Following up on last week's posts:
- New York Times, Turmoil At University Of Florida Law School After Adjunct Professor Federal Judge Gives Book Award To White Nationalist Antisemitic Student For His Racist Paper
- Merritt McAlister (Interim Dean, Florida), Response To New York Times Article
TaxProf Blog Op-Ed: More on the University of Florida, the Adjunct Professor, and the Issues at Hand, by Joshua Kastenberg (New Mexico):
Associate Justice Oliver Wendell Holmes Jr, once opined “a page of history is worth a volume of logic.”[1] Professor Peter Novick in his 1987 That Noble Dream: The “Objectivity Question” and the American Historical Profession urged, in his introductory chapter titled ”Nailing Jelly to the Wall” that while the professional historian should strive for objectivity, she or he should never degenerate into the role of an advocate or propagandist.[2] Of course lawyers are advocates and this puts law student papers in a different light than that of a straight-up history work authored by a graduate student. Nonetheless, there remain standards of academic rigor that are important to consider in the ongoing debate arising from the University of Florida’s law school grading system. In assessing the conduct of the University of Florida’s law school leaders, Preston Damsky, Judge John Badalamenti, and the New York Times, I’ll concede that it is darn near impossible for any of us to be objective. But I’d like to contribute to this conversation in a way that at least attempts a degree of objectivity. This comment focuses on the judge turned adjunct professor, but to do so, there is a matter of context.
First there is the state of Florida: The governor and state’s legislators are, like some of their peers in other states, reshaping how academic freedom is assessed and changing what is taught in the classrooms. Professor Jeremy Black observed that history is fought over by people and governments more than any academic subject. The subject of history is certainly at the front and center of debates over what is taught, how it is taught, and even who teaches it. Damsky’s paper and its grade should not be cordoned from the debates over education in Florida, anymore than a professor who would espouse his or her beliefs in the legitimacy of Marxism. In other words, his paper and the grade are fair game for the news to report, once the information “spilled” into the public. There were privacy considerations and rights beforehand, but apparently not now.
The New York Times not only had the right to print the story, they were right to bring to the nation’s attention a law school’s tolerance if not openness for the student’s ideas. It proves, after all, that he was not graded on the content of his work. Moreover, a diversity of ideas — that is the open marketplace — is something that conservatives prize. Professor Josh Blackman argues that the New York Times hits conservatives and does so predictably. Perhaps so, perhaps not, but we live in an era where political institutions and media sources are doing this sort of thing across the spectrum, and unlike other media, they did not ignore the event. The marketplace of ideas ought to embrace reporting of this nature which, after all, permits prospective applicants to decide whether to apply to the law school or not, and which professors may have the most open of minds.
Professor Blackman defends the judge by highlighting his public defender work and his service on a board that is dedicated to promoting equality and opportunities for people of color. This is an important feature of the judge that the New York Times could have highlighted in the interests of balanced reporting. It may also serve the judge well in explaining his own beliefs in the event that litigants motion him to recuse himself. (More on that below). I am not criticizing Professor Blackman for defending the judge, in part, because I respect him as a fellow professor and someone I have known since around 2006, and in part because judges often cannot, as a result of judicial ethics, defend themselves. I disagree with Professor Blackman though on another issue, that of the news story being a non-story, and the potential impact of the grade in question to the bench.
I also disagree with his view of the paper. That is, I think Professors Anthony Michael Kreis’s and Evan Bernick’s position on the paper is correct. (and probably some others).
There is a problem in the judge’s commitment to academic rigor, or at least the appearance of a problem, if, he in fact read and graded this paper. I am not suggesting he did not, but there were two professors teaching the class. I’ll draw a historic parallel to explain.
The Cases of Harry Elmer Barnes ad John Owen Beaty
The history of professors contains instances of quacks. Harry Elmer Barnes earned a Ph.D in history from Columbia University under William Archibald Dunning and then taught at Smith College. It was Dunning who embedded into the nation’s history curricula the idea that southern opposition against Reconstruction and Civil Rights was justified. His multitude of graduate students went into academia throughout the nation and built on his theories, resulting in school textbooks that defended Jim Crow laws. Barnes departed from American History and focused on revising the blame for World War I before becoming the grandfather of holocaust denial. Barnes had a First Amendment Right to espouse one of the greatest conspiracies of the twentieth century’s second half – that the Holocaust did not occur and the British, French, and United States governments were responsible for the war. (He also accused President Roosevelt of knowing when and where the Japanese would attack in December 1941, but then hiding this information from all but a small number).
Two years removed from his doctorate, the Supreme Court cited to Barnes’ work on prison history and reform. He had status in both the legal and history academies. He wrote well, and wrote quite a bit ,and there were people willing to fund his writing, including the automobile magnate Henry Ford. He also defended the right of another professor named John Owen Beaty to have academia go a step further. Before moving on to Beaty, would any of us in academia award an “A” to Barnes after he eloquently accused France’s Jews of pillaring Henry Petain in 1946, blaming Jews for the Great Depression, or denying that the Holocaust occurred simply because he structured his arguments well?
