Saturday, September 24, 2016

Veil of Ignorance

Last month, in Tablet Magazine, Paul Berman attempted to mount a defense of the French prohibition of Muslim veils (the infamous "Burkini" ban, or, earlier, forbidding headscarves in schools). There is a faint bit of cheekiness to it, in its appeal to French cultural history as the be-all-end-all of the argument. Why don't we respect their culture? This is just the way the French do things! Maybe it is time to check our American egos, and acknowledge that other countries have valid ideas of governance in their own right? To ban the veil is, Berman argues, simply an example of the French value of secularism -- sometimes referred to be its French term, laïcité. 

If his is meant to be a subtle jab at the lazy invocation of cultural relativism that some members of the left regularly indulge in, then well done. If it is meant to be more than a satire, though, there is a problem. The French ban on the veil is indeed an example of laïcité, though Berman actually objects to the use of the term since for him laïcité is nothing more than "the Jeffersonian principle of a wall between church and state, in its French version." This is true, in the same sense that the Revolutionary Courts are the "Marbury principle of judicial review, in its Iranian version." It may fill a similar niche, but it is shorn of all the limitations and checks that make the concept worth emulating. Laïcité is "separation of church and state" in the exact way that hyperbolic American conservatives have breathlessly condemned it: taking out the "state" and substituting in "public life." A ban on headscarves in public schools (or kippot -- oddly unmentioned by Berman given that they too are covered under the French law) would not be an example of separating church from the state --it is an effort to excise religion from public life. It does not govern statecraft, it governs individuals exercising their religion as individuals on those occasions where they step outside the home.

The reason why American (and French) liberals object to the ban on religious garb worn by private citizens who have the temerity to enter the public square is that this sort of compulsory secularism is not liberation even (in Berman's oh-so-vague clawback) "in principle". It is not compatible with religious equality for anyone, and in practice its burdens fall heavier on minority groups whose religious practices will always seem louder simply because they are different (notably, crucifixes are not banned so long as they are not "obtrusive"). If secularism takes this form, it is simply a different form of theocracy -- our personal rights stop to the extent they offend the (ir)religious orthodoxy.

If Berman is looking to build opposition to the veil, a misshapen argument that butchers liberal values of secularism is unlikely to do the trick. Perhaps he would do better to make common cause with an Egyptian MP who is pitching a veil ban on the grounds that it is a "Jewish" practice. After all, just as in certain circles it is sufficient to argue against a practice by labeling it "Islamic" (or "Islamist", which -- whatever merits it might have as a carefully-used term, here is not being used with care), in others there isn't any more powerful argument against a given behavior than persuading everyone that "it's Jewish".

Wednesday, September 21, 2016

A Roundup of Conversations Had and Not Had

Just for the record, I feel guilty about relying on roundups so much of the past few weeks.

* * *

Vox interviews Brown University professor and eclectic right-of-center Black academic Glenn Loury. I had the pleasure of meeting Dr. Loury earlier this year, and he is a very thoughtful man whose ideas are worth reading even when one disagrees. This interview is no different.

Ruth Smeeth's testimony regarding the anti-Semitism she's faced at the hands of Jeremy Corbyn supporters -- and Corbyn's own blithe indifference to the atmosphere of hate he's birthed -- is heart-breaking. Corbyn's movement really is just a left-wing version of Trumpism.

Reports are that Israel has blocked a British academic scheduled to give a series of lectures at Birzeit University from entering the West Bank. I know nothing about the professor or his scholarship, but such decisions are an anathema to academic freedom and deserve full-throated condemnation.

Well, the Oberlin Student Senate finally found a Mideast related event that demanded condemnation: the one where my friend Stacey Aviva Flint, an African-American Jew from Chicago, will talk about her experience as a Jew of color and issues of intersectionality. Flint -- a member (like me) of the left-wing Third Narrative organization -- will be joined by Kenneth Marcus of the Brandeis Center and Chloe Simone Valdary, a non-Jewish African American woman who has been active in (generally right-wing) efforts to cultivate solidarity between Israel and the African-American community.

Massachusetts Supreme Court concludes (a) that vague descriptions that a criminal suspect is a Black man wearing dark clothes is insufficient to justify a stop of any Black man wearing dark clothes and (b) that, given realities of racial profiling, the act of running from the police does not, in of itself, establish probable cause for a stop either.

Monday, September 19, 2016

Maybe It's Time To Concede This Doesn't Work

Our constitutional jurisprudence surrounding legislative prayer is a two-step dance. In the first step, the judiciary tells legislatures that they can have prayers so long as the process for selecting them is not biased with respect to particular denominations or sects. In the second step, legislatures do everything they can to be biased with respect to particular denominations and sects.

