Handling Sensitive Topics at Law School

The Volokh Conspirators are apparently being approached by worried Harvard law students. Eugene Volokh has passed along an email, without comment, the following:

I wish I were a tenured professor, and was able to say reasonable and true things freely, like the idea that things that haven’t been proven yet remain unproven.

Instead, I’m an incoming student at Harvard Law next year. And even though I’m neither interested in nor well-informed about the IQ-race correlation debate, I am scared to even mention my opinion on the subject to my friends or roommates, or ask them about it. I have no idea what I would say if someone asked me if I could categorically rule out the possibility that there was a correlation between race and IQ... but the funny thing is, I have no idea what anyone would say. The reasonable thing to say has been tabooed.

The law student just said, "I’m neither interested in nor well-informed about the IQ-race correlation debate", so it would seem to me that the reasonable thing to say would be, "I'm not interested in having this conversation."

It would also be quite reasonable to consider why somebody would present you with that particular challenge. I honestly cannot recall somebody, out of the blue, asking me a similar question during my entire three years of law school. If the person is trying to stir up trouble, you don't have to worry about formulating a sensitive - or even a polite - response. If you're not sure what's motivating the person to ask you such a question, it would be reasonable to respond, "What's your game? Are you being deliberately provocative?"

The answer that the author apparently considers to be both "reasonable" and "taboo" is, "I don't know." Apparently he believes that if he answers, "I'm not aware of any genetic link between race and intelligence, and in the absence of evidence I see no basis to assume that such a link exists," he'll be trapped by the snarky retort, "Ahah! You refuse to rule out such a link!" But then, if he believes somebody is trying to trap him into saying "I don't know," so that they can accuse him of being a racist, he should refer to the prior paragraph.

If he believes that the question is being asked in good faith, or if he feels compelled to respond to a snark, why not point out that the question is inherently flawed? Has he not considered the response, "I'll answer your question as soon as you tell me how to prove a negative"? Or, "Can you categorically rule out the possibility that God exists"? Or, "I'm not going to let you shift your burden of proof - if you believe that there is a correlation between race and intelligence, make your case"? (If the interrogator denies that such a link exists, we're back to, "Then what's your game?" If they assert that such a link exists but can't offer any evidence, it's reasonable to say, "I'm sure you can find somebody who is interested in having this debate with you, but I'm not.")

Meanwhile, Oren Kerr offers advice to a law student who is worried about how to respond "if someone asked me if I could categorically rule out the possibility that Jews tend to be greedy moneylenders". There is consistency here - both supposedly worried law students imagine that they'll be left dumbstruck by an obnoxious interrogator who wants them to prove a negative. No, really, look at the phrasing - the odds are overwhelming that we're dealing with the same individual:

But the funny thing is, I have no idea what anyone would say. The reasonable thing to say has been tabooed.

That's the same closing used in the email to Professor Volokh. (Note: Kerr may have rewritten the first email to illustrate some of the same points I'm making, clever man that he is, in which case my comments about his response are implied by his response.)

Now, I have to say, had somebody asked me such a question during law school, I wouldn't have been particularly worried about being polite, but Professor Volokh suggests approaching the query with "judgment and tact". How about, "If you have any sense of the history of anti-Semitism, you have to know that's an offensive question. If your inquiry is sincere, why did you phrase it in such an inflammatory manner?"

The supposed law student writes, "I am scared to even mention my opinion on the subject to my friends or roommates, or ask them about it" - he imagines himself, out of the blue, approaching his friends and saying, "You know what? I have absolutely no idea whether the stereotypes about Jews being greedy moneylenders are true"? He pictures himself asking his friends, "Do you think Jews are greedy moneylenders"? How - and why - does he imagine himself bringing this topic into a conversation?

Further, if the supposed incoming law student fears being inextricably trapped by the inquiry, "Can you categorically rule out the possibility that Jews tend to be greedy moneylenders", I pity his future clients. Kerr gives the person much more attention than the query deserves, explaining,

some arguments have to be approached with great caution not because of their logic but because of their history.... If you make the argument without any caveats, those listeners [familiar with the history] may wonder if (or even assume that) you share the racist beliefs of the people who made that same argument in the past.

Seriously? Because if our law student in fact has no experience that would suggest that "Jews tend to be greedy moneylenders", rather than giving a dissertation about his awareness of historic stereotypes before equivocating it seems that it would be much easier to respond as described above, or simply to answer, "That has not been my experience". It's difficult to imagine a context in which the interrogator's retort, "Ahah! You didn't disprove it!" would do anything more than make the interrogator look bad. "Disprove what? Your anti-Semitic assumptions?"

Creationism as Superstitious Nonsense

I read about the case, C.F. v Capistrano Unified School Dist. about a week ago on Volokh, and respect Eugene Volokh's general conclusions that the teacher in the case was inclined toward making provocative statements that some (apparently including Volokh) might think inappropriate to a classroom setting. Although there's another interpretation under which this teacher was principally challenging his students to question their orthodoxies and to think about things that make them (or their parents) uncomfortable, and it does not appear to be a coincidence that the lawsuit against him was brought by people who don't like to have their ideas and opinions challenged.

