Wednesday, August 20, 2014

SCOTUS Virginia SSM Stay Makes Merits Ruling By June 2015 All But Inevitable

by Michael Dorf

The Supreme Court order granting a stay of the ruling of the 4th Circuit regarding Virginia's same-sex marriage ban makes it nearly certain that the Court will grant cert to decide the constitutionality of laws banning same-sex marriage in time to be decided during the upcoming (October 2014) Term.

No one can be surprised by this order, given the similar SCOTUS disposition in the Utah case back in January. But the Utah case was different in an important respect: The underlying merits decision was a ruling of the district court; thus, one could understand the SCOTUS grant of a stay there as merely based on the view that the status quo ante ought to be preserved so that the appeals court could hear the case without risking putting marriages in limbo. (Of course, there was enough of a delay between the district court ruling and the time when the Supreme Court stay was granted, that limbo wasn't avoided anyway, but that's a different point.) By contrast, the SCOTUS order in the Virginia case comes after an appeals court disposition, and is in effect "pending the timely filing and disposition of" a cert petition. If the Court denies cert, that will mean the stay is dissolved and same-sex marriage will be legal in Virginia (and the other states in the 4th Circuit). But I can't see the Court doing that unless the Justices are certain that they will eventually affirm a right to same-sex marriage. And if they were certain of that, then they wouldn't have granted the stays in either the Utah or Virginia cases, because the limbo problem only arises if there is a serious prospect that marriages will be found legal and then later made illegal.

So I think the likely--indeed the overwhelmingly likely--outcome of a cert petition in either the Virginia case or some other case to reach the Court soon will be a grant of cert. And notwithstanding my analysis above, I think it quite likely that the Court will then find a right to SSM. That's because the likelihood of a 5-4 vote in the Court is enough to support the conclusion that the issue is close in one sense, but I have a very hard time counting beyond four votes against a right to SSM on this Court.

Abortion, Animal Rights, and Theoretical Arguments

by Sherry F. Colb

In my Verdict column for this week, I discuss a decision by the U.S. Court of Appeals for the Fifth Circuit holding a Mississippi abortion law unconstitutional, as applied.  The law at issue, like an increasing number of state laws, requires that doctors who provide abortions must have admitting privileges at a local hospital.  The doctors at the one existing abortion clinic in Mississippi attempted to acquire admitting privileges at seven local hospitals, but all requests were denied, expressly because of the doctors' participation in abortion services. 

The Fifth Circuit held that the law in question, given the circumstances, effectively eliminated abortion services from the state of Mississippi and thereby imposed an undue burden on the right to terminate a pregnancy.  My column analyzes the unusually fact-specific nature of the ruling and why it needed to be that way.

In this post, I want to turn from the subject of abortion to the subject of animal rights.  What is the connection, you ask?  One connection is that Mike Dorf and I are currently working on a book -- tentatively titled Beating Hearts -- about the animal rights and anti-abortion movements.  The book addresses substantive arguments that find expression in both pro-animal-rights and pro-fetal-rights camps as well as some of the philosophical and strategic challenges that similarly confront the two movements.  One strategic challenge is whether to embrace legislative reforms that regulate the targeted behavior (whether animal exploitation or abortion) and thereby potentially imply that the activity is not itself inherently objectionable, if proposed guidelines are merely followed.

In the context of animal rights, an example of such legislative reform would be a law that provided that laying hens must be kept in a barn rather than in a cage.  A proponent of animal rights -- one who believes that breeding birds who produce  more than fifteen times the normal number of eggs annually (250-300 versus 10-15 in a closely related non-domesticated bird) in order to take their eggs away and ultimately to kill them when they stop laying those eggs (while killing all of the male "layers" because they produce no eggs) amounts to unjustified violence and cruelty to animals.

When someone who believes in animal rights advocates for a different sort of "housing" for such birds, the advocate could be misunderstood by the public as condoning the farming of birds, so long as they are kept in a barn while they are being exploited and prior to being slaughtered, rather than in cages. The advocate might respond that less torture is better than more torture and that the difference is what motivates the advocacy.  Opponents, in turn, could reply that the public responds to such "reforms" by believing (without foundation) that buying eggs is now justified and that "even the animal rights people" at [name your organization] think so."  Furthermore, as investigations of "cage free" facilities and other "high welfare" operations reveal, the realities of "humane" farming are routinely no better than the "factory" alternative.

In the abortion context, a regulation might say that "abortion is legal if the doctor performing the procedure has admitting privileges at a local hospital."  Such a regulation does not prohibit abortion and might therefore lead an observer to conclude that abortion is fine so long as the providers have some level of access to local hospitals.  A supporter of this regulation might respond that such regulations are quite effective at reducing the number of abortions women have, because many hospitals refuse to grant admitting privileges to doctors who perform the procedure, and fetal lives are therefore spared.  As a matter of messaging, moreover, pro-life organizations can and do dispel any doubts about their bottom-line position on abortion by saying such things as "we oppose all abortion and believe that abortion is murder from the moment of conception."

The realities on the ground are quite different for people who oppose animal exploitation from what they are for people who oppose abortion, as Mike and I explore in our book, so one might believe that strategies should properly differ for the two movements.

Another sort of issue that arises in both the animal rights and pro-life movements is what sorts of arguments are appropriate and convincing.  In the case of abortion, some of the arguments made about late-term abortions might undermine the case for prohibiting early abortion.  Emphasizing the horror that accompanies the dismemberment of a 26-week-old fetus that already appears to be sentient may, by negative implication, reduce moral discomfort around earlier abortions of plainly insensate embryos and fetuses. For this reason, some people in the pro-life movement find partial-birth abortion legislation pointless and counterproductive to their mission.

In the animal rights movement, one of the points we make in favor of veganism is that by consuming the products of animal exploitation and slaughter, we solicit additional acts of violence against animals, thereby bringing about physical and emotional agony to innocent sentient beings.  Animal rights advocates typically object both to the infliction of suffering on animals (for the purpose of using those animals) and to the killing of animals (for the same purpose -- or because keeping them alive for further exploitation is no longer economically sound).  

Some people outside the animal rights movement agree that inflicting suffering on animals is wrong but challenge the notion that killing animals in order to exploit them is necessarily morally objectionable. Their premise is that if one could kill an animal for consumption without inflicting any distress or pain upon that animal, then the killing would not violate the interests of the animal. This is actually a position held by Peter Singer, the Princeton philosopher who authored Animal Liberation.  Singer rejects the view that killing farmed animals is wrong, provided that the killing is truly painless.

