FIRE:
by Emmett Hogan (March 8, 2007)
One of the big mysteries in the ongoing debacle at the University of Wisconsin Law School has been what, exactly, was said in Professor Kaplan’s classroom on February 15.
Showing posts with label L'Affaire Kaplan. Show all posts
Showing posts with label L'Affaire Kaplan. Show all posts
Wednesday, April 11, 2007
FIRE - Professor Kaplan Speaks Out—And New Questions Abound
One of tonight's speakers, Greg Lukianoff, is the President of "FIRE". Here is a link to their coverage of L'Affaire Kaplan, of which I just became aware.
FIRE:
by Emmett Hogan (March 8, 2007)
FIRE:
by Emmett Hogan (March 8, 2007)
Saturday, March 31, 2007
My 100th post: Further thoughts on healing
This 100th post (since March 15) is contributed by Ray Purdy, and speaks to the prerequisites for a successful process of healing and conciliation.
My own (TWB) view, mirroring Ray's, is that such processes benefit from being carefully considered and planned by a skilled mediator or facilitator. A poorly considered or poorly led process can do more harm than good, reinforcing destructive preconceptions and entrenching differences, rather than reconciling them. Demands for "conciliation" mean little unless the parties have clarified their objectives and enter the process ready and willing to listen and to respect one another's fundamental humanity.
Now, back to Ray:
My own (TWB) view, mirroring Ray's, is that such processes benefit from being carefully considered and planned by a skilled mediator or facilitator. A poorly considered or poorly led process can do more harm than good, reinforcing destructive preconceptions and entrenching differences, rather than reconciling them. Demands for "conciliation" mean little unless the parties have clarified their objectives and enter the process ready and willing to listen and to respect one another's fundamental humanity.
Now, back to Ray:
A couple of thoughts: This conflict has taken the form of 3 people feeling DEEPLY wounded/hurt/misunderstood. The suffering is great. The person accused of being the "wounder" feels forced into an embattled position of "I didn't do it!" The suffering is great. This is the ORIGINAL "FEELING" form of the conflict from which all else has flowed.
A win/lose situation will contribute to continued suffering on one side or the other OR both. A win/lose is guaranteed to perpetuate a trauma pattern at least unilaterally if not bilaterally. Real healing of both parties will occur only if each side feels an acknowledgement in some way by the OTHER SIDE DIRECTLY INVOLVED (as opposed to a third party acknowledgement, such as the public at large or the law school or the press).
If the goal of further interaction IS healing, a context of grudging respect for each side's humanity must develop despite the disagreements on behavior and words. Consciously committing to this goal would make it achievable. Continuing the current context of a battle for survival ON EITHER SIDE will inhibit resolution except in the form of a typical predator-prey relationship.
A conscious choice to choose the context IS available to the parties involved. What will be chosen ultimately remains to be seen.
Monday, March 26, 2007
Wordplay
Let's see now.
Warmup:
Professor Kaplan is a brilliant, if somewhat abstruse, scholar of the conceptual foundations of jurisprudence.
Now, for real:
Yet even his formidable armamentarium of rhetorical skills is insufficient to render his architectonics of law in mellifluous, straightforward prose.
There, I did it. Pay up.
I'll leave the part about putting it into iambic pentameter as an exercise for an intrepid reader. I gave up on that several centuries back.
Warmup:
Professor Kaplan is a brilliant, if somewhat abstruse, scholar of the conceptual foundations of jurisprudence.
Now, for real:
Yet even his formidable armamentarium of rhetorical skills is insufficient to render his architectonics of law in mellifluous, straightforward prose.
There, I did it. Pay up.
I'll leave the part about putting it into iambic pentameter as an exercise for an intrepid reader. I gave up on that several centuries back.
Friday, March 23, 2007
How can we heal?
There has been much talk at UW Law School about trying to heal and move on from L'Affaire Kaplan. In my own view, certainly one informed by my long friendship and many conversations with Professor Kaplan, he has shown extraordinary restraint while under nearly constant assault for things he has been accused of but did not do. He wrote an extraordinarily gracious statement to our Dean Davis, subsequently publicly released, which repudiated the statements wrongly attributed to him, calling them hateful. He eloquently expressed his understanding of the pain sustained by his students, and by the Hmong people more generally, in the course of their tempestuous history over recent generations in South East Asia and in America, and apologized once again for his part in causing the pain experienced by his students and others. He did his very best to allow for a gracious mutual de-escalation of tensions. He did not, however, violate his own integrity as a scholar or a human being to repudiate his pedagogic commitments or his commitment to treating his students as developing legal professionals capable of learning and growth.
Yet this has not been enough for at least some of Len's former Hmong students, some other students at the law school, and others in the Hmong and larger Asian American communities outside our building and our university. One law school student, previously responsible for precipitously circulating a false, reckless, and inflammatory (and potentially libelous) attack on Professor Kaplan and his reputation, chose this week to violate the clear, forward-looking ground rules (observed by all others present) of a recent law school teaching workshop, to renew her ongoing personal attack on Professor Kaplan. (She had not been present either in the February 15 class or in the February 20 meeting between Professor Kaplan and his actual students. One wonders what agenda she is pursuing, and why.) Attacks by other groups continue to come in to the law school and to be posted on web sites receiving international attention. The law school's hope, however well-intentioned, that we could somehow heal and move on without facing up to the realities of what actually happened in Kaplan's class on February 15, has proved vain. As one commentator to this blog has observed, we have been ignoring the elephant in the room. Healing cannot progress while the wounds fester.
Now, a lengthy diversion into my recent medical history, with the promise that I will bring us back to show its relevance. Since my blog also purports to attend to "the experience of illness," this account will be relevant to my overall purposes in this second sense as well.
Just about two years ago, I was diagnosed with a "top of the charts" aggressive prostate cancer, present in abundance throughout my prostate gland (we hope not beyond). There was considerable doubt that surgery could reliably get it all; if I had surgery, I would probably need a full course of radiation as well, and probably additional treatments beyond that, with a panoply of likely side-effects. We decided on a non-surgical course, initial hormone suppression, followed by an aggressive course of external beam radiation, and then further hormone suppression. It was not pretty, and was further complicated by my wife's contemporaneous health issues. So far, so good: I got the needed radiation, eventually came off the hormone suppression protocol, and so far, the cancer has not returned. I am grateful for that. All of us live with uncertainty about what the future will bring; perhaps I have a bit more reason than some to be conscious about the particular uncertainties that I face. (The statistics suggest that in the population of men with prostate cancer, more men die of heart disease than of their cancer. I have more than my share of cardiac risks as well; who knows--that may be a kinder death than metasteses to the brain or bone.)
I was making a very slow recovery, encountering major daily problems with lack of energy, inability to concentrate, some memory deficiencies, and several of the well-known but unpleasant to discuss side-effects of treatment for prostate cancer. Still, I was looking forward to my return to teaching in Fall of 2006. I attended my wonderful daughter's wonderful wedding to my wonderful new son-in-law in Boston in mid-August, and while the travel logistics took their toll, the experience was one of the happiest in my life, the more so because my wife and I were healthy enough to be present and, as my wife's grandmother once said of us a generation earlier, to dance at their wedding. (Sadly, my wife's mother unexpectedly became ill and quickly passed away a few weeks before the wedding, making for a complex blend of powerful emotions.)
I became quite sick shortly after my return to Madison following the wedding. The symptoms and labs were not definitive, and it was initially diagnosed as a transient and self-limiting virus. But I did not get better, and my fever kept getting worse. Finally, an early morning trip to the Emergency Room, an inconclusive exam, and then, fortunately, some fancy imaging of my skull, where much of the pain seemed to be originating. Lo and behold, the CT picked up a significant cellulitis of the scalp, not easily visible under my hairline (at least until after they figured out where to look). It was bacterial, not viral, and antibiotics could help. We never did get a firm fix on the bug, although it was most likely drug resistant and very well established in my system by the time we began treatment.
I was admitted to the hospital for stabilization and IV antibiotics. Thus began what turned into a sixteen day hospitalization, the first of three. My fever was raging. My kidneys kicked out of commission. My blood pressure swung wildly. Consultants came and went. The doctors huddled on whether to send me to the ICU. My wife really got scared when I started signing informed consent forms for various interventions without arguing about them or trying to redraft them. She had never seen that before. I learned subsequently that there was concern as to whether I would survive. Many of my symptoms eerily mirrored those experienced by my mother-in-law a month before (I slept in her bed when we came after the funeral to close up her apartment); she died in less than four days after beginning to feel ill.
I survived. Not without some challenges: the infectious disease folks were exhausting their armamentarium of fancy new antibiotics to try to bring my infection under control, and I kept having significant adverse reactions to them (ultimately requiring two additional brief hospitalizations). Mostly the antibiotics didn't make me better, although they probably kept me alive. Somehow the antibiotics couldn't defeat the infection on their own. It was all very mysterious. There was a raging infection somewhere inside me, probably above the neck, but they couldn't really find it, and the antibiotics couldn't defeat it. I was imaged every which way, poked and prodded and viewed. The radiologists thought there was probably an infectious pocket somewhere in my skull, but the ultrasound folks couldn't locate it precisely, and argued that it wasn't there. Finally one brave soul redid the ultrasounds, told me he couldn't be absolutely sure, and, with my feeble consent, plunged a syringe into the back of my skull. He hit a gusher. Out poured the gunk, syringeful after syringeful. It was very impressive, at least before I more or less fainted. I think that is the word they used, "impressive."
Thus I learned about my abscess, and began my short course on why it was so important to drain the abscess in order for healing to begin. You have to find the gunk and get it out for healing to proceed. And that course was not so short. Every day for the next two or more months, in hospital or at home, a doctor or nurse would have to squeeze that foul stuff out of a cavity in my head (we talk about the "yuk factor" in bioethics--this was a different kind of yuck), stuff my cavity with gauze to absorb the next day's production, and wrap on a headdress to keep it all together. Next day, unwrap the headdress, extract the long, pus-infused string of gauze (you really didn't want to see, or to smell, that process), squeeze out my head cavity, and go through the process again. Every day. For two months or more. Until the cavity cleaned out, and closed itself up, I couldn't finally get better. Eventually I did, mostly. Still pretty weak. Not much energy. Very low levels of testosterone, ever since the hormone suppression began. Still trying to cope with the continuing aftereffects of the prostate cancer treatments. Hoping to be able to come back to teaching, after a long pause, in the fall term.
