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.