The debate on trigger warnings seems to have run its course for now, with many thoughtful (if you agreed) or outrageous (if you disagreed) contributions. While I agree with many of the thoughtful contributions (see, for example, Ari Kohen, Tressie McMillan Cottom, and David Perry), I'm not too happy about the overall frame of the debate, it's focus on warning students:
Some of the (thoughtful) debate contributors have pointed to the learning hurdles encountered by students with invisible disabilities such as PTSD and the fact that we have to help them overcome these hurdles. While trigger warnings might prevent the encounter with unexpected triggers, the triggers constitute only a portion of these hurdles. Another thoughtful point in the debate is that we should not exclude students who experience discomfort and stress with difficult and conflictual course topics, even if this discomfort does not rise to the level of trauma or other psychological distress. But trigger warnings can very easily exclude those students ("You have been warned: Take this course only if you are worthy of hard questions!"). As a result, trigger warnings are only a partial solution to one problem and make another problem worse.
Instead of adding a trigger warning to the lengthy (thanks, accreditors!) list of rules, instructions, penalties, grading scales etc. that we have to include on our syllabi, why not write a syllabus that helps create an open and inviting course climate? Instead of warning students off, why not invite those who fear conflictual or difficult course material to talk to you about ways to handle the difficult material and succeed in the course? Such a conversation, hopefully at the beginning of the course, is more likely than a trigger warning to encourage students to face the questions that they find threatening and to work with the instructor to do so successfully. In addition, instructors can encourage students to contact disability services and possibly get an access plan if they suspect that their fears are connected to a disability that should be accommodated.
Making your class inviting opens a number of boxes, particularly if you think in terms of inclusive learning, so here are just a few pointers to things that can be done fairly easily. Harnish et al., in an article on Creating the Foundation for a Warm Classroom Climate, focus largely on the type of language instructors use in their syllabi and how they frame the rationale for assignments and explain their own interest in the course topic. They provide a useful list of things that instructors can check when they create their syllabi.
Related to this, with a stronger emphasis on the disciplinary focus of the course, is Ken Bain's Promising Syllabus model, which he summarizes in a short paper (pdf) as well as in his book, What the Best College Teachers Do. Bain's syllabus model encourages instructor and students to enter into a conversation about what students will learn, why they should do so, and how they can document success. If this is successful, the exchange between instructor and student should include a conversation about possible affective and psychological hurdles that the students face.
Among the suggestions most applicable to trigger-warning style situations is one by Christina Petersen, David Langley, and Cheryl Neudauer, in a presentation at the 2013 PODNetwork conference. Petersen and her colleagues propose the inclusion of a paragraph that explicitly invites students to talk to the instructor when they feel overwhelmed and promises that the instructor will try to find a solution with them that helps them succeed. The presentation material used by Petersen and her colleagues, which includes example text for such a paragraph, can be found at the wikiPODia website.
Sunday, May 25, 2014
Friday, November 29, 2013
Will filibuster reform lead to more partisan judges?
Observers agree that last week's filibuster reform was a big deal, but nobody knows yet in which way it is going to be big. Speculation abounda - a good example is Judge Wilkinson's argument that collegial interaction in the courts will suffer as future judges do not have to gain bipartisan approval (his column, by the way, includes a beautiful invocation of collegiality in the courts, which all should read).
I am skeptical of this conclusion, for a number of reasons. While the filibuster has been abolished for all practical purposes, there are other mechanisms for minority party involvement and obstruction. As a result, presidents still have incentives to nominate judges that gain at least some bipartisan approval.
First, the Senate's rule change is not a complete demise of the filibuster – it merely reduces the number of votes needed to invoke cloture. As a result, the majority party can now invoke cloture whenever almost all of its members support a nomination. It does not need Republican votes to do so. But according to Senate rules, a successful cloture vote does not necessary lead to an immediate vote on the nomination: it can still be followed by up to 30 hours of debate. In other words, the filibuster has been turned from a block to a delay that can still be costly to the majority's political agenda. If the president can reduce Senate debate to under 30 hours by appointing judges that accommodate minority party concerns, he is likely to do so, at least in many instances.
