Tag Archives: Brandeis

An imperfect Way to Fight Unfair Sexual Accusations

Too often on campus, the best chance for a wrongfully accused student to achieve justice involves a lawsuit after the campus tribunal has done its worst. A system that uses the lowest standard of proof, allows accusers to appeal not-guilty findings, lacks mechanisms for mandatory discovery of exculpatory evidence, denies meaningful (or any) representation by counsel, and prohibits direct cross-examination is almost, by definition, unjust.

As FIRE’s Samantha Harris has long observed, courts are an imperfect vehicle to protect campus due process as a whole; the nature of due process lawsuits makes it difficult for courts to do anything more than address the facts of a single case. (The Brandeis decision comes closest to a judicial declaration that a university’s sexual assault process violated the Constitution.) Moreover, a lawsuit can cost tens or even hundreds of thousands of dollars—well beyond the means of many middle-class or poor families.

It is, therefore, nothing short of preposterous to suggest that the myriad due process lawsuits illustrate the “powerful legal incentives” for colleges to handle sexual assault complaints “fairly.” Yet this was the claim of one prominent defender of the Obama administration’s efforts to weaken campus due process—my own institution’s president, Michelle Anderson. She added that “campuses are responding—as they must—when accused students prevail.” The extensively footnoted article contained no footnote for this assertion.

When Innocence Isn’t Enough

Anderson’s words would be cold comfort to accused students from Miami (Ohio), Case Western, or the University of California-San Diego. In the Miami case, Judge Michael Barrett noted that the accused student had “alleged facts which cast doubt on the accuracy of the outcome.” Indeed, the “discrepancy between [the accuser’s] written statement—‘I never said no’—and the finding that [the accuser] asked [the accused student] to stop casts serious doubt on the accuracy of the outcome of the Administrative Hearing [emphasis added].” Yet Judge Barrett concluded that 6th Circuit precedent prevented him from rectifying the injustice.

In a 2015 case at Case Western, Judge Christopher Boyko concluded that the accused student had made “a plausible claim that [he] was innocent of the charges levied against him and that CWRU wrongly found that [he] committed the offense.” Case Western didn’t give the accused student access to the full case file. The panel refused to ask some of the questions he deemed critical to his defense, and the chairman of the panel treated him with hostility.

The university denied his appeal—after allowing the appeals officer to consider an anonymous letter, to which he was never given access, to be added to his file. Despite noting that this treatment left a “plausible inference that CWRU’s disciplinary hearings were procedurally flawed,” Boyko sided with the university, citing relevant 6th Circuit precedent. The likely innocent student—found guilty after a flawed procedure—was out of luck.

This is, of course, the same circuit at which Judge Martha Daughtrey mused at how students accused of sexual assault are entitled to no more due process than a soldier facing a military board of inquiry. Daughtrey isn’t alone in her judicial indifference of basic fairness. The highest-profile example came in a 2016 appellate decision from California, where a three-judge panel restored the discipline against an accused student at UC-San Diego. The judges reached that conclusion even after one of them publicly compared the UCSD process to a kangaroo court.

Settlements

For those accused students filing outside of the 6th Circuit (or, in the aftermath of the UCSD decision, in California state court), success depends less on the merits of their case than on the judge to whom the case was assigned. For the public, however, even an unsuccessful lawsuit can provide critical insight into the otherwise secret world of campus due process.

Yet in two important respects, the interests of litigants and of the public are at odds. First, and quite understandably, wrongfully accused students want to end the process as soon as possible. In almost all cases, their primary goal is an expungement of their record, given the life-altering consequences of a wrongful finding of sexual assault. The public, by contrast, has an interest in a process lengthy enough to require the university to turn over internal documents relating to its disciplinary process—and to get university disciplinarians under oath.

These two interests most obviously come into conflict in settlement discussions. With the exception of Brown (and, oddly, Brandeis), most colleges and universities have entered into settlement discussions shortly after losing a motion to dismiss. The two most recent settlements—both troubling cases profiled by Ashe Schow—came at Lynn University in Florida and Allegheny College in Pennsylvania. In a twist, both settlements came shortly after court rulings requiring some degree of participation in the lawsuit by the accuser, setting up the possibility of cross-examination that the schools had gone out of their way to prevent.

It’s easy to see why the accused students settled; otherwise, their lives would have been on hold indefinitely. But the settlements also ensured that the public will learn no more about these deeply disturbing cases.