The latest remix of this everlasting beat is a 4th Circuit decision in Lund v. Rowan County, where a county commission simply had its commissioners choose the prayer leaders it preferred -- unsurprisingly, leading to an overwhelmingly Christian bent. Ian Millhiser has commentary, but I'll be honest and say that I'm not convinced the decision is obviously wrong under either SCOTUS or 4th Circuit precedent. Indeed, its not even the worst 4th Circuit legislative prayer decision since the inception of this blog -- a distinction still unquestionably held by Simpson v. Chesterfield County Board of Supervisors.

The problem is that the demand for religious neutrality contained in step one founders upon the obvious fact that the upshot of step one is that legislatures might have to admit prayers by religion groups they dislike. Which means they do everything they can to channel who gets to say the prayers, which means that the "neutrality" principle immediately collapses.

It's not that there is a conceptual incoherence to the idea that legislative prayers are permissible so long as they do not discriminate in favor or against a particular sect. But it is clear that many if not most legislative bodies aren't really willing to pay that piper -- admit prayers from Jews and Muslims and Hindus and Wiccans and Satanists. And so perhaps its time to concede that the doctrinal rule we've set up just isn't going to work. There are plenty of opportunities to pray without relying on bureaucratic set asides, and some of us don't need government-sponsored training wheels before we feel secure in our faith.

Academic Freedom versus Academic Legitimacy: The Berkeley Palestine Class

A few days ago, Berkeley administrators suspended a course in progress titled "Palestine: A Settler-Colonial Analysis". As it happens, I'm relatively familiar with the course, and became aware of it well before it found itself in the middle of a national controversy. And so observing this chain of events has been like watching a car crash in slow motion. I knew it was coming, and knew it would be awful, but there was a depressing inevitability about the destruction.

I first became aware of the class when I spotted some advertisements for it which prominently featured those ridiculous maps. That inspired me to look into and read the syllabus, and what I saw was not exactly impressive. It was indeed entirely one-sided, taking a single conclusion as a given and not demonstrating an iota of interest in alternative vantages. Basically, it was not a course that did Berkeley proud in terms of its pedagogical merits.

At the same time, I also found out that the course was a "Decal"  offering -- courses designed and led by undergraduates, for undergraduates (this also put an end to my brief consideration of enrolling or auditing -- they're not open to graduate students). My understanding is that faculty review and oversight of these courses is relatively minimal (though I'm not sure about the exact amount of standard supervision). Most of the classes are on relatively fluffy topics, really more of a way to secure a few easy credits and explore a fun topic. They are not representative of the standard Berkeley offering; they don't say much of anything about Berkeley as a whole other than that we let undergrads design some courses, and some undergraduate-designed courses won't wow me with their sense of depth or nuance. So I figured there really wasn't much worth saying. You give undergraduates power to design classes, and some of those classes won't perfectly embody recognized pedagogical ideals. Quelle surprise.

Then, a few days later, mention of this course started to burble up on my Twitter feed. I did my best to give a fair, non-alarmist description: Yes, the class looks pretty one-sided, no, it's not reflective of Berkeley as a whole -- it's an undergraduate-designed class that will only enroll a dozen or two. At the same time, the subliminal message I was trying to send was much more straight-forward: Let it go. Just let it go. LetItGoLetItGoLETITGO.

Alas, nobody ever lets these things go. The hysteria machine spun into action, and then the class was suspended. The official rationale is that it failed to get certain approvals. This reeks of pretext, and it might not even be that -- this post, though overwrought at times, proffers compelling evidence that the class in fact fulfilled all the procedural requirements it needed. And the thing is, every step in the process was eminently predictable. Of course Berkeley is the sort of place that would produce a class like this, and of course we have faculty members who don't care enough inculcating good pedagogical habits that they'll give it their unmitigated approval. And then of course it will get out, and of course the usual suspects on the Jewish right will blow up in a hysterical overreaction to a tiny undergraduate seminar. And then of course Berkeley administrators rush into the worst, most panicked response possible and suspend the class without even contacting the course facilitator, making a mockery of academic freedom in the process, and then of course that suspension will become proof that it is impossible for even the meekest "criticism of Israel" to be aired in academia. (And then of course someone will call for a sit-in, because this is Berkeley and every damn thing needs to be a sit-in, and then of course Simone Zimmerman will propose having it at Berkeley Hillel, as opposed to the university office that actually made the decision, because some people haven't met a forest fire they didn't ache to pour gasoline on).

So my basic position at the moment is that I hate everyone. This is not for me an uncommon sentiment when it comes to either Berkeley decision-making or discourse about Israel and Palestine, so I guess you could say I'm used to it. But now that this bonfire has well and truly surged out of control, I guess I'll offer my two cents after all.