Second, the "end" of the filibuster for presidential nominations is not the end of the blue slip process, as several commentators noted in recent days (see here, here, or here). When the president nominates a lower-court judge, the chair of the Senate Judiciary committee sends blue forms to the two senators of the nominee's state. If the two home-state senators do not return the blue forms, or return them with negative comments, the Senate judiciary chair traditionally blocks hearings on the nomination, particularly if the objecting senator is from the president's party. Judiciary chairs have differed on whether they let blue slips from opposition senators block nominations; the current Judiciary chair, Patrick Leahy (Vt), has vowed to honor Republican blue slips and requires positive blue slips from both home-state senators before he proceeds with hearings on the nominations.
This begs the question why Senate Democrats, now that they got rid of the filibuster, wouldn't get rid of the blue slip process as well. I think the answer lies in who controls the blue slip process, compared to the filibuster. The cloture vote, which is the tool to end a filibuster, is controlled by the Senate as a whole – 16 senators have to request cloture, and the president pro tempore then holds a cloture vote. The blue slip process, on the other hand, is in the hands of the Judiciary Committee chair. And the Judiciary chair may have institutional incentives beyond those of the majority party leadership, or even the average majority party member. Leahy may find that he can do his job much more effectively if he has a minimum level of goodwill from the Republican members of his committee, with whom he interacts more closely than with other Senate Republicans. As a result, it is at least thinkable that Leahy will continue to honor negative (or missing) blue slips from Republican home-state senators, particularly if the objections raised by those senators are reasonable.
So I think that it is quite likely that judicial appointments will be less partisan than some of the doom sayers expect, and they will not be more partisan than previously appointed judges: The appointing president's and the home-state senators' ideologies have been pretty good predictors of how federal judges will decide in cases with politically definable outcomes &ndsh even before the filibuster change.
I am skeptical of this conclusion, for a number of reasons. While the filibuster has been abolished for all practical purposes, there are other mechanisms for minority party involvement and obstruction. As a result, presidents still have incentives to nominate judges that gain at least some bipartisan approval.
First, the Senate's rule change is not a complete demise of the filibuster – it merely reduces the number of votes needed to invoke cloture. As a result, the majority party can now invoke cloture whenever almost all of its members support a nomination. It does not need Republican votes to do so. But according to Senate rules, a successful cloture vote does not necessary lead to an immediate vote on the nomination: it can still be followed by up to 30 hours of debate. In other words, the filibuster has been turned from a block to a delay that can still be costly to the majority's political agenda. If the president can reduce Senate debate to under 30 hours by appointing judges that accommodate minority party concerns, he is likely to do so, at least in many instances.
Second, the "end" of the filibuster for presidential nominations is not the end of the blue slip process, as several commentators noted in recent days (see here, here, or here). When the president nominates a lower-court judge, the chair of the Senate Judiciary committee sends blue forms to the two senators of the nominee's state. If the two home-state senators do not return the blue forms, or return them with negative comments, the Senate judiciary chair traditionally blocks hearings on the nomination, particularly if the objecting senator is from the president's party. Judiciary chairs have differed on whether they let blue slips from opposition senators block nominations; the current Judiciary chair, Patrick Leahy (Vt), has vowed to honor Republican blue slips and requires positive blue slips from both home-state senators before he proceeds with hearings on the nominations.
This begs the question why Senate Democrats, now that they got rid of the filibuster, wouldn't get rid of the blue slip process as well. I think the answer lies in who controls the blue slip process, compared to the filibuster. The cloture vote, which is the tool to end a filibuster, is controlled by the Senate as a whole – 16 senators have to request cloture, and the president pro tempore then holds a cloture vote. The blue slip process, on the other hand, is in the hands of the Judiciary Committee chair. And the Judiciary chair may have institutional incentives beyond those of the majority party leadership, or even the average majority party member. Leahy may find that he can do his job much more effectively if he has a minimum level of goodwill from the Republican members of his committee, with whom he interacts more closely than with other Senate Republicans. As a result, it is at least thinkable that Leahy will continue to honor negative (or missing) blue slips from Republican home-state senators, particularly if the objections raised by those senators are reasonable.
