The Ivory Wall of Silence

Every vocation and profession has its code of silence.  Union members don't often speak out against unions, organized criminals don't speak out against the family, and police officers don't criticize other officers.  Judges don't criticize prosecutors (at least by name in published opinions), and lawyers seek to keep lawyer misconduct private. 

Perhaps everyone is silent because they fear retaliation.  Silence motivated by fear, while not commendable, is understandable.  And forgivable.  But what do academics have to fear?

We expect academics to address misconduct by their peers with vigor.  Academics need "academic freedom," we're told, so that they can opine about controversial issues without fear of reprisal.  Yet the way in which academic freedom is exercised should make us wonder if, like prosecutorial discretion, academic freedom is exercised solely for the benefit of those in who have it.  Why do I say this?

I say this because there has been zero coverage by academics of Constantine v. George Mason Univesity:

[Carin Manders] Constantine was a student in Professor Nelson Lund’s constitutional law course at GMU.... Constantine suffered from "intractable migraine syndrome," for which she took prescription medication. While taking Professor Lund’s final exam, Constantine suffered a migraine headache. She alerted exam administrators to her condition and requested additional time to complete the exam, but they refused. Constantine failed the exam. She then requested a grade appeal and re-examination, but those requests were denied as well.

Constantine complained to Professor Lund, the dean of the law school, and other law school officials about the construction of Professor Lund’s exam and GMU’s grade appeals process. She publicized her complaints in an article she wrote for the law school newspaper.

About three months after Constantine made her initial request for re-examination, and after she voiced criticism of the grade appeals process, the dean agreed to give Constantine a second chance to take Professor Lund’s final exam. Because Constantine was carrying a full load of law school courses during the spring semester, the parties agreed that the re-examination would take place "sometime in June" 2003. On May 17, 2003, however, Constantine received an e-mail notifying her that she must present herself for the re-examination on May 21, 2003.

Constantine notified the dean, the law school registrar, and two other administrators that she would not be able to take Professor Lund’s exam at that time because she had a conflict related to another law school course and, in any event, the dean had told her that she would be re-examined in June. These law school officials told Constantine that she should appear for re-examination at the time specified or forfeit her right to take the exam. Constantine requested an opportunity to take the exam in June, but that request was denied. Constantine then filed this lawsuit and moved the district court for a temporary restraining order. After a hearing, the district court denied the motion. Constantine declined to take Professor Lund’s exam on May 21, 2003. GMU later offered to give Constantine another chance to take Professor Lund’s exam, but Constantine believes that in retaliation for her criticism of GMU’s handling of her case, GMU decided in advance to give her an "F" on the exam. Constantine eventually took Professor Lund’s exam, and she received an "F."

As a result of this failing grade in constitutional law, Constantine was not able to graduate on time. Delayed graduation compromised her ability to begin on time the judicial clerkship that she had previously accepted, so Constantine had to inform her judge of the failing grade and obtain special permission to start work a year later. According to Constantine, the "F" on her transcript continues to hamper her employment prospects.

Where is the outcry from the academic community?  Where is the criticism?  Some poor student with crippling migraines was treated like dirt. But all we hear, from liberal and conservive academics alike, is... nothing. 

Perhaps the cries for justice can't crack the ivory wall of silence.

Comments

[KipEsquire]

And at George Mason of all places -- the Economics Department over there needs to have a little chat with the law faculty.

[Aaron]

It sounds to me like the professor (and the school) didn't believe that she had a migraine, but that she instead wanted a "do over". If we don't accept her claims at face value, her ultimate failure of the test suggests that she was not the strongest constitutional law student. The law school, presumably, hasn't told its side of the story due to the continuing litigation.

My guess is that, this being the first I've heard of the story, it hasn't had much circulation which would inspire comment - and, to the extent that other professors who follow these issues have heard of the story, it is not unreasonable that they would want to hear something more than the student's allegations before passing judgment.

From what I have seen, the larger issues - teaching students with disabilities, what constitutes reasonable accommodation of students with disabilities (ideally while maintaining fairness for all students), and responding to students who present dubious claims of disability as a basis for accommodations such as extra time to take examinations and admissions tests, are very much under discussion in academia.

[Mike]

Aaron, before I posted, I considered your points. Had she earned a "C," or even a "D," then maybe she just wanted a do-over.

But an "F." According to the facts, it seems that's her only "F." How many students do you know who ever get an "F" in law school?

I'd love to see George Mason's grade distributions, but until then, I'll safely guess that she was the only student to fail the course.

[Orin Kerr]

Mike,

I don't think you're being fair here. You're overlooking the most relevant part of the opinion for the purposes of the charge you are making, namely footnote 1:

"Because we are reviewing the dismissal of Constantine’s complaint, we accept as true all well-pleaded allegations and view the complaint in the light most favorable to her."

In other words, there have been no factual findings in this case. The "facts" as described in the opinion are only Constantine's claims of what happened. Given that, I think it's a bit premature to condemn academic bloggers for failing to make a big deal of the facts of the case.

[Aaron]

Mike, it depends upon the law school's policies. With all due respect to rampant grade inflation, some schools actually still fail students who perform extremely poorly on exams. Although my experience is from a prior century, a number of students in my law school section failef first year courses, with one who either failed or had to do make-up work to pass at least half of her classes.

I have not yet seen any actual evidence to suggest that this particular student is accomplished beyond achieving accommodation for her disability, and filing lawsuits when things don't go her way. Which is not to say that we should assume the worst of her until we hear the evidence - but at this point benefit of the doubt should be a two-way street, and it may well be that she very much deserved an F.

There will be a trial, the exam will likely become part of a public record, and thus we will likely have the opportunity to judge the case on its merits. I can wait that long to pass judgment.

[B. S.]

Look, if you read some of the other coverage, she got a F the first time. Retook it with 3 days notice 6 months later and got another F. Then finally, took the course again from a different prof. and got a C.

[Brian]

Imagine if she spent as much time studying as she did bitching.

[David]

Imagine if someone actually read the Court's opinion before posting comments that do not advance discussion of the real issues here.