t seem like any high degree of collegiality would be a sine qua non. Moreover, whereas collegiality is sometimes, probably too often, a consideration as to whether someone gets a promotion, Curmie has never seen it used in what amounts to a demotion. 

Finally, and most importantly, there’s an increasingly ominous trend to use “uncollegial” to mean “insufficiently obeisant.” Disagreements are at the center of the academic project. Similarly, the most valuable comments on, for example, Ethics Alarms, aren’t the ones that say “You’re absolutely right, Jack”; they’re the variations on “yeah, but…” or even “I disagree because…” There are some issues on which we’ll never agree, but hearing an articulate rationale for an opinion with which we disagree is how we learn, and that, Gentle Reader, is a good thing. 

When Curmie started his career, the concept of “shared governance” was alive and well. It’s now on life support, in danger of flat-lining in the very near future. Administrators are increasingly overpaid relative to faculty, increasingly autocratic, increasingly dismissive of anyone who questions their latest harebrained scheme. And Trustees/Regents/whatever at state universities listen only to the governor who appointed them or, occasionally, to high-ranking administrators; students, faculty, staff, and alumni are ignored… unless, of course, they happen to be rich. 

So, where does this leave us in this case? It ought to be self-evident that legal decisions ought to be based on the law, but here the law doesn’t really clarify things very much, as so much depends on definitions that are neither clear nor fixed. But now is when we listen to Confucius and search out the most just solution. 

It’s possible that stronger legal case is that of the university.  But it’s clear to me, at least, that Dr. Porter is the more aggrieved party. I wouldn’t necessarily relish having him as a colleague, but from my perspective the Fourth Circuit got this one wrong. Of course, Curmie was an opinionated professor who occasionally had the audacity to say out loud that not all decisions emanating from administrators’ offices were divinely inspired, so perhaps he’s not the most unbiased source.

This piece was written as the third installment of “Curmie’s Conjectures” on the Ethics Alarms blog.  I have made a couple of minor stylistic changes and corrected a typo or two here, but the argument remains the same.  As with earlier such posts, there is much more likely to be discussion there than here; you are welcome to head there... or not.

The World's Most Pressing Issue?

A couple of days ago, this intriguing prompt appeared on the FB page of one of Curmie’s former students: “What do you think is the world’s most pressing issue and why?” Curmie was tagged, but didn’t reply right away, partially because he wanted to craft an appropriate response, partially because he realized that whatever he said would almost certainly be unreasonably long for a Facebook comment, partially because his laptop charger had died, and he didn’t want to drain the battery. 

But now Curmie has a new charger and both the time and space to give this question due consideration. There are, of course, a multitude of possible answers—at the largest scale, there’s global warming (this would have to be #1 because it affects everyone and because the situation continues to get progressively worse), the possibility that the conflict between Russia and Ukraine might evolve into something even worse, the ongoing threat of sectarian terrorism, plus a hot of other issues, of course. 

The likelihood that after the 2024 elections the leader of the free world, whether it’s the current incumbent or his predecessor, will be a bumbling, mentally unstable, octogenarian (yes, Curmie knows, Donald Trump would be “only” 78 on Inauguration Day 2025; go with me here, Gentle Reader) is certainly a cause for some concern. Significantly, as Curmie suggested earlier this year, there’s literally no one in either party to vote for, only a lesser-of-two evils alternative to an even worse candidate. 

Other issues—gun violence, restrictions on 1st amendment rights from both the left and the right, wealth/income inequality, immigration policies, abortion rights, etc.—are more US-specific, but they are, or should be, on the minds of all Americans, and global implications are certainly present if not necessarily paramount. 

But Curmie ultimately decided to distinguish between the general and the specific. Finding solutions to the former is more attitudinal than policy-based. I was already heading in this direction when I read an excellent response from another of my friend’s friends, suggesting that we concentrate on what he calls “empathic thinking.” This idea is at least a first cousin if not a sibling to Curmie’s point of view, but they’re not quite the same. 

Curmie’s first musings on the subject vacillated between distinguishing between short-term and long-term thinking, and between self-serving and altruistic motives. So the temptation was to declare the #1 problem to be a concentration on short-term personal advantage. It is this attitude that leads to “gotcha” journalism, to political demagoguery, and indeed to a wide variety of deceitful practices. 