So I think that it is quite likely that judicial appointments will be less partisan than some of the doom sayers expect, and they will not be more partisan than previously appointed judges: The appointing president's and the home-state senators' ideologies have been pretty good predictors of how federal judges will decide in cases with politically definable outcomes &ndsh even before the filibuster change.
Monday, September 12, 2011
Preface questions, ctd.
More responses to questions that incoming freshmen had during the Preface session at the beginning of the semester (Preface is JMU's program to welcome incoming freshmen and -women; it includes a first-year reading program). I asked them to leave me note cards with their questions. Here are some more answers.
Respectful and ethical minds - what's the difference?
This is a good question: the two ideas that Gardner talks about are clearly related. The respectful mind points to the habit of showing respect to people with different beliefs, traditions, perspectives, etc., while the ethical mind points to the need to "act on the basis of responsibility." Obviously, one could argue that being respectful is an ethical requirement and that these two types of mind are closely related (or the respectful mind is part of the ethical mind). Gardner wrote an entire book on his idea of different minds, so I suspect that he goes more in-depth on these types of questions.
I have to admit that I find it dangerous to over-emphasize respect. True, I think it is important that we learn to be respectful towards people with different perspectives, beliefs, opinions, ways of thinking, etc. etc. Particularly as a student of American politics, I find that the respectful mind is too little exercised in many public debates. But ridicule has its place in public discourse as well. Sometimes ridicule is more effective to expose lazy reasoning, stupidity, or bad taste. And in many dictatorships, respectful criticism is prohibited, while ridicule can often slip undetected through censorship.
I think that, when it comes to respect, the important thing is to learn when to be respectful and when to ridicule what deserves to be ridiculed. That's to a large part an aesthetic question – a question of good taste, of proportion. Interestingly, that's something that Gardner does not mention in his article.
How important is the Preface class, compared to other classes?
For me, the main importance of Preface, JMU's first-year reading and discussion program, is to prepare incoming students for their work at JMU. I suspect that the way we learn at JMU is quite different from learning in many high schools – students are expected to be more responsible for their own learning, they have to develop their own interests and pursue them, they have to understand what constitutes a good and fulfilling education and make sure they get it. Professors, librarians, and other people working with students provide many opportunities for students to learn and grow, and students have to figure out how to take those opportunities. The readings and discussion in the Preface class meeting were designed to let students reflect on what is learning, what is knowing (and not knowing), what is part of a good education, and what are the reasons for seeking an education. We hope that the readings provided students with ideas about learning that help them achieve their goals in a variety of disciplines. In this sense, the Preface class is very important, even though it may not provide any specific knowledge about particular classes that students are going to take, say, in their majors later on.
Respectful and ethical minds - what's the difference?
This is a good question: the two ideas that Gardner talks about are clearly related. The respectful mind points to the habit of showing respect to people with different beliefs, traditions, perspectives, etc., while the ethical mind points to the need to "act on the basis of responsibility." Obviously, one could argue that being respectful is an ethical requirement and that these two types of mind are closely related (or the respectful mind is part of the ethical mind). Gardner wrote an entire book on his idea of different minds, so I suspect that he goes more in-depth on these types of questions.
I have to admit that I find it dangerous to over-emphasize respect. True, I think it is important that we learn to be respectful towards people with different perspectives, beliefs, opinions, ways of thinking, etc. etc. Particularly as a student of American politics, I find that the respectful mind is too little exercised in many public debates. But ridicule has its place in public discourse as well. Sometimes ridicule is more effective to expose lazy reasoning, stupidity, or bad taste. And in many dictatorships, respectful criticism is prohibited, while ridicule can often slip undetected through censorship.
I think that, when it comes to respect, the important thing is to learn when to be respectful and when to ridicule what deserves to be ridiculed. That's to a large part an aesthetic question – a question of good taste, of proportion. Interestingly, that's something that Gardner does not mention in his article.
How important is the Preface class, compared to other classes?
