About that UF student paper (Update)

From the New York Times.This begins with a fall 2024 seminar on originalism co-taught by U.S. District Judge Badalamenti (M.D. Fla.) at UF. A student named Preston Damsky--a white nationalist and antisemite who (according to the Times) said it "'would not be manifestly wrong'" to refer to him as a Nazi--wrote a paper arguing that "we the people" refers only to white people and that constitutional and other changes contrary to that represent a "demographic assault on their sovereignty" and a "terrible crime" that white people must resist. Damsky booked the class. That sparked controversy and a series of emails and town hall in spring. That controversy took another turn in February when Damsky began posting racist and antisemitic messages on Twitter, including a March post stating that Jews must be "abolished by any means necessary." He was suspended and and barred from campus.

Update: Link to the paper, which means it will attract more readers than most published scholarship.

• Anthony Michael Kreis (Georgia State) has read the paper and says:

It’s bad. It’s just Dred Scott repackaged. No new historical research. No innovative argument. It isn’t poorly written but that’s about the only thing I can say about it— certainly could not have been the best paper in the class.

Evan Bernick (Northern Illinois) goes a step further, insisting that "no paper that argued for the KKK’s interpretation of the Constitution should have received a passing grade, let alone an award."* I do not agree that the paper's conclusion or viewpoint (however odious) renders it ineligible for the award or a good grade. Anthony's reaction to the paper does not surprise me. I  doubt a student (or anyone else, probably) could make the doctrinal, textual, and historical arguments necessary to provide originalist support for this position. And the paper fails if it does not recognize (as Bernick describes in his posts) the historical forerunners of his arguments. If he cannot make those showings and properly situate his arguments, this becomes a bigoted policy argument in legal drag--which does not warrant a good grade and and certainly does not warrant the book award. But that should be the framing.

[*] This is consistent with Bernick's views--expressed most forcefully in his article on birthright citizenship (with Kreis and Paul Gowder)--that legal scholars carry an obligation not to make weak, politically motivated arguments for the sake of "just asking questions" when those arguments can be used to destabilize fundamental rights.

• To people unfamiliar with law school, the phrase "book award" sounds more prestigious than it is. Yes, Judge Badalamenti recognized merit in the paper and Damsky can put the honor on his c.v. (assuming he graduates law school). But this is not akin to a college- or university-wide honor in a paper competition. One of my colleagues declines to give a book award in seminars or other non-anonymous classes. Although at FIU we have begun a program of having profs pick a "best" paper from each seminar, for the student to present at a school program the following semester. So we end up in the same place, whatever we call it.

• Good on UF Dean Merritt McAlister for not overruling Judge Badalamenti on the book award or the grade. (Eric Segall disagrees on this). Absent some showing of bias, mistake, or other impropriety, the administration cannot overrule a prof on a grade, including identifying the "best" grade for the class. Grading is core academic freedom, on which the professor's expertise controls. And she is correct that a prof cannot "grade down a paper that is otherwise successful simply because he or she disagrees with the ideas the paper advances.” (Whether the paper was "otherwise successful"--and the extent to which those two things may overlap--goes back to Kreis's point. But that, too, remains outside the dean's realm),

Unfortunately, either McAlister or the Times bound her defenses within "institutional neutrality," which has become an unfortunate buzzword and bastardization of the Chicago Principles that has nothing to do with this controversy. This case does not involve the university taking a position about George Floyd or Donald Trump's decision to bomb Iran. It involves academic functions (course work and grading) at the heart of the academic mission that the administration must address. The administration rightfully stayed out of it but that has nothing to do with institutional neutrality and everything to do with academic freedom.

• The story includes an additional tidbit: An anonymous new graduate told the Times that a  law firm withdrew a job offer when it learned that he had criticized the judge for giving the book award to Damsky. It would be nice to name and shame the law firm. Unfortunately, that graduate's career depends (for now) on his identity--and thus the firm's identity--remaining unknown.

• Saving the worst for last: Nothing described in the Times story or in an April story in the Alligator (UF's independent student paper) cited in the Times justifies suspending or trespassing Damsky. The key exchange seemed to go like this:

• Damsky posted his call for abolishing Jews by any means necessary in March.

• A UF prof asked Damsky if he would murder her and her family.

• Damsky responded that “'surely a genocide of all whites should be an even greater outrage than a genocide of all Jews, given the far greater number of whites.'”

Nothing described qualifies as a true threat (his statements were not targeted or immediate), incitement (nothing more than abstract calls for violence as a good idea in the future), or targeted harassment (not targeted or severe-and-pervasive within a small context). Perhaps Damsky targeted his second  statement--genocide of Jews is a lesser outrage--because he spoke to the prof in responding to her question; by definition, "genocide of all Jews" includes killing the Jewish person to whom he is speaking. But the content of the speech cuts against that--he still spoke in the abstract about a genocide of all Jews, not about a direct personal action that would cause a listener to reasonably fear imminent harm from the speaker.

The Times says Damsky is challenging his suspension. It seems to me he has a good argument.

• I will throw out one final question: Assuming UF readmits Damsky and he graduates, can he pass C&F? How much does the First Amendment limit the Bar's inquiry into protected speech as a basis to deny admission?

    Update: One example is Matthew Hale, a neo-Nazi who was denied admission to the Illinois Bar in the 1990s. The Illinois Supreme Court (over a dissent) denied review of the Character and Fitness Committee decision. Hale was convicted in 2005 of threatening a federal judge.