Law School Dean Shrugs Off Trump Judge Giving Top Grade To ‘Constitution Is For White People’ Paper
It's a lot of words where a shrug emoji would have sufficed. The post Law School Dean Shrugs Off Trump Judge Giving Top Grade To ‘Constitution Is For White People’ Paper appeared first on Above the Law.
Earlier this week, the New York Times reported that University of Florida law professor — Trump-appointed federal judge, by the way — John L. Badalamenti awarded the top prize in his course to a student on the strength of a paper arguing that the Constitution was written for white people and therefore we shouldn’t have voting rights protections and we should shoot-to-kill migrants making unauthorized border crossings.
Aside from everything else, the University of Florida law school community has… concerns.
In an effort to address those worries, Florida dean Merritt McAlister wrote an email to the greater UF Law community to explain the school’s position on the paper. It falls flat. She lays out the requisite affirmations that the paper “do[es] not reflect the values of UF Law, its faculty, or its administration” and that “We welcome all, we discriminate against none, and we aim to create a community where students feel a sense of belonging and connection—without experiencing fear or threats or hatred.”
But from there the letter jumps into so here’s why our top-20 law school is cool with giving top grades to Nazi Constitution fan fiction.
I understand that these events and this article have caused many in our community pain, disappointment, and fear. I know that many of you are outraged at the law school for not taking the book award away from the student. But the administration does not second-guess grading decisions at the law school, except in very narrow circumstances, and those circumstances did not apply here.
But this completely misunderstands the problem. The issue isn’t really about changing the grade THIS paper got — schools shouldn’t generally change grades after the fact — it’s what the hell is the school doing to prospectively address a professor who thinks this kind of paper is good.
The paper’s views also in no way reflect the views of the professor in this course. The professor had no knowledge of this student’s history at the law school or his deeply held personal views. The professor took the paper on its face—as a student paper attempting to use originalist methodology to reach a detestable and extreme position. As abhorrent as the paper’s thesis may be, that work still falls within the bounds of academic freedom and the First Amendment, and, as such, was graded consistent with the grading standard for the course.
No one’s arguing that it falls outside “the bounds of academic freedom and the First Amendment,” they’re arguing that a paper making a batshit insane argument ripped from the Ku Klux Klan’s online CLE course shouldn’t be the top grade in the class. Isn’t this a law school class? Because part of that requires student work to, you know, REFLECT THE ACTUAL LAW. In Josh Blackman’s contrarian effort to defend the paper, he applauded the Bluebooking which the journal editor in me appreciates, but law schools shouldn’t be in the business of giving out top grades for meticulously cited slop. Unless it’s actually the 1L legal writing course maybe.
This claim that “The professor took the paper on its face—as a student paper attempting to use originalist methodology to reach a detestable and extreme position” is dubious at best.
If a student took the Civ Pro issue spotter and wrote “I don’t know about this International Shoe stuff because the plaintiff should not accept the authority of the district court because it is an Admiralty Court with gold-fringed flags,” it wouldn’t matter if the prose read like someone put Faulkner, Tolstoy, and Bryan Garner into a human centipede and gave it a typewriter.
Oh, it’s an originalism course so he was just graded on his ability to use originalism to justify horrible stuff. That’s not hard! It’s kind of the whole point of originalism! Actually, scratch that… the whole point of originalism is getting to a whites-only constitution without looking like that’s what you’re doing. So even by the measure of originalism it’s falling short. Anyone can point out the Constitution was intended to benefit a white, slaveholder ethnostate… the trick of originalism is getting back there through all those pesky Reconstruction amendments. Just handwaving those away is bad originalism.
Rescinding the honor might feel righteous, but it would betray those principles and set a dangerous precedent in a law school that trains students to confront unpopular ideas and represent unpopular clients. Defending free expression is easiest when we approve of the speech; it is hardest when, as in this instance, the speech tears at the fabric of our community. But that is precisely when our commitment must hold.
Free speech is not a “Get out of being dumb free” card. The kid can write whatever trash viewpoint he wants, but this strays so far from any basic understanding of how constitutional law works that it’s mind-boggling how it could be graded so highly outside of a Roger Taney lookalike contest.
The paper’s thesis was that putting “We the People” meant white people originally so therefore we shouldn’t have to honor voting rights protections. We’re not talking about a Brandeis brief here. The Supreme Court wrote “well-regulated militia” out of the Second Amendment and it’s in the same sentence. Even they would balk at porting the first three words of the preamble into striking down the Fifteenth Amendment. It’s just a bad argument unless it’s intended as satire to rip originalism, which it (a) wasn’t and (b) there’s no indication the professor mistakenly thought it was.
Honestly, the school would be in better shape if instead of “The professor took the paper on its face” they were able to say “the professor thought this was the originalism corollary to Jonathan Swift’s Modest Proposal.” That could actually be a quality paper. But that’s not the story.
We have protected academic freedom and the student’s First Amendment rights while also prioritizing the safety and security of our community. As soon as the student’s conduct became threatening and substantially disruptive, in collaboration with UFPD and UF administration, the student was barred from campus. We heightened security across the college. It is important to note that the escalation in the student’s conduct that led to his trespass happened three months after the book award had been announced in January.
Sadly, this article has given an extremist provocateur exactly what he wanted: a platform for greater visibility. And it has caused hurt and pain within our community in the process. I also regret that this has led an honorable public servant—one who has served his country for decades as a federal public defender and a federal judge—to receive death threats because of an impartial grading decision he made. No one deserves that treatment for selflessly teaching as a part-time instructor in a law school.
Blaming the messenger? This email is really playing all the hits! Everything was fine before you pesky kids started “asking questions about our white nationalism grades!” Yes, it’s very wrong that anyone is getting death threats, but don’t try to foist the blame on people very understandably concerned about the standards at a highly ranked law school.
It’s probably tough heading a public law school in Florida when Ron DeSantis keeps ranting the institutions of higher learning are just Antifa Hogwarts. But it’s one thing to “defend to the death his right to say it” and another for the dean to shrug off the fact that the school’s credibility is on the line when it hands a gold star to: “We the People” Means Never Having To Say You’re Sorry (…To Women and Minorities!).
Or maybe there really wasn’t any student in the class capable of a better reasoned paper. In which case, Florida would have far, far deeper problems to deal with.
(Full email on next page….)
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
The post Law School Dean Shrugs Off Trump Judge Giving Top Grade To ‘Constitution Is For White People’ Paper appeared first on Above the Law.
