Highlights 12: Mode of Opposition

 

Syracuse University on March 31, 2016

THE WAY OF THE DOOFUS WARRIOR (THAT MUST BE DEFEATED)

'Yesterday we looked at how a doofus and blowhard, awash in derp, can nonetheless have a tactical genius that allows him to defeat all enemies again and again. I focused on an analogy I’m familiar with: increased mobility as a key to victory for Northern Civil War generals. But something funny happened in response to this post. ... A number of readers wrote in and said they agreed with the Sherman analogy but that a much tighter conceptual framework comes from a highly influential American military theorist who died almost 20 years ago, Colonel John Richard Boyd.

 

'Boyd is known for something called OODA loops. We’ll get to the specifics in a second. But he argued that all military action is defined by patterns of getting information, deciding how to act on it and then acting. Whoever completes those loops faster dominates and wins. The same also applies if you can get inside the other player’s decision loop and disrupt them.

...

'[Reader 1 wrote]: "Boyd’s concept of the OODA Loop (Observe-Orient-Decide-Act) suggests that whoever controls the tempo controls the fight. In the case of active conflict, like a political campaign, if you can get through OODA loops faster than your opponent, you can change the context in ways that make their responses to your prior moves irrelevant and ineffective.

 [Reader 2 wrote]]: "Your description of Trump’s behavior, and my own shared observation of it, suggests that he is doing this deliberately."

 

"'Trump does seem to have realized that, paradoxically, the 24 hour news cycle and the “Internet Time” phenomena that demands instant responses to other candidate’s statements and acts, has paradoxically led to the accretion of ever greater layers of buffering and vetting to prevent a candidate from losing a news cycle, or several news cycles, to a gaffe that have both created an absolute minimum response time that can be exploited by dispensing with those protections and attenuated the effectiveness of the response when it comes because the fear of the gaffe exceeds the desire to exploit the opportunity. The result is exactly the kind of Luntzified keyword marble-mouthed double talking zinger durp that people (on both sides) have come to loathe. What Trump has realized is that he can get inside the other candidates’ OODA loops by just working without a net and firing off one tweet and one unfiltered message after another so that the other guys are responding to what he said three tweet cycles ago. But perhaps more importantly, he’s realized he can get away with what the other campaigns would deem disasterous “gaffes” by getting inside the press corps’ OODA loop, which he does by firing gaffe after gaffe after gaffe in n such machine-gun like rapid succession that the MSM never has a chance to focus on one and turn it into something like, say Romney’s “49%” or Obama’s “bitter clingers” gaffes (square quote omitted) because by the time they report it, he’s already belted out a half dozen more on that topic and fired off three other salvos on three other topics.''"

[Understanding this can help opponents keep Trump from running circles around them.]

 

SOURCE: Josh Marshall, Talking Points (August 28, 2015). 

 

GEORGETOWN LAW DEAN WILLIAM M. TREANOR TO INTERIM US ATTORNY EDWARD R. MARTIN, JR.

 

'Your letter challenges Georgetown’s ability to define our mission as an educational institution. It inquires about Georgetown Law’s curriculum and classroom teaching, asks whether diversity, equity, and inclusion is part of the curriculum, and asserts that your office will not hire individuals from schools where you find the curriculum “unacceptable.” The First Amendment, however, guarantees that the government cannot direct what Georgetown and its faculty teach and how to teach it. The Supreme Court has continually affirmed that among the freedoms central to a university’s First Amendment rights are its abilities to determine, on academic grounds, who may teach, what to teach, and how to teach it.

 

'This is a bedrock principle of constitutional law – recognized not only by the courts, but

by the administration in which you serve. The Department of Education confirmed last week that it cannot restrict First Amendment rights and that it is statutorily prohibited from “exercising control over the content of school curricula.” Your letter informs me that your office will deny our students and graduates government employment opportunities until you, as Interim United States Attorney for the District of Columbia, approve of our curriculum. Given the First Amendment’s protection of a university’s freedom to determine its own curriculum and how to deliver it, the constitutional violation behind this threat is clear, as is the attack on the University’s mission as a Jesuit and Catholic institution.

 

'Georgetown Law has one of the preeminent faculties in the country, fostering groundbreaking scholarship, educating students in a wide variety of perspectives, and thriving on the robust exchange of ideas. Georgetown Law faculty have educated world leaders, members of Congress, and Justice Department officials, from diverse backgrounds and perspectives. We pride ourselves on providing an excellent graduate and professional education, built upon the Catholic and Jesuit tradition. Georgetown-educated attorneys have, for decades, served this country capably and selflessly in offices such as yours, and we have confidence that tradition will continue. We look forward to your confirming that any Georgetown-affiliated candidates for employment with your office will receive full and fair consideration.'

