December 14, 2007

"Leonard Kaplan, victim of a pretty clearly bogus political-correctness scandal in Wisconsin."

Glenn Reynolds links to a speech by my colleague (on a subject I've written about a lot here). I think the story is more complex, a strange intersection of two liberal/left trends. Look at how Kaplan explains himself. He's teaching a left-wing critique of law:
Is our talk about rights really meaningful or merely rhetoric? Though we pay lip service to universal rights, non-citizens in the United States may get something less. Even citizens may get less than a “right to happiness” if the state does not establish the material conditions necessary to make such a right possible....

My class discussion on February 15 was intended to be sympathetic to the Hmong people. I intended to illustrate the inadequacy of legal formalism. My examples of cultural practice were directed against the legal system, not against any immigrant group. My examples were intended to show the disorientation that new immigrant groups can feel when confronting a formalist legal system. My point was that if our formalist legal system treats everyone as if they are the same, new immigrant groups from very different cultures could suffer a form of injustice. The resulting controversy lost this point entirely.
It got disoriented. Ironically.

Kaplan said some things about the Hmong that he intended "to illustrate the inadequacy of legal formalism," but the Hmong students (it seems) were taken aback because the characterization of the Hmong felt insulting. (Kaplan said something — we don't have an exact text — about problems Hmong people have fitting into American culture.) Yet the students have been given reason to think that they should enjoy a welcoming and comfortable "climate" at the university. Kaplan's critique — which includes making students uncomfortable — belongs to the ideological left, but so does the message that students from diverse backgrounds should feel good about their experience at the university. It's a fascinating clash of two left-wing themes.

Much as I support academic freedom for the teacher (and hate to see any punitive action toward Kaplan), I feel sympathetic toward young people who go to law school for the purpose of acquiring the tools to use toward the ends they select and who then encounter a complicated critique of the law. I think law students expect us law professors to give them things they can use. They may feel outraged if we tear apart the system they are devoting themselves to learning how to work within. We need to respect their autonomy, even as we challenge them.

There is insight to be gained at the intersection of two left-wing ideologies (diversity and critique). So don't be too quick to choose sides. The best answers my lie beyond thinking in terms of two sides in this controversy.

25 comments:

John Burgess said...

Kaplan loses me as an attentive listener when he confuses 'Happiness' with 'the pursuit of Happiness'. There is no right to 'Happiness' in the Constitution or any of its amendments.

If a law professor can be such a slackard on something as basic as this, then I'd join students seeking a refund of their tuition.

rhhardin said...

Offend again any that you offend.

It used to be, back when crowds attended world concert premieres of works of various French composers, if they didn't like the piece, they'd boo and whistle ; and the composer got to show his appreciation by conducting the thing again from the beginning, suggesting that the crowd obviously needs assistance listening to music, in his opinion.

This would also work in the classroom.

Just repeat the lesson.

former law student said...

Reading the comments to his Rotary talk, I'm thinking that the Hmong simply misinterpreted his observations as insults. Why they would think their professor would set out to insult them is beyond me.

P. Rich said...

"Diversity" and "critique" are ideologies? Who knew? The intention must have been lifted from one of those liberal redefinition dictionaries.

EnigmatiCore said...

Making someone uncomfortable is not left wing.

It is challenging the orthodoxy.

When the orthodoxy is primarily conservative, then it is left wing.

When the orthodoxy is primarily liberal, then it is right wing.

As our country moves left, there will be more and more instances where the uncomfortable discussions will be initiated by conservatives.

dick said...

The problem with Dr Kaplan IMNSHO is that he is approaching a left wing ideal of PC when it comes to other groups and yet he is telling them that their group is fake and of lesser quality. It is not conservative orthodoxy. It is LLL orthodoxy being torn down by an LLL lecturer. The conservatives had nothing to do with it at all.

John Kindley said...

I applaud the idea that law school should be about providing students with tools they can use (particularly since law school is mandatory if you want to practice law, and students are paying through the nose for the privilege). I'm guessing most of the students elected to take that legal process course or whatever it was that Kaplan was teaching, but the problem is that most of the bread and butter courses like torts and criminal law aren't all that oriented to the actual practice of law, either. Most of the students don't have a good idea of what would be useful to know in the real world anyway (or necessarily what area of law they'll wind up practicing in), as they would if they were able to learn how to practice law OTJ or through an apprenticeship, like in the olden days.

I'm a bit torn about this, because as a philosophy undergrad I think it'd be good if more lawyers and the legal culture as a whole questioned its premises a lot more and "critiqued" the legal system as we know it -- e.g., if they asked themselves what is after all the source of a positive law's legitimacy, if any? Unfortunately, I don't think the typical liberal law prof would be of much help in such a philosophical endeavor, i.e. they tend to take government authority for granted and their critique of legal process is merely measured against their preferred policies. Also unfortunately, philosophical notions of justice have little currency or practical use in today's legal environment, so such a study should be purely voluntary. So educate yourselves, people! Henry George and Lysander Spooner would be two very good places to start.

