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Friday, July 12, 2019

MAGA in the classroom (edited)

This complaint from Jeffey Omari (Gonazaga) about a student wearing a MAGA hat in his classroom is absurd, as Jonathan Turley (GW) shows. I will leave aside whether "MAGA is an undeniable symbol of white supremacy and hatred toward certain nonwhite groups" or what this says about anti-conservative discrimination in legal education.*

[*] Although I cannot let this pass: Omari writes "Being a law professor, I understand the complexities of academic freedom and free speech. I respect students’ rights to freely express their political beliefs and values within the framework of the law. Yet, at the same time . . . " You could see that "yet" coming from a mile away.

I want to focus on classroom management, after the jump.

Omari writes:

law schools are inherently institutions of professional training. Just as faculty and staff are required to maintain professional formalities to aid the training and matriculation of their students, it seems only logical that students, too, should maintain similar businesslike etiquette. . . .  But when students fail to live up to such professional expectations, what are the professors’ options? . . . Surely, there must be protocol when African-American professors—whose presence is scarce in most law schools—find their authority defiantly undermined by an insensitive student.

In what way did this student fail to maintain businesslike etiquette or to meet professional expectations? A professor or school could prohibit baseball hats in the classroom (one of my colleagues does this), but neither Omari or Gonzaga has  done this. A professor or school could require students to dress in a professional or business-casual fashion in the classroom (i.e., no baseball hats or t-shirts with writing), but neither Gonzaga nor Omari requires this. I suppose a private school or professor at a private school could ban clothing with political messages or even conservative political messages in the classroom, although that would raise some concerns for academic freedom and basic common sense; but neither Gonzaga nor Omari has done this in any event.  So if, under the rules of the school and the professor, student can wear a baseball hat with any political message in this classroom, in what way did this student fail to meet his "professional expectations"? Other than by wearing a hat with a message the prof does not like.

As Omari describes his behavior, the student does not appear disruptive, disrespectful, unprofessional, or undermining. The student raised his hand to participate in class discussions, so he seems to be an engaged student who adheres to the rules of the classroom. Omari does not say the student's comments were unprofessional, provocative, or poorly thought out or expressed, or that the comments in any way interfered with the conversation or with the professor's authority. Since I expect Omari would have said so to support his case against the student, I infer from silence that the student's contributions were good, relevant, and well-stated remarks that furthered the classroom dynamic. Omari also says he "knew this student’s political leanings from our various class discussions throughout the course of the semester," without saying that this was revealed through prior irrelevant, disrespectful, or disruptive comments; again, his silence suggests an engaged student participating in the learning experience throughout the semester within the rules of the forum and not acting in an inappropriate or unprofessional way. Arguably, in fact, Omari, not the student, disrupted the class when he took the time from the substantive discussion to comment on the student's sartorial choices.*

[*] Turley makes a good point on this: The prof tells the student he likes the hat and the student smiles and says thank you. But the prof --who was untruthful in saying he liked the hat, describes the student as being the one using a mocking tone.

According to Omari, this incident occurred with three weeks left in the semester. He draws a lot from the fact that the student had not worn this hat or anything political to that point. But so what? No one wears the same hat or clothing every day. Moreover, I doubt Omari would be in less high dudgeon had the student done this on the first day rather than 75 % through the course. Which raises a more telling point. This was not the first encounter between professor and student, where this hat provided the professor's first impression of the student. This student had been in this class for most of the semester, participating  frequently enough that Omari knew his political leanings (which he obviously does not share) but without (apparent) incident. But none of that context comes through or affects Omari's telling. Regardless of anything that happened the previous weeks of the class, regardless of the student's overall performance and behavior, donning that hat, without more, rendered this person an "insensitive student" who "defiantly undermined" this professor.

Gonzaga dean Jacob Rooksby issued the following word salad: "The School of Law diligently works to provide a respectful and inclusive environment that welcomes all students, faculty, and staff. We respect the points of view of all members of our community. This situation presents an opportunity for our community to listen to and learn from each other." Frankly, I think the dean, who presumably knows something about law, has a bigger problem: One of his faculty members took to a national publication and called a student--unnamed but readily identifiable within a small institution (Gonzaga has about 350 students)--unprofessional, insensitive, disrespectful, and racist. For engaging in constitutionally protected speech supporting the sitting President.