Secrecy

The interests of litigants and the public also are in opposition with regards to publicity. The first round of litigation after the Dear Colleague letter—cases at Xavier, St. Joe’s, Miami (Ohio), and Vassar—all featured students suing in their own names. Now, virtually all suits are filed under “John Doe.”

For reasons recently explained by Judge Philip Simon (in a case at Notre Dame), this shift is in the best interests of justice: the marginal benefits to the public knowing litigants’ identity are overcome by the litigants’ need for privacy. But the shift nonetheless represents a tradeoff and prevents those who cover the cases from getting a better sense of the personalities involved.

The far more troubling new development involves the sealing of all or much of the case file. Such efforts initially came mostly from accusers—in cases at Georgia Tech, St. Thomas, and (involving her subpoena) Amherst. But in two recent cases—James Madison and Notre Dameaccused students have entered into agreements with their universities to file material, including the transcript of the disciplinary hearing, under seal.

It’s understandable why an accused student would want to take such a course—even if innocent, the material in the campus process can be personally embarrassing. And not all of material is permanently shielded from the public—judges can cite from it in their opinions, as the two judges did in the critical due process victories at JMU and Notre Dame. But one reason why I was able to write so extensively about Amherst is that the accused student’s lawyer, Max Stern, placed all aspects of the disciplinary file, including the transcript, into the record, fully open at PACER.

In contrast to the “John Doe” issue, judges should push back on closing non-redacted material from public view. The public has a right—indeed, an obligation—to learn as much as they can about the unfairness of the campus disciplinary process. And as things stand now, due process lawsuits represent the only way for the public to achieve an unvarnished view.

To date, the Trump administration has made no efforts to push back any of Obama’s anti-due process policies. And it’s not at all apparent that, even if they did so, colleges would do much to restore a sense of fairness. So litigation—despite its clear limits—will remain the best avenue for both justice and transparency.

BRANDEIS THE LATEST LAWSUIT TARGET

Hans Bader has a perceptive post analyzing the University of Virginia’s new “affirmative consent” policy. Rather than learning from Rolling Stone and stressing due process, the site of the year’s biggest campus rape hoax has redefined sexual assault to include routine contact that no one off campus would deem criminal conduct. As Bader notes, UVA now “forbids the gradual, step-by-step escalation of intimacy without verbal discussion that is how making out actually happens in the real world.”

Bader’s critique provides a way to look at the latest due process lawsuit, this one filed against Brandeis. This case already had attracted some attention, including a typically one-sided piece in the Huffington Post, which without corroboration contended that the accused student had engaged in an act of retaliation. This is the only public instance of the Office for Civil Rights investigating a school after a complaint filed by an accused student (though the lawsuit suggests there’s one other such Title IX case). You can read the lawsuit here.

‘Emergency Suspension’      

The facts of the case differ, and in some aspects dramatically, from most other due process lawsuits, with the possible exception of the Marlboro College case. Unlike most due process suits—which seem to be based on fleeting sexual contact after a night of drinking—the Brandeis lawsuit comes out of a romantic relationship between two males, which lasted nearly two years and in which neither party consumed alcohol during the relationship. Though the couple broke up in summer 2013—at the impetus of the eventual accuser, according to the complaint—they remained friendly for a few months thereafter.

But the friendship deteriorated in fall 2013. Then, in January 2014, the accuser filed the following allegation to Brandeis: “Starting in the month of September, 2011, the Alleged Violator of Policy had numerous inappropriate, nonconsensual sexual interactions with me. These interactions continued to occur until around May 2013.” Brandeis responded by placing the accused student on what the complaint describes as an “emergency suspension,” though no inquiry had occurred and the filing itself contained no specific allegations.

Even though the university had a functioning disciplinary hearing process at the time, Brandeis instead investigated the accuser’s remarkably non-specific complaint through a single investigator, a former OCR employee named Elizabeth Sanghavi. (Sanghavi’s CV lists herself as a co-author of this article on the “Dear Colleague” letter.) Sanghavi interviewed both parties—the accuser described her as “very sensitive”—and a handful of others; according to WBUR, she elected not to record these interviews, for reasons that remain unclear. The accused student had no right to counsel, and no right to see his accuser’s testimony, much less to cross-examine the accuser. None of the interviews with Sanghavi occurred under oath. The accused student received no detailed allegations against him until his first interview with Sanghavi.

