Court Holds Grad Students Have Legal Rights, Dissenting Judges Bemoan The Death of Academic Freedom

Graduate students in America live like ancient monks: they subside primarily off of stale noodles and rice, in constant fear that bureaucratic politics or the whims of their superiors will end their careers at a moment’s notice. They spend a little time researching and a lot of time inflating egos and toiling in drudgery, too overwhelmed with the full professors’ work to complete their dissertations.

 

Part of the problem arises from the nature of academia. As the eminent physicist Max Planck said decades ago, “a new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it.” The old guard will also look unfavorably upon any threat to their intellectual hegemony; most graduate students learn quickly to think what they like but to act like everyone else, feigning unwavering support for their advisors’ pet theories. Part of the problem arises from the total absence of accountability in academia, and the acceptance across many disciplines that graduate students are unpaid laborers who can be terminated at will rather than grant-supported students who represent the next generation of higher education.

 

It’s not like the dismal state of graduate studies is a big secret. The creator of PhD Comics (a.k.a. “Piled Higher and Deeper”) makes a living out of lampooning it. Earlier this week an email at an Astronomy PhD program was leaked (more here at Slashdot); helpful advice for succeeding with a stipend of around $20,000 annually includes, “We realize that students with families will not have 80-100 hours/week to spend at work. Again, what matters most is productivity.” It’s not a recent problem; one widely circulated letter from a Chemistry professor to his post-doctoral researcher in 1996 warned, “I have noticed that you have failed to come in to lab on several weekends, and more recently have failed to show up in the evenings.” To many universities, graduate programs are a for-profit racket not unlike medical residency.

 

Unfortunately, there’s a certain segment of the population — comprised mostly of people who hold tenure of some sort, like full professors, federal judges, and prominent newspaper columnists — that believes graduate students are insufficiently obsequious and afraid, and that academic freedom is in great peril when a professor can’t destroy a student’s career for some sort of grave “fault,” like being a girl (despite Title IX). 

 

The last time I saw this “academic abstention” argument make its way into the public consciousness was nearly 3 years ago, when Stanley Fish of the New York Times wrote a column profiling a new book bemoaning the supposed encroachment on academic freedom by lawsuits. Fish wrote at length about his “favorite” such lawsuit, which, as I explained in my post linked above, he woefully misunderstood.  He chose a case that actually showed exactly why schools need to be held accountable for flagrant abuses of students. (In the case, an osteopathic medical school astonishingly claimed that it could expel a student two months before graduation for no reason whatsoever, and the evidence against the school was so overwhelming that the school didn’t even bother to appeal the jury’s findings that their decision was irrational and unjustifiable. Thankfully, the state courts in Florida thought little of their “we can take your money and ruin your career for no reason” argument.)

 

The issue is back in the news again as the result of the Emeldi v. University of Oregon opinion, in which a three-judge panel of the Ninth Circuit Court of Appeals denied summary judgment in a Title IX retaliation case brought by a PhD candidate. (As an aside, this case is a reminder that Title IX isn’t just about sports, it prohibits discrimination in higher education in general.)

 

The facts of the case will not surprise anyone who went through graduate school in the last 30 years. The Department of Special Education at the University of Oregon’s College of Education has exactly zero women in tenured faculty positions. Monica Emeldi, a PhD candidate in the Department, along with several other PhD candidates, complained to the Dean of the College that female students didn’t have as much support as male students. Emeldi’s advisor and dissertation committee chair took a sabbatical, and so was replaced by another professor who, allegedly, didn’t give her as much attention as he gave male candidates, refused to put her work on the agenda of group meetings, gave male candidates more office space and better technology, and ignored her in person, including by not even making eye contact with her.

 

A distant and unavailable advisor is the Kiss of Death in a PhD program, because it leaves the student without anyone to guide them through the silly politics of academic theory and interpersonal conflict that tend to govern dissertation committee decisions. Emeldi did what students are told to do: she asked university administrators to help with the problem. Soon thereafter, one of the administrators met with the advisor, and within a few weeks the advisor had resigned as Emeldi’s dissertation chair. That really was the Kiss of Death: Emeldi went to 15 different faculty members to find a replacement chair for her dissertation committee, but no one would agree to do it, leaving her unable to complete her PhD. She had been constructively dismissed not with a bang, but with a whimper.