Posted by Howard Wasserman on July 12, 2019 at 11:54 PM in Howard Wasserman, Teaching Law | Permalink

Comments

"because I imagine it means very different things to those who can sit and dispassionately parse the abstract ramifications of the acronym than it does to those who may find it a pointed attack on their very right to exist as an equal participant in the public life of this country."

Hither and anon, I have a colleague who has a picture of Trotsky in his office. Trotsky murdered people with my political views (along with lots of other people), yet it does not bother me much, and I have no desire for my employer to remove the picture. I am sure you can equally put up with someone wearing a cap that suggests they don't share your cultural politics.

Posted by: Jr | Jul 19, 2019 4:56:31 AM

For those of you who aren't MAGA folks but were inclined to question whether it was appropriate to assume that wearing a MAGA hat is intentionally racist, just maybe read GU MAGA Student's posts here (in which he, inter alia, makes an equivalency between a Nazi Swastika and a Black Panther raised fist) and perhaps reconsider to whom you are giving the benefit of the doubt.

Posted by: anon22 | Jul 16, 2019 7:38:28 PM

Hither, Um...I'm aghast at how simplistically you read my comment. You want to act like you just strolled through this message board and in passing stated: "hey lets on forget the other sides feelings." Point in fact, "Just something to keep in mind while we strive diligently to determine how many racist demons can dance on top of a MAGA-clad pinhead" yup, you're just an innocent bystander. The issue is not what some person, regardless of race, thinks about this or that. The issue is who is, and by right, who should control the meaning of a symbol and by extension another person's freedom of expression.

You go on about other perspectives regarding what's is, in fact, racist, then call me and others on this post "a bunch of privileged white dudes." It seems you are cut from the same cloth as Omari and care more about individual perceptions than actual articulable facts that support your contentions; which was, interestingly, the whole point of my original post. Thanks for proving my point better then I could myself.

As to your last point... "What?" I am now dumber for reading this following statement that you made. Maybe there is a part in "your curriculum that explains how seeking out and considering non-white perspectives leads to "the supposed Jewish conspiracy in interwar Germany, slavery in the US, the Weather Underground and the genocide in Rwanda." I can not put into words how horribly you missed the point of my whole post. But I suspect you of being a "Cultural Marxist" and its of little surprised that you see all things through a lens of conflict, and perpetual victimhood. Victims are made, not born.

Here's my point in less intense language so you can follow. It can be dangerous to only consider one viewpoint or one sides feelings, especially when you have not considered the other sides perspective or feelings. That part deals with Omari's perspective vs. the students perspective.

In addition, you have no basis for supporting the idea that MAGA is racist on its face, and neither do others who subjectively (that's big people language for personal feelings) feel that it is as well. There is no objective (that's another big word for facts uninfluenced by personal feelings) evidence that MAGA is on its face racist, Unlike the Swastika or Black Panther fist. In each of those historical cases that I referenced, each was marked by one side denouncing the other both personally, and impersonally without regard or consideration of the other. Just cut and dry, no room for you in the conversation i.e. Jews are evil, destructive, and subhuman rats; slaves are ignorant, violent and are more animalistic than human, Tutsis are cockroaches, vermin, and must be wiped off the face of the earth.

Posted by: GU MAGA Student | Jul 16, 2019 12:47:20 PM

GU MAGA Student,

"You seem to want to state as truth that since some people take a symbol to mean X, thus it must mean X."

My you do like to read a lot into things for someone ostensibly interested only in "what something is or is not on its face" and "manifest intentions," don't you? I simply noted that many (all? I dunno...) of you might be judging these questions from a specific and completely unacknowledged perspective. Seems to me like a bunch of privileged white dudes taking onto yourselves the authority and capacity to judge not only what MAGA represents but what "millions of people in America" do or do not think about it is a rather breathtaking degree of chutzpah, but hey, you do you. I'd prefer to maybe consider a multiplicity of perspectives on what's racist before glibly assuming that my personal assumptions are both right and objective.

But, hey, I didn't go to GU Law. Maybe there's something in your curriculum that explains how seeking out and considering non-white perspectives leads to "the supposed Jewish conspiracy in interwar Germany, slavery in the US, the Weather Underground and the genocide in Rwanda." If so, please do tell.