In an opinion piece in the New York Times, one writer suggests, in line with this thinking, that consuming animals is morally distinct from atrocities against humans, because animals could -- at least in theory -- be raised and slaughtered without suffering any pain or distress.  The writer, Rhys Southan, acknowledges that in the real world of animal farming -- even the "high welfare" sector -- animals actually suffer a great deal, in part because babies are taken from their mothers (as is inherent in the dairy industry) and in part because animals are mutilated (branded, castrated, etc.) without anasthesia as part of "raising" them for slaughter. There is far more suffering implicated in creating (and therefore in consuming) animal products than Southan articulates, but even he effectively concedes that "pain free" animal exploitation (and therefore consumption) is, for the moment, a fantasy.

In his column, Southan cites Epicurus for the proposition that death is not a harm to the one who dies, because once someone is dead, that individual no longer exists to experience the putative harm.  As Southan undoubtedly knows, though, Epicurus makes this point about humans.  Mike and I address the argument that death is not a harm and that painless killing is therefore morally permissible in our book, and I discuss it as well in one of the chapters of Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans, a chapter entitled "What About Plants?".  For purposes of the Times opinion piece, however, suffice it to say that if Southan embraces Epicurus's view and infers permission to "painlessly" slaughter animals, then he should -- by his own logic -- infer permission to "painlessly" slaughter humans as well.

For now, however, let me leave this point behind.  I will, for purposes of argument, assume a premise that  I in fact reject -- that painlessly killing (an animal or a human) is morally unobjectionable. If this is true, what follows from it?  It follows from this premise (one that I, just to be clear, find offensive and utterly reject) that if one were to consume the corpse of a slaughtered animal (for example, a puppy or a calf) who had been killed without experiencing any anxiety or pain, one would be doing nothing wrong.  Likewise, as Southan implies at the end of his piece, one could also consume (or create gloves out of) the remains of a slaughtered human without committing any moral wrong, so long as the human never saw it coming and suffered no pain or anxiety.

Southan asserts that in theory, one could raise and slaughter animals for food without causing the animals pain or distress.  This is true, just as it is equally true that one, in theory, could raise and slaughter humans for food without causing the humans pain or distress.  This would especially be true in the case of a human who is either too young to understand complex human communication (through which she might learn of her fate) or a human who suffers from intellectual disabilities that prevent such understanding in adulthood.  Under Southan's argument, then, there would be nothing wrong with murdering a happy, intellectually disabled human being, so long as one made sure to sneak up on the person in the middle of the night and cause no suffering in the process.

After accepting this (dubious) premise, what follows?  Though Southan does not say so explicitly, he strongly implies (in part by identifying himself as a "former vegan" in his byline) that what follows is that it is morally unobjectionable to consume animal products.  Why does that follow?  Because even though animals who are raised and slaughtered for consumption in fact suffer tremendous pain, anxiety, and loss during their short lives, as Southan concedes, one could imagine an animal being slaughtered for consumption without the corresponding suffering.  In other words, the fact that one can imagine painless exploitation and slaughter is -- on Southan's theory -- enough to make it acceptable to consume the products of painful exploitation and slaughter.  Got that?

I would not spend so much time on this rather bizarre argument if this were the first time I encountered it. I would then conclude that Southan is simply confused and move on to other, better thought out, writings. The problem is that I have heard this line of argument before.  

In one context, a woman who calls herself an "ethical vegetarian" and is otherwise extremely intelligent insisted to me that consuming eggs is morally acceptable (and totally different from consuming flesh) because the production of eggs need not involve any killing.  (By contrast to Rhys Southan, this woman does not appear to regard killing as harmless).  I expressed disagreement with her claim, because in the actual world we inhabit, the production of eggs always involves killing.  The male layer-breed chicks are, in fact, killed shortly after hatching, because they do not serve the purpose of an egg-laying operation, since they cannot lay eggs.  

The woman responded that one could, in theory, take care of all of the male "layers" and permit them to live out their lives rather than killing them.  I pointed out that such a practice would be economically ruinous for anyone hoping to earn rather than to lose money selling eggs and that, given the number of male layer chicks killed every year (260 million in the U.S. alone), there would not be enough space on planet earth to allow them to live out their lives other than in horrendously crowded conditions.  This might be why, I suggested, there are exactly zero egg-laying operations in which the males are permitted to live out their lives.  

When people purchase "back yard" hens, the curiously absent males will have all been thrown into a meat grinder or other such device to make fertilizer the day on which they hatched.  Buying eggs (or egg-laying hens for one's backyard) is inextricably tied to that practice.

What I said did not seem to phase the "ethical vegetarian," however, because in theory, one could imagine consuming eggs without killing any male layers.  That is apparently enough, from her perspective, to justify consuming eggs in the real world, where male layers are always killed as part of the process.  

Ordinarily, as I said, I would not feel the need to respond to such an argument, any more than I would feel the need to respond to the argument "but I had a dream in which an angel said that I should eat eggs."  However, because I have now heard the argument twice, I will make an attempt to say something in response, in the hope that people who believe it has some plausibility to it might think twice the next time they encounter it.

Let us take a context outside of the animal rights (and abortion) areas, where controversy is less likely.  Say I learn that all chairs coming from the Sandusky Chair Company were made by child slaves who were beaten and forced to work for twenty hour stretches.  I happen to like Sandusky chairs, though, because they are very comfortable.  

It is undoubtedly true that chairs could, in theory, be made without violently abusing enslaved children.  In fact, not only could they be made that way but some chairs actually are made without such violence.  Does this fact mean that I can go ahead and buy Sandusky chairs with a clear conscience?  In other words, does the fact that one could in theory create a chair without beating child slaves translate into moral permission for me to go ahead and pay the Sandusky Chair Company for chairs that they do create by beating child slaves?

Some purchasers of Sandusky chairs might be ignorant about what is involved in creating those chairs and might therefore be innocent of the violence and cruelty that they are paying for.  This is true, but once the reality is brought to their attention, they are no longer ignorant.  And in the case of animal agriculture, it is becoming increasingly difficult to remain completely ignorant about the profound violence involved in creating every type of animal product, including (especially) products like chickens' eggs and cows' milk, which visit a special level of hell on the females of those species.  And the "ethical vegetarian" of whom I spoke earlier is herself quite knowledgeable about the real world of eggs and dairy, even those that supply supposedly "humane and sustainable" farmers' markets.

