Law School and the Legal Academia's road to ruin
Stifling free inquiry has tainted our universities
by Ian Hunter
THE FASTEST GROWING POPULATION AT CANADIAN UNIVERSITIES TODAY IS THE early retired. The professor emeritus claims his sweetened retirement package, cleans out his office, says farewell to envious colleagues, and goes off to ruminate on how his days "in this dark world and wide" were spent. Two years ago, after 26 years of university teaching, I, too, took early retirement.
Over that quarter century, I must have taught at least 2,500 students. How few of them I remember! Not more than a dozen, I am ashamed to say. From my very first class, one, perhaps two. Especially one young man who sat in my office, a few weeks into the fall term, not saying much, just brooding. Gradually it came out that his girlfriend had dropped him, he thought that everyone else at law school was smarter than he was, he was homesick and convinced that he was not cut out for the law. I described how I had felt the same in my first year at law school (not very many years before) and how a senior professor had persuaded me to stay on. My student didn't say much, suddenly got up, said, "Goodbye," and shook my hand, which seemed to me an oddly formal gesture. The more I thought about it, the more I worried. I talked to my dean. We called the student's apartment, then the university health service, then the local police. They found him, a couple of hours later, down by the river. He had left a suicide note and was intent on drowning himself. After a few days of observation in the university hospital, he returned to class. That student never made the dean's honor list, but he graduated, and today he practises law.
Then there was the student I failed (back in the days when the odd student failed) who told me: "You're new on the faculty. I have a lot of connections here. Either I pass or you're through in this university." I reported the conversation to my dean, but he did nothing about this crude blackmail attempt. That student also practises law today.
Late one afternoon, after a seminar, a young woman stayed behind to talk about the class and then suddenly began sobbing. Eventually, she managed to choke out that her husband of one year was in hospital dying of leukemia. I put my arm around her shoulder, and held her, but could think of nothing to say. We who make a living by talking are strangely mute in the face of life's tragedies. In my last decade of teaching, I would never have touched her, indeed would not have allowed myself to be alone with her, so poisoned had the university's atmosphere become by the unrelenting gender wars.
OFTEN I FIND MYSELF THINKING ABOUT MY COLLEAGUES STILL TEACHING. Many are cynical and dispirited, their morale at rock bottom. But how could it be otherwise? They have watched the university sell its intellectual birthright for a mess of pottage, government and corporate. They have watched, and have been compelled to participate in, rampant grade inflation and the almost total abandonment of academic standards. In "The Professor's Lament," a recent Commentary article, Carol Iannone wrote of "grade inflation of Weimar-like proportions." The essential function of the professor in the modern university, she asserts, is no longer to educate but "to divert, entertain, and interest."
When I enrolled at the University of Toronto Faculty of Law in 1966, the dean, "Caesar" Wright, assembled all the first year class in the moot courtroom and said, "Gentlemen [can you imagine that?], look to your left. Now look to your right. One of you will not be here after Christmas." And so it was.
In my last years of teaching at the University of Western Ontario's law school, not a single student failed, not because students had so much improved, but because faculty standards had so far declined. And now the Law Society too has succumbed; in 1998, it admitted to the bar 27 minority students who had failed the bar admission course. Following what the Law Society called a "lifestyle" interview, it certified these newly minted lawyers to practise on an unsuspecting public. I suppose that the Law Society's attitude is that if the law schools maintain no academic standards, why should we?
Thinking back, I vividly recall a faculty council meeting where a colleague explained why he had never failed a student: He had "a principled objection," he said, to thus stigmatizing anyone. I asked him what he would do if a student wrote nothing at all on a final examination paper. "That would pose difficult issues for me," he replied, "fortunately, I have not had to deal with that." I recall another former colleague, widely honored in Canada for her feminist scholarship, who gave her students better grades if they participated in a car wash to raise money for the local battered women's advocacy centre. I brought this matter, which in my naiveté seemed an affront to the university's integrity, to the attention of my dean and the university senate, but they did nothing.
My former colleagues have witnessed 15 years of affirmative action hirings, where merit is secondary to an applicant's race, gender, even sexual proclivity. No academic institution can pursue a deliberate policy of hiring mediocrity and expect to build a meritocracy.