As this case keeps popping up in editorials, pontificating over whether the trial court split the hairs in precisely the correct location, I decided to take a look at the court's analysis of the contentious quote - the statement Corbett made that the court found, as a matter of law, to violate his students' First Amendment rights:

The Court turns first to Corbett’s statement regarding John Peloza (“Peloza”). (Farnan’s Ex. I, pp. 222-25.) This statement presents the closest question for the Court in assessing secular purpose. Peloza apparently brought suit against Corbett because Corbett was the advisor to a student newspaper which ran an article suggesting that Peloza was teaching religion rather than science in his classroom. (Id.) Corbett explained to his class that Peloza, a teacher, “was not telling the kids [Peloza’s students] the scientific truth about evolution.” (Id.) Corbett also told his students that, in response to a request to give Peloza space in the newspaper to present his point of view, Corbett stated, “I will not leave John Peloza alone to propagandize kids with this religious, superstitious nonsense.” (Id.) One could argue that Corbett meant that Peloza should not be presenting his religious ideas to students or that Peloza was presenting faulty science to the students. But there is more to the statement: Corbett states an unequivocal belief that creationism is “superstitious nonsense.” The Court cannot discern a legitimate secular purpose in this statement, even when considered in context. The statement therefore constitutes improper disapproval of religion in violation of the Establishment Clause.

I haven't had any luck finding the student's exhibit, so I don't have the full context of what the student secretly recorded. But even without considering the standard a court is supposed to apply when granting summary disposition, I find the court's reasoning to be poor.

First, there's no "apparently" about the Peloza suit. It shouldn't be difficult for a judge to confirm the reality of the suit, Peloza v. Capistrano Unified School District, 37 F3d 517 (9th Cir. 1994). Sure enough, Corbett's a named defendant in the lawsuit. How did a federal court treat Peloza's theories of religion and evolution?

Peloza's complaint alleges that the school district has violated the Establishment Clause "by pressuring and requiring him to teach evolutionism, a religious belief system, as a valid scientific theory." Complaint at 19-20. Evolutionism, according to Peloza, "postulates that the 'higher' life forms ... evolved from the 'lower' life forms ... and that life itself 'evolved' from non-living matter." Id. at 2. It is therefore "based on the assumption that life and the universe evolved randomly and by chance and with no Creator involved in the process." Id. Peloza claims that evolutionism is not a valid scientific theory because it is based on events which "occurred in the non-observable and non-recreatable past and hence are not subject to scientific observation." Id. at 3. Finally, in his appellate brief he alleges that the school district is requiring him to teach evolutionism not just as a theory, but rather as a fact.

Peloza's complaint is not entirely consistent. In some places he seems to advance the patently frivolous claim that it is unconstitutional for the school district to require him to teach, as a valid scientific theory, that higher life forms evolved from lower ones. At other times he claims the district is forcing him to teach evolution as fact. Although possibly dogmatic or even wrong, such a requirement would not transgress the establishment clause if "evolution" simply means that higher life forms evolved from lower ones.

A federal appellate court had no difficulty dismissing Peloza's definition of "evolutionism" as excluding the possibility of a creator.

Only if we define "evolution" and "evolutionism" as does Peloza as a concept that embraces the belief that the universe came into existence without a Creator might he make out a claim. This we need not do. To say red is green or black is white does not make it so.

In short, the Ninth Circuit had no apparent difficulty recognizing Peloza's contention that evolution is a religion, or that evolution necessarily excludes the possibility of a God, as... nonsense.

There does not appear to be any controversy about Corbett's initial statement about Peloza, "Corbett explained to his class that Peloza, a teacher, 'was not telling the kids [Peloza’s students] the scientific truth about evolution.'" After all, Peloza's entire lawsuit was predicated upon his belief that he shouldn't have to teach his students the theory of evolution, and that teaching of evolution " is establishing a state-supported 'religion.'" The comment that the court held, as a matter of law, to violate the Establishment Clause:

Corbett also told his students that, in response to a request to give Peloza space in the newspaper to present his point of view, Corbett stated, “I will not leave John Peloza alone to propagandize kids with this religious, superstitious nonsense.”

The judge concluded from that statement,

Corbett states an unequivocal belief that creationism is “superstitious nonsense.”

That conclusion is not supported by the quote provided in the opinon.

As presented in the opinion, Corbett's statement was not "evolution is superstitious nonsense" - it was "[Back in @1993, when Peloza wanted to run an article sharing his personal theories of evolution in the school newspaper, I stated], 'I will not leave John Peloza alone to propagandize kids with this religious, superstitious nonsense.'" It's difficult to see what's wrong with that statement, given that the Ninth Circuit ultimately held that Peloza's personal theories of "evolutionism" were nonsense. In other words, Corbett's statement appears to be a historical fact ("This is what I said, back in @1993"), and it appears that the Ninth Circuit shared his assessment of Peloza's beliefs. Yet it's a violation of the Establishment Clause for Corbett to relate the factual history of that litigation?