Ultimately, then, I must conclude that the "it could be done ethically in theory" argument is not really an argument at all but simply a (rather transparent) rationalization.  And I say this as someone who takes seriously the many common objections to veganism in Mind If Order the Cheeseburger? And Other Questions People Ask Vegans.  I would say that if something could be ethical in theory but is in fact unethical in practice, then that means that one is under an obligation, absent some truly compelling need, to avoid supporting that something unless and until the fantasy/theory becomes a reality.  Though imagination can yield many wonderful things, it cannot justify behavior that is, in reality, unjustifiable.

Tuesday, August 19, 2014

More Gratuitious Attacks on School Teachers

-- Posted by Neil H. Buchanan

A few weeks ago, Stephen Colbert interviewed someone named Campbell Brown.  I had never heard of Brown, but it turns out that she was formerly one of the interchangeable talking heads on those network morning shows, before moving on briefly to host her own low-rated show on CNN (which airs nothing but low-rated shows).  Brown appeared on Colbert to promote her new union-busting group (the funders of which she insistently refuses to name), putting a happy face on an anti-teacher-tenure lawsuit that her group has filed in New York State.

Brown probably assumed that she would get an easy ride on Colbert, expecting him to play the clown while she recited her talking points and smiled demurely.  Instead, Colbert proved that he has actually become an excellent interviewer, asking pointed questions and making trenchant comments that left Brown flat-footed.  (For example, when she tried to hide behind feel-good assertions that everything she is doing is "for the children," and some people in the audience applauded, Colbert said, " They’re going to clap because you’re playing the 'good for child' card.")

In some ways, the most amazing thing about the interview was the end, when Brown said, "I respect that," in describing her funders' refusal to be named publicly.   Colbert visibly stopped himself from attacking Brown directly, and instead said, "Well, I respect … you. I was trying to figure out who I will respect at this table, and there was no one left but you."  Ouch.  He then smiled and ended the interview. It was fascinating TV, available here.

Of course, Brown is merely one cog in a machine that is trying to end tenure for school teachers.  The latest output from that machine was an op-ed in today's New York Times by Frank Bruni, "The Trouble With Tenure."  Bruni completely buys into the idea that teacher tenure's only role is to prevent teachers from being fired for incompetence, not even bothering to give lip service to the idea that tenure might have some positive effects, like, say, protecting teachers from being fired for expressing unpopular political views. (By contrast, here is Colbert: "What if there’s someplace where the parents don’t want certain things taught to the kids? ‘Cause I’d love my kids not to be taught evolution.")

Bruni builds his story around a Democrat who helped pass a "2010 law that essentially abolished tenure in Colorado."  Making the story about a Democrat is important strategic choice for Bruni, who assures his readers that there are now "many Democrats defying teachers unions and joining the movement." Yes, jumping on a heavily-funded gravy train that attacks the beleaguered teachers union is now an act of grit and defiance!

On the substance, Bruni also accepts without question that principals and administrators are the heroes who could save the day, but that "traditional tenure deprived principals of the team-building discretion they needed."  Quoting the politician who sponsored the anti-tenure law in Colorado, Bruni writes: " 'Do you have people who all share the same vision and are willing to walk through the fire together?' he said. Principals with control over that coax better outcomes from students, he said."  This is beyond preposterous.  We knew that the Times op-ed page was filled with people who have no known expertise, but I thought that at least these guys were capable of committing journalism.  Maybe just a little bit of skepticism would have been in order.

Bruni allows that "[t]here are perils to the current tenure talk: that it fails to address the intense strains on many teachers; that it lays too much fault on their doorsteps, distracting people from other necessary reforms." But this stipulation only arrives after he allows his subject to re-frame the debate: "[I]t’s not the kids who are the problem! It’s the system."  So, when someone says that teachers are wrongly blamed for the effects of poverty, family breakdown, and so on, that apparently amounts to saying that "the kids are the problem."  And teachers thus do not deserve "job protections that most Americans can only fantasize about."  Right.  Why protect one of the few (and most important) job protections remaining in the U.S., given that we have allowed too many other people to become easy to fire?

Perhaps the most notable aspect of the column, however, is Bruni's description of the actual Colorado law that he admires so much: "To earn what is now called 'non-probationary status,' a new teacher must demonstrate student progress three years in a row, and any teacher whose students show no progress for two consecutive years loses his or her job protection."  This means that a brand-new teacher's (minimal) job protection is determined by "student progress" (presumably meaning increasing scores on standardized tests), and even experienced teachers can be canned if their students scores are unchanged for two years in a row.  Even if one thinks that there is some broad statistical connection between teacher "quality" and student "progress," that connection cannot possibly be so tight that even the best teachers could be confident that they would not be dealt a bad hand for two years in a row.

Yet Bruni wraps himself in the flag: "We need to pay good teachers much more. We need to wrap the great ones in the highest esteem. But we also need to separate the good and the great from the bad."  Great.  How are we going to do that?  Once everyone is "defying" the teachers unions, where is the pressure to pay teachers more going to come from?  Are the superman-principals who are getting people to "walk through fire together" never going to make decisions on illegitimate bases?

If we want to have a warts-and-all discussion about tenure, then we have to make the comparison meaningful, and think about the many imperfections in a system where teachers can be fired at will.  It is easy to describe an Eden in which enlightened administrators gallantly lead their properly motivated troops into battle.  But if people were that virtuous, then they would not succumb to the supposed evils of tenure in the first place.  Bruni is essentially saying, "Real-life tenure leads to less than perfect results, but fantasy-world non-tenure can be wonderful."

No one has yet designed an alternative to tenure (and unionized teachers) that actually makes matters better, for teachers and students, in a way that could be applied generally.  Until then, all this noise from people like Bruni is an excuse to sound concerned about children, while taking the easy way out and blaming the only group of people who are actually trying to deal with kids as they exist.  Teachers are not perfect, but continually attacking them only makes matters worse.

Monday, August 18, 2014

Rick Perry's Indictment

by Michael Dorf

I begin with a disclaimer: My judgment regarding Rick Perry is questionable. When he first announced his candidacy for the 2012 Republican Presidential nomination, I thought he was a lock to get it. But in my defense, that was before I had any real exposure to Perry, as opposed to seeing his paper credentials. By early January 2012 I did recognize that Perry's main obstacle to obtaining the GOP nomination was what I called his "difficulty sounding like an adult human with the capacity for speech and thought." Until Friday, it looked as though Perry and his advisors had concluded that he had overcome that obstacle for 2016, probably counting on some combination of popular amnesia, the magical smarts-conferring power of glasses, and the revelation that Perry's dreadful performance in the 2012 campaign may have been a product of health and medication issues. But now this.