Posted by: Hither and Anon | Jul 16, 2019 11:43:07 AM

Every day the President says something a bit more racist.

Every day almost the entire Republican party looks the other way, or encourages that behavior.

If MAGA does not mean racism then why is not the entire MAGA movement speaking out and saying to the President - this is wrong, this is not who we are?

Because they agree with the racist statements, or they believe many in their movement do and they do not want to offend them.

Posted by: Public NME | Jul 16, 2019 9:35:11 AM

Howard,

You've got "Jeffeys" name wrong in the opening line.

Posted by: This is perhaps the only game with worse rules and less excitement than baseball | Jul 16, 2019 9:18:17 AM

Yes, Gonzaga is private. But I didn't say anyone had violated the student's First Amendment rights.

As several people on this thread have suggested and what I was trying to say in the excerpt you quoted, Prof. Omari might have overstepped his faculty responsibilities by writing disparagingly in public about one of his readily identifiable students. If someone is evaluating Prof. Omari's conduct as professor--as I think his dean might--the nature of the student's actions
seems to me to be relevant to that question. Wearing a hat with a political message--as opposed to, say, making true threats or displaying pictures that would constitute obscenity--makes a difference in that evaluation.

Posted by: Howard Wasserman | Jul 16, 2019 7:09:43 AM

I wanted to take a moment to thank Marty for wading in and give us his opinion. I don't agree with it, but it did prompt an interesting (and surprisingly fruitful) discussion.

So thanks, Marty. I know it can be nerve wracking to offer an opinion that may get you pilloried by the internet.

Posted by: YesterdayIKilledAMammoth | Jul 16, 2019 1:43:16 AM

"One of his faculty members took to a national publication and called a student--unnamed but readily identifiable within a small institution (Gonzaga has about 350 students)--unprofessional, insensitive, disrespectful, and racist. For engaging in constitutionally protected speech supporting the sitting President."

Isn't Gonzaga a private school? How is this speech "constitutionally protected?"

And Howard, what exactly is the relevance of the fact that the student is supporting the sitting President? Does that somehow mean that the student isn't being racist etc. by definition or something?

Peoole who don't want to get criticized for wearing MAGA hats shouldn't wear them.

Posted by: Committee Member | Jul 15, 2019 11:52:56 PM

What are we to make of the non-parallel language Omari uses when discussing race?

When discussing racial minorities, Omari uses the person-first term "people of color" (used 4 times in his article), but when discussing white people he refers to them only as "whites" (also used 4 times in this manner).

Thus, in reading the essay, I was unsure whether Omari was directing a hateful message towards his white students, or merely lacked decorum and was oblivious how his language might be interpreted by a white audience. I presume it is the former. Volumes of articles on people-first language published by Omari's fellow progressive academics has given this perspective added credence.

Posted by: This is perhaps the only game with worse rules and less excitement than baseball | Jul 15, 2019 5:20:54 PM

Hither, I find it very interesting that you want to argue symbolic relativism instead of what something is or is not on its face or alternatively, through the prism of the instigating individuals manifest intentions. As was stated earlier in this discussion, millions of people in American do not feel that MAGA is racist and are also not racists themselves. Is MAGA racist on its face? At this point, the verdict is still out.

Unlike the Swastika, which through the actions of all of its adherents, gained worldwide recognition as a symbol of hate, MAGA, although embraced my a minor contingent of truly racist individuals, has not and does not deserve the same accession. You seem to want to state as truth that since some people take a symbol to mean X, thus it must mean X. This is not so, and we really all would not want such propositions to be true. Such thinking tends to allow for the rationalzation of all manner of abhorrent things i.e. the supposed Jewish conspiracy in interwar Germany, slavery in the US, the Weather Underground and the genocide in Rwanda, to just name a few.

Summation, don't take a place of moral judgment over someone or something until their actions manifest in you the ability to make a reasonable opinion of them or until res ipsa loquitur; to pun legal jargon. From the little that Omari's "story" gives to the reader, you have neither the holistic evidence to make the generalized statement that "a thing speaks for itself" nor facts sufficient to make a reasonable inference as to the true intentions of the wearer.