That's enough on my personal health, at least for this posting.
I promised I would make that long excursis relevant. I'll try. I really don't think the law school can heal from its recent wounds until we confront and deal with the sources of our illness, rather than putting our heads in the sand, making equivocating statements, trying to finely balance everything so no one feels bad.
Let me say what I feel, think, and believe. I do not believe my friend and colleague Len Kaplan did anything wrong in his February 15 class. I think he did his job, and that it is a job that needs doing, at this and at every law school worthy of the name. I think he did his honest best in his meeting with the two students present in his February 15 class to explain what he was trying to teach, and why, and why it was important to do so, not least (but also not only) to improve actions by federal and state government to assist the Hmong in their acculturation as neighbors and fellow citizens here in Wisconsin and throughout America (and in South East Asia, where Hmong continue to suffer terribly). He sought to encourage his Hmong students to return to the class, to share their knowledge and experiences and perceptions, and those of other members of the community that they might wish to bring along, with the rest of the class, so that all could learn from one another. He sought to be a teacher, to re-include his Hmong students in the community of his class, and to turn the potential of diversity into a reality for collective learning. He sought to help his students marshal their emotions to energize their advocacy as future lawyers. He sought to respect them as future professionals and as persons, not to patronize or condescend to them. And for that, he has been pilloried and crucified.
It is not right. It is time that we as a community say so, in unmistakable and unequivocal terms. We all know that Len Kaplan did not make the statements wrongly attributed to him. We know he did not seek to put his students on trial, or to abuse his power as a professor. He sought to teach. What he sought to teach was important, and in our finest traditions as a law school. The nonsense has to stop before we can move forward.
It is not my purpose to dwell on how the students involved (in their varying roles) might have handled this situation differently, and better (although I think they could have, and should have). I would like this institution to be a more caring and compassionate place than it currently is, and that certainly extends to these students. And to all our students. And to all of us. School is a place that professionals in training can make mistakes, and learn from those mistakes, without paying too high a price. We should be encouraging our students to take more risks (within reason), and to develop the experience and improved judgment that come from making real choices, with consequences, and learning from the results, both good and bad. These students showed considerable courage in coming forward (if perhaps not always commensurate wisdom), and that, at very least, should be applauded.
Perhaps we can all learn from this unhappy chapter in our institutional history. But we have to be clear about the right lessons to be learned. And that requires a truthful accounting, however layered with compassion. The students have wanted to be heard. They have been. Perhaps now they can try also to listen. As can we all.
The students have been christened (that's a Jewish professor referring to Hmong students--talk about cultural contradictions) The Magnificent Seven, after the American film, adapted from the Seven Samurai. Personally, I always thought Rashomon was the better and deeper movie, and the better image to invoke here. I've tried here to provide my view of the situation. I'm content to leave it at that.
Yet this has not been enough for at least some of Len's former Hmong students, some other students at the law school, and others in the Hmong and larger Asian American communities outside our building and our university. One law school student, previously responsible for precipitously circulating a false, reckless, and inflammatory (and potentially libelous) attack on Professor Kaplan and his reputation, chose this week to violate the clear, forward-looking ground rules (observed by all others present) of a recent law school teaching workshop, to renew her ongoing personal attack on Professor Kaplan. (She had not been present either in the February 15 class or in the February 20 meeting between Professor Kaplan and his actual students. One wonders what agenda she is pursuing, and why.) Attacks by other groups continue to come in to the law school and to be posted on web sites receiving international attention. The law school's hope, however well-intentioned, that we could somehow heal and move on without facing up to the realities of what actually happened in Kaplan's class on February 15, has proved vain. As one commentator to this blog has observed, we have been ignoring the elephant in the room. Healing cannot progress while the wounds fester.
Now, a lengthy diversion into my recent medical history, with the promise that I will bring us back to show its relevance. Since my blog also purports to attend to "the experience of illness," this account will be relevant to my overall purposes in this second sense as well.
Just about two years ago, I was diagnosed with a "top of the charts" aggressive prostate cancer, present in abundance throughout my prostate gland (we hope not beyond). There was considerable doubt that surgery could reliably get it all; if I had surgery, I would probably need a full course of radiation as well, and probably additional treatments beyond that, with a panoply of likely side-effects. We decided on a non-surgical course, initial hormone suppression, followed by an aggressive course of external beam radiation, and then further hormone suppression. It was not pretty, and was further complicated by my wife's contemporaneous health issues. So far, so good: I got the needed radiation, eventually came off the hormone suppression protocol, and so far, the cancer has not returned. I am grateful for that. All of us live with uncertainty about what the future will bring; perhaps I have a bit more reason than some to be conscious about the particular uncertainties that I face. (The statistics suggest that in the population of men with prostate cancer, more men die of heart disease than of their cancer. I have more than my share of cardiac risks as well; who knows--that may be a kinder death than metasteses to the brain or bone.)
I was making a very slow recovery, encountering major daily problems with lack of energy, inability to concentrate, some memory deficiencies, and several of the well-known but unpleasant to discuss side-effects of treatment for prostate cancer. Still, I was looking forward to my return to teaching in Fall of 2006. I attended my wonderful daughter's wonderful wedding to my wonderful new son-in-law in Boston in mid-August, and while the travel logistics took their toll, the experience was one of the happiest in my life, the more so because my wife and I were healthy enough to be present and, as my wife's grandmother once said of us a generation earlier, to dance at their wedding. (Sadly, my wife's mother unexpectedly became ill and quickly passed away a few weeks before the wedding, making for a complex blend of powerful emotions.)
I became quite sick shortly after my return to Madison following the wedding. The symptoms and labs were not definitive, and it was initially diagnosed as a transient and self-limiting virus. But I did not get better, and my fever kept getting worse. Finally, an early morning trip to the Emergency Room, an inconclusive exam, and then, fortunately, some fancy imaging of my skull, where much of the pain seemed to be originating. Lo and behold, the CT picked up a significant cellulitis of the scalp, not easily visible under my hairline (at least until after they figured out where to look). It was bacterial, not viral, and antibiotics could help. We never did get a firm fix on the bug, although it was most likely drug resistant and very well established in my system by the time we began treatment.
I was admitted to the hospital for stabilization and IV antibiotics. Thus began what turned into a sixteen day hospitalization, the first of three. My fever was raging. My kidneys kicked out of commission. My blood pressure swung wildly. Consultants came and went. The doctors huddled on whether to send me to the ICU. My wife really got scared when I started signing informed consent forms for various interventions without arguing about them or trying to redraft them. She had never seen that before. I learned subsequently that there was concern as to whether I would survive. Many of my symptoms eerily mirrored those experienced by my mother-in-law a month before (I slept in her bed when we came after the funeral to close up her apartment); she died in less than four days after beginning to feel ill.
I survived. Not without some challenges: the infectious disease folks were exhausting their armamentarium of fancy new antibiotics to try to bring my infection under control, and I kept having significant adverse reactions to them (ultimately requiring two additional brief hospitalizations). Mostly the antibiotics didn't make me better, although they probably kept me alive. Somehow the antibiotics couldn't defeat the infection on their own. It was all very mysterious. There was a raging infection somewhere inside me, probably above the neck, but they couldn't really find it, and the antibiotics couldn't defeat it. I was imaged every which way, poked and prodded and viewed. The radiologists thought there was probably an infectious pocket somewhere in my skull, but the ultrasound folks couldn't locate it precisely, and argued that it wasn't there. Finally one brave soul redid the ultrasounds, told me he couldn't be absolutely sure, and, with my feeble consent, plunged a syringe into the back of my skull. He hit a gusher. Out poured the gunk, syringeful after syringeful. It was very impressive, at least before I more or less fainted. I think that is the word they used, "impressive."
Thus I learned about my abscess, and began my short course on why it was so important to drain the abscess in order for healing to begin. You have to find the gunk and get it out for healing to proceed. And that course was not so short. Every day for the next two or more months, in hospital or at home, a doctor or nurse would have to squeeze that foul stuff out of a cavity in my head (we talk about the "yuk factor" in bioethics--this was a different kind of yuck), stuff my cavity with gauze to absorb the next day's production, and wrap on a headdress to keep it all together. Next day, unwrap the headdress, extract the long, pus-infused string of gauze (you really didn't want to see, or to smell, that process), squeeze out my head cavity, and go through the process again. Every day. For two months or more. Until the cavity cleaned out, and closed itself up, I couldn't finally get better. Eventually I did, mostly. Still pretty weak. Not much energy. Very low levels of testosterone, ever since the hormone suppression began. Still trying to cope with the continuing aftereffects of the prostate cancer treatments. Hoping to be able to come back to teaching, after a long pause, in the fall term.
That's enough on my personal health, at least for this posting.
I promised I would make that long excursis relevant. I'll try. I really don't think the law school can heal from its recent wounds until we confront and deal with the sources of our illness, rather than putting our heads in the sand, making equivocating statements, trying to finely balance everything so no one feels bad.
Let me say what I feel, think, and believe. I do not believe my friend and colleague Len Kaplan did anything wrong in his February 15 class. I think he did his job, and that it is a job that needs doing, at this and at every law school worthy of the name. I think he did his honest best in his meeting with the two students present in his February 15 class to explain what he was trying to teach, and why, and why it was important to do so, not least (but also not only) to improve actions by federal and state government to assist the Hmong in their acculturation as neighbors and fellow citizens here in Wisconsin and throughout America (and in South East Asia, where Hmong continue to suffer terribly). He sought to encourage his Hmong students to return to the class, to share their knowledge and experiences and perceptions, and those of other members of the community that they might wish to bring along, with the rest of the class, so that all could learn from one another. He sought to be a teacher, to re-include his Hmong students in the community of his class, and to turn the potential of diversity into a reality for collective learning. He sought to help his students marshal their emotions to energize their advocacy as future lawyers. He sought to respect them as future professionals and as persons, not to patronize or condescend to them. And for that, he has been pilloried and crucified.
It is not right. It is time that we as a community say so, in unmistakable and unequivocal terms. We all know that Len Kaplan did not make the statements wrongly attributed to him. We know he did not seek to put his students on trial, or to abuse his power as a professor. He sought to teach. What he sought to teach was important, and in our finest traditions as a law school. The nonsense has to stop before we can move forward.
