Tuesday, September 16, 2014

Double jeopardy, ex post facto, and Ray Rice

Ray Rice's knockout punch to his fiancée is a serious offense that needs to be treated seriously.

But the way the NFL is treating it isn't right, and for reasons that criminal law worked out long ago.

Here's the sequence of events as I understand it: 
First, Rice is suspended for two games by the NFL.  
Second, the NFL - chastened by criticism of that limited response to Rice's conduct - announces a new policy under which domestic violence will be punished with a 6-week suspension.  
Third, the video of Rice's punch is posted online by TMZ.  
Fourth, Rice is suspended indefinitely.

Suppose the NFL was a government and acted in this same way. We'd feel at once that Rice had been punished twice for the same offense - a violation of the double jeopardy rule found in the Fifth Amendment. Under that crucial protection, once the state has punished you for a particular crime, they can't punish you again for it.

Could it be said here that Rice was punished first for dragging his unconscious fiancée out of the elevator, and then punished later for having punched her? I think that's hard to claim - there's no sign that the NFL ever thought he hadn't punched her.

Could it be said that the offense turned out to be nastier than the NFL initially knew? Maybe - that depends on when they got the video and what other evidence they had. But they decided they had enough evidence to make a judgment on, and I think that once they made that decision they would have been held to it - if they were a government.

Then there's the question of the second sentence. If a government amends its armed robbery statute, for example, to increase the penalty from 5 years' imprisonment to 10, people who commit armed robbery before the amendment can only be sentenced under the law that was in force when they committed their crimes. Here, the NFL announced a new policy of 6-week suspensions but initially - and appropriately - didn't propose to apply the new penalty retroactively to Rice. But then the second video goes online - and then the NFL not only increases Rice's penalty but increases it to more than the new penalty they've just announced! All of this would violate the prohibition on "ex post facto" laws, which can be found in Article I, Section 9 of our constitution.


Obviously the NFL is not a government - though in some ways it is probably more powerful than many governments are. But the double jeopardy and ex post facto rules reflect hard-won understanding of how the power to punish can be abused. Broadly, they require that the power to punish be used deliberately and carefully - and not out of panic or to pander to public passion. It doesn’t seem as if the NFL has learned that lesson.

Sunday, September 7, 2014

An extraordinary teaching moment

From David Schalkwyk’s wonderfully thoughtful Hamlet’s Dreams: The Robben Island Shakespeare (2012) (at pages 75-76), this moment from a University of Cape Town classroom around 1991, when apartheid was dying but not yet dead: Schalkwyk’s students were discussing a poem by a white former prisoner, Jeremy Cronin, who describes hearing the singing of uMkhonto we Sizwe guerrillas facing execution. Cronin’s poem includes these lines:

            Three voices
Called or
            Moise
Combine or responding
            Tsotsobe
Weaving
            Shabangu

In the classroom the students began debating whether the white prisoners would really have been close enough to the black prisoners on death row to hear their singing.

Schalkwyk recounts: “In the midst of an earnest discussion, which had divided the class, a quiet reserved man put up his hand. I think Cronin is right, he said. This did happen. A pause. I was there; I am David Moise.”

The class and Schalkwyk were stunned. Moise’s name on Schalkwyk’s class list hadn’t caught his eye, and apparently Moise had, with the other students in the class, read a number of other pieces of prison literature that had not prompted him to identify himself this way. Schalkwyk writes that, “On reflection, I have always been struck by the fact that this revelation was provoked, not by the many memoirs of imprisonment on Robben Island, but by a poem.”

Schalkwyk’s book itself demonstrates, powerfully, that Shakespeare has a lot to say about Robben Island and South Africa. But perhaps nothing can prove the point that literature helps give meaning to life more vividly than this moment when life and literature fused in the classroom before everyone’s eyes.