Governor Perry's defense team is at least initially taking the position that Perry has done nothing wrong because he was simply exercising one of the powers that the Texas Constitution vests in him as governor, namely vetoing legislation, in this instance the entire budget of the public corruption unit overseen by the Travis County District Attorney. This strikes me as a very weak argument, at least if not further qualified.

In numerous ways and circumstances, the law confers power on people but restricts--sometimes with criminal penalties--the means by, and purposes for which, they may permissibly exercise that power. Governors and other state officials have the power to make personnel decisions. Some of these decisions are considered discretionary, in the sense that they are not subject to review by others who think that they reflect a poor policy or personal judgment. Nonetheless, such decisions are not wholly unconstrained by law. For example, a public official who fired or refused to hire someone based on race would thereby violate the Constitution. A public official who made a personnel decision based on a bribe would thereby commit a crime.

All of this seems perfectly routine and must be obvious to special prosecutor Michael McCrum. He is not charging Perry with making a poor or even foolish decision by vetoing the public corruption unit's budget. The indictment charges that Perry used what would otherwise be a perfectly legal tool for an illegal purpose, and thus committed unlawful acts. Once one thinks this through, one realizes that the defense Perry has thus far publicly mounted is inadequate. It would be as though someone who was charged with committing murder by deliberately running over his victim with his car protested: "But I have a license to operate a motor vehicle."

None of the foregoing is to say that Perry might not be able to mount a more successful defense. If I were working on his defense team (a job for which I am not volunteering!), I would make an argument that goes something like this:

Governor Perry concluded that Rosemary Lehmberg's disgraceful and criminal conduct leading to her conviction for DWI, which included an attempt to abuse her office by claiming to be above the law, rendered her completely unfit to continue to serve as Travis County DA for any period of time, especially given that office's role in ensuring the rectitude of other government officials. She therefore had an obligation to the people of Travis County and of Texas to resign. When she failed to do so, Governor Perry used all of his lawful means to induce her to step down.

Whether that is a successful defense seems to me to depend on a question of Texas law and some pretty murky questions of fact. The question of Texas law is whether one can be guilty of abusing one's official capacity and/or attempting to coerce a public servant (the charges in the indictment) even if one is trying to coerce someone to do something that is in the public interest. I don't know the answer to that question under Texas law but I suspect that the answer is yes. Otherwise, one opens up an enormous loophole for people to violate the law based on their claimed subjectively pure intentions. Consider, e.g., Oliver North's no-doubt sincere view that he was serving the public interest in defeating communism in central America.

Even if ultimately good intentions are a defense, there remain questions about Rick Perry's intentions, which will be difficult to prove one way or the other. Viewed from a distance, it looks like Perry saw an opportunity to replace an unfit Democratic DA whose office was investigating his conduct with a compliant crony who would kill or slow-walk the investigation into Perry's dealings with the Cancer Prevention and Research Institute of Texas. Are those bad intentions? Does the answer depend on whether Perry would have tried to force Lehmberg out even if she were perfectly qualified to continue? If it does, then Perry would seem to have a good defense, because he did not attempt to force out Lehmberg before her DWI incident.

My analysis thus contains a silver lining for Perry. It probably counts as an improvement in his general standing that the public is now wondering what was going on in his mind, rather than whether anything was.

Sunday, August 17, 2014

Salaita Follow-Up

by Michael Dorf

This is just a quick follow-up to my Verdict column and two prior posts on the Salaita affair (here and here).

1) As Brian Leiter notes, there is a move afoot to boycott the University of Illinois in response to its un-hiring of Salaita. I dislike academic boycotts generally, and I think it especially odd to boycott an academic institution on free speech grounds. Better, it seems to me, to try to persuade (rather than coerce) the University to correct its error.

2) Speaking of persuasion, the letter I noted in Friday's blog post is now publicly available.

3) While disclaiming any expertise with respect to the First Amendment issues in the Salaita case, on Concurring Opinions, Dave Hoffman disagrees with my promissory estoppel analysis. After saying some nice things about me personally (which I hereby reciprocate about him), he attempts to pull rank, noting how he's a contracts teacher and scholar, whereas I'm not. That's true, but I still think that I am right and he is wrong. Let's look at three key points.

a) Hoffman says that courts often deny promissory estoppel relief to unsympathetic plaintiffs. He then offers this: "My gut feeling is that unlike many liberal law professors, who increasingly treat Israel as a pariah, and who think that there’s 'clearly only one defensible side to take on this case,' elected state court judges in Illinois might not think that justice requires enforcement of this non-contract claim."

First of all, if a case were brought in court, it would likely be brought in federal court before an appointed judge, with the federal First Amendment anchor claim providing the basis for supplemental jurisdiction over the state law claims.

Second, I don't know how many times I have to say it for people to get it, but I'll say it again: Sympathy for Salaita's position should turn entirely on the fact that he was apparently punished for the expression of views. He is or should be "sympathetic" in the sense that other free speech plaintiffs are sympathetic, that is to say, regardless of the content of his views. I don't know who Hoffman thinks are the "liberal law professors who increasingly treat Israel as a pariah are," but I'm certainly not one of them, nor are most of the liberal law professors with whom I've spoken. I said in the column and I'll say again here: I disagree with the substance of Salaita's views and the tone he used (on Twitter) to express them. That's simply not the point. And any judge who decides case based on his or her sympathy or lack of sympathy for the content of Salaita's views is himself or herself violating the First Amendment.

[**Update**: I originally failed to notice that Hoffman's statement regarding liberal law professors contained a link to a post by Brian Leiter, in which Leiter says "there’s clearly only one defensible side to take on this case if you support academic freedom, tenure and freedom of speech" (emphasis added by me). But Hoffman leaves out the portion of that quotation that I have placed in italics. With that omission, and by placing Leiter's statement just after Hoffman's claim that "many liberal law professors . . . increasingly treat Israel as a pariah," Hoffman (probably unintentionally) creates the misleading impression that liberal law professors who think the free speech and academic freedom issues are one-sided also necessarily think that Israel should be treated as a pariah. At least that's how I read it, even after I noticed the link.]

b) Hoffman's main point about promissory estoppel is that a promise can only induce reliance if the promissor has the authority to make it, and as the letter to Salaita makes clear, the Interim Dean making the offer did not have that ultimate authority: The appointment was subject to board of trustees approval.