It is not my purpose to dwell on how the students involved (in their varying roles) might have handled this situation differently, and better (although I think they could have, and should have). I would like this institution to be a more caring and compassionate place than it currently is, and that certainly extends to these students. And to all our students. And to all of us. School is a place that professionals in training can make mistakes, and learn from those mistakes, without paying too high a price. We should be encouraging our students to take more risks (within reason), and to develop the experience and improved judgment that come from making real choices, with consequences, and learning from the results, both good and bad. These students showed considerable courage in coming forward (if perhaps not always commensurate wisdom), and that, at very least, should be applauded.
Perhaps we can all learn from this unhappy chapter in our institutional history. But we have to be clear about the right lessons to be learned. And that requires a truthful accounting, however layered with compassion. The students have wanted to be heard. They have been. Perhaps now they can try also to listen. As can we all.
The students have been christened (that's a Jewish professor referring to Hmong students--talk about cultural contradictions) The Magnificent Seven, after the American film, adapted from the Seven Samurai. Personally, I always thought Rashomon was the better and deeper movie, and the better image to invoke here. I've tried here to provide my view of the situation. I'm content to leave it at that.
So how do faculty talk about difficult issues?
Note: the following constitutes an email exchange between my colleague and fellow Torts professor Peter Carstensen and myself concerning my four part posting late Friday afternoon, which I transmitted to my faculty colleagues on our internal "factalk" listserv. Peter is not the only colleague expressing unhappiness with my postings, but this is the only extended written dialogue I've had thus far.
Peter and I had better times together in the past, and have had fun and profit discussing both tort law and the teaching of tort law in past years. We both studied under Guido Calabresi at Yale, and have been deeply influenced by his prodigious contributions to our understanding of tort law in particular, and law more generally. This posting reflects a very sad deterioration in our relationship, which has been exacerbated by our sharp disagreements over L'Affaire Kaplan, and the law school's response to it, over the past six weeks.
Peter wrote the initial letter: I have interposed my response to create the form of a dialogue. [Peter's email in its original form is posted as a comment to this entry.] Peter has not had the occasion to respond to my responses [I'm posting this online on Saturday morning, having not heard from Peter privately since sending my reply to him first]; if he wishes to do so, I will try to arrange for a next round. I have made a few stylistic and substantive modifications to my own half of the dialogue; I've tried to highlight any major ones. [As a result, I don't have to [sic] myself here--obviously an unfair advantage typographically.] I've tried to reproduce Peter's side of the dialogue precisely as written. Obviously, some allowances must be made for occasional typos in such an exchange, but I didn't want to make any changes in his part of the conversation to correct obvious typos.
Perhaps I should add that not all of my communications with colleagues are quite this spirited.
Peter Carstensen wrote:
> Alan (for you alone without factalk),
>
> P: But for your sensitive character,
A: Oh, I've toughened up over the years. Must be all that stuff in torts about [limiting certain kinds of damages to persons with] reasonable sensibilities. Or maybe facing death, and deciding what is important for the rest of my life, however long that may be.
>P:... I would respond to your postings on factalk this evening that the issue in the news reports you have shared with us is not whether a faculty member can or should present the information, but rather the thought that goes into the presentation and any adeverse [sic] consequences that follow from such a presentation.
A: That is fair, so far as it goes. But see below.
>P: Before a class, a teacher needs to think through the implications and likely response that sharing the information (assuming it is presented in the belief that it is an accurate statement of facts) may have and be clear about why it is being done. If the faculty member is teaching about corporate law, neither of your examples is apparently relevant,
[Added here: A: In that case, neither is this entire conversation]
> P: But if the class is one on family law (the role of convential [sic] or customary rules would be highly relevant and complicated) or first amendment issues (when can/should the law intervene to limit or forbid knowingly false statements about religious groups), then it is plausible that the faculty member would want to use the current event to focus class discussion of important legal issues.
A: How about a class on legal process or jurisprudence [the courses Len teaches], where the precise question under discussion is how law deals with differences of culture and cultural assumptions among disparate groups living under a purportedly "neutral" law? The question in this NYT article is precisely the issue Len was trying to bring out in his class, and to examine in a number of differing national and legal contexts (in what he terms "the liberal state"). The question of whether a teacher could properly bring in precisely that article [NYT on the German court] to focus such a class discussion is exactly the question I am trying to raise, and to get my colleagues to confront. "Teaching the controversy" is precisely the issue. It should have its place --a proud and honorable place--in any law school that I would want to be associated with. How about you?
>P: As you heard on Tuesday, the key for being a competent teacher is to think about the presentation of controversial information ahead of time, including verifying its accuracy, and reflect on how to bring this information to a class in a way that encourages rather than discourages discussion.
A: Thanks for that useful reminder. I'm all for that. Always have been, always will be. That is my regular practice in and out of the classroom. (BTW, I note that my [factalk] postings late this afternoon, however characterized, seem to be having precisely the effect of encouraging some meaningful, rather than phony, discussion among its intended audience.)
>P: Second, if despite the teacher's best plans, students are troubled by the manner of presentation or the implicit or express assumption of the teacher that the infromation presented is factually correct (e.g;. suppose the statement were that all German's [sic] believe in the Koran and so second and third generation German imigrants [sic]are potential terrorists),
A: And what does that have to do with anything? It's a classic red herring (or red brigade-doon?) in terms of Len's situation.
>P: ...then the teacher, when questioned by students concerned by such arguable false statements,
A: BTW, I've had occasion in recent weeks to speak with mental health practitioners who have worked with Hmong patients in situations of the sorts Len was trying to address. I've read a bit of the case law, and some of the law review and anthropological literature [including the Wisconsin Law Review piece I posted earlier], relating to these issues. How about you? I wouldn't be quite so quick to jump to factual conclusions as you seem to be, or to mush important distinctions in the meaningless blather about "avoiding stereotypes". Both Len and I are about making careful distinctions in full factual and social context. I'm not sure a public debate on the issue is necessarily the best idea at the moment, [added: but here we are.] My own sense is that the realities are reasonably complex, rather more so than was suggested by the re-education lecture on the heroic Hmong people and our virtuous joint struggle against the Commies that we were subjected to. [Stylistically edited to clarify meaning: I wish the lecturers spent more time]... confronting the hard realities of the range of Hmong experience in America, which was Len's actual subject for the relatively few minutes he devoted to it (among many other examples he covered that day).
I do believe that during the Vietnam War and post-War circumstances, America abandoned and betrayed the Hmong, and that we owe a continuing debt of honor to try to improve their circumstances both here and in South East Asia. So does Len. That is what he was trying to say, and to teach, in a small part of that class. [He also tried to make this clear in his statement of March 5 to Dean Davis.] It should not follow that some of the difficulties faced by the Hmong in acculturating into American society, like the problems of virtually all immigrant (and indigenous) groups, should be immune to or off-limits from critical inquiry and analysis. Or do you disagree?
>P: ...has an obligation both to explain why the example was relevant and to justify its use/accuracy (not demand that the students disprove its validity especially if the teacher also subsequently denies making the statement that the students believe the teacher made).
A: I am virtually 100% certain that that is not at all what happened, not least because Len spoke to me immediately after his 1 hour and 45 minute session with the students, and reported that he asked them to take the next class to share their perspectives, bring in members of their community, do whatever they wanted to present their views and turn this into a teaching moment for the entire class. That stuff about burden of proof is a crock, and you know that as well as I do. You also know the statements attributed to Len by the students are utterly preposterous. If you don't know that from knowing Len ([for more than 30 years] or for that matter, virtually any experienced law professor on our faculty, or for that matter, in the country), consult the statements of the other students who were there (and who feel their perceptions of what happened have been disregarded and marginalized by the law school administration you have been so eager to defend). Who are you kidding?
It is just possible that Len encouraged the students to act as lawyers in training, and did not treat them like children. For me, that is a mark of respect rather than the condescension or paternalism that have been running rampant around our halls. I'm all for being a caring and compassionate teacher. You've taken considerable delight in ridiculing me for that excess of "sensitivity" over the years. But in the end, we are our students' teachers, not their parents, and our job to teach them to become professional lawyers, not professional victims. Or do you disagree with that, as well?
>
>P: As a torts scholar you will recognize that I am speaking to basic issues of due care in instruction and the framework set forth is one that focuses on avoiding educational malpractice.
A: Quite so. The potential educational malpractice I have [been most concerned about] in recent weeks is quite in the other direction.
> P: However, because you would see such comments as a hostile and negative response to your sarcasm,
A: Quite the man to refer to sarcasm. Actually, I enjoy a good, meaty, substantive debate, and much prefer it to the sarcastic, underhanded comments you've been making about me to colleagues behind my back. If you want to take this public, be my guest. Do you have any objection to my doing so, by posting this exchange to my blog? Actually, I believe I have the right to do so regardless of your permission, but I'll wait a bit for your response first.
>P: I would never consider saying anything of this sort to you. [Peter]
A: Of course not. You've made it perfectly clear that you prefer saying it about me, to others. This is a considerable improvement on your part. Alan
Peter and I had better times together in the past, and have had fun and profit discussing both tort law and the teaching of tort law in past years. We both studied under Guido Calabresi at Yale, and have been deeply influenced by his prodigious contributions to our understanding of tort law in particular, and law more generally. This posting reflects a very sad deterioration in our relationship, which has been exacerbated by our sharp disagreements over L'Affaire Kaplan, and the law school's response to it, over the past six weeks.
Peter wrote the initial letter: I have interposed my response to create the form of a dialogue. [Peter's email in its original form is posted as a comment to this entry.] Peter has not had the occasion to respond to my responses [I'm posting this online on Saturday morning, having not heard from Peter privately since sending my reply to him first]; if he wishes to do so, I will try to arrange for a next round. I have made a few stylistic and substantive modifications to my own half of the dialogue; I've tried to highlight any major ones. [As a result, I don't have to [sic] myself here--obviously an unfair advantage typographically.] I've tried to reproduce Peter's side of the dialogue precisely as written. Obviously, some allowances must be made for occasional typos in such an exchange, but I didn't want to make any changes in his part of the conversation to correct obvious typos.
Perhaps I should add that not all of my communications with colleagues are quite this spirited.
Peter Carstensen wrote:
> Alan (for you alone without factalk),
>
> P: But for your sensitive character,
A: Oh, I've toughened up over the years. Must be all that stuff in torts about [limiting certain kinds of damages to persons with] reasonable sensibilities. Or maybe facing death, and deciding what is important for the rest of my life, however long that may be.