Posted by: GU MAGA Student | Jul 15, 2019 5:03:39 PM

I wonder if the ABA contacted the student for his perspective before publishing this article. I don't see any mention of it on the ABA page. That seems like the kind of thing a responsible organization would do.

Posted by: jph12 | Jul 15, 2019 4:39:52 PM

Just casually wondering how many of those on this board expressing such certainty that they know what MAGA does or doesn't mean happen to be non-white, because I imagine it means very different things to those who can sit and dispassionately parse the abstract ramifications of the acronym than it does to those who may find it a pointed attack on their very right to exist as an equal participant in the public life of this country. Just something to keep in mind while we strive diligently to determine how many racist demons can dance on top of a MAGA-clad pinhead.

Posted by: Hither and Anon | Jul 15, 2019 3:19:45 PM

Probably a good analogy would be wearing a hat supporting David Duke. He got more than 50,000 votes in Louisiana for Senate as recently as 2016 - a lot more in earlier runs. He has run for President. Can we all agree he is a racist, and wearing a David Duke hat would be racist even though the wearer may not admit it?

Can we all agree that David Duke is a racist?

Posted by: Public NME | Jul 15, 2019 2:00:23 PM

The most likely explanation for the incident is that the professor had (like many others) made his own political views very apparent during the semester, and a student who who was tired of hearing them decided to engage in a perfectly legitimate form of protest. Assuming that political views were somehow germane to the class being taught, the student has as much right to express them as the professor and, so long as the exchange is civil, has no obligation to refrain from speaking to spare the professor's feelings.

Posted by: Stan Fardle | Jul 15, 2019 1:43:16 PM

I wouldn't assume that this will hurt him on the hiring market. I bet most of the faculty at my school would agree with him and go to his defense.

Posted by: Profanon | Jul 15, 2019 10:30:41 AM

The problem in this country is that we have a racist President. He is not just a racist, he is a lot of other things too (incompetent, uninformed, a rapist, he is probably some good things as well although I have trouble seeing those). In normal times, I would think supporting the sitting President should be acceptable and within the realm of reasonable political disagreements, but these are not normal times.

Posted by: Public NME | Jul 15, 2019 9:46:45 AM

Marc: There absolutely is, which is why I believe Omari may be in some trouble at Gonzaga and with prospective hiring schools. My point was simply to acknowledge the correction offered by a reader that his misdeed was somewhat different than Wax's.

Posted by: Howard Wasserman | Jul 15, 2019 9:27:31 AM

Howard, is there not a general cultural expectation that one should not write publicly and disparagingly about one's students in ways that single them out in identifiable ways (as opposed, for example, to discussing a class)? I mean the question genuinely--just as a matter of the present sociology of the (legal) academy.

Posted by: Marc DeGirolami | Jul 15, 2019 8:45:25 AM

For those defending Trump - it is not that he once made a racist remark. It is that he keeps making them, unapologetically, and his supporters in Congress do not even condemn the remarks anymore, and his supporters at his rallies cheer them. Just yesterday, he made another one.

Posted by: Justin | Jul 15, 2019 8:15:27 AM

A reader emailed me with a correction about my Amy Wax analogy. Wax was sanctioned specifically for discussing student performance, in violation of culture at that school that student rank is not known, as well as practices that students not be used in Wax's scholarship without their permission. So while Omari did write disparagingly (and perhaps factually erroneously) about a student for his scholarly purposes, it was not about grades or in violation of a similar cultural expectation.

Posted by: Howard Wasserman | Jul 15, 2019 7:59:48 AM

What if it had been a Nazi hat in the days of the Nazis, before Hitler started actually killing the Jews? I am sure a lot of regular people liked Hitler for whatever reason.

Posted by: Drucilla | Jul 15, 2019 7:38:33 AM

"If the student here had worn a cap that said "Trump," there'd have been no issue at all, I'm fairly certain."

I find it surprising that you would think that. I don't think that someone who has such a problem with Trump's major campaign slogan is going to regard supporting Trump as anything but racist in of itself, or at least insensitive. Especially given how the problem with MAGA is based on inferring meaning that the sender of the message would deny, I don't see why you can't as well say voting for Trump is itself a racist act.