First, at the very least, the Interim Dean's letter makes clear the intent to present Salaita's case to the board, and surely the Interim Dean had the authority to do that. Thus, to the extent that the core complaint is that the university officials reneged on their promise to present Salaita's case to the board, Hoffman's point is irrelevant. There is the breach of a promise.

Second, as Hoffman notes, an agent's promise can induce reliance when the principal knew about it. The offer to Salaita was made and accepted in early October 2013. There then followed a long period when Salaita was quite publicly identified with the University of Illinois. It's possible that the board was unaware of this, but it seems more likely that the board was aware. Moreover, given the apparently standard University of Illinois practice of faculty beginning teaching and working for the university before board approval of their appointments, the board had to be aware that prospective faculty would rely on board approval as a rubber stamp.

c) Hoffman also says that promissory estoppel is a rare bird, citing his expertise and that of my colleague Bob Hillman. As it happens, I got the idea to write the promissory estoppel piece from a paper that Hillman presented in a faculty workshop a couple of days before I wrote the column. I then researched Illinois law and discovered the 2009 case I cited (Newton Tractor Sales Inc. v. Kubota Tractor Corp.), which Hoffman cites as well. He then writes: "Notably, Newton recognized that there [is] a live cause of action for PE in Illinois, but the case strongly suggests that the issue had been in doubt — as of 2009!"

Strongly suggests that the issue was in doubt? Really? Some intermediate appeals courts in Illinois had questioned the availability of a promissory estoppel claim, but in fact, Newton said that those courts were dead wrong. Far from suggesting that the issue was in doubt, the Illinois Supreme Court cited multiple cases going back to at least 1879 showing "that promissory estoppel has previously been recognized as a cause of action" in Illinois. Not that the court was in 2009 first recognizing the cause of action, but that the cause of action was very well established.

Despite this very long line of Illinois precedents, Hoffman says that he, as a contracts scholar, knows better. Apparently, all of the people and firms bringing the promissory estoppel claims that ended up in the official reports were just dupes of silly lawyers who didn't really understand that promissory estoppel claims are usually hopeless, a mere plaything for academics.

Does all of this mean that Salaita would necessarily win a promissory estoppel claim? No, nor did I say so before. But nothing in Hoffman's analysis leads me to think that my initial assessment was wrong. It seems to me that Hoffman's best argument is not about the law at all but a legal realist objection that Salaita could lose because a judge might compound the university's violation of his right to freedom of speech by committing another such violation.

Friday, August 15, 2014

Twitter and the Generation Gap

by Michael Dorf

My Verdict column on the Salaita case on Wednesday prompted a good deal of discussion on Twitter, Facebook, etc. I also received a fairly large number of private emails, some agreeing in whole or in part, others raising objections. One supportive comment came from a former colleague who asked whether she could include parts of my column in a letter from legal scholars with specialties including free speech and academic freedom to the Chancellor of the University of Illinois, urging the latter to reverse course and submit Salaita's name to the board of trustees after all. I agreed and our letter--which makes very clear that signatories take a wide range of views on the underlying substance and tone of Salaita's controversial tweets--is in the works.

Here I want to explore a practical question raised by a response I received from one of the scholars I invited to consider signing the letter. This person replied:
After reading the letter, I was inclined to sign it, but then I read [Salaita's] tweets. To be honest, they give me pause, not because of the substance of his views, but because he's behaving like a moron. Whether his views are pro- or anti-Israel, I would not expect any colleague of mine to make such stupid comments in the course of public debate. Now, I have to admit that I don't tweet and I never read twitter, so perhaps I'm more put off by the inanity of his comments than I should be. But in my view it's as if he ran down Main Street in a clown costume doing flips and screaming Beatles songs at the top of his lungs. He has a right to do it, but do I want him as a colleague? What kind of judgment does it show? I know I should be wildly supportive, in principle, but there is a difference, I think, between withdrawing the offer because of opposition to his ideas and withdrawing the offer because he's behaved in a manner (regardless of his ideas) that suggests sheer stupidity and terrible judgment. Of course, if we knew that the University withdrew the offer because of the substance, rather than because of the manner of discourse, the case would be clear.
I'll say a word about the merits here before coming to the main point I wish to make. The merits point is that if the university revoked Salaita's offer in response to perceived stupidity or bad judgment, it at least ought to have the burden of showing that, either because Salaita has a prima facie free speech claim (which I think he has) or because, on my contract law analysis, he has de facto tenure and is entitled to procedural due process.

But let's put all of that aside. I want to focus on the question of how faculty should conduct themselves in writing for the general public and via social media--on the assumption that they cannot be subject to any formal sanction for that conduct. My hypothesis is that there is something of a generation gap. Both the responder quoted above and I fall on the older side of that gap. I'm 50; the person I quoted above is older.

I'm not sure exactly where the line is, but I'd guess that it's currently around 40 years old--roughly the age one would need to be to have experienced the pre-Internet world as an adult. According to the information in one of his books, Salaita was born in 1975, so he's just on the younger side of the line, but of course I made this line up, so that doesn't really prove anything about him. In any event, what I have to say here is not really about Salaita in particular, so much as it is about how people of different generations represent themselves online. My hypothesis is that people younger than (roughly) 40 feel fewer constraints on what's appropriate to publish online than we old fogies do.

Much of what divides generations is purely stylistic. At some point about 15 years ago, I started to see substantial numbers of students showing up in law school with tattoos and multiple piercings. At first I thought this was unprofessional and I admit that even today, when I see someone sporting neck tattoos in the style of, say, basketball player Chris "Birdman" Andersen, my first thought is not "that guy is going to make a great impression arguing a case before the Second Circuit." But for the most part I have come to understand that this is simply an arbitrary matter of taste. I would not be surprised to learn that earlier generations of academics were likewise perplexed when people like me began teaching without a jacket and tie.

There is also a substantive dimension to the generation gap, however. For lack of a better place to start, I'll begin by considering my own writing as an example. I write for different sorts of audiences. When writing educational materials like casebooks and supplements, I try to write as objectively as possible. I have a perspective, which I don't hide, but I try so much as possible to present other perspectives as well. I also assume that the audience is somewhat sophisticated. I treat this sort of writing as similar in content and tone to teaching.