 Withholding Information

Under the pre-“Dear Colleague” letter disciplinary process, Brandeis used a “clear and convincing” evidentiary threshold, but the accused here faced the preponderance of evidence (50.01 percent) standard. Though Sanghavi prepared a report based on her interviews, bizarrely, Brandeis policies have the accused student “listen to the [student affairs officer’s] summary of findings and engage in dialog with the [officer] about these findings.” The Brandeis procedures offer no explanation as to why the school doesn’t provide accused students this obviously relevant written material during the process; Brandeis gave the accused student the written report only once it had closed the process and branded him a rapist, and it still has never produced Sanghavi’s notes.

In her findings, Sanghavi concluded that the first time the two students had slept together, the accuser hadn’t given affirmative, verbal consent, and therefore the accused was guilty of sexual assault. As the accused’s attorney, Patricia Hamill, observed, “It defies reason for the Special Examiner to have concluded that John’s ‘first move’ leading to a 21-month consensual relationship was a sexual assault.” Though the two students regularly slept together during this 21-month period, Sanghavi also found the accused guilty of nonconsensual sexual conduct because he sometimes awoke the accuser with a kiss. By this peculiar standard, virtually every long-term couple in the country consists of at least one rapist, and it seems hard to imagine that the accuser wasn’t similarly guilty of such behavior. This is precisely the sort of absurd standard about which Bader writes.

Despite having branded the accused a rapist, Brandeis (in what could only be an implicit recognition of the flimsy nature of the allegations) punished lightly, through a Disciplinary Warning, with no suspension. But as the complaint points out, this was nonetheless a life-altering decision: “[The accused] will now have to disclose, and defend himself against, his deeply blemished University record and reputation to every law school and professional graduate school to which he applies, to his political colleagues, to prospective employers and, should he run for public office, to the electorate.” And he certainly can’t count on anyone he has to tell understanding the strange nature of Brandeis’ process and definition of sexual assault. Indeed, according to the complaint, the accused already lost an internship and job offers as a result of Brandeis’ ruling, which was leaked to his potential employers.

 Who Needs Due Process? 

The Brandeis case resonates for two reasons beyond the specifics of events. First: perhaps the most typical defense of OCR is that the evisceration of campus due process is tolerable, since the worst fate the accused will suffer is expulsion from college. In this case, the accused wasn’t even expelled—but as is clear from the filing, he’s suffered significant consequences, and is likely to do so for years to come, absent a court ruling overturning Brandeis’ action. His fate, therefore, is a reminder of the moral obligation of colleges to do everything they can to get the decision correct—something that, sadly, occurs at very few universities today—before branding one of their students a rapist.

Second, the hyper-technical nature of Brandeis’ findings might well preview a next wave of cases, as more and more states move toward an affirmative consent standard that deems a huge swath of common romantic activity as sexual assault. As the filing in the Brandeis case makes clear, if the accuser in this case committed sexual assault, so have hundreds of thousands of other college students, all over the country.

A Law Professor Takes on the Victimhood Industry

                                          

The Supreme Court.jpg

Keeping quiet can seal your fate if you are a professor facing a campus kangaroo court after being accused of racial “harassment” over your classroom speech. Free-speech advocates use adverse publicity to save wrongly-accused professors from being convicted and fired. They put to good use Justice Brandeis’s observation that publicity cures social evils, just as sunlight is a disinfectant.

But as the plight of Lawrence Connell at Widener University illustrates, if an accused professor speaks up, resulting in possible adverse publicity for his accusers, he risks being punished for “retaliation” against them, even when harassment charge is baseless. Connell was convicted of “retaliation” because he and his lawyer denounced meritless racial harassment charges against him over his classroom teaching. Retaliation charges have become a growing threat to academic freedom, fueled by court rulings that provide murky and conflicting guidance as to what speech can constitute illegal “retaliation.”

Connell, who is white, was charged with racial harassment and removed from Widener’s campus because he discussed hypothetical crimes in his criminal law class, including the imaginary killing of the law school dean, Linda Ammons, who happens to be black. (He was also accused of harassment because he “expressed his philosophical concerns about the fairness and utility of hate crime” laws).

But there was never any evidence that Connell used the dean in these hypotheticals because of her race. (Comments are not “racial harassment” unless they target a victim based on her race, and are severe and pervasive, according to Caver v. City of Trenton, a ruling by the appeals court that has jurisdiction over Widener.) Far from being a racist, Connell had spent 15 years successfully working to save the life of a black man who had been sentenced to die after he was convicted of murder by an all-white jury.