Posted by: Jr | Jul 15, 2019 5:46:27 AM

It depends on how prominent this becomes. Again, publicly shaming students is what led Penn to sanction Amy Wax by removing her from required courses. And Wax has tenure. Omari is a VAP, so he has no job security at Gonzaga. I could see the dean facing some pressure to fire him. He also presumably will be hitting the meat market for a permanent teaching job in the next few years--this could make him toxic.

Posted by: Howard Wasserman | Jul 15, 2019 5:17:35 AM

Scott Fruehwald writes:

"Since you added no. 3, let me state that the ABA article was not appropriate. Students and probably professors at Gonzaga can certainly identify the student. A professor has publicly shamed a student when his actions were probably innocent. A professional teacher does not do this."

But wasn't that most likely the professor's goal? I mean, if we're going to apply his metric of accepting the most cynical view possible, doesn't it make sense to assume that the professor's goal was effectively to dox the student? What possible ramification is the professor going to face other than a little light chiding on an internet board?

Posted by: YesterdayIKilledAMammoth | Jul 14, 2019 11:55:49 PM

MAGA hats are the defining aesthetic of a political movement that is, as the president made clear again today, explicitly premised on white supremacy. The idea being seriously considered as realistic here that a student at Gonzaga Law might support the movement without supporting its foundational ideology boggles the mind. There's no indication that the student was wearing the hat as a joke (query whether that would be more defensible or less?) or that he literally emerged from the womb yesterday and wore the hat for aesthetic reasons in utter ignorance of its political message. The res ipsa is loquituring. Wearing a MAGA hat is racist (when the closest analogy you can make is Nazi uniforms.......)

And, for the same reason that an appellate court won't overturn a trial judge's rulings based on witness credibility, I'd hesitate to write off so quickly Prof. Omari's intuition that the student was behaving mockingly in some way. Black folks in America have a lot of experience being both overtly and subtly racist-ed at, and in my experience it's usually a safer bet to presume that Black people know whether or not they were being racist-ed at. Maybe you'd prefer to assume that the objectively racist person's objectively racist act was subjectively not racist in this case. But my presumption in favor of Prof. Omari's firsthand impressions, combined with what I would have previously thought to be an uncontroversial thought about our shared experience--that wearing a MAGA hat is, in a high percentage of cases, generally intended to be provocative (maybe not at one black professor, but at the "libs" in general)--is enough for me to lean the other way.

Now, just because we recognize that the hat is racist and that wearing it was racist doesn't mean that it should be banned from classrooms. I wouldn't really have a problem with that personally, but I recognize that deplatforming fascism--a method of prodemocratic action with a relatively strong track record--is a bridge too far for many.

Posted by: anon22 | Jul 14, 2019 9:43:34 PM

Should people assume burning a cross is a hate crime? Virginia v. Black says no.

If burning a cross is not proof of racist intent, why would wearing a MAGA hat be more historically racist than burning a cross?

Posted by: Okay Okay Okay | Jul 14, 2019 8:43:55 PM

Since you added no. 3, let me state that the ABA article was not appropriate. Students and probably professors at Gonzaga can certainly identify the student. A professor has publicly shamed a student when his actions were probably innocent. A professional teacher does not do this.

Posted by: Scott Fruehwald | Jul 14, 2019 5:46:34 PM

And, (3) was the article appropriate

Posted by: Profanon | Jul 14, 2019 11:02:54 AM

Marty, I am not sure if you are deliberately speaking past everyone (except Asher). There’s two real issues here:

1. Should people reasonably interpret wearing a MAGA hats as having a racist component to it?
2. Assuming 1 is yes, was Omari justified in believing the student intended to target Omari due to his race (rather than obliviously and accidentally offending him)?

Everyone (except Asher) seems focused on 2, but you are fixated on 1. So do you agree that Omari was wrong to jump to the conclusions he did, even if a MAGA hat has a racist component to it?

(More extreme example: I remember a news story about an elementary school kid who dressed up as MLk for heroes day. He used black make up as part of the outfit. Everyone, I think, would agree the boy did not intend to send a racist message, even if blackface is about as racistly tinged of an act there is.)