The best example of this phenomenon that comes to mind at present is the GOP’s labeling of the Affordable Care Act (Obamacare), which is virtually identical to the program instituted by Mitt Romney in Massachusetts, as some sort of extreme left-wing authoritarian plot. (Yes, the actual bill, despite being a net positive, was bloated and all but incomprehensible, but they didn’t know that yet.) But it was more important to Mitch McConnell and his minions to deny President Obama a victory than to work for the betterment of the country. 

McConnell, of course, has raised partisan hackery to dizzying new heights, but there are plenty of pols, pundits, and other self-proclaimed authorities from every point on the political spectrum who practice the same kinds of chicanery; they just aren’t as good at it… or as proud of their own duplicity. 

Ultimately, though, “short-term” and “self-interest” are two problems, not one, aren’t they, Gentle Reader? Putting them together, though useful in philosophical terms, does seem to evade the larger question of a single “pressing issue.” So how do we re-define this contemplation? 

Those who know Curmie personally, or who have read this blog (or its predecessor over on Live Journal… yes, really) for a period of time, will likely know that he is something of a Confucian. As I wrote over a dozen years ago: 

One of the central tenets of Confucian thought is the avoidance of lengthy and complicated rules structures. Every situation is different, and one can never anticipate all the possible permutations. Confucius’s solution is not to try. He advocates placing authority in the hands of a junzi (gentleman) who is sufficiently endowed with both wisdom and ethical sensibility to be able to adjudicate disputes. 

The junzi business may be a little intellectually elitist even for Curmie’s taste, but the recognition that every situation differs at least slightly from every other is of crucial importance, and is too often forgotten. Take a story that has made the news in various permutations repeatedly in recent months: a white police officer kills a black man. There are three basic responses: A). “the cop is a racist,” B). “the cop was doing his job; don’t resist and you have nothing to fear,” C). “tell me more.” Only C is an acceptable answer, but Curmie fears it would place last in the voting. 

There are bad cops, and some are violent racists who hide behind a badge. (There are also bad, violent, cops who aren’t racists.)  Moreover, in some situations killing someone is legitimate. Confucius identifies three possible scenaria, each with a different ethical response. Obviously, one possibility is murder (or manslaughter), which cannot be countenanced. But killing in self-defense is justifiable. Moreover—and here’s where it gets really interesting—Confucius argues that failure to kill in certain circumstances is unethical. He was talking specifically about protecting one’s lord, but it’s just a short step from there to thinking about protecting an innocent victim (or more than one). 

And each of these descriptions is subject to shades of meaning, especially but not exclusively in terms of motive—the cop really did think he was reaching for a taser instead of a handgun, or really did think the toy brandished by the victim was an actual weapon, for example. Perhaps he was attempting simply to disarm an assailant and slipped. There are as many different versions of the story as there are incidents. 

But too many people seek only the opportunity to exercise confirmation bias, attending to the one or two facts which fit the conclusion they’re already 80% of the way to making, and casually neglecting any contradictory or even ameliorating evidence that doesn’t fit the already-constructed paradigm. 

Tell me what you understand of the events at the Capitol on January 6, 2021 and I’ll be pretty likely to identify your politics. At one level, this is unproblematic. At another level, it’s the essence of this argument. 

So what do we call the “pressing issue”? How about “intellectual laziness”? This manifests not only in our impressions of individual stories, but also in our political decision-making, and here Curmie uses the term “political” to refer to all manner of maneuvering for personal advantage, not simply in running for mayor or Congresscritter or whatever. 

Many years ago, Curmie was recruited by the then-current holder of a position of some responsibility in a subgroup of a large professional organization. Being on a nominations committee meant that you were familiar with the goals of the group and cognizant who the rising stars were most likely to be; you’d seen their work and their participation in group activities. Committee membership was an investment of time and knowledge for the betterment of the organization. 

More recently, being on that same committee is advertised to graduate students attending their first conference as a way to more quickly move into their own leadership positions. The committee didn’t call up good people and urge them to run for office; they sat back and waited for self-nominations, effectively making self-promotion the sine qua non of opportunity. Even when no one came forward, the committee did nothing. Intellectual laziness. 

Needless to say, self-promotion is valued over actual competence (let alone excellence) in more places than just the academy. A politician without “name recognition” not only has little chance of success, but is more than likely to be ridiculed by the chattering class for the audacity of merely having good ideas instead sucking up to the right donors and hiring a first-class publicist. Intellectual laziness. 

