Thursday, May 01, 2008

Why Didn't I Think of That?

In March, University of Arkansas-Little Rock Law Professor Richard J. Peltz sued two of his students for defamation after the latter accused him of being a racist, a charge he denies. (Although the lawsuit was filed in March, I just learned about it from the NY Times story that first ran today.) I have been unable to find an online copy of the complaint but the core of the case appears to be this: (1) Professor Peltz is an outspoken critic of affirmative action. (2) He also least insensitive to student concerns about racial justice, as evidenced by, among other things, his in-class display of this article from The Onion. (I would note, by the way, that the piece, as satire, could easily be read as supportive of the civil rights movement, given the implausibility of its central point---that American society has finally moved beyond race. However, given the other views of Professor Peltz, his students may well have been right to read his use of the piece as meant to belittle the civil rights movement. Context matters). (3) Students in Professors Peltz's class and the school's chapter of the Black Law Students Association accused him of racism. (4) Thus, he sued them. Although other stories around the web suggest that Professor Peltz also thought that the school administration did too little to defend him against the charges, the school is not a defendant.

Where to begin? The man-bites-dog quality of the story is delightful, of course. Surely every law professor has at some time worried that an ill-considered comment he or she made, or a bad grade he or she conferred, would result in a lawsuit by a student, but I'll bet it had not occurred to most law professors---it certainly hadn't occurred to me---that we could be the plaintiffs suing our students for, say, lousy course evaluations.

There is also the double irony of this case:

Irony 1. Professor Peltz was not well-known outside of Arkansas legal circles before the filing of this lawsuit, but he is well-known now, and what he is known for is being the law professor who sued his students for accusing him of racism. Arguably, his reputation suffers a much greater injury from the bringing of the lawsuit than from the underlying charges. That's often true of defamation suits by people who are not previously well known.

Irony 2. Professor Peltz teaches First Amendment law and, judging by the titles of his publications and the news of the lawsuit itself, appears to believe in free speech as an affirmative good. It is not hard to see him arguing that the students, in branding him a racist simply for strongly disagreeing with their policy views---for his political incorrectness, in other words---were trying to shut down his expression of those views. But of course, suing students for expressing their own views is not exactly a speech-friendly act.

I don't know nearly enough about the underlying facts to form a clear view about the merits of the suit, but I'd still be surprised if it succeeds. It's almost always a bad idea to call someone a "racist" unless he's an active member of the Klan, defender of slavery or segregation, or what-have-you, but that's as a matter of the social rules of discourse.

The students will almost certainly argue that in calling Professor Peltz a "racist" they were expressing an opinion, rather than making a claim of fact, much in the way that one of my students could defend himself if I sued him for calling me, say, an "asshole." The student-defendant in my hypothetical lawsuit would not be obliged to show that I am, literally, an anus, or even that I am, on balance, a mean person. "Racist," like "asshole," is an all-things-considered evaluative term meant to express the speaker's negative judgment. And the First Amendment overlay on defamation law protects such opinion statements that are not meant to be taken as fact. So unless Professor Peltz can show that the defendants made false statements of fact---e.g., stating he attended Klan rallies when he did not---his lawsuit faces serious obstacles.

Posted by Mike Dorf


egarber said...

So from a legal standpoint, is a professor a public figure, where he has to prove reckless disregard? Or is the standard mere neglect? Or am I misapplying the standard altogether, since this isn't the press / libel?

Michael C. Dorf said...

A law professor COULD be a public figure, who would therefore have to prove reckless disregard, but I very much doubt that all law professors are, ipso facto, public figures.

egarber said...

What if you were to sign on as Obama's constitutional law advisor, and you sometimes appeared in public with him? I wonder if that's enough to cross some line -- vs. law professors running panels that happen to get picked up from time to time in the press.

David C. said...

I have to brush up on my defamation law, but I think I remember that you have to establish that you suffer some sort of economic damage; i.e., you can't simply say that you were insulted. As a tenured professor, what damage would Peltz suffer? His job is secure, and he's got no vendors, etc. that will stop dealing with him. It seems like Petlz has an uphill litigation battle.

Sobek said...

"'Racist,' like 'asshole,' is an all-things-considered evaluative term meant to express the speaker's negative judgment."

That's true, and regrettable. The word used to have some kind of meaning, and was therefore useful. David Duke is a racist, not just because he is a scumbag, but because he believes in the inherent superiority of one group based strictly on race.

Now the word is essentially meaningless but still highly damaging, and far too vague to actually defend against. It really means nothing more than an extremely subjective "I don't like you."

Sherry F. Colb said...

In response to sobek, I think the term "racist" continues to have some content, but there are a variety of approaches to what that content might be, and the resulting confusion causes the problems that he articulates. At the very least, calling a person a racist is a way of making a normative judgment about that person's views on matters of race, and I think that is why the accusation is as damaging as it is. Some differing definitions are: one who believes that one group is inherently superior to another (or inherently entitled to greater rights than another), simply based on race; one who does not believe that members of different races should have close relationships with one another, all things being equal; one who takes positions that are out-of-step with those of the mainstream of a particular community (e.g., the black community/the blue collar community, etc., not that any of these is a monolithic group) on matters pertaining to race. Part of its potentially devastating impact is the conflation of the various meanings that people ascribe to racism. For example, some people consider anyone who opposes affirmative action to be a racist; other people consider anyone who supports affirmative action to be a racist. I think that neither of these positions is productive and that they tend both to water down the force of the racism accusation when applied to something truly reprehensible and simultaneously to stigmatize and ostracize people who have not expressed a view worthy of condemnation. Why can't we all just get along?

Sobek said...

" who takes positions that are out-of-step with those of the mainstream of a particular community ... on matters pertaining to race."

That is apparently the sense in which Prof. Peltz' student intended the word, but (in my opinion) the least useful. Suppose we have a race, the vast majority of which believes that it is inherently superior to all other races. Then suppose a member of that race disagrees with the majority, and thinks that all races are equal.

Under my proposed definition, and Prof. Colb's first two definitions, the majority of the group itself is racist, and the dissenter is not. Under Prof. Colb's third definition, the group is not racist because their majority view by definition is not out of the mainstream, and the dissenter, who believes in racial equality, is a racist.

All that assumes that what "the mainstream" believes can actually be ascertained with any kind of reliability.

David said...

How about defining the word to mean "someone believing in the concept of race"? A concept, incidentally, that is in decline in anthropological circles.


Sobek said...

David, that would ironically mean every one of Prof. Peltz' students/defendants is a racist.

David said... point, perhaps.

Sobek said...

Of course the fact that the definition seems open for debate underscores the fact that the word has lost all meaning.

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