>P:... I would respond to your postings on factalk this evening that the issue in the news reports you have shared with us is not whether a faculty member can or should present the information, but rather the thought that goes into the presentation and any adeverse [sic] consequences that follow from such a presentation.
A: That is fair, so far as it goes. But see below.
>P: Before a class, a teacher needs to think through the implications and likely response that sharing the information (assuming it is presented in the belief that it is an accurate statement of facts) may have and be clear about why it is being done. If the faculty member is teaching about corporate law, neither of your examples is apparently relevant,
[Added here: A: In that case, neither is this entire conversation]
> P: But if the class is one on family law (the role of convential [sic] or customary rules would be highly relevant and complicated) or first amendment issues (when can/should the law intervene to limit or forbid knowingly false statements about religious groups), then it is plausible that the faculty member would want to use the current event to focus class discussion of important legal issues.
A: How about a class on legal process or jurisprudence [the courses Len teaches], where the precise question under discussion is how law deals with differences of culture and cultural assumptions among disparate groups living under a purportedly "neutral" law? The question in this NYT article is precisely the issue Len was trying to bring out in his class, and to examine in a number of differing national and legal contexts (in what he terms "the liberal state"). The question of whether a teacher could properly bring in precisely that article [NYT on the German court] to focus such a class discussion is exactly the question I am trying to raise, and to get my colleagues to confront. "Teaching the controversy" is precisely the issue. It should have its place --a proud and honorable place--in any law school that I would want to be associated with. How about you?
>P: As you heard on Tuesday, the key for being a competent teacher is to think about the presentation of controversial information ahead of time, including verifying its accuracy, and reflect on how to bring this information to a class in a way that encourages rather than discourages discussion.
A: Thanks for that useful reminder. I'm all for that. Always have been, always will be. That is my regular practice in and out of the classroom. (BTW, I note that my [factalk] postings late this afternoon, however characterized, seem to be having precisely the effect of encouraging some meaningful, rather than phony, discussion among its intended audience.)
>P: Second, if despite the teacher's best plans, students are troubled by the manner of presentation or the implicit or express assumption of the teacher that the infromation presented is factually correct (e.g;. suppose the statement were that all German's [sic] believe in the Koran and so second and third generation German imigrants [sic]are potential terrorists),
A: And what does that have to do with anything? It's a classic red herring (or red brigade-doon?) in terms of Len's situation.
>P: ...then the teacher, when questioned by students concerned by such arguable false statements,
A: BTW, I've had occasion in recent weeks to speak with mental health practitioners who have worked with Hmong patients in situations of the sorts Len was trying to address. I've read a bit of the case law, and some of the law review and anthropological literature [including the Wisconsin Law Review piece I posted earlier], relating to these issues. How about you? I wouldn't be quite so quick to jump to factual conclusions as you seem to be, or to mush important distinctions in the meaningless blather about "avoiding stereotypes". Both Len and I are about making careful distinctions in full factual and social context. I'm not sure a public debate on the issue is necessarily the best idea at the moment, [added: but here we are.] My own sense is that the realities are reasonably complex, rather more so than was suggested by the re-education lecture on the heroic Hmong people and our virtuous joint struggle against the Commies that we were subjected to. [Stylistically edited to clarify meaning: I wish the lecturers spent more time]... confronting the hard realities of the range of Hmong experience in America, which was Len's actual subject for the relatively few minutes he devoted to it (among many other examples he covered that day).
I do believe that during the Vietnam War and post-War circumstances, America abandoned and betrayed the Hmong, and that we owe a continuing debt of honor to try to improve their circumstances both here and in South East Asia. So does Len. That is what he was trying to say, and to teach, in a small part of that class. [He also tried to make this clear in his statement of March 5 to Dean Davis.] It should not follow that some of the difficulties faced by the Hmong in acculturating into American society, like the problems of virtually all immigrant (and indigenous) groups, should be immune to or off-limits from critical inquiry and analysis. Or do you disagree?
>P: ...has an obligation both to explain why the example was relevant and to justify its use/accuracy (not demand that the students disprove its validity especially if the teacher also subsequently denies making the statement that the students believe the teacher made).
A: I am virtually 100% certain that that is not at all what happened, not least because Len spoke to me immediately after his 1 hour and 45 minute session with the students, and reported that he asked them to take the next class to share their perspectives, bring in members of their community, do whatever they wanted to present their views and turn this into a teaching moment for the entire class. That stuff about burden of proof is a crock, and you know that as well as I do. You also know the statements attributed to Len by the students are utterly preposterous. If you don't know that from knowing Len ([for more than 30 years] or for that matter, virtually any experienced law professor on our faculty, or for that matter, in the country), consult the statements of the other students who were there (and who feel their perceptions of what happened have been disregarded and marginalized by the law school administration you have been so eager to defend). Who are you kidding?
It is just possible that Len encouraged the students to act as lawyers in training, and did not treat them like children. For me, that is a mark of respect rather than the condescension or paternalism that have been running rampant around our halls. I'm all for being a caring and compassionate teacher. You've taken considerable delight in ridiculing me for that excess of "sensitivity" over the years. But in the end, we are our students' teachers, not their parents, and our job to teach them to become professional lawyers, not professional victims. Or do you disagree with that, as well?
>
>P: As a torts scholar you will recognize that I am speaking to basic issues of due care in instruction and the framework set forth is one that focuses on avoiding educational malpractice.
A: Quite so. The potential educational malpractice I have [been most concerned about] in recent weeks is quite in the other direction.
> P: However, because you would see such comments as a hostile and negative response to your sarcasm,
A: Quite the man to refer to sarcasm. Actually, I enjoy a good, meaty, substantive debate, and much prefer it to the sarcastic, underhanded comments you've been making about me to colleagues behind my back. If you want to take this public, be my guest. Do you have any objection to my doing so, by posting this exchange to my blog? Actually, I believe I have the right to do so regardless of your permission, but I'll wait a bit for your response first.
>P: I would never consider saying anything of this sort to you. [Peter]
A: Of course not. You've made it perfectly clear that you prefer saying it about me, to others. This is a considerable improvement on your part. Alan
Learning Our Lessons: Part 1 of Series
URGENT ALERT!
MINISTRY OF INFORMATION/ MINISTRY OF TRUTH JOINT TASK FORCE: DIRECTIVE FFF* 1984-032307-001
Do not mention the following article, or the topic it discusses, in your classes. It may contribute to cultural stereotyping.
The New York Times
INTERNATIONAL / EUROPE | March 23, 2007
French Court Rules for Newspaper That Printed Muhammad Cartoons
By CRAIG S. SMITH
The paper and its editor were accused by two Muslim groups of “publicly abusing a group of people because of their religion.”
MINISTRY OF INFORMATION/ MINISTRY OF TRUTH JOINT TASK FORCE: DIRECTIVE FFF* 1984-032307-001
Do not mention the following article, or the topic it discusses, in your classes. It may contribute to cultural stereotyping.
The New York Times
INTERNATIONAL / EUROPE | March 23, 2007
French Court Rules for Newspaper That Printed Muhammad Cartoons
By CRAIG S. SMITH
The paper and its editor were accused by two Muslim groups of “publicly abusing a group of people because of their religion.”
Learning Our Lessons: Part 2 of Series
URGENT ALERT!
MINISTRY OF INFORMATION/ MINISTRY OF TRUTH JOINT TASK FORCE: DIRECTIVE FFF* 1984-032307-002
Do not mention the following article, or the topic it discusses, in your classes. It may contribute to cultural stereotyping.
This topic goes WAY BEYOND merely sensitive or controversial and should also not be mentioned on law school or university property, on letterhead, or in retrievable email communications.
This message will self destruct in 30 seconds.
THE NEW YORK TIMES
INTERNATIONAL / EUROPE | March 23, 2007
German Judge Cites Koran, Stirring Up Cultural Storm
By MARK LANDLER
A judge turned down a German Muslim woman’s request for a fast-track divorce on the ground that her husband beat her.
MINISTRY OF INFORMATION/ MINISTRY OF TRUTH JOINT TASK FORCE: DIRECTIVE FFF* 1984-032307-002
Do not mention the following article, or the topic it discusses, in your classes. It may contribute to cultural stereotyping.
This topic goes WAY BEYOND merely sensitive or controversial and should also not be mentioned on law school or university property, on letterhead, or in retrievable email communications.
This message will self destruct in 30 seconds.
THE NEW YORK TIMES
INTERNATIONAL / EUROPE | March 23, 2007
German Judge Cites Koran, Stirring Up Cultural Storm
By MARK LANDLER
A judge turned down a German Muslim woman’s request for a fast-track divorce on the ground that her husband beat her.
Learning Our Lessons: Part 3 of Series
URGENT ALERT! (SUPER-DUPER CATEGORY RED)
MINISTRY OF INFORMATION/ MINISTRY OF TRUTH JOINT TASK FORCE: DIRECTIVE FFF* 1984-032307-003
All classes relating to global issues are suspended forthwith.
Mandatory sensitivity training exercises to be substituted.
Approved curricular scripts to follow.
Please refrain from any mention of the publication formerly known as "The New York Times" until further notice.
Publication will resume under re-educated leadership at a time to be determined.
Attention has been paid.
This message will self destruct in 30 seconds.
Watch out, or you may too.
MINISTRY OF INFORMATION/ MINISTRY OF TRUTH JOINT TASK FORCE: DIRECTIVE FFF* 1984-032307-003
All classes relating to global issues are suspended forthwith.
Mandatory sensitivity training exercises to be substituted.
Approved curricular scripts to follow.
Please refrain from any mention of the publication formerly known as "The New York Times" until further notice.
Publication will resume under re-educated leadership at a time to be determined.
Attention has been paid.
This message will self destruct in 30 seconds.
Watch out, or you may too.
Wednesday, March 21, 2007
This comment (from a healer) goes straight to the Front Page
Alan,
Standing on the sidelines and listening/observing L'Affaire Kaplan through admittedly filtered sources, several thoughts come to mind.
Is anyone really paying attention to the primal drives that are "driving" operative behaviors? The Hmong community and Professor Kaplan come from ethnic backgrounds where betrayal and annihilation are major themes, occurring a mere 30 years apart. Hard for me to believe that this is not playing a MAJOR role.
