Foolishness in Akron

The University of Akron has reserved the right to require applicants for certain jobs to submit a DNA sample. It hasn't demanded DNA from anybody yet. But the policy has rankled some faculty. My colleague David Kaye, who follows legal doctine and fornesic genetics on DoubleHelixLaw, has commented on the new policy.

Thoughts on Academic Freedom and the Role of the University

“Never discuss religion or politics.” How many times has this admonishment been tossed around, yet how often do we heed it? Perhaps in the business context we are more careful to avoid such “touchy” subjects, but what about social settings? What about the academy? The ideals of academic freedom serve to foster and protect all opinions about potentially divisive issues, yet does this protection rooted in the penumbra of the First Amendment really achieve the results of open and honest dialogue?[1] Does it even matter?

In a recent address at Columbia University, University of Chicago President, Robert Zimmer discussed the purpose of academic freedom. He said the following:

“[I]t is universities’ openness to ideas, to analytic debate, to rigor, and to questioning, and the provision of an umbrella, and in fact a safe haven, for clashing thought and perspectives, that best illuminate societal, scientific, and humanistic issues. . . The greatest contributions universities can make to society over the long run are the ideas and discoveries of faculty and students that emanate from the resulting intellectual ferment [] . . . If this is the purpose of universities, the purpose of academic freedom is precisely to preserve this openness of inquiry and freedom of thought. In other words, academic freedom is designed to protect and preserve for the long run the unique capacity of universities to contribute to society.” (emphasis added)

President Zimmer’s thoughts are noble. My question is not about their veracity, for I sincerely believe he is absolutely correct. My question is whether the university environment is truly living up to the model as a “safe haven for clashing thought and perspectives”? I hesitate to say, but my feeling is that they do not.

I do not purport to speak for everyone, but only to relate my own experiences and perspective. In any context where I am under the authority of another, I am reticent to offer an ideological opinion which sharply diverges from my authority-figure. This is not always the case, but more often than not, it is. The reason is simple; ideology is the foundation upon which we construct our worldviews, and a professor’s worldviews –naturally – animate his conclusions about his subject matter. More to the point, if my opinions are perceived as flawed in their reasoning, which could easily be the case when my opinions are stemming from an ideology that deviates from the professor’s, what will the conclusion about my scholastic aptitude be? Whether science, law, business, etc., we are all subject to bias. Even in our modern enlightened era, there is cause for caution.

Maybe this caution is healthy. Maybe cautious and guarded opinions serve to encourage quiet reflection before speaking. This is a worthy end, is it not? Unfortunately, I do not think the bias within the academy is an even split down the ideological middle. If it were, then the opportunity for reflection would be given fairly consistently to students of all worldviews. However, in many areas of the academy, there is a perceived “politically correct” worldview which garners dominant support. This trend may foster open dialogue amongst those who find themselves in the majority, but is the minority voice likewise fostered? Is there anything that can be done to encourage a true safe haven?

Perhaps a benefit of such a reality is that individuals who seek to develop new ideas will find mentors with whom they share ideological views. Within this context, there can be a mutual sharpening of minds and arrival at ideas or innovations which will contribute to society. This begs the question, though, of what role the university should play. Is the university about benefitting the student-consumer, in which case the student comes to the university with his ideas and seeks guidance as to how to achieve his goals? Or, does the university primarily serve society, in which case the student should come to the university as tabula rasa for the purpose of forming ideas which will provide the best outcome to society? Of course, the answer could be a blend of these two ideas.

President Zimmer noted the German model of the university is the modern research institution we know today. This model comprises three principles: 1) the goal of education is to teach students how to think (not simply master a craft); 2) integration of research and teaching is central to teaching students how to think; and 3) the university must be independent from the state. These principles suggest, to me, that the primary purpose of a university is to serve the student as an individual. This educated student will be in the best position to benefit society as a critically-thinking-citizen. Society ultimately derives the benefit of the education experience, yet the party immediately served is the student, not society. If that is the case, my mentor-model makes sense. It does not result in a truly free and open forum for clashing ideas, but it does give the student as a consumer the product sought.

If the university is primarily serving the student-consumer as an individual, what happens to academic freedom? Does it lose some of its importance? I think the answer is a quiet “yes.” The principles of academic freedom are still of paramount importance in many contexts, but perhaps the principles merely provide the safe-guard wherein a member of the university community has recourse should he endeavor to challenge the status quo. This protective mechanism is, I believe, a far cry from an umbrella sheltering the exchange of differing perspectives.

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[1] See Griswold v. Conn., 381 U.S. 479, 482-83 (1965) (“[T]he state may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read . . . and freedom of inquiry, freedom of thought, and freedom to teach . . . indeed the freedom of the entire university community. Without those peripheral rights the specific rights would be less secure.”).

Cosmic Contract Language

In Thursday's Wall Street Journal is an article about the trend of drafting contracts with cosmic language like that which was presented to a Bulgarian folk-singing group at a tryout for the TV show America's Got Talent. A clause in the contract warned that their actions that day could be "edited, in all media, throughout the universe, in perpetuity."