For me, the main importance of Preface, JMU's first-year reading and discussion program, is to prepare incoming students for their work at JMU. I suspect that the way we learn at JMU is quite different from learning in many high schools – students are expected to be more responsible for their own learning, they have to develop their own interests and pursue them, they have to understand what constitutes a good and fulfilling education and make sure they get it. Professors, librarians, and other people working with students provide many opportunities for students to learn and grow, and students have to figure out how to take those opportunities. The readings and discussion in the Preface class meeting were designed to let students reflect on what is learning, what is knowing (and not knowing), what is part of a good education, and what are the reasons for seeking an education. We hope that the readings provided students with ideas about learning that help them achieve their goals in a variety of disciplines. In this sense, the Preface class is very important, even though it may not provide any specific knowledge about particular classes that students are going to take, say, in their majors later on.
Thursday, September 08, 2011
When will the Supreme Court review the individual mandate?
(Cross-posted from Dukes and Wonks.)
While the big U.S. government story of the night is President Obama's new speech on creating jobs, I'd like to highlight another really big story that's probably going to be neglected. The U.S. Court of Appeals for the Fourth Circuit today rejected lawsuits brought by the Commonwealth of Virginia and Liberty University challenging the 2010 Health Care Reform law. Virginia and Liberty University argue that the individual mandate, which requires all U.S. residents to buy health insurance starting in 2014, is unconstitutional. (Liberty University also sued over a related provision that would impose a penalty on employers whose employees have to receive federal subsidies to buy their own insurance.) This is the third ruling in the federal courts of appeals on the law: On June 29, a Sixth Circuit decision upheld the individual mandate, and on August 12, an Eleventh Circuit panel ruled that the individual mandate was unconstitutional. Two decisions for the law, one against it. More cases are pending.
These decisions are significant, for two reasons. First, they set legal precedent for different parts of the country - the Fourth Circuit for the Mid-Atlantic, the Eleventh for part of the Deep South, and the Sixth for Michigan, Ohio, Kentucky, and Tennessee (you can find a circuit map here). Second the Supreme Court is likely to review these cases and decide for the country as a whole whether or not the health care reform law (or parts of it) are constitutional or not. And conflicting lower court decisions make it more likely that the Supreme Court hears these cases sooner rather than later. (The Supreme Court can pick and choose whether it hears most cases, and Rule 10 of the Supreme Court Rules specifically mentions a conflict between appeals court decisions as one of the reasons for which the Court may decide to decide a case.)
Some observers speculate that the Supreme Court will hear and decide one (or all) of the health care appeals during its next term, which will run from October 2011 to late Spring 2012. They point precisely to the conflicting lower court decisions. I am not completely convinced by these predictions, although they may very well turn out to be true.
I have two related reasons: First, the Supreme Court hears cases with lower court conflict because it enables it to review different legal viewpoints that have arisen out of real disputes. If all lower court decisions make similar arguments, it is more difficult for the Supreme Court justices to evaluate the merits of arguments that were none of the lower courts actually used for its decision. As a result, it makes sense for the Court to wait for other similar but undecided cases in the lower courts. Letting such cases "percolate" a bit will provide the justices with more legal material to make a sound decision, to consider the implications of the different legal arguments (and the real-life consequences of different outcomes).
Now, while it looks like the four (the Virginia and Liberty University cases are separate decisions) appeals court cases that have been decided so far represent the different sides of the case, this is not necessarily true. The Eleventh Circuit decision overturns the individual mandate as unconstitutional. But while the decisions in the Sixth and Fourth Circuits uphold the law, it is debatable whether they actually rule that the law is constitutional! This is clearest in the Virginia cases: The appellate court rejected the lawsuits on procedural grounds - it argued that the state of Virginia did not have standing (that is, the right to bring the case), and that Liberty University could not file a suit before the law had actually gone into effect. With respect to the Sixth Circuit, Lyle Denniston at SCOTUSblog makes the argument that the Sixth Circuit panel merely ruled that the law is constitutional on its face (that is, without considering any circumstances in which it was actually applied). According to Denniston, the circuit court indicates that the constitutionality may have to be decided again once the individual mandate is enforced, with possibly different results.