Fred said...

Oh my God, where's my violin?

rhhardin said...

what is after all the source of a positive law's legitimacy

That's a Latin Tom Swifty.

The Drill SGT said...

I devote my legal process course to the legal, cultural, and political questions that will face my students when they enter practice in a global world where the old truths are increasingly discredited and new thinking is imperative.

He seems to be saying that we should toss out legal formalism (e.g. the law is the law and it is applied equally to all).

Instead he advocates a multiculturalist relativistic law (different law for different folks depending on your culture and your entitlement to victimhood). I think that is a recipe for cultural and legal disaster.

rdkraus said...

Many, if not most, of the law prof's at the law school I attended clearly felt that "teaching us something we could use in the real world" was beneath them.

Those who actually did teach us things we could use, often adjunct prof's, were a revelation.

Kirk Parker said...

"clearly bogus political-correctness scandal"

As if there could be any other kind of PC scandal...

Joshua said...

I feel sympathetic toward young people who go to law school for the purpose of acquiring the tools to use toward the ends they select and who then encounter a complicated critique of the law.

Can't they do both? Or, can't the ones who prefer to acquire the tools and avoid the radical/theoretical courses do so? I've only seen the course described as one in "Legal Process". Does the course description provide fair warning that a student might encounter a radical critique or was Kaplan's comment an aside during Civ Pro?

Fred said...

Kaplan is an odd one. I really enjoyed his style of teaching but it's not for everyone. He's, just... different. Part of his problem is his mind and thinking are completely operating on a level that most humans don't operate on. It's like another dimension of thought and when you apply that to 'law' which can often require a very rigid form of thinking, it creates a sense of intellectual perversion.

He's not a bad guy, he is most definitely 'liberal' and I think it's interesting he has been pulled apart by competing liberal interests.

Hey said...

I think that the appropriate response is to tell both sides to grow up. Well, I actually use substantial colorful and demeaning language for both the concerns of critique and those of diversity.

If a professor is refusing to teach his subject, he should be dismissed with extreme prejudice. A critical approach is valuable if it's purely an elective, and critical theory should be covered in some core courses as an example of schools in law. Formalism needs to be GOD in all core courses and important (aka useful) electives. Just as a flat earther or young earther should be dismissed with prejudice from teaching this view in geology or biology (well pretty much any science subject).

Jeff with one 'f' said...

He's of the same cloth as those who advocate "anti-racist math" and other types of progressive horseshit.

PatCA said...

"There is no right to 'Happiness' in the Constitution or any of its amendments."

So true. How could he think so and be an educated man? He lost me there and didn't win me back with his Hegelian view that the state possesses the ability to make everyone happy. They have the ability to redistribute income; that didn't make the poor unpoor. They have the ability of eminent domain; that didn't help the poor. What is the state not doing that it should be doing exactly? Shall we force the poor to attend school, remain childless, and stay off drugs to age 30, ala John Edwards, so that they may then approach a happy adulthood?

His argument for bringing uncomfortable truths to light in class starts to meander when he runs up against the obvious conflict with tenets of the multiculti religion.

He stands for nothing concrete. It's no wonder the radicals saw an opening and took their advantage.

mtrobertsattorney said...

Am I missing something? Is Kaplan seriously suggesting there should be a multitude of different justice systems for the various new immigrant groups and the traditional, anglo-American system for the rest of us?

How helpful is it to suggest to a law student that if he finds himself defending a Hmong immigrant in a criminal matter, he should consider petitioning the court to apply Hmong tribal law or, better yet, transfer jurisdiction of the case over to Hmong tribal elders?

former law student said...

I just read a seemingly neutral article on what this guy said in class and I think I understand what happened now. To the Hmong in the class, it seemed like he was saying "you people," and not "his people" are primitive. Being painted into the non-white unAmerican corner is very hard for most people who identify with a group. He simply could not imagine the impact of his words on other people. To bring it home to him, picture the young Kaplan in a class where the professor started talking about "the Jews" thought menstruating women were "unclean" and deducing that meant Jews couldn't understand how "in America" we have "gender equality." (A little role-playing perhaps? "Miss Stein, how does Mr. Kaplan's thinking you are unclean make you feel?")

If you want to talk about the non-mainstream practices of various groups, for politeness you should not pretend to be an expert on such practices. Get your Hmong students to talk about them -- and about their struggle to adapt to a different culture, or talk about some group not present in the class. Or talk about your own group, at least at first. If an Irish-American talked about people used to raising a pig on scraps under the kitchen table had a hard time adjusting to life in New York apartments, that might break the ice.

Derek Kite said...

