FIRE's Scorecard: 3 Wins, 1 Forfeit

Frequent readers of this blog know that Curmie views himself as more of a civil libertarian than a liberal.  There’s a lot of overlap, of course, especially in an era in which the POTUS is a narcissistic authoritarian.  (Curmie notes, apophasistically, that he didn’t use the word “fascistic” in the previous sentence.)  Curmie has followed FIRE, the Foundation for Individual Rights and Expression, since back in the days when the RE in their acronym stood for “Rights in Education.”  He doesn’t always agree with them, but he did recently renew his membership, if that tells you something, Gentle Reader.

We start with the “forfeit” part of the title of this essay.  Whereas it is true that FIRE concerns itself primarily with freedom of speech and assembly, they do proclaim themselves to be champions of religious liberty.  So Curmie finds it interesting (concerning?) that FIRE offered no opinion on the recent SCOTUS case regarding Oklahoma’s attempt to create a specifically Christian charter school.  SCOTUS ultimately upheld, which in this case means “didn’t overturn” a lower court ruling blocking public funding for such an enterprise.  The vote was 4-4, with Justice Barrett (to her credit) recusing herself, and presumably one of the conservatives (probably Roberts, possibly Gorsuch) joining the liberals in supporting the Oklahoma Supreme Court ruling.

Ultimately, the case boils down to whether direct funding of religious schools is different from indirect funding, and whether there’s a substantive difference between full and partial funding.  No one seems terribly bothered by students at Brandeis or Baylor or BYU getting Pell Grants, for example.  But completely underwriting the entire cost of a religious school with public funds seems a bridge too far to a lot of folks, Curmie included.

Curmie suspects that FIRE might not agree with him, given their interest in supporting individuals rather than society if the two come into conflict.  That’s okay, but if so, Curmie would like to see their reasoning.  Their silence on this matter does not do them credit.

Moving on to the wins.  (Note: a “win” here is not about a legal victory, but about being on the “right side” in Curmie’s opinion.)

Back in February, the Maine legislature formally censured Representative Laurel Libby for posting on social media about a trans athlete who had won a championship in girls’ track.  The athlete, a minor, was identified by name and school, and there was a photo of the podium in which the faces of other competitors were blurred, presumably to protect their privacy, but the trans athlete’s was not. 

There have been at least three cases in Maine this year in which a trans female (the same one all three times!) secured a podium finish in some sort of athletic competition; Libby has been vocal about at least two of them.  OK, did Libby deserve censure?  Yes: not for the political opinion, but for the manner it was expressed.  Is she a smug, narcissistic, reckless, grand-standing, hypocrite?  Obviously.  Is she a bully, as Anelise Feldman, the second-place finisher in one of those events, would have it?  Yep.  Does she care more about getting publicity for herself than for her cause?  Well, duh.  She’s this year’s Elise Stefanik.  Is she an idiot?  She’s a proud anti-vaxxer, which pretty much tells Curmie all he needs to know.  Is she a bigot?  Quite possibly, although the issue of how trans athletes should be treated is complicated, and reasonable people can disagree about this one.

But, as FIRE pointed out on May 8, there’s a difference of kind, not merely degree, between a censure and denying Libby the right to speak or to vote in the legislature.  Curmie may think that she’s a blight on society, but her constituents deserve representation, even if Curmie thinks they’d have been better off choosing someone else. 

Daniel Ortner’s piece for FIRE also accuses the Democratic majority of “end-running Maine constitutional provisions that say a representative cannot be expelled absent a two-thirds vote or recall election.”  Trouble is, he’s right.  Just because there’s an authoritarian buffoon in the White House and the Republicans in Congress are too stupid, too corrupt, or too craven to stand in his way doesn’t mean the Democrats won’t behave in exactly the same manner if given the opportunity.  Alas.

SCOTUS agreed this week in a convincing if not unanimous 7-2 decision.  The only good news on the ethics front for Democrats is that Justice Kagan agreed with the majority, and that Maine officials immediately acceded to the ruling, unlike a certain portly pettifogger.