 

Let’s stop for a minute and apply our graduate-level analysis. What do you think the administrator and the professor discussed? Honey Boo Boo’s future after leaving Toddlers & Tiaras? The divinity of the Taco Bell Doritos Locos Tacos Supreme? Emeldi testified under oath that the administrator admitted to her that she “debriefed” the professor about Emeldi’s gender discrimination complaint; a few weeks later, Emeldi was forced out of the program.

 

She sued under Title IX, alleging she was retaliated against for complaining about the gender discrimination. Her case is plain as day: in addition to Emeldi’s testimony about the “debriefing,” there’s more than enough circumstantial evidence that the administration and the professor discussed the complaint, and that the professor’s resignation from her dissertation committee followed in retaliation against her for lodging the grievance.

 

The University of Oregon petitioned the Ninth Circuit to review the panel’s order en banc, but was denied. Chief Judge Kozinski and the six other judges who joined his dissent from the order denying rehearing en banc have a crystal ball that allows them to see the real truth of what happened here. To them, this issue is quite obvious: Emeldi is lying (they simply dismiss her testimony, saying “Emeldi has come up with nothing to support her speculation that the discrimination complaint was discussed”) while the administrator is telling the truth because “the administrator stated under oath that she didn’t talk to the advisor about discrimination…” There you have it, case closed.

 

In sum, Kozinski et al. thought that Emeldi was somehow supposed to extract a confession out of the professor or the administrator, and that circumstance evidence — not to mention her own sworn testimony that the administrator admitted it to her — wasn’t enough. Yet, every day, people across the United States are convicted of crimes and sent to jail on the basis of circumstantial evidence alone. As one Judge wrote, “most conspiracy convictions are based on circumstantial evidence, and we allow juries to draw inferences as to the existence of an agreement from the defendants’ conduct.” U.S. v. Iriarte-Ortega, 113 F. 3d 1022 (9th. Cir. 1997). (Who wrote that? Judge Kozinski, of course.)

 

Circumstantial evidence is good enough to prove criminal guilt beyond a reasonable doubt, yet, when it comes to a PhD candidate who had her career torpedoed by some guy who doesn’t like women, well, then, we need a confession just open the courthouse doors and let the jury hear the testimony.

 

On one level judge Kozinski’s dissent is just another example of judicial overreach, another instance in which a court wanted to apply the flagrantly unconstitutional procedural tool of summary judgment to deny a plaintiff their constitutional right to a jury trial. That would be bad enough, but then Kozinski took it a step further:

It’s not just the practicalities of academia that require this freedom. The First Amendment does, too.  See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978). In equating Title IX with Title VII, the panel overlooks the critical differences between academia and the outside world. It applies the law so loosely that one of the laxest interpretations of the pleading standard is now planted squarely in academia, just where the pleading standard should be highest.  If this ill-considered precedent stands, professors will have to think twice before giving honest evaluations of their students for fear that disgruntled students may haul them into court. This is a loss for professors and students and for society, which depends on their creative ferment.

It’s hard to know where to begin with this hopelessly misguided understanding of academia. This case had nothing to do with professors “giving honest evaluations of their students,” it had to do with a professor allegedly (still “allegedly” because the very issue in this opinion is if the plaintiff gets to present their case to a jury) blatantly discriminating against a female student and then, as a coup de grace, destroying her career — with the assistance of more than a dozen craven and cowardly colleagues, not one of whom felt any sense of responsibility towards a scholar of the next generation who had, in the words of the professor (before the complaint) had proposed a “tremendously interesting project,” and had “done brilliantly in [her] efforts” — because, like a child, he was upset that she had dared complain to the administrator about her treatment.