Sunday, August 31, 2014

What adjunct faculty do, and how it should be compensated

I’ve been thinking about a problem that won’t be news to many educators: the increased role of adjuncts, or more precisely of teachers who aren’t entitled to some form of job security, in colleges and universities. According to the Chronicle of Higher Education in 2012, “[a]bout 70 percent of the instructional faculty at all colleges is off the tenure track, whether as part-timers or full-timers, a proportion that has crept higher over the past decade.” This development continues a long-term trend; according to a 2013 news item in The Atlantic, "[s]ince 1975, tenure and tenure-track professors have gone from roughly 45 perent of all teaching staff to less than a quarter." 

There’s a lot one could say about this. Given the dismal rates of pay adjuncts receive (a Chronicle survey, published in early 2013, reports "2,987 per three-credit course"), it’s clear that anyone making his or her living as an adjunct is making a poor living indeed. That’s unfair to them, and it also can’t be good for the quality of education for it to be delivered by people who aren’t paid a decent wage, or given reasonable job security, for the difficult work they do.

It’s quite another matter, I think, if someone whose principal work is elsewhere wants to teach, for little pay or even as a volunteer; adjuncts of this sort can bring the community to the classroom in very desirable ways. As a full-time faculty member with tenure, I’ve happily helped to hire and worked with adjuncts like these, whose main employment was in law practice.  

But what about the many adjuncts who teach so much for so little? Perhaps the work these teachers are doing should instead be done by full-time faculty with tenure or some equivalent form of permanence and job security (or who are on the track to that kind of status). Whatever else is clear, however, it seems certain that a change of that sort would quite dramatically raise the cost of higher education. Tenured and tenure-track faculty are paid much better than adjuncts; they also have teaching loads that tend to reflect the other obligations or commitments they have, notably for scholarship and internal governance of their institutions.

Can schools afford the increased costs involved in delivering their full educational programs through tenured faculty? Only if they raise their prices – far from an easy or welcome solution today – or cut their other expenses. There probably are other expenses to be cut. The extravagant college football industry is certainly a candidate (though football players themselves may soon be able to demand more compensation from universities rather than less). But what about, say, career services? It just won’t do to say that individual faculty members will take over the task of career advice; faculty don’t necessarily have great career advice to impart (precisely because they’re working in universities themselves, rather than out in “the world”), and they don’t have the time to give that advice to many students. Or fundraising? Or disability accommodation? Or compliance with regulatory requirements, which generate massive reporting duties? These tasks, in today’s schools, must be done; they can’t be dispensed with. And they won’t be done by tenured or tenure-track faculty.

So I don’t think the days when a university consisted of its faculty, its students, a small set of administrators, and the many people required for such critical tasks as serving the food and maintaining the physical plant, are ever coming back. That means, in turn, that it will never be possible to pay to faculty – all of them, whatever their job status – as large a percentage of the university’s total revenue as would once have gone their way. And so it seems clear that adjuncts playing important roles in education are here to stay. If that’s right, then it follows that they must be treated as the important players they are. They need decent salaries, even if decidedly less than those of their tenured counterparts; they need some form of job security and in particular protection of their academic freedom; and they need some form of a say in the affairs of the school. All that will redistribute some of the universities' revenues to this group of instructors -- and so it should. 

But I admit it won't be simple to work out.


Tricks and treats -- the Ice Bucket Challenge

My father died from Lou Gehrig’s disease (more formally known in the US as amyotrophic lateral sclerosis, or ALS) and I’ve supported the ALS Association to the extent I could for many years. Just now my wife and I made a donation that was partly the result of the Ice Bucket Challenge – my daughter and two of her friends doused each other, though fortunately they didn’t require us to do that! Making the donation led me to the ALS Association’s thank you page, which reports that “because of you, we’ve raised an incredible $100.9 million nationwide from over three million donors in only 32 days!”

This really is quite remarkable. ALS is not a “big” disease – nor would I wish it on more people to make it one – and the result is that funding for its research and treatment is much more limited than in the case of some other illnesses. The Ice Bucket Challenge has dramatically increased ALS fundraising – and done so even though by its terms the challenge gives you the choice to immerse yourself with cold water OR give money. Not both at the same time! But apparently people who do get dunked also give money, and so do any number of other people, no doubt including both people who are directly “challenged” by the dunk-ees and others who, like us, are just inspired.