The second win for FIRE is kind of a silly case, but it does point to larger issues.  Apparently there are no actual problems anywhere on the campus of the University of California at Irvine: no lack of funding for library books, faculty salaries, or financial aid, no administrators who see their primary job as justifying their existence, no over-emphasis on athletics (Go, Anteaters!) at the expense of… you know, actual education.  Nope, nothing like any of that. 

This is the only rational reason why the university should care about (wait for it) doormats in university housing.  You read the correctly, Gentle Reader: doormats.  The issue, you see, is that one particular doormat had (GASP!) writing on it!  Worse, that writing was “No warrant.  No entry.”  You see, there’s a policy… except that, actually, there isn’t.  More on that in a moment.

FIRE’s Graham Piro was all over this on May 15.  Piro notes that had there been a policy prohibiting doormats altogether (for safety concerns, for example), there would be no problem.  But apparently, it’s the fact that there are words on this particular doormat that’s the problem.

Piro references the university’s Graduate and Family Housing Policies.  Curmie read through all the sections that even might be relevant (he has a masochistic streak sometimes): not a word about doormats, or writing, for that matter. 

But the university does have a prohibition against “all outward‐facing signs, decorations, and expressions in windows/on doors,” “materials, signs, banners, posters, etc. … anywhere within Student Housing,” (no exception for inside apartments, by the way) and “materials… posted on windows, including windows in resident rooms.” This incoherent and redundant slop could only have been created by some administrator in either Student Affairs or Housing.  It does seem to suggest that someone putting up a poster for their next concert on the outside of the door to their apartment, or indeed anywhere in the building, would be in violation. 

That’s OK, though, because the administration cheerfully admits that rather than re-write the policy to make sense, they merely engage in selective enforcement.  Piro writes that “the office probably wouldn’t ask someone to remove a holiday snowflake display but that it has asked ‘people to take down things like Pride flags, country flags, and advertisements for businesses.’”  They place content restrictions on protected speech, in other words.  That’s not a reasonable time, place, and action restriction.  You can see why FIRE’s headline suggests that UC Irvine is “wiping its feet on the Constitution.”

Finally, there’s the Great Harvard Brouhaha, the most recent episode of which was the absurd attempt by Kristi Noem (a.k.a., Gestapo Spice) to de-certify Harvard’s Student and Exchange Visitor Program, making it impossible for the university to enroll foreign students, who make up over a quarter of the current student body.  Most of those affected are grad students from over 100 countries.

Noem, of course, is a sociopathic narcissist, but that hardly separates her from the rest of the current administration.  Her allegations—that Harvard was “fostering violence, antisemitism, and coordinating with the Chinese Communist Party on its campus”—are paranoid delusions.  The demand for “any and all audio or visual footage, in the possession of Harvard University, of any protest activity involving a non-immigrant student on a Harvard University campus in the last five years” is not merely creepy, but unconstitutional.

That’s not just Curmie saying that.  Here’s FIRE’s Legal Director Will Creeley: “The Department’s demand that Harvard produce audio and video footage of all protest activity involving international students over the last five years is gravely alarming. This sweeping fishing expedition reaches protected expression and must be flatly rejected.”

Noem’s other demands—for evidence of foreign students’ actually violating the law, for example—have little relevance to any honest attempt to review Harvard’s operations, but at least that thin veneer of authenticity remains.  Not so for footage of “all protest activity.”  Here’s FIRE’s Nick Perrino in a follow-up article titled “This isn’t just about Harvard”: 

The feds are demanding more than just information involving illegal activity or violations of the student code of conduct. They want footage of “protest activity” — including speech protected by the First Amendment.

And unless those protests involve only international students, American citizens will also find their constitutionally protected speech in the hands of America's national security apparatus.

And how, exactly, is Harvard to know whether that person in the five-year-old video is a). a Harvard student and b). a citizen of another country?  Creeley’s calling this a “sweeping fishing expedition” may just have been a little too kind.

The good news, for the moment, at least, is that Harvard immediately filed a lawsuit, and U.S. District Judge Allison Burroughs issued a temporary restraining order.  Travis Gettys’s article on RawStory says that Burroughs “wrote in her order” that “Revoking Harvard’s certification is unlawful many times over…. The government’s effort to punish the University for its refusal to surrender its academic independence and for its perceived viewpoint is a patent violation of the First Amendment.”  