 

SOURCE:  Pdf link to Treanor letter

 

NATION'S LARGEST TEACHERS' UNION SUES EDUCATION DEPARTMENT OVER DEI THREATS

 

'The nation’s largest teachers’ union is asking a federal court to halt the U.S. Department of Education’s enforcement of a directive that threatens to pull federal funding from schools that have race-based programming, arguing that it violates constitutional rights and laws that prohibit the federal government from interfering with curricula.

 

'The lawsuit, which the NEA filed along with its New Hampshire affiliate and the American Civil Liberties Union on Wednesday in federal court in New Hampshire, is the second to challenge the department’s Feb. 14 directive that came in the form of a “dear colleague” letter to school and college leaders. 

'The American Federation of Teachers and the American Sociological Association sued the department over the letter on Feb. 25, similarly arguing that the memo infringes upon the Constitution’s First and Fifth amendments.

 

'“The letter is really intended to chill educators in this broad way, and it’s just not acceptable,” said Sarah Hinger, deputy director of the ACLU’s racial justice program.

 

'In addition to challenging the dear colleague letter and a follow-up “frequently asked questions” document to clarify it, the lawsuit asks a judge to find that the Education Department’s recently launched “End DEI” portal to be unlawful. The portal asks member of the public to submit reports of DEI in schools, similar to tip lines that states have set up to solicit reports of critical race theory being taught.

…

'The letter has caused confusion. Legal experts are arguing that it can’t undo existing civil rights laws, but they worry educators may comply anyway to avoid investigations from the department. The follow-up, nine-page, FAQ document seeking to further explain its limitations did not dispel concerns over its alleged constitutional infringements, according to the lawsuit from the teachers’ union and the ACLU.

 

'Instead, the letter, along with the FAQs and the “End DEI” portal, “radically resets … longstanding positions on civil rights laws that guarantee equality and inclusion,” and presumes districts are acting unlawfully, the complaint says.'

SOURCE: Brooke Schultz, Ed Week (March 5, 2025)

 

MESA BOARD STATEMENT ON THE REPRESSION OF ACADEMIC FREEDOM IN THE UNITED STATES

 

'First and foremost, the MESA Board of Directors demands that the government immediately end its repressive campaign against American colleges and universities. We call on all branches of the federal government as well as elected officials and civil servants working at all levels to reject this brazen undermining of fundamental protections enshrined in the Constitution, including due process.

 

'The MESA Board of Directors also calls on lawmakers to recognize the threat these policies represent to higher education in general, and to the specific campuses based in their constituencies in particular. Lawmakers have a critical role to play in ensuring transparency, accountability, and the constitutionality of any and all policies.

 

'The MESA Board of Directors urges university and college administrations to affirmatively defend the autonomy of higher education and the rights of all members of their campus to engage in lawful, First Amendment-protected activity. We also call on university and college administrators to protect and support vulnerable members of our campus communities. Leaders in higher education must recognize that voluntary cooperation — beyond what is legally compulsory — with repressive efforts targeting individual members of our campuses or those abrogating the autonomy of higher education will compromise the safety of campus communities and render all universities more vulnerable to governmental overreach and censorship. Anticipatory obedience is neither a defense against repression nor a viable strategy to avert risk. Rather, it is an invitation to greater repression that endangers students, faculty, and staff, and compromises the integrity of institutions of higher education in a democratic society.

 

'Lastly, we recognize that all of these events, and the climate of fear they have produced, are deeply traumatic to our members. The MESA Board of Directors is determined to face this new threat level and act as a resource in solidarity with our membership in defense of freedom of speech, academic freedom, and institutional autonomy. We will support our members in their efforts to mobilize their own campus communities.'

 

SOURCE: MESA Board Statement on the repression of academic freedom in the United States

 

 

COLUMBIA UNIVERSITY: A TITLE VI DEMAND LETTER THAT ITSELF VIOLATES TITLE VI (AND THE CONSTITUTION)

 

By Kate Andrias, Jessica Bulman-Pozen, Jamal Greene, Olatunde Johnson, Jeremy Kessler, Gillian Metzger, and David Pozen

 

'On Thursday, the president of Columbia University received a remarkable letter from the General Services Administration, the Department of Health and Human Services, and the Department of Education. The letter states that the university must meet numerous requirements by March 20, 2025, “as a precondition for formal negotiations regarding Columbia University’s continued financial relationship with the United States government.” These requirements include changes to student disciplinary policies and procedures; changes to rules on university governance, campus security, and campus life; placing the Middle Eastern, South Asian, and African Studies department “under academic receivership”; and “comprehensive” reform of admissions to various schools within the university.