Posted by: A Non E Mous | Jul 14, 2019 9:53:59 AM

Two points. First, if we assume the student had no racist intention and intended no deliberate insult the fact that many people (in my view appropriately) *associate* that apparel/statement with a racist message/attitude can't be enough to warrant excluding it from an academic environment. For instance, we can easily imagine that points of view like arguing that affirmative action is unfair or hurts minorities (or even more controversial claims associated with genetics) could also come to be so associated simply because of who tends to make them.

I strongly sympathize with the professor in this case as I feel that MAGA expresses an awful racially divisive attitude in a way these intellectual points of view don't. However, those who are offended always feel that way so it doesn't provide a useful bright line distinction in deciding when a given kind of expression should be regarded as inappropriate/unprofessional/etc.. (much less deserving this kind of response in public).

Now this is irrelevant if you assume the student had explicit racist/offensive intent. However, Prof. Omari's account is in tension with itself on this point as he explicitly recognizes a compelling argument that suggests it was quite plausible the student had no overtly racist intention (one might argue support for Trump is implicitly racist but that's another issue) and intended to convey no particular insult or racist message to Omari but yet assumes the contrary. Indeed, he says:

"These studies show that many whites assume people are colorblind and expect evidence of racial discrimination to be explicit; many blacks perceive racial bias to be widespread and implicit. With this scholarship in mind, I understood why no one else in this particular class—in which whites outnumbered students of color 20 to three (with me, the instructor, being the lone African American)—seemed as vexed as I was. "

So he's clearly explained why the white student (likely with primarily or only white friends and associates) would not have thought that the cap would convey a racist message.

Posted by: Peter Gerdes | Jul 14, 2019 9:44:53 AM

What was that y'all were saying about the non-racialist social meaning of MAGA?

https://twitter.com/realDonaldTrump/status/1150381394234941448

Posted by: Marty Lederman | Jul 14, 2019 9:17:28 AM

Marty writes: "If the student here had worn a cap that said "Trump," there'd have been no issue at all, I'm fairly certain."

I wonder. We are not that far removed (3 years) from students at Emory complaining about people writing Trump in chalk on walls and sidewalks, calling it a racist act, given Trump's campaign and public statements. I do not know if Omari shares that view of the Trump name alone--but at least some people would.

Posted by: Howard Wasserman | Jul 13, 2019 6:54:28 PM

Bias disclosures: white conservative who hates Trump and did not vote for him.

My initial reaction to the Gonzaga professor’s dichotomy - intentionally hateful or obliviously offensive - was it couldn’t be right. On more reflection, I have changed my mind. It all depends on what society interprets a MAGA hat to mean. I think most in society specifically associate MAGA with Trump, particularly his campaign which bulged with racism. I know plenty of conservatives who would not be caught dead in MAGA hats, even if they held their noses and voted Trump. Even if a majority of Americans don’t see MAGA hats as reflecting a racist attitude, a large plurality do and certainly you could guess a black law professor would. And it makes it different than simply a Republican t-shirt.

So it’s not unreasonable to think the student was thoughtlessly offensive. It does take an absurd jump to think he intended to send a racist message.

I’d still like to know if Marty thinks his reasoning applies to those who protest during the anthem. MAGA hats seem to be the flip side of that coin. One might intend a particular message through some act, but others might reasonably receive a different message.

Posted by: A Non E Mous | Jul 13, 2019 6:45:44 PM

On Profanon's last point: What did in Amy Wax at Penn was when she spoke publicly about how few current and former Penn students of color were at the top of her classes. Omari's essay called out one student in a small school. This is why I said in the OP that the dean has bigger things concerns than whether we learn from one another--Omari crossed the same line in a more explicit and direct manner.

Posted by: Howard Wasserman | Jul 13, 2019 6:14:49 PM

Profanon: I agree that the comment was a good icebreaker. But the fact that he then derides the student's response to his joke as "mocking" undermines any sense that he was joking.

Marty: I appreciate your reframing. Although you are correct that Omari is not prescriptive, the foundational assumption of the essay was that wearing that hat is inconsistent with a lawyer's (or future lawyer's) professional obligations--which implies some sanction for doing so. And although the focus is on the classroom, that assumption logically extends beyond the classroom to everything within the four walls of the law school. After all, if the hat is an "undeniable symbol of white supremacy and hatred toward certain nonwhite groups," it has no more place in the law school's common areas or the Law Review office or a lunchtime speaker than in his classroom.