I also write academic papers for mostly academic audiences. I try to write in a style that's engaging and even funny at times, but I don't expect the average person to be interested in this writing because I assume a good deal of specialized legal background on the part of my readers. My tone in this work is also professonal but sometimes less objective. Some of my academic work is analytical or empirical, aiming to illuminate rather than to persuade, but some of my work is at least partly normative. When writing normative scholarship, I try to be scrupulously fair to people who hold different views and to address their arguments in the course of making my own, but my goal is not to present all positions as equally plausible and let the reader decide--as it is when I teach or when I write educational materials.

Then there is my popular writing, like my Verdict columns and my entries on this blog. Here too I have different aims at different times--sometimes to illuminate, sometimes to persuade. There are four main differences between my academic writing and my popular writing: (1) Pieces for the latter are much shorter; (2) they mostly aim for an audience that includes non-academics and non-lawyers, so they tend to be less technical; (3) they respond to news events quickly, so there is less time for me to cite-check and proofread as thoroughly as I do (aided by research assistants and editors) in my academic work; and (4) especially on the blog, I sometimes take a substantially breezier, more irreverent tone than I do in my academic work.

In none of my writing for public consumption do I use profanity gratuitously. I'll quote someone else's use of profanity where relevant (as in my column on Wednesday, in which I quoted Salaita's use of profanity), and I'll even run with it a bit, as in my blog post on Wednesday, in which, following the title of Robert Sutton's book, I repeatedly used the word "asshole." However, these are pretty rare exceptions.

I realize that one can be a respectable academic and follow somewhat different approaches from the ones I've outlined. Some scholars at least aim or purport not to make normative points at all. Others are considerably more normative than I am, seeing scholarship as an extension of advocacy. I don't mean to suggest that I'm at the exact midpoint but I do think that I have a pretty good sense of the range of approaches and that mine falls squarely in the mainstream.

The picture is somewhat more complicated with respect to blogging, writing op-eds, and so forth. I think it's generally accepted that even people who strive for a detached scholarly tone in their academic writing can and often do turn more tendentious in their popular writing. Here too, though, I think that my own judgments about tone are widely shared: You see a considerable volume of snark by academics writing for general audiences; you don't see a lot of in-your-face profanity.

Twitter is something else. I have automated Twitter (and Facebook) to blast out links to my columns and blog posts but only extremely rarely do I use Twitter to compose a freestanding comment--and even then it's usually something like announcing a conference. I haven't mastered the art of making a substantive point in 140 characters or fewer, and given my intellectual sensibilities, I doubt that I can.

But I think that for people who do compose substantive tweets, the Twitter medium itself encourages provocative exclamations--so that their tweets will get noticed--and gross oversimplification: It seems to me nearly impossible to give counter-arguments their due when tweeting. Quite apart from the problem of Twitter trolls, I strongly suspect that Twitter as such accounts for much of the reaction by the emailer quoted above: to tweet (other than by posting a link to something considerably longer and more thoughtful) is almost necessarily to behave like a fool. (Salaita is a useful example; I doubt that the person who called his tweets moronic would have said the same about Salaita's other popular writing, such as for Salon.com, which is polemical, to be sure, but well within the bounds of conventional public discourse.) 

None of what I've said about Twitter so far has a clear generational cast. A Baby Boomer who attempts to tweet attention-grabbing freestanding commentary, no less than a Gen-X-er or a Millenial, is likely to sound like a fool a good deal of the time. But there are two reasons to think there nonetheless is a generational divide.

First, youngsters are much more likely to tweet than we fuddy-duddies are. I recall learning about ten years ago that my then-teenage nieces and nephews didn't really "do email." They had email accounts but if I wanted to get in touch with them I needed to text. Apparently, they were and are fairly representative of their generation: They communicate in short bursts. And so for those below the generational divide I've identified, Twitter feels like an appropriate medium, even if it makes them sound like fools to us oldsters.

I realize that as I write this, Twitter itself is probably no longer considered cool by the youtherati, perhaps having been supplanted by Tumblr, Instagram, Reddit, Snapchat, and maybe even by newer apps and networks I've never heard of, like Piehole, Blowhard, and Mouthoff. Never mind. My point is not Twitter-specific. Instead, I mean to say that those on the younger side of the generational divide are more comfortable making their points in a sentence or less than are those of us on the older side of the gap.

Second, and relatedly, the lines between private and public statements are increasingly blurred. Sure, the whole point of a popular Twitter feed is that it's public, but increasingly the ability of people to share material across platforms with their "friends" and with "friends of friends" can make it hard to tell what is private and what is public. I get the sense that a lot of people--especially younger ones--have simply given up trying to draw the distinction or simply don't care. As a consequence, the sort of thing one might previously have said only orally and in private to a few people--such as "Governor Fortenbaugh is a real horse's ass"--now readily appears in Facebook posts and comments, which, to people who post such things on Facebook, may feel indistinguishable from posts on their Twitter feeds. And so they end up sounding like dopes.

Finally, let me say two things to my younger readers: 1) You're welcome; and 2) Get off my lawn.

Thursday, August 14, 2014

How Much Is It Worth to Be Above the Law?

-- Posted by Neil H. Buchanan

This morning, the editors of The New York Times published two editorials applauding the O'Bannon case, claiming that the outcome will prevent universities from "exploiting the very students they have always purported to protect," and applauding the demolition of "[t]he myth of the pure 'student-athlete.' ” Meanwhile, Verdict had already published my latest column, in which I take a very different view of the landscape of college sports.

In my column, I return to an argument that I first offered here on Dorf on Law last December, where I described why there is nothing inherently wrong with "unpaid labor" in the context of nonprofit organizations.  At a minimum, as I will describe at greater length in a future post/column, none of the identifiable problems with college sports would be solved by paying cash to players, whereas such payments would certainly make matters worse in a number of important ways.

In today's column, I argue that the public confusion over college sports is rooted in the simple difference between revenues and profits.  College football and men's basketball produce lots of revenues, so they are called "money-making" sports, conflating revenues with profits.  Once one has made that analytical error, the question then quickly becomes why "everyone is getting paid except the guys on the field," or similar sentiments.  It all sounds very noble, but the supposed benevolence is misplaced.  In the for-profit world of professional sports, a conflict between owners and players is a zero-sum game.  (The owners will maximize ticket prices and TV revenues, no matter the content of the labor agreement, so "the fans" are not part of that story.)  If the players don't take their millions, the money goes to the private benefit of the owners.  Whatever else one might say about the big-time college sports programs, there is a long distance between a university president and an NFL owner.