The operative word for me is "respect". When survival is at stake, respect often goes out the window. Much of what I hear is being driven by subcortical drives committed to survival at the expense of reason. Respect requires a good deal of "neocortex", supposedly what this legal institution thrives on and teaches. ( I believe "Your Honor" is a commonly used phrase in the courtroom.) Until ALL sides involved demonstrate some degree of respect for each other (including the supposedly impartial adjudicator, the law school), I doubt this conflict will be resolved satisfactorily.
An aside: Marshall Rosenberg's "Nonviolent Communication" offers very good guidelines for communication in this sort of situation where emotions are very heightened.
The law school teaches about contracts, torts, jurisprudence. This is all based on hundreds of years of experience in dealing with aggrieved parties. This is certainly the situation here. Why doesn't the law school model these principles in this circumstance? Walk the walk! What the heck is all this back room stuff, yelling over the phone, forums, emails? Good grief! There are judges and juries all over the place on this case. Heck, why not formalize it into a mock trial and let each side present its case. It could be one of the greatest learning situations ever constructed if the parties could realize this does NOT have to be a life and death situation!
(Addendum: As currently formulated, for Professor Kaplan, it actually probably IS closer to a life and death situation given that tenure, salary, grants, social standing all may be at stake. I'm not sure what the Hmong community has to lose given that Professor Kaplan never had any intention to harm in the first place. If he said what they allege he said, yes, those would be threatening words of a narrow ignorant mind. I believe his letter of March 5 eloquently concluded any debate over whether he is a narrow minded bigot. I say this while acknowledging that Hmong survival in recent history has certainly been tenuous and sensitivity is needed.)
Having a forum to discuss "prospectively" what to do about sensitive issues seems akin to having an elephant standing in the room and discussing what to do to avoid having an elephant standing in the room! Good luck!
Stop patronizing the Hmong law students as little helpless people that have been victimized by a big powerful enemy. This WAS true in the 1960's and 1970's and needs to be acknowledged as such. I don't believe Professor Kaplan was in attendance at those events. He WAS present in 2007 at ANOTHER event! Don't confuse the two! They have little in common yet the emotional response from many parties involved is communicating that the events are equivalent. THEY ARE NOT! Pay attention to the differences!
Ray Purdy
Standing on the sidelines and listening/observing L'Affaire Kaplan through admittedly filtered sources, several thoughts come to mind.
Is anyone really paying attention to the primal drives that are "driving" operative behaviors? The Hmong community and Professor Kaplan come from ethnic backgrounds where betrayal and annihilation are major themes, occurring a mere 30 years apart. Hard for me to believe that this is not playing a MAJOR role.
The operative word for me is "respect". When survival is at stake, respect often goes out the window. Much of what I hear is being driven by subcortical drives committed to survival at the expense of reason. Respect requires a good deal of "neocortex", supposedly what this legal institution thrives on and teaches. ( I believe "Your Honor" is a commonly used phrase in the courtroom.) Until ALL sides involved demonstrate some degree of respect for each other (including the supposedly impartial adjudicator, the law school), I doubt this conflict will be resolved satisfactorily.
An aside: Marshall Rosenberg's "Nonviolent Communication" offers very good guidelines for communication in this sort of situation where emotions are very heightened.
The law school teaches about contracts, torts, jurisprudence. This is all based on hundreds of years of experience in dealing with aggrieved parties. This is certainly the situation here. Why doesn't the law school model these principles in this circumstance? Walk the walk! What the heck is all this back room stuff, yelling over the phone, forums, emails? Good grief! There are judges and juries all over the place on this case. Heck, why not formalize it into a mock trial and let each side present its case. It could be one of the greatest learning situations ever constructed if the parties could realize this does NOT have to be a life and death situation!
(Addendum: As currently formulated, for Professor Kaplan, it actually probably IS closer to a life and death situation given that tenure, salary, grants, social standing all may be at stake. I'm not sure what the Hmong community has to lose given that Professor Kaplan never had any intention to harm in the first place. If he said what they allege he said, yes, those would be threatening words of a narrow ignorant mind. I believe his letter of March 5 eloquently concluded any debate over whether he is a narrow minded bigot. I say this while acknowledging that Hmong survival in recent history has certainly been tenuous and sensitivity is needed.)
Having a forum to discuss "prospectively" what to do about sensitive issues seems akin to having an elephant standing in the room and discussing what to do to avoid having an elephant standing in the room! Good luck!
Stop patronizing the Hmong law students as little helpless people that have been victimized by a big powerful enemy. This WAS true in the 1960's and 1970's and needs to be acknowledged as such. I don't believe Professor Kaplan was in attendance at those events. He WAS present in 2007 at ANOTHER event! Don't confuse the two! They have little in common yet the emotional response from many parties involved is communicating that the events are equivalent. THEY ARE NOT! Pay attention to the differences!
Ray Purdy
March 20: Almost the worst part
It seems that a not insubstantial number of my faculty colleagues (possibly including one very close to me--we are still exploring our differences on this) believe that the pre-requisites for engaging in classroom discussion of sensitive and potentially risky subjects are--and should properly be--so daunting that most of us should stay away from it most or all of the time. And some are prepared to say so publicly, in rather blunt terms.
Making a mistake in this domain (or, it seems, just having some bad luck) apparently is to be regarded as a strict liability offense. At risk of inserting some retrospective personal judgments into our depersonalized prospective-only focus [see Ray Purdy's subsequent post on this--TWB], it seems that if one of us, lacking absolute prescience, broaches a controversial topic in a living, not completely sterilized and fully scripted classroom and someone makes a fuss, the administration will hang you out to dry. We are on notice: Do what it takes to make the problem go away. Don't look to us for support.
I don't know about the rest of you, but I can't teach like that.
To digress: Kind of like attitudes at many universities, sometimes including this one, where faculty who call students on plagiarism or other forms of academic misconduct are often left largely on their own, without much institutional support, if the accused students (or their parents) stonewall, threaten to lawyer up, and challenge any findings of misconduct or attempted academic discipline. Having been drawn in to something like this situation on a couple of occasions (I recommend avoiding them, although I am better at giving that advice than following it), I remember with deep gratitude the solidarity offered by a number of valued colleagues, including my late and greatly missed colleague Gordon Baldwin, who agreed at considerable personal inconvenience (and no conceivable personal benefit) to sit in with me on my very unpleasant encounter with a ROTC student (Gordon had a tie to ROTC, which is one of the many reasons I went to him for counsel) being confronted with hard evidence of the plagiarism he had previously denied. That student did a lot of growing up in a hurry, due almost entirely to Gordon's quiet but firm presence. (I guess the work I had put into documenting the offense may have helped a bit.)
Oh, if only we still had Gordon to help provide leadership through our current fiasco with his uncommon common sense, practical judgment, and willingness to call it as he saw it. And his good humor.
Oh, woe is I. Woe are we.
Making a mistake in this domain (or, it seems, just having some bad luck) apparently is to be regarded as a strict liability offense. At risk of inserting some retrospective personal judgments into our depersonalized prospective-only focus [see Ray Purdy's subsequent post on this--TWB], it seems that if one of us, lacking absolute prescience, broaches a controversial topic in a living, not completely sterilized and fully scripted classroom and someone makes a fuss, the administration will hang you out to dry. We are on notice: Do what it takes to make the problem go away. Don't look to us for support.
I don't know about the rest of you, but I can't teach like that.
To digress: Kind of like attitudes at many universities, sometimes including this one, where faculty who call students on plagiarism or other forms of academic misconduct are often left largely on their own, without much institutional support, if the accused students (or their parents) stonewall, threaten to lawyer up, and challenge any findings of misconduct or attempted academic discipline. Having been drawn in to something like this situation on a couple of occasions (I recommend avoiding them, although I am better at giving that advice than following it), I remember with deep gratitude the solidarity offered by a number of valued colleagues, including my late and greatly missed colleague Gordon Baldwin, who agreed at considerable personal inconvenience (and no conceivable personal benefit) to sit in with me on my very unpleasant encounter with a ROTC student (Gordon had a tie to ROTC, which is one of the many reasons I went to him for counsel) being confronted with hard evidence of the plagiarism he had previously denied. That student did a lot of growing up in a hurry, due almost entirely to Gordon's quiet but firm presence. (I guess the work I had put into documenting the offense may have helped a bit.)
Oh, if only we still had Gordon to help provide leadership through our current fiasco with his uncommon common sense, practical judgment, and willingness to call it as he saw it. And his good humor.
Oh, woe is I. Woe are we.
March 20: And the Very Worst
Some things are best not dwelt upon, and timing counts. So I'm withholding what I planned to write here, at least for now. Please read my post "How can we heal," and you can probably make some inferences.
Sunday, March 18, 2007
L'Affaire Kaplan: Anatomy of an Academic Tragedy-A Colleague's Tale
Like many of us at the University of Wisconsin Law School, I have been enormously distressed, in all kinds of ways, by the controversy surrounding a class taught by my UW colleague, Len Kaplan, on February 15 of this year.
If anything, I have been even more distressed by the nature and quality of much of the reporting and public discussion of this event and its ongoing sequellae. There have been a few good journalistic accounts (links to be inserted once I learn how), following some initially sensationalistic, lazy, and lousy reporting. My colleague Ann Althouse has provided her strong and principled view of unfolding events on her popular blog and in her guest op-eds in the New York Times (links to come). I have agreed with many of the principles articulated by Ann, although not always with the balances she has struck or with some of her decisions about what to make public. I am by temperament more circumspect on such matters, and have struggled with how public to be in my own comments. That topic, of how to balance the demands of an intimate community with public responsibilities to speak out on matters of principle and public consequence, deserves further attention in its own right, and I will return to it in future postings.
What has most drawn my ire, and contributed to my increasing frustration and anger, are the largely anonymous postings on the varying blogs concerning this subject. The vast majority of these postings have been woefully ill-informed, and have shown little or no regard for listening to competing accounts or judging comments in the contexts in which they were made. Commitments to anything approaching due process, or even elementary fairness, have been conspicuous by their relative absence. Many postings have tried to fit these events into pre-existing narratives of victimization, or political correctness, which do not fit these circumstances. In a more complicated way, considerations of academic freedom have been invoked to justify statements that Professor Kaplan insists were not made, and that he would repudiate without hesitation had he made them. With a few very important exceptions (notably contributions by other students present in the Feb. 15 class who provided important context on what they perceive to have actually happened, and some former students of Professor Kaplan who have explained, in varying ways (my favorite: he is "bat-shit crazy", said in the nicest possible way), his pedagogic style and objectives), the discussion on the blogs has been a classic example of shedding (MUCH) more heat than light. In some respects, it has created a firestorm that has made reconciliation much more difficult.
