More on University Resources and Elitist Assumptions

What follows are two emails. The first is a generalized statement by a UF faculty member about the subject matter of my post from two days ago about the use of University resources. It also includes some good insights about the actual decision Florida was making. The second is my response. For people interested in class bias the first one, through its tone and content, may reveal some of the power the elites unequivocally claim for themselves.

First email:

Let me begin by apologizing for filling up a lot of mailboxes with more about
this issue for those who don't care about it. But I feel I cannot let the issue
drop with only silence from those who support this decision. So I reluctantly
will share some thoughts. First, for those who have personal opinions for or
against the adoption ban (whether based on religion, philosophy, or some other
grounds), I believe those personal beliefs are not, and should not be, the
foundation for legislation. If the legislature passes a law that targets a
particular group or treats an historically marginalized group in a
disadvantageous manner, especially in regard to a very important personal and
fundamental right, that law is properly scrutinized pursuant to appropriate
constitutional standards. And in this instance, there is simply no rational
basis for saying that every single adult in the State of Florida is entitled to
an individual judicial determination of fitness to adopt a child, except the gay
person for whom the courthouse door is barred and locked. This is especially
true when there are thousands of children out there waiting to be adopted.

Second, and flowing from the notion of legislative review by the courts, it is
precisely the role of the courts to protect the minority's individual rights
from the tyranny of the majority. Legislators, acting on personal beliefs or
political impulse, are generally prone to minimize, if not completely ignore,
the harmful impact their decisions have on the lives of others (especially if
they can get votes that way). I, for one, am glad that we have a tri-partite
system of government in which someone is watching out, albeit belatedly, for the
legal rights of the minority. Given the incredibly deferential standard of
rational basis review, this case is not an example of an activist judiciary
trampling the sound views of the majority - rather, it is the state unable to
make a defense for a law when the bar is so low that you can’t see light under
it.

Third, the funding issue is a different concern, especially vis a vis the role
of public higher education. I should note that in this case the state used
taxpayer funds to defend this lawsuit. It used the state’s coffers to hire
"experts" who used religious and disproved junk “data” and tried to pass it off
as science to support what has now been held to be an irrational law, a law that
was passed in the aftermath of the Johns Committee’s witch hunts and the
shocking audacity of the Miami-Dade County Commission to pass a
non-discrimination policy to prohibit discrimination on the basis of sexual
orientation. These so-called experts (and there were only two despite a much
broader search) were not neutral analysts. Rather they were preachers of hate
and bigotry. Indeed, the most vocal has been unveiled as such a hypocrite that
he hired a “rent boy” for his trips overseas, and when it was revealed he
claimed the “rent boy” was to carry his luggage. The specific facts of this
situation aside, it seems to me that the role of the University is to create
good scientific studies that follow sound scientific methodologies so that the
legislature and the people of Florida can make reasonably sound decisions based
on the best information available. The role of the University is to lead in the
path of justice and truth, not follow the political whims of those who preach
intolerance or would sacrifice the lives of others for political expediency.



My response:

As I noted yesterday, I too favor the recent opinion. OR, in the alternative I
guess it would be OK to say that heterosexual men cannot be around daughters and
heterosexual women around sons. I mean, when you dig through all the crap, was't
the ban based at a gut level on the notion that homosexuals are of low
character and are potential child abusers. It made me ashamed of Florida.

In any case, Professor ------ has written such a wonderful paragraph I have
repeated it immediately below because it so richly illustrates the concerns I
voiced yesterday. The fourth sentence is what we give lip service to. The first
first three are how we often operate (and I do not exclude myself.) -- subtle
and not so subtle attacks, name calling, attribution of bad motives to those who
disagree. And the last sentence suggests we know the different between "justice
and truth" and whim. Justice and truth was once slavery and no voting by women.
It is anti semitism and female circumcision in other places. I get worried
about anyone who thinks he or she has a handle on truth and justice.

"These so-called experts (and there were only two despite a much broader
search) were not neutral analysts. Rather they were preachers of hate and
bigotry. Indeed, the most vocal has been unveiled as such a hypocrite that he
hired a “rent boy” for his trips overseas, and when it was revealed he claimed
the “rent boy” was to carry his luggage. The specific facts of this situation
aside, it seems to me that the role of the University is to create good
scientific studies that follow sound scientific methodologies so that the
legislature and the people of Florida can make reasonably sound decisions based
on the best information available. The role of the University is to lead in the
path of justice and truth, not follow the political whims of those who preach
intolerance or would sacrifice the lives of others for political expediency."

This search for truth reminds me of my first article as a law professor. I
wanted to say something like "the courts generally. . . ." But I knew I did not
KNOW that. I asked a more senior person and he said, "Don't you know about the
"See for example" cite." And then I realized that most of legal scholarship is
"see for example."

A few more points. I think it is irrelevant that the legislature used state
money to fund defense of the legislation. I guess the implication is that we
have been hired to act as counsel on the opposite side -- of everything or
just the things we disagree about? I have a feeling the state attorneys defend
the legislation regardless of their personal views and therein lies the difference
between them and us. We cherry pick the ones that affect us, often by a
self-referential standard.

The irony of some law professors bringing up intolerance floors me. I would say
when to comes to political views we are as intolerant as you can get. As far as
I know we have one "out" Republican and no libertarians. Why? Because very
rarely does any one who does not toe the line politically and culturally make it
to campus or to an interview. And when they do there are hallway rumblings about
the quality of their scholarship.

Finally, I thought someone would raise academic freedom in response to my email
yesterday. I am glad it was not raised for two reasons. First, the biggest
opponents of academic freedom are law professors in their hiring and tenure
decisions. Second, my note was not about academic freedom. Academic freedom is
what economists would call a "free good." Everyone can exercise it and it does
not interfere with the exercise of others. University resources are a different
matter. They are limited and if someone is using them to promote one thing, by
definition, something else is not getting done. As I said yesterday, I am not
sure who makes that resource allocation decision but at least one faculty member
has told me that the Administration has the discretion to fund or not fund (not
necessary prohibit) specific endeavours and has exercised that discretion.

It would nice to talk about all these issues but that would require a level of
intellectual fervor that we lack for good reason. In all our discussions --
courses, programs, hiring policies -- when one side feels it is losing, it
gets personal, if not inside the meeting then in the halls immediately after.