I will come back to those arguments again, as I noted above, but I want to go in a slightly different direction here.  In my column, I again remind readers that college players are, in fact, paid quite well, in the form of full-ride scholarships.  As I wrote in a Verdict column that accompanied that Dorf on Law post from last December, the graduation rates of big-time athletic programs are not only un-terrible, but they are actually somewhat impressive (especially compared to the cynical conventional wisdom).  Moreover, even people who do not graduate benefit measurably from having attended college.

But cynicism is most definitely the order of the day in these discussions, so people quickly responded that there is no education at all going on at these universities, as far as football and male basketball players go.  Anecdotes have a way of morphing into established facts, which are then used to support the idea that universities are simply providing free tuition to jocks without giving them a college-level education.  Or, the claim at least is that such a large fraction of the athletes are not receiving educations that only a dupe of the NCAA would continue to think that full-ride scholarships are true compensation for the work of playing professional-in-everything-but-name sports.

Let us, then, temporarily embrace the cynical view, imagining that the worst things we hear about college athletics are universal, and therefore that the free tuition that these players receive is worthless.  What is left?  As I argue again in today's column, there is something odd about imagining that the modern college athlete at a "money-making" program is not receiving unique benefits.  Living in athletic dorms, with free room and board, is hardly an inconsiderable perk.  Even if, as the cynics claim, all too many of the recruited athletes are unready for college-level school work (or, if ready, are discouraged from using their minds), and thus do nothing but play video games and party between practices and games, that is a pretty sweet way for a young guy to spend four years of his time.

Which is, of course, before we have said anything about the Big Man on Campus phenomenon.  These athletes are not merely set up in special dorms and told not to be bother to attend class.  (Again, I am stipulating arguendo the certainly-overstated cynical view of the story.)  They are the gods of the campus.  Everyone wants to know them, and everyone wants to do favors for them.  Their social lives are -- how to put this politely? -- notably more successful than the average college guy's social life.

At this point, however, why not be completely cynical?  In addition to the regular trickle of anecdotes about academic fraud in big-time programs, there is a companion narrative in which apparently large numbers of athletes get away with whatever they want to do, on and around campus.  One 1980's graduate of Penn State described to me what it was like to try to co-exist with the supposedly squeaky-clean Nittany Lions football program, with players bullying other students in dining halls and basically throwing their considerable weight around with impunity.  Unfortunately, news reports confirm that such misdeeds by college athletes frequently cross the line into criminal behavior.  Some of these crimes are prosecuted, but the cynical view is that this goes on all the time, and the players get away with almost all of it.

In the 1996 comedy movie "Kingpin," a professional bowler named Big Ern (played by Bill Murray) wins a million-dollar tournament.  He is asked how it feels to win, and he replies: "All l know is, l finally got enough money... that l can buy my way out of anything.  l can do anything l want when l get my money later.  And l won!  Finally, Big Ern is above the law!  lt's a great feeling."

But allowing people to be above the law is, of course, not at all funny.  Last month, The New York Times ran a searing front-page story about how a tiny liberal arts college grotesquely mishandled a case in which a student claimed that a football player had raped her.  The player and his accomplices were cleared after a mere 12 days of perfunctory investigation, and other students on campus apparently isolated and taunted the student who was raped.  What is perhaps most pathetic about the story is that the college in question competes in the lowest division of football, but the undefeated team is still treated like gods on campus -- so much so that students will unquestioningly support the players and blame the 18-year-old victim.

Of course, the much bigger sports-related rape case last year involved the eventual Heisman Trophy winner, who quarterbacked Florida State to a national championship.  According to reports, a rape complaint to local police against that player was suppressed even before he had emerged as a superstar.  A law enforcement official in Tallahassee reportedly advised the victim not to pursue the claim, because there was simply no way that things would turn out well for her in that football-mad town.

To be very clear, I am not saying that two wrongs make a right, such that it would be OK to exploit football players (wrong) because some football players commit crimes up to and including rape (very, very wrong).  I am saying that the lives of college athletes are different from others, in some ways that are worse (physical damage, for which they clearly deserve adequate care and insurance) and some ways that are better.  If we are going to traffic in generalizations and innuendos, however, then the idea that there are a bunch of poor, uneducated kids being cheated out of their college educations must share the spotlight with the idea that college athletes are a bunch of pampered, out-of-control bullies and criminals.  Neither stereotype is likely to be true in general, but the latter is as believable (and supported by many more real-life incidents) as the former.  We can say, "All college athletes are  fake students, but they also all live life outside of normal rules," or we can note that both of these popular suppositions are thankfully exaggerations.  Both problems should be more aggressively addressed.

There is a lot of money floating around college sports, and it is corrupting not just the colleges but pre-college athletes as well.  (See especially this story about the way the detestable Deion Sanders' arrogance and star status have induced the Texas state government to give him carte blanche in running a corrupt charter school for elite high school athletes.)  Some of that money is being used to somewhat overpay coaches, and to build needlessly lavish athletic facilities.  But an honest look at the picture does not support the idea that the athletes are receiving nothing for their efforts.  If we are going to redirect some of the money to other uses, it would be nice for it to actually fund the universities' educational activities.  In addition, however, there are plenty of good ways to improve the lives of athletes and other students that have nothing to do with cash salaries.

Wednesday, August 13, 2014

Firing Versus Not Hiring

by Michael Dorf

[Warning: Point 3 of this post repeatedly uses a mildly profane term. Do not read aloud to young children.]

My new Verdict column addresses the academic freedom issues raised by the recent decision of the University of Illinois board of trustees to disapprove a tenured appointment for Steven Salaita, in apparent response to his strongly-worded tweets criticizing Israel's military operations in Gaza. In response to charges that the university thereby violated Salaita's academic freedom, the university's defenders have drawn a distinction between firing a faculty member for his extracurricular statements and not hiring him in the first place. In turn, many academics have dismissed this defense as relying on a technicality. I argue in my column that the firing/not-hiring distinction is--in this context--not even a technicality. Under state law principles of promissory estoppel, Salaita probably was already de facto hired; and the First Amendment limits the power of a state university to engage in viewpoint discrimination, even at the hiring stage. Thus, the column concludes that the firing/not-hiring distinction does not provide even a technical defense of the Illinois decision.