So apparently humans are the sort of people who can find themselves gripped by a viral internet campaign that doesn’t make much sense but somehow combines good deeds with thrills. We’re also the sort of people, apparently, who are turning online gaming into a major spectator sport – not to mention the sort of people for whom a college’s football success can significantly increase applications for admission. (And these are more or less harmless; not everything about us is equally benign.) It’s a bit crazy to be part of this kind of a species, but … it’s the only species we’ve got!

Thursday, August 14, 2014

History and People

The heart of Amitav Ghosh’s book In an Antique Land is not linguistics but people. It’s an elusive book, in a way, telling several stories – of Ghosh himself, of the modern and very poor rural Egyptians he becomes friends with while trying to do research, and of the twelfth century Jewish trader in Egypt, Yemen and India named Abu Yiju and his slave – or perhaps more accurately his assistant – whose Indian name, Bomma, is part of what Ghosh uncovers in the book. Ghosh doesn’t usually say, or at any rate doesn’t usually highlight, how these stories intersect, though they seem to resonate with each other again and again.

But at the end he makes himself clear. He finds himself back with his Egyptian friends in their village as the first Gulf War is beginning. They are glued to the TV, not out of general interest but out of acute concern for another of the villagers, a friend of Ghosh’s whom he calls Nabeel. Nabeel, like many Egyptians, had gone to work in Iraq; Iraq wasn’t kind to them, but it was profitable. But now war was falling upon them, and the villagers back at home are watching the footage of an “epic exodus” of people fleeing the coming fighting. Ghosh writes:

            There were more than a dozen of us in the room now. We were crowded around the TV set, watching, carefully, minutely, looking at every face we could see. There was nothing to be seen except crowds: Nabeel had vanished into the anonymity of History. (353)

Ghosh is no fan of History. I think what he believes in are people, individual people. The friends he describes in Egypt are not prominent men and women in any sense, but they come vividly and movingly alive in his telling. The twelfth-century merchants whose stories he unearths are now known only to specialists – and even to them only because of an amazing storehouse of documents piled up over more than 800 years in the “geniza,” a special chamber in the Synagogue of Ben Ezra in Cairo (documents which, by virtue of the forces of History, made their way out of Egypt by 1914 and apparently are now largely in Western hands (80-95)). The slave, mentioned in the documents, emerges only as a result of Ghosh’s research as the bearer of a name likely derived from that of an Indian deity, a deity itself disregarded in conventional accounts of Indian religion. (251-54, 264)

So, too, there is a story to be preserved about the holy man whose tomb Ghosh attempts to visit at the end of a trip to Egypt, who turns out to be a saint revered by both Jews and Muslims (342). Ghosh goes home and finds, first under “anthropology” and “folklore” rather than “religion” or “Judaism,” accounts of “a famous line of zeddikim – the Jewish counterparts of Islamic marabouts and Sufi saints, many of whom had once been equally venerated by Jews and Muslims alike.” (342) But he has already sensed, in trying to explain to the suspicious local authorities his own interest in the tomb (as a person neither Jewish nor Muslim),

that there was nothing I could point to within [the official’s] world that might give credence to my story—the remains of those small, indistinguishable, intertwined histories, Indian and Egyptian, Muslim and Jewish, Hindu and Muslim, had been partitioned long ago. (339) 

Those words are all the sadder because Ghosh himself experienced as a child some of the anguish that followed the Hindu/Muslim "Partition" of India and Pakistan. (204-10)

Ghosh does not care for History. He does care for individual people and the decisions, some good and some bad, that they made as they lived in the world where they found themselves.

That seems very important, in a summer when Robin Williams and other artists who gave us joy have died, and in a summer when History, not least the History made by Jews and Muslims, seems to be taking so many unpleasant turns.