In the paragraph Marty quotes, Omari gives two choices as to what the student might have intended by wearing the hat: 1) hatefully intending to harm Omari or 2) ignorant and oblivious to the harm to Omari. Omari then presumes the version that reflects most poorly on the student, although even the alternative still makes the student look pretty bad and unfit to be a lawyer. Omari leaves no room for the third option, which is the one I would presume--The student is a conservative (obvious from the prior ten-or-so weeks of class) and likes the President. And his wearing the hat had absolutely nothing whatsoever to do with Prof. Omari.

Here is where I would like to know more about the student's behavior during the semester and his interactions with Prof. Omari. Was the student a provocateur, being difficult and trying to push hot buttons for their own sake? If so, perhaps I might infer the worst about the student's actions and motivations. But as the story is presented, Omari labels the student an intentional hateful racist for no other reason than that he wore that hat.

Asher: I appreciate you reminding us of how much I annoy you even on the rare occasion you are in sympathy with my position.

Posted by: Howard Wasserman | Jul 13, 2019 6:04:21 PM

Oh, and Marty, maybe the student acted inappropriately, but the professor's article was just as (if not more) inappropriate. If he wanted to write an article about discussing or dealing with divisive politics in the classroom, he should have generalized or used a hypo.

Posted by: Profanon | Jul 13, 2019 6:04:18 PM

Our job as professors is to educate our students, not publicly shame them and lob unjustified accusations at them for their political affiliations.

Posted by: Profanon | Jul 13, 2019 6:01:52 PM

Asher, I did not write anything remotely close (nor did Prof. Omari) to--and of course I don't believe that-- "the half of the country that supports its political leadership should silence that support in public because vocally supporting that leadership is an inappropriate and racist thing to do."

The question has nothing to do with what one wears in public, nor about support for one candidate or another (although even that isn't a very good idea in a law school classroom--it virtually never happens in mine).

If the student here had worn a cap that said "Trump," there'd have been no issue at all, I'm fairly certain.

I'm sure that *some* people wear MAGA caps merely to show that they support Trump. But that is decidedly *not* the message that it predominantly conveys, any more than a confederate flag primarily says: "This person is proud to be from the South."

Posted by: Marty Lederman | Jul 13, 2019 5:06:02 PM

I wrote a long response to Marty, but then I deleted it because I just get tired of dealing with such mental gymnastics.

Suffice to say, his and Omari's definition of an "undeniable symbol of white supremacy..." rests solely on how one person "feels" about it, rather than any objective evidence that it *is* a symbol of white supremacy and that its status as a symbol of white supremacy is "undeniable".

In short, it's a fallacious appeal to emotion.

Posted by: YesterdayIKilledAMammoth | Jul 13, 2019 4:52:32 PM

I guess I think (about the comment below) that it can't really be inappropriate in the way you suggest to wear a hat emblazoned with the campaign slogan of the sitting President, unless that President is worse by many orders of magnitude in the way you suggest than this one actually is, e.g., actually proposing to return to policies of de jure segregation, not just suggesting that America was on the whole "greater" in the 50s, which of course is true in certain respects, as Bernie Sanders will be happy to tell you for reasons that I'm not sure are even very different from Trump's. What seems offensive to me here is the notion that the half of the country that supports its political leadership should silence that support in public because vocally supporting that leadership is an inappropriate and racist thing to do. That said, I don't really think my position ultimately turns on the defensibility of that leadership; I would go further and say that in Nazi Germany it wasn't inappropriate for students to wear Nazi garb in classes taught by Jewish professors, when there still were Jewish professors. I just don't think it's a serious or viable position to try to enforce some kind of propriety where no one can publicly support the political leadership of the country in rooms where some people might have a problem with that leadership, whether deeply justified or otherwise. It would've seemed really inane in Nazi Germany to complain about students wearing swastika armbands to class, as opposed to the fact that Nazis were running the country in the first place. If you have a problem with the political leadership of the country, I would think efforts to dislodge that leadership would be better served by openness about who supports it, not a norm that encourages private or secretive support and thereby protects the leadership's supporters from being confronted publicly. I don't usually care much for non-legal First Amendment values and get very annoyed with Howard's endless propagation of them here, but here I'm in complete sympathy; the piece he's responding to is really wrongheaded and dumb.