She did not.  That quotation is taken from Harvard’s motion for the TRO, not from Burroughs’s granting of that application, which merely states that in the absence of a TRO, Harvard “will sustain immediate and irreparable injury before there is an opportunity to hear from all parties.”

This, Gentle Reader, is why a raised eyebrow of skepticism is always your friend, even especially if the site in question generally aligns with your perspective.  Burroughs may actually believe what she’s quoted as saying (we can hope so), but she didn’t say it.  We’ll find out more at the hearing in a few days.

In the meantime, we return to Will Creeley to take us home:

The administration’s demand for a surveillance state at Harvard is anathema to American freedom. 

The administration seems hellbent on employing every means at its disposal — no matter how unlawful or unconstitutional — to retaliate against Harvard and other colleges and universities for speech it doesn’t like. This has to stop…. 

Whatever Harvard’s past failings, core campus rights cannot and will not be secured by surveillance, retaliation, and censorship.

No American should accept the federal government punishing its political opponents by demanding ideological conformity, surveilling and retaliating against protected speech, and violating the First Amendment.

Well done, FIRE.

Curmie promised that this piece would be shorter than the last one.  It is, but it’s still pretty long.  The next one will be less likely to achieve TLDR status.

Is This Fragility, Stupidity, or Just Narcissism?

Regular readers of this blog will know that Curmie is a big fan of finding links, confluences, and coincidences that bring together ideas that wouldn’t normally be associated with each other.  And here we go…

Last week, Curmie was called for jury duty.  He arrived at the courthouse a few minutes before he was scheduled to report, finally found an unlocked door, and joined the 75 or so other folks crowded into the hallway outside the courtroom of District Judge Jefferson Davis (this is Texas, remember, Gentle Reader?).  A few minutes after things were supposed to get underway, the courtroom door opened and we began to file in.

By pure chance, Curmie happened to be rather close to the open door instead of the one on the other side of the courtroom, so he was probably in the first dozen or fifteen propective jurors to enter.  But when he presented his card, the woman scanned down the list and couldn’t find his name.  Had he submitted the online questionnaire?  Yes, nearly three weeks previously. 

So either there was a technical glitch or one side or the other glanced at Curmie’s answers and ran screaming into the night even before the voir dire.  (Curmie rode down the elevator with another man who’d had the same experience, so it wasn’t just him.)  Anyway, Curmie proceeded to return home and take a nap.

The incident did recall, however, the one time Curmie actually served on a jury.  Twentysomething years ago, Curmie was a juror in a criminal case in which the defendant was charged with one count of simple battery and two counts of battery of a police officer.  It was pretty clear that the guy really did beat up his girlfriend, and that he took a swing at the cop who intervened.

That’s where things get a little murkier.  The policemen claimed he’d swung at one, grazed him, and ultimately hit the other, so he was guilty of both counts of battery.  Curmie believed that the guy had tried to hit the older cop, missed altogether, and accidentally hit the younger one.  He was able to convince the other jurors of his point of view.

The younger cop, the one who wasn’t a self-important asshole, was very hesitant on the stand and looked very much like he was more interested in appeasing his partner than in telling the truth.  Curmie remembers saying that he’d rather have the older cop lose his badge than convict the defendant, but that wasn’t an option.  Anyway, we convicted the defendant on two counts and acquitted him on the other. 

The day after Curmie’s jury non-adventure, he read this story from FIRE (the Federation for Individual Rights and Expression).  Curmie taught for a long time—well over 200 sections of college courses—and often used analogies and imagined scenaria to amplify or clarify a point in a lecture.  To see a law professor punished for doing so certainly aroused Curmie’s interest. 

But there was also the element of “transferred intent,” i.e., a situation in which someone tries to hurt Person X but hurts Person Y instead… precisely the scenario Curmie had been thinking about when remembering that case from a couple of decades ago.  So that raised the story from one to post about on the Facebook page to one to blog about.