As a longtime professor, Curmie was already seeing a decline in students’ ability to think over a decade ago. In that same blog piece linked above, Curmie wrote this: 

Needless to say, a lot of students founder a little in my freshman-level classes. They get glassy-eyed stares when I refuse to tell them whether Biff or Willy is the protagonist in Death of a Salesman, mutter about unfairness when receiving less than full credit for a plausible conclusion unsupported by argumentation, panic when I disagree with an opinion expressed by the textbook author or a high school English teacher (who got a C from me in this very class a few years ago). They can't think, in other words. The more cynical among you might suspect that I play devil’s advocate from time to time, just to see if a given student really has the stuff of scholarship. To this accusation, of course, I indignantly respond, “Moi?”. 

Curmie regrets to say that the situation has only deteriorated from there. Indeed, whereas Bob Seger’s “Against the Wind” can be inspirational, the same cannot be said for pissing into the wind, and that feeling of despair became a significant reason why Curmie is now a professor emeritus. 

Part of the cause for this disintegration of the educational system, and hence of the culture, can be traced to politicians’ fetishistic desire for quantification and “accountability.” You’ll note, Gentle Reader, that the latter term is in scare quotes, because the sole consideration of the determination is performance on a standardized test. 

If you’ve followed this blog at all assiduously over the years, you’ll know what Curmie thinks of that idea. If not, you might start here. Short version: as part of an evaluation, such tests are not without some merit, but they measure test-taking strategies (and freedom from testing anxiety) at least as much as they do skill. And they only measure that which can be measured: that is, only things for which there is a single, unassailably correct, answer. 

Curmie used to tell Theatre History classes that if someone tells you they know for certain what Aristotle meant by “catharsis,” you should run, not walk, away from this person. You should similarly avoid those who are unequivocally convinced that Robert Frost is or is not being ironic in closing “The Road Not Taken” with “…and that has made all the difference.” There are countless other examples, of course. 

You are also free to decide that, say, Anton Chekhov was the greatest playwright of the modern age, but you’re going to need to back up that assertion with analysis—with thought. You can’t just fill in the bubble on the Scantron sheet, because there is no “correct” answer. Why is Chekhov better than Ibsen or Lorca or Williams? Responding to that question requires analysis, recognition of alternate possibilities, and actual thought as opposed to memorization. (As an experienced theatre director, Curmie suggests that actors’ ability to learn their lines is not the only criterion by which their success ought to be measured.) 

Does the educational status quo, driven largely by non-educators, encourage intellectual laziness? Unquestionably. Does the political system do so? Of course. Does what passes for journalism do so? You know what Curmie thinks on that score from the way he phrased the question. Does business suppress thought in the name of being a “team player”? You may answer in the negative to this one only if you’ve never heard of Elon Musk. 

Anyway, that’s Curmie’s answer to the question of our most pressing issue as citizens of the world: intellectual laziness. Thanks for your patience and endurance in making it this far, Gentle Reader.

Cheerleading, Confucius, and the Courage of a Survivor.

I’ve taught in colleges and universities for over 30 years, 20 of them in tenured or tenure-track positions. I’ve had my share of athletes in my classes—ranging from an All-American middle-distance runner to guys who sat on the bench for an NAIA school’s basketball team. The majority of these young men and women were essentially indistinguishable from their classmates: some were likeable, some were good students, some both, some neither. A small but noteworthy percentage of them, of course, were living incarnations of the stereotypical stupid, pampered, arrogant, jock.

There was the (married) one who thought that whispering revoltingly explicit suggestions to the women (one in particular) in an acting class was acceptable; the one who came in to complain about his grade on a scene, alleging I had been unfair to him because he had nothing in common with the character, who happened to be a student complaining about his grade (I couldn’t make this stuff up); the one who dragged his position coach along with him to argue that I should have excused his absence the day he was in court, being convicted of an E felony—he also wrote neither of the required papers, got a D on one exam and didn’t show up for the other, and got a 38 (counting the curve) on the final… curiously enough, he failed my course, conference all-freshman team recognition notwithstanding).

There’s at least one of these creatures in the small town of Silsbee, Texas, about two hours south of where I live. His name is Rakheem Bolton (I can use his name because he was actually convicted), and he’s apparently a pretty good football and basketball player. He is also a rapist, or, to be legally precise, he was accused of rape and allowed to plead guilty to a lesser charge. This is Texas, after all. Did I mention he’s a good athlete?