Beaty taught at Southern Methodist University and in the early 1950s he espoused that Jews were the descendants of a nefarious Khazar Empire that never quite went away. In his book, Iron Curtain Over America Beaty laid out an argument that Jews were behind the ills of the world: the assassination of Czars, the bloodshed of the First World War, the Bolshevik Revolution, the economic collapse of 1929, World War II, and the spread of communism. Roosevelt, he argued, was a captive of the Jews and Nazi Germany a guardian of Christianity. It was all in all a neatly laid out and quite readable theory, but it was contrived, false, and designed to harm communities of people. Beaty was also anti-civil rights. He insisted that racial equality was an anathema to western civilization and that civil rights were part of a Zionist design to create a one-world Bolshevik state. Like Dunning and Barnes, Beaty insisted that persons of color were inferior. He, like Damsky, believed that violence could stop equality under the law from occurring if all else failed.
Powerful politicians, including Senator Edward Martin (R-PA) who wrote Beaty “You have done an enormous amount of work in the cause of pure Americanism and I am sure that it is greatly appreciated;” and Representative Leslie Arends, the House Minority Whip who lauded Beaty, came to his defense in the name of free speech. Senator Herman Welker (R-ID) wrote a public letter to Beaty: “ I have read your book and think it is a fine piece of work and a real contribution in our fight to save America.” Other political luminaries defended Beaty’s academic freedom, but many of them had ulterior motives. They were almost all anti-civil rights.
Beaty’s book was designed to harm various demographics of people who simply wanted a fair chance, including, at SMU. His theories were not cogent, they were implausible. The university’s leaders decided they could not fire Beaty — he had tenure, he had academic freedom, and he also had been a colonel in army intelligence during World War II. (In his military intelligence capacity accused John Service of communist ties which ultimately led to Service v. Dulles). No less than the Los Angeles Times highlighted it as “a must read” and claimed that Beaty was a trustworthy historian. He wasn’t — he earned his Ph.D in literature but had been teaching at SMU since 1919.
At the same time Iron Curtain came out, Professor Douglas Morton Dunlop — a now forgotten historian — published The History of the Jewish Khazars. I have read both books. Beaty’s is readable, and Dunlop, who was very detailed oriented, produced a difficult to read history, based on a linguistic record. Beaty got attention and book sales, Dunlop, who taught at Columbia, produced a book fitted for dusty library shelves on a topic few scholars would have cared about. Dunlop, however, was a bona-fide historian who objectively presented a set of facts as to the history of a disappeared people — knowing, of course, that new data might emerge to alter his thesis. He sought to educate through an academic, scholarly, rigorous, method. The same could not be said of Beaty.
I have no idea what the other students in Judge Badalamenti’s class wrote. But I have to wonder if some of them wrote exceptional, yet dull, papers that, like Dunlop’s book, were overshadowed by style.
The Judge and the Professor Roles
A.H. Kelly , in his 1965 article, “Clio and the Court: An Illicit Love Affair” criticized law office history. That is, lawyers were, he argued, notoriously bad historians. They departed from objective research and shaved data to suit their positions. Shaving data is a great practice for advocacy in the courts, but not for history, and certainly not for legal history. And Kelly’s criticism of judges doing history is poignant for our times.
Damsky’s paper could earn a high grade for its citations and perhaps readability, but it hardly has the cogent thesis that Professor Blackman claims. Instead, it is rooted, much like Beaty’s and Barnes’ work, in antiquated and contrived theories. It is, in a nutshell, a negationist article. This, of course, could be a topic for another blog post, rather than one of the matters at stake here: Why a judge would have graded the paper in the manner he had?
What is troubling about the judge, is not how the New York Times treated him. Professor Blackman’s argument deflects attention from the judge’s willingness to accept a Beaty-esque writing as being worthy of a high grade and what that might mean for the bench.
There is an old saying about “you play like you have practice.” The judicial recusal rules are not limited to on the bench conduct. The rules give litigants the ability to argue for recusal based on the appearance of bias. Judge Badalamenti’s willingness to award a modern-day John Owen Beaty, instead of grading on academic rigor with sound constitutional reasoning, should at least give to litigants the ability to raise this issue in good faith in a recusal motion. That is, will he be fair to the parties in his application of the law, will he be open to faux-expert witnesses who testify on matters such as the construction of voting districts without first considering the soundness of their methods? If a Jewish litigant or lawyer, person of color, a non-Christian were to appear before the judge, would they — as a point of procedural justice — believe Judge Badalamenti would be fair and impartial. The list of what ifs go on.
Recusal is appropriate where “a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.” Actual bias isn't required; the appearance of impropriety can be a sufficient basis for judicial recusal. I am not suggesting that the duty to guard the integrity of the bench should constrain the duty to fairly grade papers and assist in student development. I am, however, pointing out that there is a fundamental difference between the right to author a paper, and a judge’s commitment to recognizing the difference between harmful farce and academic rigor. Litigants may well-argue that there is a fair question as to whether the judge is open to extra-constitutional arguments that disadvantage people of color, non-Christians, women … etc.
Professor Blackman has called the New York Times article a non-story. I disagree with him on this. He has, to be sure, ably come to the judge’s defense in terms of his background and a commitment to fairness. So too has the acting dean. But ultimately it is the judge who may have to face the reality of attorneys and litigants questioning his ability to serve on certain cases. This issue will undoubtedly get overtaken by others, but it was a self-inflicted wound that could have been avoided by the simple commitment to academic rigor.
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[1] New York Trust v. Eisner, 256 U.S. 345, 349 (1923)
[2] Peter Novick, That Noble Dream: The “Objectivity Question” and the American Historical Profession, 1-3 (2007)
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