Leading law professors submitted affidavits in support of Connell pointing out that discussing hypothetical crimes against law deans was standard practice in criminal law classes. George Washington University’s Orin Kerr noted that “one of the common ways that law professors keep students mildly entertained in class is by posing hypotheticals involving their professors and the Dean. . . . students just love it. If you teach first-year criminal law,” “that means you spend a lot of time imagining your colleagues meeting horrible fates.” In Bauer v. Sampson, a court ruled that depicting a college official’s imaginary death was protected by the First Amendment.

After Connell was exonerated by a committee of law professors, the charges against him were resubmitted to a disciplinary panel including Dean Ammons herself, another Widener administrator, and a professor hand-picked by Ammons.

While even this panel was forced to concede that Connell had not committed racial harassment, it found him guilty of two acts of “retaliation”: the first was an email protesting his innocence after he was suspended and banned from campus, and the second was his lawyer’s public statement that he was preparing to sue over the unfounded allegations. The email called the accusations against him “preposterous” and said that they were made by “two unnamed students from my Criminal Law class of spring 2010” who “falsely” quoted and took “out of context” his classroom “remarks.” The panel deemed the email to be illegal retaliation, even though the email did not even name the accusers, because the email supposedly had the “foreseeable effect of identifying the complainants.” (The email led to students speculating about who the complainants were, and a complainant suspected that others “believed that she was one of the complaining students.”). Connell was then suspended for a year without pay. As a condition of reinstatement, he must undergo psychiatric treatment, and be deemed sufficiently “cured” before he is allowed to return to his classroom.

Connell’s email did not constitute “retaliation” under controlling legal authority. But Widener was able to claim otherwise with a straight face, by cherry-picking language from court rulings it selectively cited. First, it recited the vague, broad definition of retaliation from the Supreme Court’s decision in Burlington Northern v. White (2006): conduct that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” The email, it suggested, could dissuade complaints by making complainants uncomfortable or inciting ostracism against them.

But Widener ignored language in that court ruling saying that mild expressions of hostility in response to a complaint do not rise to the level of “retaliation.” The Supreme Court declared that “snubbing by supervisors or co-workers” or “petty slights” in response to a complaint do not rise to the level of retaliation, since they would not be “material” enough to dissuade a “reasonable” person from complaining. If actual snubbing is not retaliation, Connell’s email can’t qualify based on Widener’s speculation that it could lead to snubbing. The Supreme Court also said that only “significant” rather than “trivial harms” constitute retaliation, and that “sporadic” “abusive language” or “occasional teasing” does not qualify.

Second, Widener cited a ruling from a Midwestern appeals court (which has no jurisdiction over Widener), that rejected a challenge to a professor’s discipline for publicly criticizing a harassment complaint. That disturbing ruling, Bonnell v. Lorenzoessentially held that bans on “retaliation” trump the First Amendment, menacing academic freedom.

In doing so, Widener ignored other First Amendment rulings limiting the reach of retaliation law. For example, in BE&K Construction Co. v. NLRB (2002), the Supreme Court held that an employer’s reasonable, but unsuccessful, lawsuit was protected by the First Amendment’s petition clause even if it had a “retaliatory motive.” In Bain v. City of Springfield (1997), the Massachusetts Supreme Court ruled that a mayor was entitled to publicly denounce a sexual harassment complaint against him, even if that could dissuade the filing of harassment charges, since retaliation prohibitions are limited by “constitutional guarantees of freedom of speech. The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech.” Similarly, in Brooks v. City of San Mateo (2000), the Ninth Circuit held that “retaliation” could not be found based on “mere ostracism” or employees’ refusal to associate with an employee after she brought an unsuccessful harassment complaint, citing a potential clash with the “First Amendment freedom of association.”