The case made headlines a few months ago, not because there’s another jock predator out there (that’s hardly worthy of mentioning), but because the victim in the case, a young woman identified publicly only as “H.S.,” got thrown off the cheerleading squad for refusing to cheer specifically for her attacker, by name. The cheer in question? “Two, four, six, eight, ten, come on, Rakheem, put it in." Seriously. Needless to say, the school did back flips to coddle their prize athlete, justice be damned. Tanner Hunt, Jr., the school’s attorney, sniveled that they had followed the law: “For all anyone knew, it was a girl mad at a boy.” He also proclaimed that “If there was something to apologize for, we would.”

I’m not a lawyer, so I can’t argue whether what the school did was legal. But I’m pretty sure of two things. One is actually incontrovertible: in a just universe, Tanner Hunt, Jr. would have his smarmy little face meet up with the business end of a baseball bat. And what I wrote in February about a different collection of jackass pseudo-educators in a different East Texas school applies pretty well to Silsbee superintendent Richard Bain, principal Gaye Lokey and cheerleading coach Sissy McInnis, all of whom bring dishonor to their town and their profession by valuing a rulebook over both people and justice. I described then my increasing admiration for the wisdom of the great Chinese sage Confucius:

One of the central tenets of Confucian thought is the avoidance of lengthy and complicated rules structures. Every situation is different, and one can never anticipate all the possible permutations. Confucius’s solution is not to try. He advocates placing authority in the hands of a junzi (gentleman) who is sufficiently endowed with both wisdom and ethical sensibility to be able to adjudicate disputes….

The idiot principal who pointed to the student handbook as if it had been divinely inspired, and who was unsurprisingly too cowardly to even face the press would have been lucky to have been laughed out of Confucius’s presence. More likely, we’d have found out the ancient Chinese word for “bitch-slap.”

Nice to know there’s consistency in the educational hierarchy, isn’t it?

The other point is less ontologically certain, but I strongly suspect that there were other legal means of handling the situation: suspending Bolton being an obvious solution. You know, punishing the criminal instead of the victim? There is no constitutional right to play basketball. I know laws are different in different states, but that high school in California I wrote about in February (February seems to have been a good month for stories about high schools) managed to suspend and ultimately expel an athlete accused of a sexual offense who ultimately wasn’t convicted of anything. If you can get thrown off the cheerleading squad for refusing to cheer for your rapist, shouldn’t… erm… being that rapist get you tossed from the basketball team?

I cannot improve on the commentary of Sports Illustrated’s Selena Roberts, “A school is supposed to be an emotional safe haven for all students, and educators should help, not harass, students in vulnerable positions…. Why not err on the side of compassion?” or of Jack Marshall on his Ethics Alarms blog, “This isn’t just bias, or sports mania. This is a black pit of an ethics vacuum, shared by a school, a culture and a community.”

The case is in the news again because the Supreme Court just refused to hear H.S.’s appeal, leaving the girl to pay $45,000 in costs for the school to defend a “frivolous” suit. I suspect that the law really is on the side of the school. What is legal and what is just are not interchangeable, as the ongoing saga of the Westboro Baptist Church continues to demonstrate. But if there’s anyone doing anything “frivolous” here, it sure as hell isn’t H.S. Unsurprisingly, Jack Marshall’s recent piece in the wake of that ruling hits the proverbial nail on the head: “As I find myself writing again and again, the law will sometimes support horribly unethical conduct, and an unlucky, courageous, abused young woman from Silsbee, Texas just learned this lesson the hard way. I’m so sorry.”

But that’s not where the story ends, I’m pleased to say. No, there isn’t going to be a reversal in legal terms. But a self-described “group of geeky women” in Los Angeles, one of whom I am proud to claim as a friend and former student, isn’t going to let H.S. be stuck with a $45,000 bill for doing what is right. Not if the League of Extraordinary Ladies has anything to say about it. They’ve taken up the cause, and they’ve already raised over $1200 towards their goal of paying off that $45K and hopefully having a little more to cover H.S.’s own legal expenses. (EDIT: there's now a separate website dedicated to the fundraising effort. I should also mention that the campaign is operating in cooperation with H.S.'s lawyer.)

As I said, I know one of these women, and if she says all the money is going to help H.S., you can count on it. And if they have their way, and I am certainly not going to bet against them, the lesson H.S. learns won’t be just that jocks can get away with anything, or that you can’t count on the legal system for justice. It will be that there is no shame in losing if you’re fighting for a good cause; that, idiot school administrators notwithstanding, people are more good than bad; and that if you show maturity beyond your years, exemplary courage, and a steadfastness of spirit, someone will have your back.