I have been an outspoken contributor to internal faculty discussions on the situation. Thus far, I have done my best to keep my comments internal (excepting family and select friends). I have not served as a source to any of the reporters covering the story, and have not contributed postings, named or anonymous, to any of the blog discussion boards.
That changes now.
I have decided to begin commenting publicly on L'Affaire Kaplan on this site, to open an additional window (Ann Althouse's blog perceives events from a somewhat different vantage) on how this debate is unfolding within our law school. I do so in part because a valued colleague has been treated very shabbily, and in part because I think the issues are of considerable consequence for colleagues around the country, and for the exploration of sensitive and controversial issues in the classroom.
Whether I would do the same on behalf a colleague for whom I had lesser regard, or on behalf of ideas I considered despicable, is a hard question. As a matter of academic freedom against external attack, I would hope so (I've done so before), but cannot be absolutely certain. For a colleague who actually uttered the words falsely (I firmly believe) attributed to Professor Kaplan, properly reported in their pedagogic context as a deliberate attack on a vulnerable student or group in society, I doubt it (depending on the facts and context). That will have to be a matter for further introspection and subsequent posts.
How to go about this? I will begin by sharing some of my internal messages to my law school colleagues. These appear in edited form, to redact personally identifying matter related to particular colleagues, to clarify certain references for the benefit of a wider audience, to correct some infelicities of language and style, and, in some cases, to reduce the likelihood of my getting fired. I have mostly tried to resist the temptation to make myself appear wiser or more prescient than was true at the time.
I am withholding a number of communications of potential significance, and redacting portions of others, because I believe exposing them to a wider public at this juncture would be deleterious to the healing of my community.
I recognize that going public, even with the substantial qualifications and circumspection reflected above, will be obnoxious to some of my colleagues, and I regret that. But I believe, after much reflection and considerable struggle, that this is the proper course for me.
If anything, I have been even more distressed by the nature and quality of much of the reporting and public discussion of this event and its ongoing sequellae. There have been a few good journalistic accounts (links to be inserted once I learn how), following some initially sensationalistic, lazy, and lousy reporting. My colleague Ann Althouse has provided her strong and principled view of unfolding events on her popular blog and in her guest op-eds in the New York Times (links to come). I have agreed with many of the principles articulated by Ann, although not always with the balances she has struck or with some of her decisions about what to make public. I am by temperament more circumspect on such matters, and have struggled with how public to be in my own comments. That topic, of how to balance the demands of an intimate community with public responsibilities to speak out on matters of principle and public consequence, deserves further attention in its own right, and I will return to it in future postings.
What has most drawn my ire, and contributed to my increasing frustration and anger, are the largely anonymous postings on the varying blogs concerning this subject. The vast majority of these postings have been woefully ill-informed, and have shown little or no regard for listening to competing accounts or judging comments in the contexts in which they were made. Commitments to anything approaching due process, or even elementary fairness, have been conspicuous by their relative absence. Many postings have tried to fit these events into pre-existing narratives of victimization, or political correctness, which do not fit these circumstances. In a more complicated way, considerations of academic freedom have been invoked to justify statements that Professor Kaplan insists were not made, and that he would repudiate without hesitation had he made them. With a few very important exceptions (notably contributions by other students present in the Feb. 15 class who provided important context on what they perceive to have actually happened, and some former students of Professor Kaplan who have explained, in varying ways (my favorite: he is "bat-shit crazy", said in the nicest possible way), his pedagogic style and objectives), the discussion on the blogs has been a classic example of shedding (MUCH) more heat than light. In some respects, it has created a firestorm that has made reconciliation much more difficult.
I have been an outspoken contributor to internal faculty discussions on the situation. Thus far, I have done my best to keep my comments internal (excepting family and select friends). I have not served as a source to any of the reporters covering the story, and have not contributed postings, named or anonymous, to any of the blog discussion boards.
That changes now.
I have decided to begin commenting publicly on L'Affaire Kaplan on this site, to open an additional window (Ann Althouse's blog perceives events from a somewhat different vantage) on how this debate is unfolding within our law school. I do so in part because a valued colleague has been treated very shabbily, and in part because I think the issues are of considerable consequence for colleagues around the country, and for the exploration of sensitive and controversial issues in the classroom.
Whether I would do the same on behalf a colleague for whom I had lesser regard, or on behalf of ideas I considered despicable, is a hard question. As a matter of academic freedom against external attack, I would hope so (I've done so before), but cannot be absolutely certain. For a colleague who actually uttered the words falsely (I firmly believe) attributed to Professor Kaplan, properly reported in their pedagogic context as a deliberate attack on a vulnerable student or group in society, I doubt it (depending on the facts and context). That will have to be a matter for further introspection and subsequent posts.
How to go about this? I will begin by sharing some of my internal messages to my law school colleagues. These appear in edited form, to redact personally identifying matter related to particular colleagues, to clarify certain references for the benefit of a wider audience, to correct some infelicities of language and style, and, in some cases, to reduce the likelihood of my getting fired. I have mostly tried to resist the temptation to make myself appear wiser or more prescient than was true at the time.
I am withholding a number of communications of potential significance, and redacting portions of others, because I believe exposing them to a wider public at this juncture would be deleterious to the healing of my community.
I recognize that going public, even with the substantial qualifications and circumspection reflected above, will be obnoxious to some of my colleagues, and I regret that. But I believe, after much reflection and considerable struggle, that this is the proper course for me.
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.]
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.]
L'Affaire Kaplan: Telling Our Stories
I have been reading and rereading and reflecting on [Colleague N]'s beautiful and healing letter.
It sent me back to a line of my own: "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. "
"So utterly foreign". "Foreign". I meant, and I think I originally typed, "foreign to him", or perhaps "foreign to the Len we know." That sounded redundant, and I trimmed it back. Though a man of many words, I try not to use quite so many more than I need. I usually fail. It ended up "foreign", without the modifiers. And I didn't appreciate the additional resonance of that word in this context. Holy cow! (as we say in Wisconsin).
Len's letter of March 1 includes the following passage: "...I try my best to bring human empathy to bear in my vocation as a teacher. However, this experience and the compounded misunderstandings that have resulted from it reinforce my recognition of the limits of language, as well as law, to bridge certain gulfs. I have come to a new awareness of how the statements I did make could be misunderstood and of the pain that this experience has caused [or could cause]. I acknowledge that pain and regret the part that my own limitations played in contributing to it."
That goes for me too, proactively in this case.
Let's try some more to think about those gulfs.
We all have our stories, and a need to tell them. Let me share some of mine. I apologize in advance to those made uncomfortable by such public confessionals--you may want to stop reading here. For others, I hope the relevance will eventually become clear.
My story is, first and foremost, a Jewish one.
My father's family came to America in the early 1880s, following pogroms in Russia and the Pale of Settlement. My mother's family, about whom I know less, came in the following two decades. My paternal grandfather was a milkman and grocery worker. He never had much, and had multiple periods of unemployment, particularly during the depression. The family moved around dozens of times, when landlords offered a month or two of concessionary rents to new tenants. I've seen a fair number of the spots on childhood and adolescent drives with my father across New York and New Jersey.
My father encountered numerous experiences of antisemitism growing up in his many neighborhoods and schools. A favorite family story occurred many decades later, in South Florida where my family moved after World War II and where I grew up. An apparently strange woman came up to my Dad in a crowd, asked if he were Ralph Weisbard from Brooklyn, and, seemingly out of nowhere, planted a huge kiss on him. It turned out that she was a fellow student in an elementary school class with my father, and remembered his standing up to a teacher (I believe a Mrs. Slattery) making antisemitic cracks and insulting Jewish students some 50 years earlier. She never forgot it, and always regretted not telling him how much it meant to her. Until that day. My father cried when he told us the story.
My Dad was rejected for military service when he tried to volunteer during WWII, due to a serious hearing problem. He went to a physician to camouflage the problem (taking great care to keep this from his mother, who certainly would have killed him for it had she known, before the Nazis could get a shot at him). He eventually got into the army, and was sent to Fort Shelby in Mississippi for basic training. He was a gangly, bespectacled Jewish kid from New York training in the deep South, and the legion of antisemitic stories he could tell of his experiences would curl your hair, as they have mine. He made it through, and it sounds like he held his own. Despite his poor vision (and academic skills), he was assigned to a front line infantry unit: "we want you to be able to see the enemy." He participated in the Battle of the Bulge as an infantry sergeant and bazooka-man, where he was wounded and multiply decorated for his valor in battle. After some investigation, the family, and several veteran groups, are convinced that his Silver Star would have been a Congressional Medal of Honor, if he were named Tom Kelly instead of Ralph Weisbard. His is not the only such case among Jewish veterans.
I can remember, as a young teen, accompanying my father on a drive through a beautiful section of Miami, with overhanging trees and dense foliage. Despite the balmy temperature and lack of snow--and not to put too fine a point on it-- he freaked. He was back in the Ardennes, surrounded, with little visibility and incoming fire. Today, we would probably call it an episode of PTSD. Not then. It was pretty frightening.
My father is now 86, living in an assisted care facility near my brother. Once vigorous and powerful, he is now bent over, suffering from Alzheimer's Disease, and in process of transferring to hospice care. It is heartbreaking.
Don't think this family history didn't weigh heavily, or cause some complicated family dynamics, as I confronted the possibility of the military draft during the Vietnam era and participated in antiwar protests.
My own life as an American Jew has been much easier, and, like many in my generation of American Jews, far more privileged. There have been instances of personally directed antisemitism, particularly during my childhood. Adult instances have been, mostly, more subtle, and perhaps debatable. But the heritage of belonging to a persecuted people, and hearing such immediate family stories, has certainly shaped my consciousness.
There was only one survivor that we know of from the large extended family left in Europe during the War: Miki, a distant cousin of Czechoslovakian Jewish heritage who fought with the partisans as a teenager, eventually made his way to Israel (with help from my father's aunt), and has graciously hosted me (and many other family members) on numerous visits there. I was never successful in getting him to tell me much about that part of his life, and now it is too late. He is now in his 80s, also suffering from Alzheimer's Disease.