Learning something new, especially something as difficult as law, always produces discomfort. It's a sign of new learning. When the subjects are particularly difficult, and often cut to the always uncomfortable line between citizens acting in their interests and the state acting in theirs, it is inevitable that discomfort and disagreement occur.

How can an establishment of learning set a goal that everyone be comfortable? That implies no learning.

Life is tough. Tough decisions need to be made. Lawyers are trained to be conversant in these tough things. Or so I thought. Maybe not.

Derek

former law student said...

Is Kaplan seriously suggesting there should be a multitude of different justice systems for the various new immigrant groups

Can I celebrate the Feast of Sacrifice by slaughtering a baby goat in my front yard? Liberals have a double standard on this. They won't tolerate some immigrant cultural practices, like clitoridectomy, but they will accept others.

former law student said...

How can an establishment of learning set a goal that everyone be comfortable? That implies no learning.

They can set a goal that no group will be singled out for discomfort; that everybody in the class will be rattled from the get-go. Perhaps a black woman could guest-teach to emphasize Kaplan's white male privilege.

rhhardin said...

Singled out for discomfort, that's a good one.

It's a fairly common childhood experience, you know.

Is this dim memory being channeled? Unresolved issues from the past become public policy obsessions.

former law student said...

hardin, let me try a gedanken experiment on you: as your professor, I wonder if you realized that americans of anglo-saxon ancestry have the lowest average incomes, the fewest years of schooling, and the most instances of incest of any whites? Surprisingly, most anglo-saxon american men believe their mothers, despite their obesity and smoking-accentuated wrinkles, were better lovers than their daughters.

Visnou said...

Let me preface this by saying that I am a Hmong American. For the past year, I have read various articles and commentary about the brouhaha involving Professor Leonard Kaplan and some Hmong students at the University of Wisconsin-Madison. Some say that this incident from February 2007 is much ado about nothing. That is an opinion. I believe there are those who champion academic freedom but have become disoriented by its own beauty.

I don't know what Kaplan said nor will I pretend to. Only he and those students who were present on that eventful day know for sure. Regardless, I agree that the professor is entitled to his opinions and comments due to the freedom of speech and academic freedom. We live in a democracy, one based on free thought and free speech. Unfortunately, many of Kaplan’s supporters are hypocrites when they belittle the reaction from the Hmong community. Although they themselves were not there to bear witness, they question the credibility of the Hmong students but attest to Kaplan’s credibility and integrity without objection. They invoke academic freedom but criticize the Hmong students’ for overreacting and disagreeing with their own rationale. They fault the Hmong community’s rush to judgment for using second and third-hand accounts while failing to recognize their own incognizance and mob-like mentality.

Baseless comments such as "they were overly sensitive…they overreacted…didn’t understand the sarcasm and humor…missed the point” are not only insulting to me, the students, and other Hmong Americans, they are insulting to most homo sapiens. These individuals can express themselves in whatever manner they please, but we are told that we shouldn’t feel the way we feel. How is it possible to determine the proper dosage of sensitivity for others? Since when did Kaplan and his supporters become the moral compass of human emotions and free thought?

Human beings don't think alike. What is a casual, innocent comment to some may be offensive or insulting to others. Let's pretend that Kaplan complimented the Hmong as being God's gift to the planet. Even so, these Hmong students would still have the right to disagree and to tell him to take a hike. Is it a surprise to Kaplan and his supporters that we Hmong can think, feel, and act for ourselves? Or do they prefer that we just nod our heads in agreement, sit back in awe, and go along with them? Is this their idea of academic freedom? Academic freedom allows people to engage in open dialogue, discussion, and debate. Academic freedom includes disagreements, contrasting perspectives, and conflicting ideologies.

Contrary to the opinion of some Hmong, I don't believe that racism played any role in this situation. I also do not believe that Kaplan needs to be censored, disciplined, or forced to apologize. The majority of us don’t need an apology in order to go about our lives. What has transpired since that lecture, however, borders on complete hypocrisy. It reeks of cultural arrogance and personal egotism. At a recent Rotary Club function, Kaplan attempted to explain the purpose and intent of his lecture. He concluded, “I offer my remarks here in the Rotarian spirit of doing no harm, or as little harm as possible, but recognizing that truth, like learning, may sometimes be painful.” From whose perspective is this supposed harm, truth, and pain?

Kaplan and his supporters have continuously cited academic freedom, yet it appears that they only value academic freedom when it benefits them or justifies their own cause. Indeed, Kaplan has the right to express his views free of censorship and without apology. He should be able to instruct, provoke thought, and initiate discussion however he chooses. He wants to prepare these law students for the real world where they will face real dilemmas. Well, here it is professor – with warts and all. We Hmong will assess, feel, and react however we please. Just as others want to judge us, we will judge them. After all, it is our right. The last time I checked we still live in a democracy or so they say. Let us not forget.