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Friday, August 18, 2006

In Response to Eugene Volokh

The UCLA law professor and ardent free speech advocate behind the Volokh Conspiracy writes on recent news of intimidation at Dartmouth. Professor Volokh writes with apropriate lawerly skepticism, and concedes a certain ignorance to the background of the story (“I’m not an expert on the Dartmouth governance debates, and for all I know…”) straight away, but then goes on to cast suspicion on the twin Nick Stork and Andrew Eastman episodes as free speech cases. I, and many keen lawyers in the comments section, if you’ll take a look, think his trepidation is understandable but ultimately unnecessary.

Professor Volokh says the following (note that the beginning is sarcastic, and the italics his):

Harsh — the administrator criticized a student’s views. He apparently effectively said “your political views are wrong, here are the right ones.” He communicated to a vocal critic of the administration that he was paying attention to people’s criticisms of the administration.

I’ll interrupt early to say that sarcasm is probably not justified here. That’s largely because the professor’s post, and the original construction of these sentences, was written when he thought the aggrieved to be a man who had graduated Dartmouth, and not, as is indeed the case, a student under the authority of the administrator in question. A student being given “right” political views by an executive at his College really is wrong, when the forum in question is not any kind of a public debate but a closed meeting. Particularly one in which the student was, to his surprise, ganged-upon by two such administrators, and was not even apprised of the meeting’s agenda beforehand. Professor Volokh continues:

I take it that the student might have been somewhat worried that the administrator would somehow affect the closing days of his school career (the student was about to graduate), but it would take someone with a pretty poor view of Dartmouth to think that there’s that much of a chance that the administrator would, say, urge professors to unfairly lower the student’s grades or some such. (Top universities, to my knowledge, are known for leaving the individual grading decisions to the professors, except to the extent that they leave them to TAs.)

Professor Volokh forgets that there are other ways in which to threaten someone, and moreover that threats in these situations are more often implicit than explicit. Nick Stork made it plain that he felt pressure not to change his mind, but simply to cease his political activity, and the facts of the meeting as we know them support the notion that that was the intent of the meeting. This is not the mark, as Professor Volokh later claims, of a ‘debate’ forum.

And if this was the student’s view of Dartmouth, then I’m surprised he had spoken out in the first instance, since the administration could (if it’s willing to break all the rules) retaliate against a student whether or not an administrator decides to personally argue with the student.

This strikes me as an unfair point, akin to saying we should not fight terrorists because they might terrorize us more, or that defectors in Communist China should not operate their underground newspapers exposing the behavior of their government, since they know all about the government’s oppressive behavior and ought to therefore know better.

All the evidence suggests is that the administration is willing to talk back to students who they think express unsound views. Not a lot to build a case of intimidation and censorship (much less, as the blogger later says, “indecent tactics”), it seems to me.

But, gosh, what political views are officially considered by the Dartmouth administration to be “unsound”? Who gets to decide? To be specific, Nick’s view was against a proposed new constitution for Dartmouth, something which many students (and three trustees) oppose. His views are clearly not unsound. They may be disagreeable to certain of Dartmouth’s administration, but that does not afford any administrator a license to use his position and his conference room to coerce a student to cease his opposition to the constitution in a distinctly intimidating way.

Professor Volokh is standing up for the right of free speech for administrators here, and from that stance he claims that Nick Stork’s experience does not represent, as I have said it does, a “crackdown of freedom of speech” at Dartmouth. I don’t think anyone disputes that employees of a college have the right to speak their minds just as much as do students—Professor Volokh, in his post, responds to people who do dispute that right. The situation in question is not a debate. Here is one more excerpt from Nick Stork’s statement:

Mr. Spalding then pointed to the email I had sent to my fraternity brothers. He began quoting it to me. He became agitated. He criticized the views I expressed and the way in which I expressed them. Next Mr. Spalding began questioning me about my personal life, including my membership in student groups. He had made clear to me that he knew which groups I belonged to, what positions I held, and who my friends were. As I answered his questions, I got the distinct impression that he was checking his notes against my replies, verifying the records in a file he had compiled on me. As the meeting ended, Mr. Spalding once again attacked the “Vox Clamantis in Deserto” website.

Now, recall the participants: Two College employees and one student whose graduation is incipient but not guaranteed. Recall the venue: A closed conference room. Recall also that the administrator in question has repeatedly, in public fora, stated his and his office’s commitment to neutrality on the topic at hand, the proposed constitutional overhaul. The president of the College has done the same. I think it is clear that Nick Stork did not have his personal e-mails presented to him in a ‘debate’ situation. His claims of intimidation strike me as utterly convincing, given the degree to which the facts as laid out in his statement have been confirmed (or demurred from) by the administrator in question.

UPDATE: Todd Zywicki responds to his colleague here.

Posted on August 18, 2006 12:45 PM. Permalink | E-mail This