 

Notice that Judge Kozinski’s dissent, just like Stanley Fish’s column, wasn’t limited to any particular type of claim like retaliation in violation of Title IX or breach of contract; the dissent questions the very idea of ever letting graduate students sue universities, because of some imagined power this will give graduate students over professors. Let’s be clear: graduate students have no power whatsoever to threaten professors, and this case doesn’t give them any more leverage. Threaten a professor with a lawsuit and you will find yourself on the receiving end of a carefully-calculated destruction of your work ethic and thesis.

 

At core, this case is, like the case misunderstood by Stanley Fish, yet another example of why students in higher education need enforceable legal rights, another example of the unaccountable nature of academia enabling professors to engage in egregious conduct that has far more to do with a professor’s pique than with any “standards of academic excellence.” Emeldi’s career was allegedly ruined by a professor who couldn’t bear to let a student use the university’s own channels to complain about a problem, and all Emeldi asks is for the right to present her case in front of the jury, so they can look into the parties’ eyes, hear their words, and tell us what really happened (using a preponderance of the evidence standard). To some, that’s too much; arbitrary, capricious, malicious and discriminatory conduct in academia is like the weather: something to complain about, but not something we can do anything about.

 

Max Planck’s observation will likely always apply to academic research. The question is why anyone thinks it’s more important that the old guard’s power go beyond mere scholarship, that they be allowed to exercise their personal prejudices unburdened by the same laws applied to everyone else, than it is for the next generation of scholars to have a fair chance.

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  • C’est la vie

    Thank you for writing this. Many students feel as though they are not only alone, but they are completely at the mercy of the whims of their professors. In many cases, students don’t even know where to go to get expert advice on what’s happening to them. If you are disliked by one professor, watch out—the rest will soon follow, just based off of gossip, and not your actual work ethic. You can be an “A” and “B” student, and still be kicked out prior to finishing your degree for things like ” lack of professionalism” or “lack of dedication” as defined by your superiors. Source? I’ve seen it happen in my own program.

    • http://www.litigationandtrial.com/ Max Kennerly

      The biggest problem is that the students are correct: they are indeed at the mercy and the whims of the professors. The only reason Emeldi was even able to bring a lawsuit at all was because of how tremendous the damage was and how obvious it was that she was retaliated against. If she had merely been mistreated, or retaliated against in a less obvious manner, she wouldn’t have even had a lawsuit at all.

  • M

    Honestly, I don’t know why anyone ventures into academia at all: professors are hateful egomaniacs, fellowships are drying up, and tenure-track positions are disappearing, too. It’s nice to know that there are a handful of laws to protect students, but what if the problem doesn’t fit neatly into one of the protected classes (like sex, religion, race, or national origin)? With public universities, a student might have constitutional claims, but otherwise only weak contract claims are left. The best advice to the next generation of would-be scholars is to stay away from academia.

    • http://www.litigationandtrial.com/ Max Kennerly

      Having seen far too many examples of bright scholars thwarted by stupid politics or interpersonal conflicts, I agree.

      • sadgrad

        Many students are at the mercy of professors. I can truly state that unethical conduct/grading by professors are “rubber-stamped” by other professors and deans during the internal appeals process. I am speaking from personal experience as I was expelled from a graduate program. Specifically, my nightmare still haunts me because I was expelled from the university’s EMBA program three month before graduation. My issues are very similar to Emeldi’s case and I did and still do feel as though I am alone and at the complete mercy of the the professors and deans. I did not know where to go as many attorneys stated that lawsuits against private universities are very difficult to prove and take a lot of money. Well, I refuse to give up or give in as I have invested over $75,000 in my graduate studies. I am currently seeking legal advice but for many months, I did know where to go to get legal advice but thanks to my research and internet information, I’ve learned about private university litigation. As stated in the comment above, one professor can destroy you. After one complaint, I became a target and the talk of the professors and the administrators. It was impossible for me to win as I became “hunted” by the professors and eventually I was kicked out prior to finishing my degree.

  • Beaker

    The nastiest allegations in this post are, unfortunately, often true. Many professors at my department devote more effort to controlling students’ personal lives than to research or teaching.