In short, contrary to what a Florida trial judge recently suggested, there is no blanket exception to the First Amendment for speech that is “discriminatory” or “retaliatory.” In DeJohn v. Temple University (2008), the federal appeals court with jurisdiction over Widener invalidated a college sexual-harassment policy that restricted academic speech, noting that “there is no ‘harassment exception’ to the First Amendment’s Free Speech Clause,” and “no categorical rule . . . divests `harassing’ speech as defined by federal anti-discrimination statutes, of First Amendment protection.” Similarly, White v. Lee (2000) rejected liability for speech that allegedly incited discrimination, holding that the anti-discrimination provisions contained in the Fair Housing Act did not override free speech protections. That appeals-court ruling held that citizens could not be investigated under the Fair Housing Act, even if their speech was bigoted, and led to a city blocking a housing project for the disabled. If the First Amendment protects speech that incites actual discrimination, it certainly protects speech that merely unintentionally incites snubbing of a discrimination complainant. In Rodriguez v. Maricopa County Community College (2010), an appeals court, citing the First Amendment, dismissed a racial harassment lawsuit against a white professor over his racially-charged anti-immigration emails.

While Widener’s claim that Connell’s email was “retaliation” was a tortured reading of the law, it reflects what retaliation ought to mean to some left-leaning lawyers who counsel universities. (Other academics, like Richard Osborne at Mesabi Community College, have also been punished for “retaliation” for speaking out vigorously in their own defense; Osborne’s punishment was rescinded only after he brought a free-speech lawsuit.) To these lawyers, current legal rules privilege white male faculty at the expense of minority complainants, giving them insufficient protection.

When law professors at the Volokh law blog condemned Widener’s treatment of Connell, most of its lawyer readers disagreed with Widener’s “retaliation” finding in the comment thread. But a liberal employment lawyer who represents universities disagreed, arguing that Widener was not only permitted but legally “compelled to punish” Connell for “retaliation.” Brushing aside the arguments of many other lawyers pointing out that Connell’s email did not legally amount to “retaliation,” that commenter, who represents employers, argued that simply proclaiming your innocence without even mentioning the name of your accuser can be retaliation. He claimed that Connell, who had received high marks for his teaching (and successfully handled high-profile cases in court), was a “warped,” “underachieving white male” who should have been fired. People wrongly accused of harassment, he said, should just keep their “mouth shut and let the process” work, “not contact” potentially helpful witnesses, and “say nothing to anyone.” He argued, “when you are accused of race and sex discrimination, it is best to be silent . . . And you should keep silent unless and until you have been exonerated.” (That is a prescription for disaster in dealing with a campus kangaroo court, or in getting sympathetic witnesses to come forward to rebut a claim that a professor’s classroom remarks created a racially-harassing “classroom climate”). Exuding racial grievance against whites, he depicted those who disagreed with him as racists, and called the conservative Connell an “anti-black bigot,” citing the alleged existence of “OBVIOUS historical antipathy between conservatives (especially white male ones) and minorities” — even as he claimed that jurors were legally “required” to find O.J. Simpson not guilty. As a commenter observed in response, lawyers like this are “part of the whole victimhood industry, . . . ‘advising’ clients to genuflect before the gods of political correctness, lest they be harmed.”

Employment lawyers are a lopsidedly liberal lot. In my employment-law class at Harvard Law School, my classmates were overwhelmingly hostile to employers in harassment and retaliation cases. Ironically, some of those classmates now have jobs representing employers and advising them on their legal responsibilities. Their advice may well be colored by their ideology, and may lead to their clients firing innocent employees as “harassers” or “retaliators.” Moreover, broad legal definitions of “harassment” and “retaliation” create more lawsuits, and thus more demand for these lawyers’ services, benefiting them financially.

There is a final reason why Widener’s finding that Connell engaged in illegal retaliation was erroneous: the complainants’ allegations were legally unreasonable and thus not protected against “retaliation.” Retaliation against a harassment complainant is not legally prohibited if the complaint was based only on trivially-offensive speech, as the Supreme Court made clear in Clark County School District v. Breeden (2001). Thus, a complaint about a single racist utterance was not protected against retaliation, according to an appeals court in Jordan v. Alternative Resources, because it could not reasonably be perceived as illegal harassment. No reasonable person would think that Connell’s perfectly-defensible classroom remarks were illegal racial harassment. (Note that while unreasonable charges are not protected if made to an employer, they are protected if made to a civil-rights agency; agency complaints are generally protected even if false).

Why Not Eliminate Tuition?