The basics of the story are as follows: Kenneth Lawson is a law professor at the University of Hawai’i.  In a lecture about transferred intent, he used a hypothetical example: what if one of the school deans tried to shoot a different dean but shot Lawson himself instead?  This is precisely the kind of thing that happens in damned near every classroom in the country.  The only minor difference is that Lawson showed images of the hypothetical perp and the equally hypothetical intended and actual victims.  (You can see that image on FIRE page linked above.)

Ah, but one (apparently only one) anonymous (of course) student complained, describing the hypothetical as “extremely disturbing.”  Seriously!  This is a law student, mind you: in their twenties, at least, presumably of above average intelligence, and preparing for a career dealing with some stuff that actually is disturbing.

As FIRE’s Graham Piro wrote to the university, “To receive a proper education in the law, students will inevitably encounter difficult topics like sexual assault, homicide, physical assault, domestic violence, and may be faced in school and in their careers with descriptions of personal injuries far more graphic than those in Lawson’s hypothetical.”

The two cases both suggest pretty clearly that you don’t need to have the maturity of a spoiled toddler to get into law school, and that law school deans are apparently a hypersensitive, fragile, and humorless lot.  Naturally, the administration butted in, clumsily, stupidly, and in violation of any norm of academic freedom. (Details in a moment.)

Curmie was reminded of a case he wrote about almost 14 years ago.  The scenario was similar, although in that hypothetical, it was the professor who “shot” the dean.  Here’s a little of what Curmie said at the time:

I confess I have difficulty mustering a considerable amount of sympathy for the fragile little flowers who can’t endure a bit of a challenge to their world-view….

I don’t recall ever using my dean in such a hypothetical situation, but I very well might have. I know that in discussing Aristotle I’ve hypothesized that George W. Bush got hit by a bus (tragedy requires the protagonist be important). But, curiously enough, I never got visited by the Secret Service for that flight of fancy, because it was clear that I was making a very different point than threatening the President.

So what happened in Lawson’s case?  Well, the administrators admitted that Lawson had not violated any policy, but nonetheless demanded that he remove the thought experiment from a posted video of the class — or they would change it for him.  Curmie would be sore tempted to tell some busybody administrator that they could perform and exercise best suited to extremely limber hermaphrodites.  Or perhaps to break out a phrase that has found its way onto a good many t-shirts that get advertised on Curmie’s social media feed: póg mo thóin.

Of course, Lawson refused to do their idiotic bidding, and they did indeed alter his video… but get this, Gentle Reader.  They apparently didn’t care about the violence or the intentionality issues: they just didn’t want to be used in the exercise.  Curmie can’t do better than Piro in describing what happened:

Remember: these changes were being made because, supposedly, some found a hypothetical of campus figures being shot to be disturbing. So this [the image you see at the top of this post] is what the administration came up with.

You will note that there is still a campus figure on that slide, and it’s the person who was (hypothetically) shot: Professor Lawson. Only the deans have been removed. It seems that at UH, some hypothetical victims are more equal than others.

Tell it like it is, Graham!  (And nice Orwellian reference, too!)

Oh, and in the letter mentioned above, there’s this: 

If the inclusion of the deans is ‘disturbing and harmful’ to students in Lawson’s class, why would the idea of their professor being shot not be equally or more “disturbing”? This glaring double standard leaves room for only one interpretation: that UH’s objection to the slide is not about students’ psychological wellbeing, but rather about enforcing an unwritten and unwarranted prohibition against lese-majeste intended to protect the image or ego of high-ranking administrators.

Damn, Graham!

Piro goes on to suggest that this is more than “just more campus craziness,” and wonders “If administrators can ‘memory hole’ bits and pieces of curricula they don’t like, even when it violates no rule, where does it stop?”  He’s got a point.  Unfortunately, this kind of administrative interference has become so commonplace that it hardly even qualifies as news.  (And if it’s not some moronic dean, it’s an idiot state legislator.  Curmie offers the usual apologies for redundancy.)

Anyway, we’re left with three conclusions, which Curmie lists here in increasing order of confidence.

1.     1. Kenneth Lawson is good at his job.

2.     2. Law school deans need more bran in their diets.

3.     3. Curmie wants to be Graham Piro when he grows up.