    I wonder if a generational culture shift is part of the problem. My Social-Security-aged professors are very demanding in classic scientific style: Solve this! Explain your methods more precisely! Compare your answer to established results! Read this pile of papers! But their attacks are primarily aimed at hypotheses, not at people.

    By contrast, many of the younger professors are more impressed by emotional displays of submission and suffering than by data or calculations. One told me it was “not my place” to correctly solve test questions which he answered wrongly. Another criticized me for reading research papers (!) which he had not assigned me. Many require us to work nights and weekends when the same tasks could be done better and faster during normal work hours.

    Generalizing by age requires many exceptions, else it becomes mere useless stereotyping. But I do suspect that academic attitudes have changed for the worse as Baby Boomers have taken over. The most ambitious professors focus on social dominance and manipulation rather than honest inquiry. As Feynman warned us, the inevitable result is charlatanism:

    http://en.wikipedia.org/wiki/Cargo_cult_science

    • Lil

      Are the younger professors tenured? They may be putting grad students “in their place” because they feel so insecure themselves. Or, having finally gotten through the sadistic obstacle course that is the tenure process, they like using their power to exploit and harm others because they’ve “earned” it.

      • Beaker

        Some of the creepiest behavior I’ve seen has come from tenured professors. That said, many grad students tell me that abusive faculty tend to throw more frequent and aggressive tantrums during the tenure process, then “cool off” slightly.

        Whether or not my generation-gap hypothesis is correct, I think we agree on the origin of the problem: too many universities tolerate vicious cycles of hazing. Insecure people abuse their subordinates, and some of the victims aspire to become abusers themselves. And as Max noted, institutionalized abuse leads to adverse selection. Competent researchers are repelled by hazing, while authoritarians are attracted to it.

        If the percentage of authoritarians reaches a critical level, then evolutionary game theory predicts they will rapidly destroy the entire academic system. (Lysenkoism and Deutsche Physik are extreme examples.) What I’ve seen is less dramatic, but still troubling: almost all of my colleagues are moving to other countries and/or the private sector. I intend to do the same.

        Lawyers and judges can’t stop the cycle, but they might be able to dampen it by drawing a legal wall between professional and personal demands. For example, it should be acceptable to require a student to rewrite a paper, but illegal to order that it be done on Saturday morning without a plausible academic reason. And if Emeldi really was fired (or disappeared) for a Title IX complaint, then her department should be punished severely.

        • lj

          My god, you worded that beautifully.

    • http://www.litigationandtrial.com/ Max Kennerly

      IMHO, as the number of tenured positions has sharply declined, there’s been an increasing brain drain in most of academia. What highly intelligent person wants to spend 7 years in graduate work just to slave away in a locale not of their choosing for $35,000 a year with no job security? Some of these people figure out the problem as undergraduates, some as graduate students, some as PhD candidates, and some only learn it after some time post-doc, but, sure enough, they figure it out, and so a large number of ideal professors of the next generation give up and quit.

      As a result, we’re left with the dregs: the people born wealthy enough to be able to survive those economic conditions, but not motivated or intelligent enough to get better jobs.

  • Mazdak Taghioskoui
    • http://www.litigationandtrial.com/ Max Kennerly

      Interesting. Thanks for submitting.

  • MT

    how about the distinction between academic disqualification and dismissal? The schools will say that a graduate student is not “dismissed” when they are disqualified for allegedly failing to meet a program requirement (after whatever probationary period applies through the administration, which was a sham, because the disqualification was pre-determined from the start). They can no longer proceed in their program, and therefore can’t continue to act as teaching assistants, lecturers, etc. despite exemplary performance in that regard. So a student could have excellent grad school grades, positive teaching reviews from both their supervisor and their own students, but can be pushed out of the program due to issues between them and their thesis supervisor, for example. would there be no opportunity to claim ‘constructive dismissal’? or is this a loophole for a school to circumvent labor law, since any ‘academic judgements’ on a student’s ‘progress’ or performance is at its sole discretion? i.e. I don’t like you, therefore I’ve decided you’re not meeting objectives, therefore you’re out (and thus, fired).