I have been Holocaust-obsessed since my teens. I have read many dozens of books, visited museums and sites, and met with survivors. My first true love was the daughter of survivors of Auschwitz and other camps (who had an easier time with the physical manifestations of our developing romance than did my mother). I guess a matter of perspective.
My most abiding intellectual and moral concern has not been with the existence of evil in the world. It has ever been thus, and always will be. It is with the responsibilities of "bystanders". How can decent human beings stand back in the face of the suffering of others? (The great and enduring theme of Levinas.) What can be done to strengthen and embolden our capacities to stand up and fight for what is right? How can we work to overcome our inborn tendencies for passivity and excessive self-regard, and to encourage courage in the face of evil and injustice?
Jewish tradition speaks of a capacity to do good and of a second capacity, typically rendered as a capacity for bad or evil, but which I have come to see more in terms of selfish self-regard. Both are part of our nature as human beings (created in the image of the divine), and both are essential to life in this world. The trick is enhancing that capacity for good, and limiting the second capacity to its necessary realm. Greed is part of human nature, and we cannot overcome it entirely. But it is not our aspirational goal. Greed is not good (pace the economists and Ronald Reagan). Religion works, when it does, in strengthening our ability to summon up those capacities for good, both as individuals and as communities. Law is not very good at this; it can perhaps help us to restrain some of the bad, but it is largely ineffective in achieving the heroic, or the truly just.
Where am I going with all of this? As I have thought about the events of the past two weeks, and reflected on [Colleague N]'s letter, I find myself revisiting my feelings about the proposed Nazi march through Skokie, Illinois, some decades back. I am a strong proponent of free speech and assembly, although not an absolutist. To be perfectly honest, I haven't spent a lot of time or empathetic energy trying to understand, in the most sympathetic light, the goals and values of the American Nazi Movement (or, for that matter, the Klan). I do think the First Amendment accords them rights of free speech, assembly, and expression. But in Skokie, chosen precisely because it was the home of thousands of Holocaust survivors? So that thousands of sick, elderly Jews who survived the horrors of the camps could once again experience the presence of Nazi uniforms, salutes, and slogans in parade through the streets of their community of refuge?
Abstract legal principles. Intense human suffering, and a revisiting of the terrors of the past on an already traumatized community. Can law possibly mediate this gulf?
I do not want to push the analogies too far (if indeed I haven't already done so). I am trying to summon up for myself a set of images and issues that may, in my own context, give me some insight into the experiences of others living with different histories, traditions, and personal and communal experiences and narratives. My great hope for diversity is that we can learn more about ourselves, one another, and our common human predicament by sharing our stories. Thanks again to [Colleage N], and earlier to [Colleage O], and to others for starting us on this road.
May it be a path toward healing.
It sent me back to a line of my own: "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. "
"So utterly foreign". "Foreign". I meant, and I think I originally typed, "foreign to him", or perhaps "foreign to the Len we know." That sounded redundant, and I trimmed it back. Though a man of many words, I try not to use quite so many more than I need. I usually fail. It ended up "foreign", without the modifiers. And I didn't appreciate the additional resonance of that word in this context. Holy cow! (as we say in Wisconsin).
Len's letter of March 1 includes the following passage: "...I try my best to bring human empathy to bear in my vocation as a teacher. However, this experience and the compounded misunderstandings that have resulted from it reinforce my recognition of the limits of language, as well as law, to bridge certain gulfs. I have come to a new awareness of how the statements I did make could be misunderstood and of the pain that this experience has caused [or could cause]. I acknowledge that pain and regret the part that my own limitations played in contributing to it."
That goes for me too, proactively in this case.
Let's try some more to think about those gulfs.
We all have our stories, and a need to tell them. Let me share some of mine. I apologize in advance to those made uncomfortable by such public confessionals--you may want to stop reading here. For others, I hope the relevance will eventually become clear.
My story is, first and foremost, a Jewish one.
My father's family came to America in the early 1880s, following pogroms in Russia and the Pale of Settlement. My mother's family, about whom I know less, came in the following two decades. My paternal grandfather was a milkman and grocery worker. He never had much, and had multiple periods of unemployment, particularly during the depression. The family moved around dozens of times, when landlords offered a month or two of concessionary rents to new tenants. I've seen a fair number of the spots on childhood and adolescent drives with my father across New York and New Jersey.
My father encountered numerous experiences of antisemitism growing up in his many neighborhoods and schools. A favorite family story occurred many decades later, in South Florida where my family moved after World War II and where I grew up. An apparently strange woman came up to my Dad in a crowd, asked if he were Ralph Weisbard from Brooklyn, and, seemingly out of nowhere, planted a huge kiss on him. It turned out that she was a fellow student in an elementary school class with my father, and remembered his standing up to a teacher (I believe a Mrs. Slattery) making antisemitic cracks and insulting Jewish students some 50 years earlier. She never forgot it, and always regretted not telling him how much it meant to her. Until that day. My father cried when he told us the story.
My Dad was rejected for military service when he tried to volunteer during WWII, due to a serious hearing problem. He went to a physician to camouflage the problem (taking great care to keep this from his mother, who certainly would have killed him for it had she known, before the Nazis could get a shot at him). He eventually got into the army, and was sent to Fort Shelby in Mississippi for basic training. He was a gangly, bespectacled Jewish kid from New York training in the deep South, and the legion of antisemitic stories he could tell of his experiences would curl your hair, as they have mine. He made it through, and it sounds like he held his own. Despite his poor vision (and academic skills), he was assigned to a front line infantry unit: "we want you to be able to see the enemy." He participated in the Battle of the Bulge as an infantry sergeant and bazooka-man, where he was wounded and multiply decorated for his valor in battle. After some investigation, the family, and several veteran groups, are convinced that his Silver Star would have been a Congressional Medal of Honor, if he were named Tom Kelly instead of Ralph Weisbard. His is not the only such case among Jewish veterans.
I can remember, as a young teen, accompanying my father on a drive through a beautiful section of Miami, with overhanging trees and dense foliage. Despite the balmy temperature and lack of snow--and not to put too fine a point on it-- he freaked. He was back in the Ardennes, surrounded, with little visibility and incoming fire. Today, we would probably call it an episode of PTSD. Not then. It was pretty frightening.
My father is now 86, living in an assisted care facility near my brother. Once vigorous and powerful, he is now bent over, suffering from Alzheimer's Disease, and in process of transferring to hospice care. It is heartbreaking.
Don't think this family history didn't weigh heavily, or cause some complicated family dynamics, as I confronted the possibility of the military draft during the Vietnam era and participated in antiwar protests.
My own life as an American Jew has been much easier, and, like many in my generation of American Jews, far more privileged. There have been instances of personally directed antisemitism, particularly during my childhood. Adult instances have been, mostly, more subtle, and perhaps debatable. But the heritage of belonging to a persecuted people, and hearing such immediate family stories, has certainly shaped my consciousness.
There was only one survivor that we know of from the large extended family left in Europe during the War: Miki, a distant cousin of Czechoslovakian Jewish heritage who fought with the partisans as a teenager, eventually made his way to Israel (with help from my father's aunt), and has graciously hosted me (and many other family members) on numerous visits there. I was never successful in getting him to tell me much about that part of his life, and now it is too late. He is now in his 80s, also suffering from Alzheimer's Disease.
I have been Holocaust-obsessed since my teens. I have read many dozens of books, visited museums and sites, and met with survivors. My first true love was the daughter of survivors of Auschwitz and other camps (who had an easier time with the physical manifestations of our developing romance than did my mother). I guess a matter of perspective.
My most abiding intellectual and moral concern has not been with the existence of evil in the world. It has ever been thus, and always will be. It is with the responsibilities of "bystanders". How can decent human beings stand back in the face of the suffering of others? (The great and enduring theme of Levinas.) What can be done to strengthen and embolden our capacities to stand up and fight for what is right? How can we work to overcome our inborn tendencies for passivity and excessive self-regard, and to encourage courage in the face of evil and injustice?
Jewish tradition speaks of a capacity to do good and of a second capacity, typically rendered as a capacity for bad or evil, but which I have come to see more in terms of selfish self-regard. Both are part of our nature as human beings (created in the image of the divine), and both are essential to life in this world. The trick is enhancing that capacity for good, and limiting the second capacity to its necessary realm. Greed is part of human nature, and we cannot overcome it entirely. But it is not our aspirational goal. Greed is not good (pace the economists and Ronald Reagan). Religion works, when it does, in strengthening our ability to summon up those capacities for good, both as individuals and as communities. Law is not very good at this; it can perhaps help us to restrain some of the bad, but it is largely ineffective in achieving the heroic, or the truly just.
Where am I going with all of this? As I have thought about the events of the past two weeks, and reflected on [Colleague N]'s letter, I find myself revisiting my feelings about the proposed Nazi march through Skokie, Illinois, some decades back. I am a strong proponent of free speech and assembly, although not an absolutist. To be perfectly honest, I haven't spent a lot of time or empathetic energy trying to understand, in the most sympathetic light, the goals and values of the American Nazi Movement (or, for that matter, the Klan). I do think the First Amendment accords them rights of free speech, assembly, and expression. But in Skokie, chosen precisely because it was the home of thousands of Holocaust survivors? So that thousands of sick, elderly Jews who survived the horrors of the camps could once again experience the presence of Nazi uniforms, salutes, and slogans in parade through the streets of their community of refuge?
Abstract legal principles. Intense human suffering, and a revisiting of the terrors of the past on an already traumatized community. Can law possibly mediate this gulf?
I do not want to push the analogies too far (if indeed I haven't already done so). I am trying to summon up for myself a set of images and issues that may, in my own context, give me some insight into the experiences of others living with different histories, traditions, and personal and communal experiences and narratives. My great hope for diversity is that we can learn more about ourselves, one another, and our common human predicament by sharing our stories. Thanks again to [Colleage N], and earlier to [Colleage O], and to others for starting us on this road.
May it be a path toward healing.
L'Affaire Kaplan: Our Future Together
Dear colleagues,
It is my profound hope that the time is coming that we can turn to the task of reweaving the frayed fabric of relationships within our community, with our students and amongst ourselves.