Right now, the debate has fallen into the usual rut: either the class was great and thus canceling it was an academic freedom violation, or the class is awful and thus canceling it was no academic freedom violation whatsoever. This dichotomy conflates two separate questions -- "was the class pedagogically sound" and "was Berkeley justified in suspending it" -- and it is that conflation which is worth breaking down. A few years ago I wrote a very short essay entitled "Academic Freedom versus Academic Legitimacy", and I've analyzed a few academic freedom controversies through that lens. The basic thrust of the article is that "academic freedom is a constraint on remedies": It does not block criticism of bad academic choices -- the decision to invite a certain speaker, or to construct a one-sided syllabus, or to forward a terrible argument -- it simply takes off the table certain responses. You can't ban "bad" speakers, or punish those who invite them. You can't fire tenured academics for publishing awful arguments. And you can't cancel classes just because their design is pedagogically objectionable.

So, on the one hand, it is perfectly valid and legitimate to raise concerns about this course and how it was constructed. As I said, I read the course's syllabus, and it had plenty in it to object to. The problem was not that it adopted a "colonial" or "settler-colonial" analytical frame -- I think there is a very interesting course to be written along that dimension. The problem was that it adopted that frame in a remarkably narrow, ideologically-blinded way. "Balance" is an impossible goal, but good pedagogy demands that when one centers a course around a given theme, one at least acknowledge a range of views that properly bear on its complexity. The course as it stands is akin to a class titled "Palestinians: A Made-Up People?" with 15 weeks of readings all answering "yep." A class like that would be an embarrassment, a joke, an obvious failure to meet reasonable pedagogical standards.

This is why when I teach my seminar on anti-discrimination, my syllabus includes an array of thinkers ranging from Cheryl Harris to Gerald Rosenberg to Charles Lawrence to Antonin Scalia to (a whole unit on) Clarence Thomas. Anti-discrimination is a big, important topic, and while I can't expose my students to all views (let alone all views "evenly"), I would be embarrassed if I only relayed to them those arguments which mirrored my own. To do that would be to confuse being a teacher with being an advocate; it would represent a failure to meet basic standards of pedagogy and intellectual inquiry.

But on the other hand, these objections simply have no bearing from an academic freedom standpoint. Academic freedom means that, sometimes, people are going to teach classes that I think fail to meet basic standards of pedagogy and intellectual inquiry. That comes with the territory. Academic freedom is a constraint on remedies; it means that, whether warranted or not, objections that a class is "imbalanced" or "biased" or even just pedagogically terrible cannot be rectified with a suspension or ban. That option is (or should be) off the table. The decision to suspend the course is flatly incompatible with any legitimate understanding of what academic freedom entails. and Berkeley should be embarrassed that it did it.

To be sure, it is reasonable to demand of members of the Berkeley academic community that they try to meet certain basic pedagogical standards when designing courses -- that they at least try to avoid narrow and ideologically lazy course constructions and present topics with an eye towards their full nuance and complexity. Decal, in particular, should be a venue where we try to inculcate young students with these academic values -- namely, that one's role when designing and teaching a class is different than when one is participating in one (let alone leading a protest rally). It demands something different out of us, and what it demands can be especially difficult to give if one is personally close to the subject matter. To the extent that a significant portion of the Berkeley academic community is indifferent to those values -- simply does not care about courses being thinly disguised agitprop or forums for indoctrination -- that would indeed suggest a deep and serious failing in our university. But again, "academic freedom" means that we are limited in the remedies we can bring to bear against such failings. Right now any conversation we might have about these "cultural" failings will be drowned out, appropriately so, by the more obvious breach of academic freedom.

And let's be clear: the erosion of academic freedom norms has ramifications far beyond Berkeley. Sometimes, as here, it will be a "pro-Palestinian" course offering that is suppressed; elsewhere, it will be "pro-Israel" or Jewish or Zionist scholars who are threatened with exclusion from the academic community. Too many people are quick to cheer one while angrily crying "censorship!" at the other. But true academic freedom has no fair-weather friends. Either you back it, or you don't. The decision by the Berkeley administration to suspend the class was wrong. I suspect it will eventually be overturned (perhaps with some token modifications to the course; almost certainly with quintuple the attention paid to its offerings than would have resulted if the "pro-Israel" right had Just. Let. It. GO.), and it should be. That doesn't mean it wasn't a problematic offering, or that it adequately embodied the ideals we should aspire to as teachers and scholars. But academic freedom is not restricted only to those curricular offerings which meet my standards of ideal pedagogy. If we have a problem with a Berkeley undergraduate course, our solutions must be consistent with the basic ideals of academic freedom that enable open inquiry and free discussion in the modern university.

UPDATE: I have on good authority that the course has been reinstated. There may be some minor changes to the syllabus wording, but apparently no changes in the reading. More (linkable) information once I obtain it.

UPDATE x2: Here is a Forward article on the reinstatement. Hopefully that brings this sorry episode to a close.