In a recent article that received a fair bit of buzz, The New York Times spun a story of the supposed new reality in the recession-plagued U.S.—Students from more well-off families being given admissions preference at increasingly cash-strapped universities. But the Times article misses the larger point. Lawrence University, Colby College and Brandeis (some of the institutions mentioned) are all fine schools that provide good educations, but they are not entry points into the elite post-graduation professional networks in the same way that top Ivy League schools (and a few others of similar prestige) are. For those schools, the real story is the same as it has been—in a time of increasing economic stress, “need blind” admissions will continue for those fortunate enough to be on financial aid—but the uncontrolled escalations of costs for everyone else will continue, putting an increasing financial burden on these students and their families.
When my father entered Harvard University in 1958, fresh from public high school in Ohio, it had just raised it’s tuition a staggering 25% from the previous year. . . to $1250. While inflation would make that figure equivalent to about $9,000 now, the fact remains that this less than one-fourth of the cost of Harvard’s tuition and fees today.
Through a combination of scholarships, parental savings and a summer job each summer at Republic Steel, my father’s family was able to easily afford an supposedly elitist Harvard. Had my father been applying to Harvard today under similar financial circumstances, his parents likely could not have afforded to send him.

Continue reading Why Not Eliminate Tuition?

Financial Pain on the Campuses

On February 11 art-lovers packed a meeting room at Brandeis University to protest Brandeis’s plans to shut down its on-campus art museum and auction off the museum’s entire 6,000-piece collection. The list of holdings at Brandeis’s Rose Art Museum, most of them donated since the museum’s opening in 1961, reads like a Who’s Who of prominent twentieth-century American artists – works by Max Ernst, Willem de Kooning, Jasper Johns, Roy Lichtenstein, Robert Rauschenberg, and Andy Warhol, among others – and is valued at $350 million. Museum curators, especially those associated with university – owned art collections, greeted Brandeis’s decision with shocked intimations that selling the art might violate ethical obligations to donors. Elsewhere in the art world there was fear that the fire-sale prices that the Rauschenbergs and Warhols might command if dumped onto today’s anemic, recession – beset market for luxury goods could depress the value of other art collections less stellar than Brandeis’s.

One thing is certain, however: Administrators and trustees at Brandeis, a well-regarded but not overly rich liberal arts-focused research university of about 3,900 students in Waltham, Mass., saw a need to act quickly and decisively to cut costs and raise cash at a time when nearly every university in America, private and public, is being hit by the double whammy of shrunken endowments (thanks to the tanking of Wall Street) and sharp downturns in revenues from both private donors and financially strapped state governments. Brandeis, founded in 1948 and named after the Supreme Court justice Louis Brandeis, had an endowment valued at $712 million as of last June – pocket change compared to its neighbor Harvard’s $37 billion endowment – but Brandeis’s endowment is now reportedly worth only $530 million because of the market meltdown, Furthermore, many of Brandeis’s chief donors had invested heavily with alleged Ponzi schemer Bernard Madoff, a guarantee of financial wipeout. Indeed, Brandeis’s very largest donor; the family foundation of the clothing manufacturer and philanthropist Carl Shapiro, who had several campus buildings named after him, reportedly lost $545 million, nearly all its assets, to Madoff’s alleged pyramid of fraud. Although Brandeis denies investing any of its endowment with Madoff, it has admitted to serious investment losses, and its chief operating officer, Peter French, told the online magazine The Daily Beast that the university faces an operating deficit of $79 million over the next six years together with “a tapped-out reserve fund,” as the Beast’s Judith Dobrzynski wrote, and seriously strapped donors. According to French, Brandeis faced three alternatives: sell the art, shut down 40 percent of its campus buildings, or choose between firing 30 percent of its administrative staff or 200 of its 360 faculty members. Since original works of art are inspirational but not exactly germane to a college education (Brandeis had no art museum for its first thirteen years of existence), the university axed its art, not its buildings or employees – “We’d rather use Rose” to cut costs, French said.

In fact Brandeis is actually lucky to have valuable hard assets on hand to liquidate for a desperately needed cash infusion, and even luckier to have had generous donors in the past whose gifts constitute those assets. The university does not have to decide – at least not right now – whether to shrink its faculty, trim its administrative staff, reduce undersubscribed academic offerings, or deal with the costly results of an overhead-hiking campus construction spree when times looked flush earlier in the decade. Mark Williams, a senior lecturer at Boston University specializing in risk-management told the Bloomberg news organization that one of Brandeis’s problems was that it “overbuilt at the peak of the market.” In fact, according to Inside Higher Education, the Brandeis faculty recently formed a committee to review the curriculum and review such revenue-boosting or cost-cutting options as adding business and engineering programs to the university’s traditional liberal-arts offerings and replacing its existing majors and minors with (apparently cheaper in terms of faculty deployment) interdisciplinary “meta-majors” whose vague parameters have alarmed some professors, not so much because they might dilute standards or jettison, say, Brandeis’s longstanding but low-attendance courses in ancient Greek, but because they might result in eliminating entire departments and professorial jobs.

