After Brandeis Response, Professor Volokh Asks Tough Questions

Eugene Volokh, professor of constitutional law at the University of California, Los Angeles (UCLA) School of Law and influential blogger, has some pointed words and tough questions for Brandeis administrators in response to yesterday's frustratingly empty statement from Provost and Senior Vice President for Academic Affairs Marty Krauss.

Like FIRE, Volokh is far from satisfied with Brandeis's statement. Specifically, Volokh wants to know what precisely Brandeis thinks Professor Donald Hindley said that was worthy of the ensuing investigation and punishment. Volokh writes:

The university refuses to publicly say what it thinks the professor said. Is it missing the use/mention distinction? Is it imitating Monty Python? Does it take the view that both using (in the sense of endorsing the message of) and mentioning (in the sense of quoting or describing) the word "wetback" is racial harassment? Does it conclude, as a factual matter, that the professor actually used the term, rather than just mentioning it? Even if he did use it, is he found guilty of racial harassment because he expressed an idea using epithets, or because the idea he expressed—and is Brandeis's view that the racially harassing and therefore prohibited idea is hostility to Mexican-Americans, hostility to Mexican immigrants, or hostility to Mexican illegal immigrants?

Excellent questions, each of which warrants Brandeis's immediate attention. Disappointingly, instead of supplying answers, the school chose to duck and weave. But Brandeis's dodge prompts Volokh to reemphasize just exactly what's at stake here:

Look: This is an issue that goes to the heart of Brandeis's role as a center for learning and teaching, and its credibility as a center for learning and teaching. And the University's response is that the "case is now considered closed," and no further information is forthcoming (except perhaps through future "programs that increase our internal capacity for understanding diversity issues"). Nor is the confidentiality argument plausible—the question is what the university thinks the professor (who has spoken publicly on the matter) said in class in front of many students.

Is it really so much to ask the university to reveal this one simple factual finding? Or is the university worried about what this factual finding will say about it and the rules that it is actually applying?

Again, Volokh asks tough questions that demand substantive responses. (What's more, in another entry well worth your time, he takes a hard look at Brandeis's harassment policies.)

Brandeis owes its faculty, students, and alumni answers—and soon.