Prop 8 and the Academy on Trial

Barack Obama might be the most academia-friendly President since the development of modern higher education in the early 20th century. But anyone wondering why so few professors (and virtually none outside of law or economics) have been appointed to his administration should consider the case of Chai Feldblum. Nominated for a post at EEOC, Feldblum came under attack for signing an only-in-academia petition endorsing recognition for “households in which there is more than one conjugal partner.” Faced with a choice between continuing to favor polygamy or pleading incompetence, the professor used her Senate confirmation hearing to claim that she had made a “mistake” in signing the petition, suggesting that she had done so at the urging of an unnamed academic associate.
Feldblum’s nomination cleared committee and is currently pending in the full Senate. But her experience reveals how academic groupthink—quite beyond its effects on higher education—also reduces any impact that professors might hope to have in the public policy arena. As Mark Bauerlein’s seminal essay on the topic observed, one element of campus groupthink is the law of group polarization, or “when like-minded people deliberate as an organized group, the general opinion shifts toward extreme versions of their common beliefs . . . Group Polarization happens so smoothly on campuses that those involved lose all sense of the range of legitimate opinion.” Once outside of the academy, however, adherents of such positions are easily, and correctly, labeled as extremists.
The recently concluded testimony in the federal trial challenging California’s Proposition 8 provided another example of how the pedagogical and ideological imbalance in most humanities and social sciences departments helps diminish the impact professors can have on public policy. Attorneys Ted Olson and David Boies approached the trial with the model of the Brown v. Board of Education cases in mind—using academics to demonstrate the pernicious effects of discrimination.

But the academy of 2010 is very different than the academy of the 1950s, as became clear with the first academic witness, Harvard history professor Nancy Cott, who testified as an expert on the history of marriage. Cott’s basic narrative: that what opponents of marriage equality describe as “traditional marriage” (the current marriage law in 45 states) isn’t very “traditional,” in that it has actually existed in U.S. civil law only since Loving. It’s hard to rebut the point, given that at various stages before 1967, blacks couldn’t marry at all, blacks couldn’t marry whites, Asians couldn’t marry whites, and married women had few independent legal rights.
Attorneys representing the Prop 8 proponents attacked Cott’s credibility. Cott was asked if she considered herself an impartial scholar on the question. (She hedged, until it was pointed out that in her deposition, she had described herself as something “between” a scholar and an advocate.) Prop 8 attorney David Thompson cast Cott as a figure well outside the mainstream by pointing out that she—like Feldblum—had signed the pro-polygamy “Beyond Marriage” petition. Cott claimed that she didn’t intend to support polygamy or polyamory by signing the petition (even though the petition called for benefits to go to polygamous or polamorous units). Much like Feldblum, Cott suggested that she had signed the petition after being asked to do so by friends, and that even though she makes her living by reading and interpreting texts, she hadn’t paid attention to the public petition to which she was attaching her signature. In the groupthink academy, it seems, being asked to sign something by an associate implies that the requested signatory will agree with the petition’s contents.
Plaintiffs’ attorney Theodore Boutrous tried to rehabilitate Cott by noting that she had come to support marriage equality in part because of the findings of her general research into marriage. And, Boutrous asked, “If your historical research during that period had led you to conclude that history and tradition in the United States and the changes in our history did not support the elimination of barriers to individuals of the same sex marrying, would you be here today testifying in support of the plaintiffs?” Boutrous, obviously, was expecting a yes answer. Instead, Cott laughed and responded, “I don’t think so.” As a commenter at even the left-leaning Firedoglake site pointed out, “in legal terms, that’s a humdinger—so not where he wanted her to go.” So much for Cott’s commitment to impartial research.
A few days later, Prop 8 attorneys employed a similar strategy of criticizing academic norms when dealing with Cambridge professor Michael Lamb. Lamb’s testimony showed that nearly all peer-reviewed research indicated that children of same-sex families are well-adjusted and would benefit from their parents being able to marry. (The defense expert on this issue, David Blankenhorn, conceded the point.) So Prop 8 attorneys suggested that in an academic environment where virtually everyone comes from one side on ideological matters, the peer-review process is open to politicization. In words common from defenders of the academic status quo, Lamb replied, “Well, I have to say, based on my experience doing it, that that’s not seen to be a factor.”
(I should note that, on the other side, the academic experts called by the defense didn’t much help Prop 8’s cause: two McGill professors were withdrawn as witnesses, allegedly from their fear of being videotaped, after giving answers in their deposition that supported the plaintiffs’ case; a third academic expert, Professor Kenneth Miller, spent time in cross-examination repeatedly repudiating his own scholarship, including arguments from his 2009 book about the vulnerability of minority rights to the initiative process. Blankenhorn, described as Prop 8’s star witness, isn’t a professor; his most advanced degree is an M.A. in labor studies.)
The treatment of Cott and Lamb (as well as Feldblum’s embarrassment) reminded us that groupthink harms even those who have exploited its characteristics to dominate most humanities and social sciences departments. Faddish positions—like endorsing a pro-polygamy petition—that don’t even raise an eyebrow among the professorial establishment discredit adherents once they move outside of the protective bubble of academic groupthink.