This sort of language, relevant mainly in the context of the arts (but see the full article for an example, complete with an allusion to the Big Bang, of its use re: pickles), is apparently motivated by a desire to account for the unknown, and perhaps is reflective too of a very high confidence in the national space program. The Journal article notes that the members of the folk-singing group "briefly contemplated whether they should give away the rights of hurtling their images and voices across the galaxies forever." Then they signed the contract.

Of course professional opinions vary as to the desirability of using such cosmic (the use of 'global' doesn't seem to do justice) language in contracts. Attorney and law school lecturer Ken Adams thinks the use of such language is "silly", and suggests its use could be a way of drumming up business for lawyers. How so? "It [cosmic language] adds an aura of magic- you're dabbling in the occult and you of course need a lawyer to guide you through the mysteries."

But associate professor of law Eric Goldman has a different view. He thinks the cosmic language "could be 'a stroke of brilliant foresight.'" Goldman says in the future, folks looking at contracts drafted without cosmic language might say, "What were they thinking? Why didn't they get the Mars rights?" That would be embarrassing.

Whatever the case, this article comes a few years too late for me. I could have turned it into an entirely novel law review note: Cosmic Language in Contracts and its Ramifications, Toward a Theory of Inter-Galactic Unconscionability.

Law Students Ready for Work

York College of Pennsylvania conducted a national survey of human resources directors and business leaders who make hiring decisions. The study showed that the most important factor that people who hire considered in whether to make a job offer is the candidate's demeanor in five areas: 1) personal interaction including courtesy and respect; 2) communication skills; 3) work ethic; 4)professional appearance; 5) self-confidence. Responders were asked to rank on a scale of 1 (very rare) to 5 (very common) the appearance of these traits in recent college graduates. For all of the five traits the mean rank was below 4.

Recent college graduates appeared to survey responders to be concerned about opportunities for advancement. This trait garnered a mean of 4. Unfortunately for job seekers, those hiring rank this trait as among the least important in the hiring decision.

53% of responders believed that the level of professionalism among recent college grads looking for entry level work was stable over the last five years. 33% percent believed that professionalism had decreased. Those that saw a decline in professionalism identified the causes as a false sense of entitlement to the job, changes in culture and values, and erosion of work ethic. 61% of responders reported that a sense of entitlement to a job had increased among recent grads over the last five years. Responders frequently noted that recent grads had problems accepting personal responsibility for on the job decisions and behavior, difficulty acting independently, and appeared to have no clear sense of direction or purpose in office environments.

I wonder whether law students possess the essential professional traits most valued in the market for legal employment. How can a law school give its students the competitive edge?

Way up in a Balloon

To say that someone has gone up in a balloon, except when that person actually has gone up in a balloon, is to say that someone has gotten intellectually (defined here as the act of thinking, not the quality thereof) or emotionally carried away. So it was with Richard Heene, who was so up in a balloon about maintaining unworthy fame, or with the money that attends it, that he contrived the now-famous hoax that, perversely, references in the name given it by History his impressed son, and not the man. Heene the Younger, whatever he owes his father, certainly has cause to be sore about the use to which he was put, and about the fact that his name answers a Google search, and so always will, of "Balloon Boy". Such are the wages of a father's strange grasping, here to be paid by the son.

It is with some pride that I admit I missed Richard Heene's performance on the reality show Wife Swap, and also that I don't know on what station, or at what time, to find Wife Swap. People have told me he was a standout oddball on the show, which surely must be peopled with folks more odd than the average person in society. And that observation brings this brief essay to its point. It seems that "reality TV" has become a sort of Orwellian label. What the shows that answer that description really show are people acting as they would when they know people are watching, which tends to exaggerate in both directions what people do when they assume no one is watching.

In Heene's case, when he knew people were watching, he, according to the Wife Swap reviews, was an oddball but pedestrian control freak. When no one was watching, he exerted control over his family to follow along with his super oddball scheme, which counted among its foreseeable consequences co-opted helicopters, the expenditure of thousands of dollars, and the wasted good will of his fellow citizens. So it seems the reality show cameras exaggerate Mr. Heene in a flattering direction. Objects in your TV may appear less nuts than they actually are.

Justice Sotomayor on the Traditions in the High Court

I happened to catch C-Span's special on the Supreme Court, and was struck by the newest member of the Court's comments regarding tradition:

"[T]raditons anchor us in a process that's greater than ourselves; they remind us that the role that we are playing is not a personal role, not a role that should have a personal agenda, but one that has an institutional importance and that institutional importance is bigger than us."

There are so many aspects of life that this resonates with. Whether religious practice, national governance, school tradition, family ritual, or even corporate culture, traditions do anchor us and do remind us that we are but a part of something much larger than ourselves. This is not a revelation, but I did appreciate being reminded of it and I appreciated hearing Justice Sotomayor express it.

Just a Drunken Stoner?

A man charged with murder for beating his girlfriend's two year old daughter to death told his social network on MySpace that he was misunderstood and that society was to blame. While he was at it, he stated: "It's just a C felony. I can beat this."

After his conviction and sentence to life without parole, he appealed on grounds that the evidence of his character lifted from his MySpace page should have been excluded. The Indiana Supreme Court held that because he testified at trial that his actions were only reckless not intentional, he opened the door for evidence of his character.

The opinion is here. I don't think they'll have MySpace where this guy is going.