Continue reading Financial Pain on the Campuses

Brandeis: Still Abusing A Professor

By William Creeley & Harvey Silverglate
Reaction to Brandeis University’s plan to close the Rose Art Museum and sell its esteemed collection was swift—and scathing. Within the Brandeis community, President Jehuda Reinharz’s proposed fire sale provoked howls of betrayal from students, faculty, alumni, and donors. In the art world and news media, the move was met with blistering condemnation. Even the Massachusetts attorney general’s office launched an investigation.
The press reported that Michael Rush, the Rose’s director, expressed “shame and deep regret” at the university’s plan. (Adding insult to injury, Rush was notified of Reinharz’s plan just an hour before the press release was issued.) In Rush’s assessment, by shuttering the Rose, Brandeis would place its “intellectual capital and very credibility as an institution of higher learning on the auction block.” That the museum director was not involved in such a momentous decision is perhaps as revealing and important as the decision itself.
A strict adherent to the corporate model of university governance, Reinharz responded to the furor with an empty apology, expertly crafted by a public relations firm to sound palatable while leaving the decision largely intact. But the backlash against Reinharz’s announcement stems not only from its wrong-headedness, but also from the arrogance and lack of process with which the decision was made.

Continue reading Brandeis: Still Abusing A Professor

Should Universities Be In The Social Justice Business?

Brandeis University is now officially committed to social justice. The university’s “Diversity Statement” says that the university considers social justice central to its mission. Is this controversial? Absolutely, says George Mason law professor David Bernstein, blogging at the Volokh Conspiracy. Universities shouldn’t be in the social justice business, according to Bernstein, a Brandeis alum who thinks the formal commitment is an attempt to attract donations from left-liberal alumni and other like-minded sources.

Citing a brochure used in a class to stress the important of social justice, Bernstein says, “At best this is just p.r. talk and has no effect on academic freedom in the university, and is merely embarrassing. At worst, Brandeis in fact institutionally favors certain ideological views over others, has no claim to be a university devoted to the pursuit of truth regardless of ideological implications.”

But isn’t justice an obvious goal for people of good will across the political spectrum? In theory, yes. In practice, “social justice,” sometimes used synonymously with “social action,” is a campus buzzword that refers rather clearly to the agenda of the left. Bernstein quotes a Brandeis administrator hoping that the university will turn out operators of “socially responsible” businesses and politicians who “head progressive national governments.”

“Social justice” bureaucrats make an effort to keep the language neutral, but commitment to the left shines through. The term often refers to plans for government-sponsored redistribution of income. Other social goals include more anti-discrimination laws, environmentalism, resistance to “oppression” and support for gay marriage and adoption. Columbia Teachers College, perhaps the most vehemently ideological of the “social justice” schools, says education is a “political act” and educators “must recognize ways in which taken-for-granted notions regarding the legitimacy of the social order are flawed.”

The policy makes clear that any would-be teachers who believe in merit and individual responsibility would be better off not showing up at Teachers College: “social inequalities are often produced and perpetuated through systematic discrimination and justified by societal ideology of merit, social mobility and individual responsibility.”

So Bernstein is probably wrong to see the Brandeis commitment to social justice as an attempt to attract financing from the left. More likely it is simply another example of the spread of a partisan codeword and the ideological pressure behind it.

Butter For Brandeis?

Darren Garnick, of the Boston Herald, wrote to point out a bizarre element of Brandeis University’s new marketing efforts, the subject of one of his recent columns:

As part of its new rebranding campaign on the Web, Brandeis University now touts itself as “Smart from the Start,” celebrating its historical relationships with Albert Einstein, Leonard Bernstein and Eleanor Roosevelt. Dissolving from the famous faces to a pensive professor, Brandeis becomes the headquarters of “Smart Thinking.”
From there, the slideshow at the top of the university’s home page curiously cuts to a bright yellow tub of Smart Balance, a butter substitute that promises to improve the ratio of good HDL cholesterol to bad LDL cholesterol.

It seems that the advertising relationship is mutual: Smart Balance touts the university connection on its packaging. Read Garnick’s piece for the full story. Brandeis, not just smart, but creamy too.