As scholars of constitutional law, administrative law, and antidiscrimination law who teach at Columbia, we feel compelled to point out some of the most glaring legal problems with this letter. 

• Title VI Standards. As the basis for the funding cutoff, the letter cites the university’s failure to protect students and faculty from “antisemitic violence and harassment in addition to other alleged violations of Title VI and Title VII of the Civil Rights Act of 1964.” The letter offers no explanation of the alleged violations, no mention of a completed investigation, and no account of how Columbia has been deliberately indifferent to ongoing antisemitic discrimination or harassment on its campus—perhaps because any such account would be implausible at this time. There is therefore no apparent statutory basis for a funding cutoff.
• Title VI Procedures. Prior to a funding cutoff, Title VI requires “an express finding on the record, after opportunity for hearing,” of any failure to comply with the statute, as well as “a full written report” submitted to House and Senate committees at least 30 days before the cutoff takes effect. In defiance of these requirements (among others), the agencies are purporting to immediately freeze federal funds and to impose preconditions that the university must satisfy in advance of “negotiations.” The statute does not allow this approach.
• Title VI Remedies. Even if proper notice had been given, a hearing had occurred, and a statutory violation had been found, Title VI does not permit blanket funding removals. Rather, it requires that any removal be “limited in its effect to the particular program, or part thereof, in which noncompliance has been so found.” There has been no allegation—much less a finding—of noncompliance in the many parts of Columbia from which funding has been cut, including from urgent medical and scientific research. Moreover, any permissible remedy would have to be tailored to addressing unlawful discrimination. The agencies’ demands exhibit no such tailoring and, on the contrary, effectively tell Columbia to rewrite its policies on free speech, student discipline, public safety, undergraduate admissions, and more. Indeed, the remedies demanded in the letter not only far exceed the power of the agencies under Title VI; they also raise serious constitutional concerns.
• Academic Freedom and the First Amendment. The federal government enjoys broad discretion to provide funds to private institutions, including universities. The Supreme Court has made clear, however, that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected … freedom of speech even if he has no entitlement to that benefit.” Simply put, funding conditions may not impose unconstitutional burdens on First Amendment rights. Many of the agencies’ demands risk compromising academic freedom, which the Supreme Court has recognized as “a special concern of the First Amendment.” The Court has emphasized the importance of academic freedom at universities in particular, stating that “[t]he essentiality of freedom in the community of American universities is almost self-evident.” In light of these core First Amendment principles, Title VI has never been understood to allow agencies to insist that a university restructure academic departments or abolish internal governance bodies, for example, as a condition of receiving federal funds.
• Unconstitutional Vagueness. The Supreme Court has further emphasized that “[b]road prophylactic rules in the area of free expression are suspect” and that “[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” Yet for several of the agencies’ demands implicating freedom of expression, it is unclear what the university must do to comply. For example, the letter offers no details as to what “federal law” or “policy” the university’s admissions practices contravene, and it offers no guidance as to why the university’s existing “time, place, and manner” rules are inadequate. The vagueness of the agencies’ demands compounds the threat to academic freedom and rule by law.
• Due Process. A withdrawal of federal funding without adequate procedural safeguards likely violates the Due Process Clause of the Fifth Amendment as well as Title VI. The Supreme Court has stated that, in determining what constitutes adequate process, this clause requires an assessment of “the private interest that will be affected by the official action”; “the risk of an erroneous deprivation of such interest through the procedures used”; “the probable value, if any, of additional or substitute procedural safeguards”; and “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” The fact that Congress established the statutory procedures described above speaks to its own assessment of these factors. In any event, immediate withdrawal of funds without reference to a completed investigation—and in the absence of an opportunity for an administrative hearing or voluntary compliance with legitimate Title VI requirements—is not consistent with the Fifth Amendment.

'This is a preliminary analysis. We do not mean to suggest that it is an exhaustive list of problems with the demand letter, nor do we mean to elevate our concerns about this matter over concerns about other recent actions taken by the executive branch. We focus on the legal infirmities of the letter’s Title-VI-related demands because they have received relatively little attention to date. While we are in no position to dictate the university’s response, we hope that this analysis helps show how these demands threaten not only Columbia’s funding for critical academic research but also fundamental legal principles and the mission of colleges and universities across the country.'