Posted by: Asher | Jul 13, 2019 4:52:26 PM

Marty, Would you say the same for prominent figures who have knelt during the anthem? That is, should those figures be viewed as being oblivious to the fact that their message would be interpreted as disrespectful to veterans, since respect for the flag is so commonly associates with gratitude for those who have fought for our freedoms? If so, was the response to those figures’ actions justified?

Posted by: A Non E Mous | Jul 13, 2019 4:45:33 PM

I suspect I might regret wading into this, Howard, but . . .

With the possible exception of the penultimate paragraph--a somewhat vague suggestion about what "decision makers" should do--Prof. Omari's column is not framed as an argument that students should be prohibited from wearing MAGA caps in class (or any other caps, for that matter). It is, instead, about his own responses to the incident, and about whether students should try to be more sensitive to the impact of their classroom conduct. This is the key part of his column, on which the remainder turns:

"I was unsure whether the student was directing a hateful message toward me or if he merely lacked decorum and was oblivious to how his hat might be interpreted by his black law professor. I presumed it was the former."

I assume you agree that if Prof. Omari's presumption were correct, or reasonable, then his responses in the column were justifiable, too, right?

I sense, however, that you think his presumption (viz., that the student "was directing a hateful message toward me") was incorrect and unreasonable.

OK, let's say for the sake of argument that you're right about that (although I think we don't know enough about the student and the class to be confident about it). In that case, by Omari's account, the student would merely have been "oblivious to how his hat might be interpreted by his black law professor"--namely, as "an undeniable symbol of white supremacy and hatred toward certain nonwhite groups," reflecting "an effort to return to a time in American history when this country was 'great' for some—particularly, propertied white men—but brutally exclusionary for others, most notably women and people of color."

If so, was it reasonable for Omari to see the MAGA hat as such a symbol, given its common usage in the past few years? And, more to the point, was his student being at least insensitive, or "oblivious," to the fact that his African-American teacher would likely view it as such?

Even if one were to answer both of these questions "yes," it would not mean, of course, that the teacher or school should prohibit the cap--and Omari doesn't suggest otherwise. But wouldn't it mean that the student acted inappropriately here, in a manner that warrants at least some criticism, even if the student himself did not intend to convey such a message?

Posted by: Marty Lederman | Jul 13, 2019 3:10:15 PM

Great post Howard. Prof. Omari's comment in class was understandable. Students may have just thought he was breaking the ice and being good humored about it. I agree, however, that the article was completely inappropriate. For the reasons you mention, he basically called this student out publicly as a racist and risked seriously damaging his career, not to mention the social stigma that will likely follow.

Posted by: Profanon | Jul 13, 2019 2:02:52 PM

Imagine a Palestinian Professor saying that a student's yarmulke was intrinsically a symbol of occupation, Jewish supremacy and racism.

Or imagine if someone thought burning an American flag was intrinsically a clear-and-present-danger or a symbol of communism.

Posted by: Texas Johnson | Jul 13, 2019 1:06:20 AM

I have written a book on cognitive biases and how to get over them for lawyers--Understanding and Overcoming Cognitive Biases for Lawyers and Law Students:Becoming a Better Lawyer Through Cognitive Science (2018). I suggest Prof. Omari read it.

He might recognize:

Bias-blind spot: “The tendency to see oneself as less biased than other people, or to be able to identify more cognitive biases in others than in oneself.”

Confirmation bias: “The tendency to search for, interpret, focus on and remember information in a way that confirms one's preconceptions.”

Dichotomous thinking: Viewing events or people in all-or-nothing terms.

Emotional reasoning: Letting your feelings guide your interpretation of reality.

In-group bias: “The tendency for people to give preferential treatment to others they perceive to be members of their own groups.”

Mind reading: Assuming that you know what people think without having sufficient evidence of their thoughts.

Subjective validation: “Perception that something is true if a subject's belief demands it to be true. Also assigns perceived connections between coincidences.”

Posted by: Scott Fruehwald | Jul 13, 2019 12:57:13 AM

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