One important task before us is a serious collective exploration of how we teach controversial and sensitive subjects in our classrooms. I'm sure all of us have given much individual thought to this topic, and it has been the subject of aardvark sessions over the years and other collaborative discussions. Recent events, however, give a new urgency to the task, and I understand that several efforts are underway to approach this topic. In that setting, I would urge those who have not read through to its conclusion the recent "Inside Higher Ed" piece circulated by [Colleague T] to pay special attention to the concluding paragraphs of that article. Beverly Daniel Tatum, president of Spelman College, offers a number of suggestions that seem to me to offer a very promising path for us to consider. President Tatum is the author of a forthcoming book, *Can We Talk About Race?" That goes on my Amazon list today, and I look forward to reading it as soon as it becomes available. Perhaps others will as well, and we can find a way to talk about it. We could do worse than to invite President Tatum to visit with us to discuss these issues.
Second, we must consider concrete and ongoing efforts to rebuild our relationships with the Hmong community, as well as other groups who have been affected by the recent controversy. I know efforts are underway in this dimension as well. I hope these efforts include consideration of initiatives in our teaching program, clinical activities, and other outreach activities in the community to further demonstrate our ongoing commitments. One of the points Len was trying to make in his Feb. 15 class was the failure of state and federal governments to respond adequately to the challenges of displaced minority communities, including the Hmong in Wisconsin. Perhaps we can do more to be part of the solution.
Third, one thing that stood out for and shocked me at the Forum was the gulf between "we" and "they" in various perceptions of our institution. Many of the comments came from people who do not know us very well, and struck me, very frankly, as ill informed products of passion rather than knowledge. But others came from within. We need to understand those more clearly.
My own view is that we need to engage in a more wide-ranging reconsideration of the nature of our community. In particular, as a professional school training persons who are likely to become public citizens and community leaders as well as practicing lawyers, we need to rethink our model of the faculty-student relationship.To put some complicated and only partially formed ideas into a short phrase, I would suggest we consider our students as junior colleagues in a shared enterprise of learning and professional development, with responsibilities to our collective learning process.
In language from my other life mostly outside the law building, this would incorporate concepts from the field of "virtue ethics" and concepts of professionalization that go considerably beyond adhering to legalistic rules of professional conduct. It would reject the model that we are mere purveyors of a service purchased by student consumers, and that we are participants in a game in which students seek to acquire a credential by the least means necessary.
This is not the occasion where I can fully spell this out, and I will need the help of many of you to develop and test these very preliminary ideas. But let me offer an image of what I have in mind.
Let's think back to the night of the Forum. We heard briefly from several of our Hmong students and from outside scholars about the Hmong culture and historical experience, and then turned to other statements. The rhetoric became increasingly heated and personalized in attacks on one of our faculty colleagues. Comments turned into tirades. Now--just imagine--if one of our Hmong students had sought recognition to interrupt those tirades, and to say something like the following:
"Look. We are very unhappy with the way Professor Kaplan conducted his class, and we think that his use of what we see as stereotypes of our community and culture were damaging to us. We are also not happy with the outcome of our private meeting with us, and we welcome this opportunity to teach the law school community more about our history and culture from our own perspective and that of scholars who understand us better than does Professor Kaplan. But we are agreed that Professor Kaplan is not a racist, and did not intend to damage us, although that may have been the effect of his actions. This is not supposed to be a show trial. Let's cool the rhetoric and return to our educational mission for tonight."
Does anyone doubt that would have been an electrifying moment, a singular transforming moment of grace that would have exemplified our highest ideals for our work here?
My point here is not to put down anyone for statements that were not made in an extraordinarily heated and difficult environment. I certainly didn't find a way to make a constructive intervention in those circumstances, although I'm not sure anything I or another faculty member might have done would have had a positive impact in those circumstances, and we are a lot older and more experienced than that group of students.
I do, however, wonder whether we are doing all that we might to enhance the likelihood that such a moment of grace might occur. Do we talk enough about the courage of those, lawyers and activists, who have brought about meaningful social and legal change in our country and around the world? Do we exemplify that courage in our teaching and in our other activities as lawyers and as citizens in the world? Do we adequately address the courage it takes to stand up against popular opinion and community pressures and the risk of personal and familial consequences to find and do the right?
Personally, much of what makes me love this place is that so many of us try to find and do the right in our individual activities, and in some of our collective efforts, notably including our clinical activities. But I am not sure we have adequately considered these commitments as part of our institutional vision and mission, and communicated these commitments to our students and the wider community. As we consider our future together, I hope we will do so.
It is my profound hope that the time is coming that we can turn to the task of reweaving the frayed fabric of relationships within our community, with our students and amongst ourselves.
One important task before us is a serious collective exploration of how we teach controversial and sensitive subjects in our classrooms. I'm sure all of us have given much individual thought to this topic, and it has been the subject of aardvark sessions over the years and other collaborative discussions. Recent events, however, give a new urgency to the task, and I understand that several efforts are underway to approach this topic. In that setting, I would urge those who have not read through to its conclusion the recent "Inside Higher Ed" piece circulated by [Colleague T] to pay special attention to the concluding paragraphs of that article. Beverly Daniel Tatum, president of Spelman College, offers a number of suggestions that seem to me to offer a very promising path for us to consider. President Tatum is the author of a forthcoming book, *Can We Talk About Race?" That goes on my Amazon list today, and I look forward to reading it as soon as it becomes available. Perhaps others will as well, and we can find a way to talk about it. We could do worse than to invite President Tatum to visit with us to discuss these issues.
Second, we must consider concrete and ongoing efforts to rebuild our relationships with the Hmong community, as well as other groups who have been affected by the recent controversy. I know efforts are underway in this dimension as well. I hope these efforts include consideration of initiatives in our teaching program, clinical activities, and other outreach activities in the community to further demonstrate our ongoing commitments. One of the points Len was trying to make in his Feb. 15 class was the failure of state and federal governments to respond adequately to the challenges of displaced minority communities, including the Hmong in Wisconsin. Perhaps we can do more to be part of the solution.
Third, one thing that stood out for and shocked me at the Forum was the gulf between "we" and "they" in various perceptions of our institution. Many of the comments came from people who do not know us very well, and struck me, very frankly, as ill informed products of passion rather than knowledge. But others came from within. We need to understand those more clearly.
My own view is that we need to engage in a more wide-ranging reconsideration of the nature of our community. In particular, as a professional school training persons who are likely to become public citizens and community leaders as well as practicing lawyers, we need to rethink our model of the faculty-student relationship.To put some complicated and only partially formed ideas into a short phrase, I would suggest we consider our students as junior colleagues in a shared enterprise of learning and professional development, with responsibilities to our collective learning process.
In language from my other life mostly outside the law building, this would incorporate concepts from the field of "virtue ethics" and concepts of professionalization that go considerably beyond adhering to legalistic rules of professional conduct. It would reject the model that we are mere purveyors of a service purchased by student consumers, and that we are participants in a game in which students seek to acquire a credential by the least means necessary.
This is not the occasion where I can fully spell this out, and I will need the help of many of you to develop and test these very preliminary ideas. But let me offer an image of what I have in mind.
Let's think back to the night of the Forum. We heard briefly from several of our Hmong students and from outside scholars about the Hmong culture and historical experience, and then turned to other statements. The rhetoric became increasingly heated and personalized in attacks on one of our faculty colleagues. Comments turned into tirades. Now--just imagine--if one of our Hmong students had sought recognition to interrupt those tirades, and to say something like the following:
"Look. We are very unhappy with the way Professor Kaplan conducted his class, and we think that his use of what we see as stereotypes of our community and culture were damaging to us. We are also not happy with the outcome of our private meeting with us, and we welcome this opportunity to teach the law school community more about our history and culture from our own perspective and that of scholars who understand us better than does Professor Kaplan. But we are agreed that Professor Kaplan is not a racist, and did not intend to damage us, although that may have been the effect of his actions. This is not supposed to be a show trial. Let's cool the rhetoric and return to our educational mission for tonight."
Does anyone doubt that would have been an electrifying moment, a singular transforming moment of grace that would have exemplified our highest ideals for our work here?
My point here is not to put down anyone for statements that were not made in an extraordinarily heated and difficult environment. I certainly didn't find a way to make a constructive intervention in those circumstances, although I'm not sure anything I or another faculty member might have done would have had a positive impact in those circumstances, and we are a lot older and more experienced than that group of students.
I do, however, wonder whether we are doing all that we might to enhance the likelihood that such a moment of grace might occur. Do we talk enough about the courage of those, lawyers and activists, who have brought about meaningful social and legal change in our country and around the world? Do we exemplify that courage in our teaching and in our other activities as lawyers and as citizens in the world? Do we adequately address the courage it takes to stand up against popular opinion and community pressures and the risk of personal and familial consequences to find and do the right?
Personally, much of what makes me love this place is that so many of us try to find and do the right in our individual activities, and in some of our collective efforts, notably including our clinical activities. But I am not sure we have adequately considered these commitments as part of our institutional vision and mission, and communicated these commitments to our students and the wider community. As we consider our future together, I hope we will do so.
Thursday, March 15, 2007
A Recipe for Miscommunication
At risk of propounding a cultural stereotype (whether a denigrating one may be in the eye of the beholder), the Midwest (I'll save the Middle East for future posts) is profoundly irony-challenged. (Not so good on sardonic, either.)
So are most bureaucracies, including educational bureaucracies. (Better left unsaid...)
For some of us, including but not limited to displaced former East Coast, Big City, preferably-Jewish, intellectuals of a certain generation (talk about stereotypes run amok!), irony runs in our very lifeblood. Try as we might to dam it up or to rechannel it, we are not infinitely malleable creations of our own will, and it finds its way to the surface, or, to extend the nautical metaphor, to the sea. The levies cannot hold, not to speak of the Cohens, the Kaplans, or the Wise Bard.
(With apologies to New Orleans, a great and wonderful city.)
So are most bureaucracies, including educational bureaucracies. (Better left unsaid...)
For some of us, including but not limited to displaced former East Coast, Big City, preferably-Jewish, intellectuals of a certain generation (talk about stereotypes run amok!), irony runs in our very lifeblood. Try as we might to dam it up or to rechannel it, we are not infinitely malleable creations of our own will, and it finds its way to the surface, or, to extend the nautical metaphor, to the sea. The levies cannot hold, not to speak of the Cohens, the Kaplans, or the Wise Bard.
(With apologies to New Orleans, a great and wonderful city.)
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