The hiring policy at York University — that pons asinorum of Canadian higher education — is, alas, fairly typical. In academic units in which 45 per cent or less of the tenure-stream faculty are women, a female candidate must be offered the position unless there is a "demonstrably superior male candidate." Every hiring committee, even more every dean, knows that proving "demonstrable superiority" is a steep hill to climb. How much easier, how much better for one's career prospects, to avoid trouble, to avoid confrontation, to avoid the accusation of chauvinism, and to just go along with the university's stated policy of "encouraging diversity." So let us have the "diversity" candidate, although perhaps not the "best" candidate. A decade and a half of such hiring decisions have reduced Canadian universities to the intellectual backwaters they now are.
Writing in Harper's, Professor Mark Edmundson of the University of Virginia has pointed out that an "ethic of consumerism" pervades the modern university. From the moment he shows any interest, the prospective student is flooded with university propaganda: brochures, pictures, posters, testimonials, videocassettes, even CD-ROMs, all designed to lure him to come. Once enrolled, he is placated by permissive grading, an atmosphere where everyone is treated as exceptional, where self-esteem is more important than truth, where everything is enjoyable, and no one fails. Only one thing is lost amid this bland, pervasive niceness, and that is "an education that matters." And woe betide the professor who does not accommodate the coddled student's expectations. If anything is to be learned in such an atmosphere, it is being learned by the professors, and the lesson, Edmundson asserts, is, "Never piss the customer off."
The community-of-scholars model of university governance has given way to what one colleague aptly called "edubusiness," which means the subordination of independent thought to the requirements of the market economy. It also means a cabal of roving administrators who run the university on similar principles as one would run a potato chip factory. For example, a previous university president tried to sell Western's library to the private sector as a tax scam, but the Ontario government put a stop to that. The current president graces newspaper ads — a dapper, smiling man, shilling men's suits manufactured by an upscale clothier (who happens to be a member of the board of governors). In such an atmosphere, it is not surprising that in 1998, the University of Western Ontario faculty and staff voted to break with more than a century of tradition and unionize.
Meanwhile, students pay more and more for less and less. Tuition increased sevenfold in the last three decades while the quality of education has steadily declined. And from the university's board of governors — whose ostensible purpose is to safeguard quality — comes not a peep. In fact, just about the only audible sound emanating from the modern university is the mantra chanted by the public relations department about an unrelenting "pursuit of excellence."
I SUPPOSE THAT IT WAS WESTERN UNIVERSITY'S CAPITULATION TO POLITICAL CORRECTNESS in the Philippe Rushton case that finally soured me on academia. Until then, I had hoped that, however corrupt the curriculum, however duplicitous the hiring process, however shabby the academic standards, the university could always be counted on to defend academic freedom. How wrong I was.
John Philippe Rushton was born in Bournemouth, England, on December 3, 1943. He earned a BSc degree from the University of London in 1970, and a PhD from Oxford University in 1973. He came to Canada in 1974 and taught at the University of Toronto and York University until 1977, when he came to the University of Western Ontario. He received tenure in 1979. Rushton is a Fellow of the American Association for the Advancement of Science (AAAS), a Fellow of the Center of Advanced Study in Behavioral Science at Stanford, and in 1988, was awarded a Guggenheim Fellowship. Rushton has authored or co-authored eight books and more than a hundred articles that have been published in peer-refereed journals.
On January 18, 1989, Rushton delivered a 20-minute paper at the annual AAAS meeting in San Francisco, a paper in which he examined data collected on the three main racial groups: orientals, whites, and blacks. His data examined some 60 variables, including genetic distance, brain size, IQ scores, social behavior, speed of maturation, sexual habits, fertility, and propensity to abide by the law. Rushton found that the data consistently clustered in such a way that the three races could be ordered: orientals — whites — blacks. He suggested that this distribution of data fit what scientists call an r/K reproductive strategy, and that genetics could plausibly, if partially, explain this grouping phenomenon.
Reaction to Rushton's paper was swift and fierce. Some commentators focussed on the validity of his theory. Fair enough. But another reaction, unfortunately one that came as much from within the university as from without, called into question Rushton's (or anyone else's) right to conduct such research and to publish such findings. For these critics, racial differences were too inflammatory a subject for academic investigation. One of Rushton's Western University colleagues, Professor Joe Cummins, publicly called Rushton's research "an echo from Hitler's bunker."
To his scientific critics, Rushton replied in the academic journals. Such exchanges exemplify John Stuart Mill's ideal — first expressed in 1859 in On Liberty — that the truth about any subject will best emerge by open, public debate in a free marketplace of ideas. "The peculiar evil of silencing the expression of an opinion," Mill wrote, "is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost a greater benefit, the clearer perception and livelier impression of truth produced by its collision with error."