Leaving the historical element aside for the moment. Let's pretend that the controversy was current, that Peloza was again asking for space in the student newspaper to advance his personal views of "evolutionism", and Corbett openly denounced those views with the statement, "I will not leave John Peloza alone to propagandize kids with this religious, superstitious nonsense.'" That's again a far cry from the court's representation that Corbett stated "an unequivocal belief that creationism is 'superstitious nonsense.'" The expression is about Peloza's beliefs, and what the Ninth Circuit calls his "made-up definition of 'evolution'", not creationism in general.

It's interesting that Peloza's view of creationism as excluding the hand of God is inconsistent with the teachings of some religions, including Catholicism. Religions advancing the concept of "intelligent design" similarly acknowledge that evolution is not inconsistent with their theology. Under the personal theory Peloza sought to advance, all of those religious teachings are wrong. In calling Peloza's theories "nonsense", could Corbett not in fact have been stating that it's perfectly reasonable to believe both in God and evolution?

In short, the Court makes an unjustified leap from Corbett's story about how, 15 years ago, he criticized a particular teacher's nonsensical beliefs about evolution as “superstitious nonsense", to represent that Corbett instead expressed that all creationist beliefs are “superstitious nonsense". I do not see how the facts before the court support that leap, let alone with sufficient certainty to meet the standard for granting summary judgment.

Even taking the court's conclusion at face value, creationism is not a religion. Creationism is a religious explanation of the origin of life. There are millions of people in this world who happily embrace their own religion's explanation of the origins of life, while regarding those of other faiths as "superstitious nonsense." Is the court instructing teachers that they can't treat any creation myth as "superstitious nonsense", or it is only an Establishment Clause violation if the teacher makes that statement about all creationist explanations as "superstitious nonsense"? Or is it okay to treat some creationist theories as "superstitious nonsense" (e.g., the Babuka myth in which a giant vomits up all of creation) but not others and, if so, based upon what objective distinction?

The court's opinion suggests that if you sprinkle your dogmatic statements with "magic words", you can avoid violating students' constitutional rights. You can't say "creationism is superstitious nonsense", but you apparently can say, "from a scientific standpoint, creationism is superstitious nonsense". The lesson here, then, is that teachers need to protect themselves by parsing their words and prefacing any potentially controversial comments with, "According to science..."? That's really going to make a difference to how students feel about the discussion? As Volokh put it,

Now I suppose it's possible for teachers, both high school and college, to carefully avoid calling anything that might possibly be linked to a religious belief system "nonsense," and instead just say "it's scientifically unfounded" or some such (though wouldn't that be disapproval, too?). But that would make the discussion pretty artificial, with the teacher being constitutionally barred from saying what is pretty obviously on his mind. Nor would it be true to the principle that schools should be forthright about what's true and what's false: Do we really want high schools and universities to be places where one can't call astrology or voodoo bunk?

* * *

And of course it's probably practically wiser to avoid calling a very common religious belief system nonsense, in order to maintaining a good working relationship with the students. On the other hand, tip-toeing around labeling as nonsense that which nearly all educated people agree is nonsense might actually interfere with a good working relationship with the students, for the reasons I mentioned above. But it's hard for me to see how these distinctions can be translated from pragmatic guidelines into constitutional rules.

I think there's a plausible case that, under current case law, a public high school teacher shouldn't be making blanket statements on religious subjects such as "creationism is superstitious nonsense", but I don't think it's good public policy to invite students to sue teachers for even strongly worded statements that challenge ideas that are grounded in religious faith. Volokh refers to notions of symmetry, with statements opposing religion being treated in a manner equivalent to statements advancing religion. But how do we draw the line between a statement opposing a religion and a statement questioning the tenet of a religion, or which tenets are off-limits and which are not? Or which religious beliefs are off limits for explicit criticism (implicitly here, some Christian theories of creation) versus which are not (Greek and Roman mythology? Babuka mythology? Scientology?)

Volokh brings up voodoo and astrology as religious topics that might be regarded as superstitious nonsense. A response to that is, at least to some degree, you can test voodoo and astrology. If you make a voodoo doll, but its use has no impact on your target, it calls into question the validity of that aspect of the faith. If an astrologer's predictions of the future don't come true, you cast scientific doubt on astrology. But those arguments oversimplify voodoo, which is about a lot more than the voodoo dolls depicted in cheesy horror movies and has its own creation myth, and miss the boat on prognostications of the future which, if worded properly, will always "come true" to a substantial degree. Also, if you're able to say that it's "superstitious nonsense" for astrology to predict the future, why can't you say the same of Revelations?

There's no actual symmetry between a teacher's proselytizing in favor of a specific religion, or the tenet of a religion the teacher favors, and a teacher's statements (sans "magic words") calling into question religious belief in general or expressing that a particular religious tenet is "nonsense". The judge in the Farnan case apparently meant to issue a very narrow ruling, in relation to a statement he believed was a broad denunciation of any religion that incorporates a creationist theory, but it seems to me that he's thrown the door wide open to Establishment Clause-based challenges to statements teachers may not even know contradict a tenet of one religion or another.