 

SOURCE: David Pozen, Balkinization March 15, 2025

 

 

FACULTY REPONSE TO UNIVERSITY OF CALIFORNIA NO LONGER REQUIRING DIVERSITY STATEMENTS FROM JOB APPLICANTS

 

'President Drake’s announcement is a slap in the face to all of the faculty, students, and staff who have dedicated themselves to making the UC an inclusive and diverse community. Getting rid of diversity statements and freezing jobs is not “adjusting” to new circumstances, it is willfully complying with Trump’s racist and xenophobic assaults on higher education. These concessions will not protect the UC from Trump’s wrath, just as it didn’t protect Columbia nor any of the other institutions who have fallen in the crosshairs of the administration’s dismantlement of the country’s democratic institutions.

 

'Drake’s statements will only lead to more fierce attacks on faculty rights—attacks that have not just been coming from Trump, but from the UC Regents and the Office of the President. At least two UC Regents have stated on record that they want unilateral power over UC hiring decisions (largely in response to the outbreak of protests this past year) and have claimed that “shared governance is not working,” without any evidence to substantiate their accusations. Not only are the Regents actively pursuing a hostile restructuring of the UC system based on their own economic interests, their seeming jubilation over the opportunity to exploit Trump’s attacks on climate change, medical research, as well as data-driven intellectual and scientific inquiry signifies that UC leaders are more compelled by greed than by the needs of California residents. 

 

'On hiring freeze:

'The hiring freeze is far less a product of recent attacks by the federal government, than one facet  of a longer process to erode faculty’s civil rights and academic freedom. The UC leaderships’ use of students tuition as a piggy bank for capital investment rather than improving their learning spaces and our working spaces is a mockery to what the UC stands for and means to California residents. 

 

'UC capacity to fight back (and response to Steven Cheung (head of Academic Senate this year) who pretty much conceded to Drake too:

 

'I disagree with my colleague and Academic Senate chair that the UC is not powerful enough to fight back against these attacks. The UC is a pillar of the U.S. higher education system and a crucial line for social and economic mobility for a huge swatch of the state of California. In Fall 2023, the UC’s undergraduate admissions was composed of nearly 200,000 students, 83% of whom were California residents. Conceding to an autocratic leader has never advanced a society’s democratic principles. What we need to see are not concessions to a president that was fundamentally rejected by Californians, but we also need leadership that address the understand these attacks as an existential to democratic institutions and those who commit their lives to making the UCs a world class institution for higher education. 

 

'What we, as faculty students and workers, are demanding is the UC leadership to have a backbone and refuse to comply with the Trump administration’s violations of our academic freedom, civil rights, and constitutional protections of our first and fourth amendment rights. We are ready to do whatever it takes to defend our democratic institutions. What we need now is for UC leadership to take the same risks we’ve seen thousands of students, faculty, staff, and workers around the country make in response to Trump’s assault on higher ed.'

 

SOURCE: CUCFA list

 

 

A MESSAGE TO MY COLLEAGUES AT ELITE UNIVERSITIES: YOU MUST CHOOSE, STOCKWELLISM OR SOLIDARITY

 

'It’s amazing to me—though it shouldn’t be—that at a moment when anyone and everyone who teaches or works or studies at an educational institution is under threat, that a professor at Columbia would formulate the threat in the New York Times in this particular way:

 

'“Ultimately, the university cannot exist without research,” said Brent R. Stockwell, the chair of biological sciences at Columbia. “It would be really, really more akin to a high school or a local community college where you’re just teaching some classes without world-class researchers bringing the frontier of knowledge into the classroom.”'

 

'I don’t doubt that Stockwell sees his lifeworld in this way and that it would in fact be threatened in the way he says it will be. Without the millions and millions in federal funding that he and his colleagues luxuriate in, he would be sent plummeting into that netherworld, where high school and community college instructors reside, of “just teaching some classes”—and where, of course, many, many instructors at Columbia University also reside.

'I’m not going to knock this knucklehead for seeing his lifeworld as it is, and stating it so forthrightly to the New York Times.

'I am going to knock him for his utter lack of political sense:  

• not simply his full-frontal embrace of elitism and privilege, in the nation’s most important newspaper; 
• not simply his full-frontal embrace of elitism and privilege as a way, it seems, of trying to explain why the rest of us, inside or outside of academia, should care about protecting his elitism and privilege; 

'But also his utter failure to see that, whatever his path to glory and ascent has been in these past two decades, the only way forward, for him and his colleagues, in the coming months and years will be: 

•  to start seeing all of academe as a workplace;
•  to start seeing all of his fellow creatures in academe as co-workers, as sources of solidarity;
• and to start seeing all of the activities that go on in “just some classes” and offices and hallways and heating plants and cafeterias and so on, as not just real work with equal value to the work he does in his laboratory, but as real power.' 

SOURCE: Corey Robin, blog (March 20, 2025)