Most often, of course, an opinion is neither wholly true nor false; rather it contains an admixture of true and false facts, combined with speculation, conjecture, and interpretation. In such a case, free expression is a prerequisite to purging opinion of its falsity, refining, and building upon "the fraction of truth" it may contain. Mill considered all silencing of discussion, on however controversial a topic, "an assumption of infallibility."
One might have thought that Mill's commitment to free inquiry would be axiomatic in a university. Just the opposite. Rather than hosting an open, public debate in which the validity of Rushton's ideas could be challenged, Western University rushed to print "apologies" for Rushton's "hurtful" views. When the premier of Ontario, David Peterson, called on Western University to fire Rushton, the university president said that he would like to, but he had received legal advice that he could not. The attorney general of Ontario, Ian Scott, then instructed the Ontario Provincial Police to begin an investigation of Rushton, including the university records of every student that Rushton had taught at Western University since his arrival in 1977.
On his next merit evaluation, Rushton received an "Unsatisfactory" rating — the lowest level a professor can receive — which meant that he was denied his annual progression-through-the-ranks pay adjustment. This despite a record of teaching and scholarship that none of his departmental colleagues could match. The evaluating committee wrote that Rushton's "unacceptable performance" in race differences outweighed his "obvious productivity and the commendable character" of his other scholarly research.
Rushton appealed his unsatisfactory rating and, at the senate level, succeeded. But the university then announced that he would henceforth be required to videotape his lectures rather than deliver them in the classroom. In its press release, Western University acknowledged its capitulation to unspecified threats: "We believe that situations could develop that would pose a serious threat to the conduct of classes and to the safety of students, staff, and faculty in the university community." Thus did the "heckler's veto" triumph over academic freedom at Western University.
Incidentally, after six months, the OPP had found no evidence of criminal conduct and called off its investigators. That 20th-century incarnation of the Star Chamber, the Ontario Human Rights Commission, kept up its investigation of Rushton for another four years until, in an Inspector Clouseau denouement, the commission announced that it had lost the names and addresses of all the original complainants and could proceed no further. As for Western University's faculty members, only I and two others — out of a complement of over 1,200 — initially spoke up in defence of Rushton's academic freedom.
ON THE RARE OCCASIONS WHEN DEFENDERS OF UNIVERSITIES ACKNOWLEDGE THE SHAMBLES that their institutions have become, they quickly shift the blame to government underfunding, an argument that has a scintilla of truth. Education in Canada has been relatively harder hit by government cutbacks than, say, agriculture or health care, but the rot was deep and pervasive before the cuts began. And who can blame governments for not wanting to fund institutions whose product includes young people made semiliterate by "disciplines" such as semiotics (the study of signs and symbols in various fields, especially language; a modern-day parallel to, say, necromancy or phrenology), women's studies, and now queer studies.
And what of the students, the ostensible beneficiaries of the whole enterprise? Taught that there are no timeless truths, that all is relative, that the Western canon is the product of a Eurocentric, homophobic patriarchy, students now simply search for what pleases them in the university shopping mall. Toward the end of my tenure, I sensed that more and more students realized that something was wrong. Those who came to university strictly for commercial reasons — to enhance their job prospects — realized that few jobs beckon after graduation, in part, because employers have seen through the universities' propaganda and grow wary of the product they offer.
The more perceptive students become disgruntled long before graduation: by deans who are cheerleaders rather than leaders; by programs and whole departments devoted to interest group politics; by professors who cannot teach. But what can they do? When they first arrive, the university overwhelms them. By the time they see through it, most are near graduation and probably calculate that it is better to say nothing and go quietly rather than to besmirch the institution granting their degree. But "consumer dissatisfaction," as the marketers say, is rampant and obvious to anyone who talks to recent graduates.
And so my memories of a quarter century of university days are bittersweet. My former employer treated me well. I have no grounds for personal resentment. In the beginning, I could not have imagined a more desirable career. I used to worry about mandatory retirement at 65 and to wonder if I could somehow wangle a way to stay on. Yet at the age of 50, at the first opportunity, I leaped at the chance to get out. The scholarly enterprise still seems valuable and continues to engage my time and attention, but I find the atmosphere more hospitable outside the university gates than inside. Within the gates, the Gothic buildings still stand, the ivy still climbs up stone walls, the clock still chimes in the bell tower, but I hear only what Shakespeare called "bare, ruined choirs where late the sweet birds sang."
Originally published in The Next City, Summer 1999