Nonetheless, there certainly are factors that a university (or other employer) may legitimately consider at the hiring stage even though they would be illegitimate as a basis for firing. Here I want to say a few things about what those are and why. I focus on university employment because I know this context well, but what I say should also be relevant to other employment settings in which a contract or something else forbids firing except for good cause. Interestingly (at least to me), I think that some of the added protection against firing applies in the university setting even to non-tenured faculty.

As a preliminary matter, I want to be clear that I'm not now talking about the sorts of factors that are impermissible at both the hiring and firing stage. Antidiscrimination law singles out some such factors: e.g., race and sex. As I argue in the column, the First Amendment singles out another such factor for government employers: viewpoint. Some of these factors are only presumptively impermissible. E.g., sex (but not race) can sometimes be a bona fide occupational qualification (BFOQ). Likewise, as I note in the column, viewpoint discrimination is sometimes permissible for positions in which the employee's speech will be attributed to the government.

So, what sorts of factors are legitimate at the hiring phase but not the firing phase? I want to consider three.

(1) Curriculum. This is perhaps the least controversial. Suppose that a history department is looking for someone in colonial-era American history due to retirements or departures that have left a big hole in the department's curriculum. Along comes a spectacularly well-credentialed scholar and teacher of ancient Roman history. Let's call her Jane. Jane is terrific but the department already has enough historians of ancient Rome. It's looking for American colonialists. Pretty clearly, the department can decide to hire a not quite as well-credentialed scholar of colonial-era American history--call him Peter--rather than hiring Jane.

But now fast-forward ten years and suppose that Peter has tenure. Suppose also that there is now an opportunity to hire another, even-better, scholar of American colonial history, called Amy. If the department hires Amy, it will have more scholars of American colonial history than it needs. Can the department fire Peter to make room for Amy? I think the answer is plainly no. In dire financial circumstances, universities are permitted to eliminate positions even if those positions are filled by tenured faculty, but that is not what is going on in my hypothetical example. Curricular need is a legitimate hiring criterion but not (absent extraordinary circumstances) a legitimate firing criterion.

(2) Quality.  In some departments in some universities, the scholarship quality standard for tenure is the same for hiring lateral faculty with tenure as for promoting junior faculty to tenure. In other departments or schools, the standards are somewhat different, at least in practice.

That brings to mind an anecdote by way of illustration. I once attended a faculty meeting (I won't say where) at which a then-colleague was making an argument for hiring a lateral candidate. Certainly this candidate satisfied our internal tenure standard, the then-colleague said. Another then-colleague objected: "A table would satisfy our internal tenure standard," he said, pounding the table for appropriate emphasis. There then ensued a discussion, in which there appeared to be general agreement that as a formal matter our internal and external standards were identical but that in practice the internal standard was somewhat lower. This discount was in addition to other factors that might be relevant to evaluating an external candidate but that would be irrelevant for an internal candidate, such as curricular fit.

Now obviously a table would not satisfy any tenure standard. In schools and departments that grant tenure more readily to their junior faculty than to lateral candidates (even if they do not officially say that this is their policy), the scholarship standard is more like this: Publish reasonably good quality work in reasonable quantities. Put differently, there is a presumption that the sort of person hired at the entry-level will, if she keeps her nose to the grindstone, get tenure.

The reasons for a policy of this sort (even if informal) are pretty easy to identify. Junior faculty will be more at ease and more invested in the institution if they come in with the expectation that they will get tenure if they work hard. That, in turn, will make it easier to recruit top entry-level faculty.

The reasons for a contrary policy are also pretty easy to identify. A too-ready willingness to grant tenure to junior faculty who do passable work could end up leading to a faculty of mediocrities. In addition, knowing that faculty hired at the entry-level will almost invariably get tenure could chill a faculty's willingness to take risks at the entry level.

My goal here is not to adjudicate the relative strengths and weaknesses of the two approaches. I simply mean to identify quality of work as a factor that may be more relevant (or at least subject to different standards of evaluation) at the appointment stage than at the firing (i.e., denying tenure to an internal candidate) stage.

(3) The "No-Asshole" Rule. In his bestseller The No Asshole Rule, Stanford Management Professor Robert Sutton argues that firms and organizations can maximize their potential by adopting a rule barring the hiring of assholes. His paradigm example is a person who excels in his own work but is such a jerk to others that he undermines the enterprise as a whole. The demoralization cost to the organization outweighs the benefit of the asshole's individual contributions.

So now the question: Assuming that a no-asshole rule is legitimate at the hiring stage (as I believe it is), are there reasons to think it is illegitimate at the firing/retention stage? I think the answer is mixed.

Certainly it seems to me that a university could not fire a tenured professor for being an asshole, absent some conduct that would otherwise rise to the level of for-cause dismissal, such as committing a violent felony, sexually harassing students or colleagues, or repeatedly failing to show up to teach his classes. Just being an all-around jerk by, say, asking obnoxious questions at workshops, would not amount to cause.

However, I tentatively think that asshole-ness is a legitimate ground for denying tenure to an otherwise tenure-worthy junior colleague. Tenure typically turns on three criteria in descending order of importance: scholarship; teaching; and collegiality. Being an asshole can be relevant to teaching, but the more interesting case (and one that I have seen a few times in reality) involves someone who is generally a good or even excellent teacher but an asshole to colleagues and/or staff. This is admittedly not very common in junior faculty. People with assholic tendencies try to keep them in check before they have tenure. If someone nonetheless comes across as an asshole as a junior colleague, then he or she is likely to be a gigantic asshole once tenured. Accordingly, lack of collegiality could, at least in theory, be grounds for denying tenure to an otherwise tenure-worthy asshole.

I am nonetheless somewhat uncomfortable with that conclusion because of the vagueness of the collegiality category if it permits consideration of asshole-ness. Collegiality is usually measured by such relatively objective criteria as participation on committees and regular attendance at workshops. Now someone can do those things and still be an asshole. But the problem is that asshole-ness could then be used--either consciously or unconsciously--as a cover for more illicit criteria, such as political disagreement.

Of course, that could be true even at the hiring stage too. Suppose that Lawrence does exceptionally well-regarded work in Russian history and has excellent teaching evaluations, but holds controversial political views. If Lawrence is also an asshole--or even if there is some evidence that some people regard Lawrence as an asshole--then some people might say they are not hiring him because he is an asshole even though the real reason, or at least a big part of the reason, is that they don't agree with Lawrence's political views. The problem may be compounded by the fact that some people regard Lawrence as an asshole because of his political views.

Accordingly, although I am favorably inclined towards a no-asshole rule, I think that one must implement it very carefully.