L'Affaire Kaplan: Our Responsibilities to Colleagues and Students

"...I would stress to my colleagues that, though we have known Len longer, our responsibilities as a law school are to our students as well as to our colleagues. On matters of this kind, it is not appropriate to conclude in a preemptive manner that the faculty member is always right. ..." [Colleague I]

Dear Colleagues,

I agree in principle with [Colleague I]'s statements quoted above.

I would, however, suggest that we owe responsibilities to all of our students, including as well our future students, for the integrity of our teaching mission and the courageous pursuit of truth, as best we can find our way to it in this complicated and contradictory and fractured world that we inhabit.

Accounts have begun to trickle out, in blogs and in the press, by other students who were present in Len's February 15 class. Their accounts are highly consonant with Len's statement of March 5. More important to me, they are highly consonant with the Len I have known for twenty years, and with the Len who has discussed the issues being addressed in that class on jurisprudence with me literally hundreds of times. The point for me is not that Len is a fellow faculty member, or that I have known him for a long time, or that he is my friend; it is that his account, and that of some of the other students, is so authentic to the person I know, and at least some of the competing accounts are so utterly foreign [to him and all I know of him.]

I have also been affected by statements of some of these other students that they have felt marginalized and disregarded by the law school administration as this storm has swirled around them, and that their perceptions do not count. Some have explicitly expressed their resentment that they were kept off the program of the March 1 event.

What has amazed me most over the past couple of weeks (and much has amazed and terribly saddened me) is Len's continuing commitment to all his students, and his willingness to forebear from defending himself in public and to absorb the pain of unanswered accusations (and to restrain those of us who love him and have been outraged as events have unfolded) in order to minimize potential harm to his Hmong (sadly, former) students and to prevent dividing his students among competing positions. Len is keenly sensitive to the intense suffering that has gone on within that community, and perhaps within the lives of some of the students here, and tried to express that in his letter of March 1 and otherwise. But as events have unfolded, the need for a public accounting became overwhelming. [Colleague I] has rightly noted the restraint and conciliatory gestures evident in Len's letter, and I will leave it at that.

For those who are mystified, as I was initially, by some of the particulars at issue in the February 15 class, you might start by reading Choua Ly's "Comment: The Conflict Between Law and Culture: The Case of the Hmong in America", which appeared in something called the Wisconsin Law Review (2001 Wis. L. Rev. 471). Maybe someone can find a copy around the building, if not online. The passage at pp. 484-5 is particularly instructive. In discussing the 1985 California case of People v. Moua, the article includes the following (much compressed, with notes, citations, and other materials omitted for brevity here--I'm a slow and lousy typist):

"According to Kong [Moua], Kong [aged 23] and Seng [aged 17] had had a prior romantic relationship, and they both wanted to get married. Because they knew her parents would disapprove, the couple agreed to elope....The two spoke about marriage...They drove to Kong's relatives' home....Once they arrived, Kong's relatives collected four hundred and fifty dollars to give to Seng's father and uncle. Because Seng's father and uncle accepted the money, Kong believed they had agreed to the marriage. That night, Kong and Seng consummated the marriage....The next morning, the couple was questioned by the police. [...family dynamics ensue...] Two days later, Seng told Kong she did not want to marry him. He did not object. However, Kong and his Moua clan refused to pay the restitution to repair Sen's damaged reputation caused by the one night she spent with Kong. The Moua clan asserted that, in Hmong culture, if a girl changes her mind about the marriage after spending time at the boy's home, it is the girl who must pay the boy....[NOTE: Seng's account differs--see original!] Kong was subsequently charged with kidnapping and rape....At trial, Kong asserted a cultural defense. Kong argued that because his behavior was influenced by cultural conditioning, it could only be understood in the context of that culture, namely Hmong marriage practices. Therefore, he argued that he should not be judged by the standards of American laws, but rather by the standards of his culture. Since his behavior was clearly consistent with the practice of elopement or marriage by capture, Kong argued that he should be found less culpable..."

This is the account by Choua Ly published in the 2001 Wisconsin Law Review. The case and the issues it raises, as well as several parallel issues involving (alleged????) cultural practices among the Hmong in their homeland and in America, have been discussed in at least a half dozen significant law review pieces, and of course in many newspaper articles (whose veracity and balance I am in no position to judge). I urge colleagues to read the case, the law review article(s), and some of the additional literature to more fully understand the issues, on which I take no position here.

So where do we find ourselves? I was not in the classroom on February 15. It is not so hard for me to imagine that Len did precisely what he said he was doing, and that some listeners felt the discussion involved disparaging stereotypes of Hmong culture. How could these issues possibly be discussed without the risk of stereotypes being employed by someone, somehow. (I can all too readily imagine myself, sensitive to a fault, falling all over myself trying to qualify every clause of every sentence to avoid giving offense. Fortunately, given the simple and straightforward syntax of my speech acts for which I am so well known, I might be able to get away with it. How about the rest of you? [This being email, and the subject being sensitive, I should indicate explicitly that the reference to my simple syntax was intended as a joke.]

Or do we rule such issues, cases, and legal literature out of order in our classrooms, since we cannot be assured that the discussion will take place in a perfectly sterile safe space? Surely there is no need in our law school to take on such irrelevant and unimportant topics as law and culture in a black letter course like legal process or jurisprudence. [Whoops. Another joke. Sorry.]

If so, what sort of an institution of higher learning will we be?

[Remaining portions of letter excised as inappropriate for a more public forum.]