Talk, as they say, is cheap. This cause explicitly seeks “a large number of people donating a small amount,” even a dollar or two. The number of donors matters: symbolically, politically, and pragmatically. I made a contribution. If you can afford it, you should, too.

Confucius, You've Still Got It

I have, at several occasions in my blogging life, invoked the name of Confucius (here, for example), the great Chinese philosopher whose wisdom I have come to appreciate even more now than I did in those halcyon days when I taught a couple sections of Eastern Civ per semester for the year between getting my PhD and landing my current job.

I got to think about, and talk about, Confucius again today in Asian Theatre class. One of the central tenets of Confucian thought is the avoidance of lengthy and complicated rules structures. Every situation is different, and one can never anticipate all the possible permutations. Confucius’s solution is not to try. He advocates placing authority in the hands of a junzi (gentleman) who is sufficiently endowed with both wisdom and ethical sensibility to be able to adjudicate disputes.

As an example of where Confucian principles might help out in today’s society, I cited the recent case of Stephanie Plato, the 12-year-old girl recently suspended from school in Houston because she (gasp!) got red and blonde highlights put in her hair. Seriously. I mean, clearly everything is going so well with the educational system in this state that school officials have time to worry about stupid shit like this, right? I mean, what’s not to like about being 43rd in the country in graduation rates? The idiot principal who pointed to the student handbook as if it had been divinely inspired, and who was unsurprisingly too cowardly to even face the press would have been lucky to have been laughed out of Confucius’s presence. More likely, we’d have found out the ancient Chinese word for “bitch-slap.”

Ultimately, I can’t improve much on the commentary of Jack Marshall at Ethics Alarms, who tersely and accurately observes that such episodes “teach students that the concept of adult intelligence and wisdom is a myth, and that they are under the thumbs of foolish, power-abusing, inconsiderate, child-loathing fools who deserve little respect and only whatever obedience that is necessary to avoid their desire to bully, insult, and harm.” (C’mon, Jack, don’t sugar-coat it. How do you really feel?)

Unfortunately, such cases are not uncommon. I mentioned the boy who was denied high school graduation a couple of years ago because he wanted to honor his Cherokee heritage by wearing a bolo tie instead of a standard necktie, and the girl who was suspended from school for giving a Midol to a friend. I looked straight ahead, to where one of my best students executed a perfect face-palm. To my left, two other students shared a look and one confided they’d both “gone to that high school”—not literally, but to other institutions where administrators hide behind rules so they don’t have to think. Indeed, thought—theirs, their teachers’, their students’—seems to be the last thing on these people’s minds. I wish I could blame this directly on the teach-to-the-test idiocy that runs rampant through American schools in general and Texas schools in particular. But they really are manifestations of the same impulse: memorization and obedience, good; thought and curiosity, bad.

Alas, the afternoon’s revelations were not yet complete. From my right came the testimony of another student, who had been suspended from school for a month because, while suffering an asthma attack, she took her inhaler out of her purse and used it, rather than scurrying across campus while unable to breathe so that the nurse could administer the medication. Somehow the assistant principal in California who sent kids home for wearing American flag insignias last Cinco de Mayo looks almost sane.

Needless to say, a lot of students founder a little in my freshman-level classes. They get glassy-eyed stares when I refuse to tell them whether Biff or Willy is the protagonist in Death of a Salesman, mutter about unfairness when receiving less than full credit for a plausible conclusion unsupported by argumentation, panic when I disagree with an opinion expressed by the textbook author or a high school English teacher (who got a C from me in this very class a few years ago). They can't think, in other words. The more cynical among you might suspect that I play devil’s advocate from time to time, just to see if a given student really has the stuff of scholarship. To this accusation, of course, I indignantly respond, “Moi?”.

What is clear is that the educational system, indeed the body politic, could use a healthy dose of Confucius, whom I described in class today as “the anti-moron” and as “an ethical Rahm Emanuel or Karl Rove, whichever one you think unethical. [sotto voce] Both.” Confucius was no anarchist; he insisted on following ritual and obeying the Emperor. But he understood the need to question, to consider, even to defy authority. (N.B. “Authority” is used here in the sense of power; Confucius would never challenge authority in the sense of expertise.)

When They Make Me Tsar™, the Analects will be required reading of all college students. And high school principals.