Will the Sixth Circuit's ruling that the law is facially valid be enough for the Supreme Court to find a conflict over constitutionality between the circuit courts? This is where my second argument comes in: Politically, I suspect that enough justices find it appealing to wait until after the next election before they take the case (four out of the nine justices are needed for the Supreme Court to hear a case). The argument that the issue needs more lower court "percolation" may be attractive for some of the more conservative justices. In 2012, President Obama may very well be defeated by a Republican; Congress may very well be willing to modify the individual mandate. If this happens, the Supreme Court could get around deciding the case. Why decide something now that you may not have to decide at all? Furthermore, to overturn the individual mandate, the Supreme Court would have to make an activist decision - it would have to overturn a federal statute, and doing so would require a re-interpretation (or direct rejection) of existing Commerce Clause precedent. More cautious justices may not be willing to do this if not absolutly necessary. While Justice Thomas is likely to insist on principle, even if it means overturning precedent, Justices Kennedy and Chief Justice Roberts (particularly in a Commerce Clause case), for example, may find the wait-and-see approach more palatable. The more liberal justices on the Court may decide to wait as well. If the law gets overturned or modified by Congress, upholding it now is useless; if the five more conservative justices are likely to overturn the law, waiting cannot hurt either. The arguably limited support of the Sixth Circuit decision for the law may be enough of an argument to avoid a decision in the coming term.
Obviously, this is pure speculation. We'll see soon what will happen.
While the big U.S. government story of the night is President Obama's new speech on creating jobs, I'd like to highlight another really big story that's probably going to be neglected. The U.S. Court of Appeals for the Fourth Circuit today rejected lawsuits brought by the Commonwealth of Virginia and Liberty University challenging the 2010 Health Care Reform law. Virginia and Liberty University argue that the individual mandate, which requires all U.S. residents to buy health insurance starting in 2014, is unconstitutional. (Liberty University also sued over a related provision that would impose a penalty on employers whose employees have to receive federal subsidies to buy their own insurance.) This is the third ruling in the federal courts of appeals on the law: On June 29, a Sixth Circuit decision upheld the individual mandate, and on August 12, an Eleventh Circuit panel ruled that the individual mandate was unconstitutional. Two decisions for the law, one against it. More cases are pending.
These decisions are significant, for two reasons. First, they set legal precedent for different parts of the country - the Fourth Circuit for the Mid-Atlantic, the Eleventh for part of the Deep South, and the Sixth for Michigan, Ohio, Kentucky, and Tennessee (you can find a circuit map here). Second the Supreme Court is likely to review these cases and decide for the country as a whole whether or not the health care reform law (or parts of it) are constitutional or not. And conflicting lower court decisions make it more likely that the Supreme Court hears these cases sooner rather than later. (The Supreme Court can pick and choose whether it hears most cases, and Rule 10 of the Supreme Court Rules specifically mentions a conflict between appeals court decisions as one of the reasons for which the Court may decide to decide a case.)
Some observers speculate that the Supreme Court will hear and decide one (or all) of the health care appeals during its next term, which will run from October 2011 to late Spring 2012. They point precisely to the conflicting lower court decisions. I am not completely convinced by these predictions, although they may very well turn out to be true.
I have two related reasons: First, the Supreme Court hears cases with lower court conflict because it enables it to review different legal viewpoints that have arisen out of real disputes. If all lower court decisions make similar arguments, it is more difficult for the Supreme Court justices to evaluate the merits of arguments that were none of the lower courts actually used for its decision. As a result, it makes sense for the Court to wait for other similar but undecided cases in the lower courts. Letting such cases "percolate" a bit will provide the justices with more legal material to make a sound decision, to consider the implications of the different legal arguments (and the real-life consequences of different outcomes).
Now, while it looks like the four (the Virginia and Liberty University cases are separate decisions) appeals court cases that have been decided so far represent the different sides of the case, this is not necessarily true. The Eleventh Circuit decision overturns the individual mandate as unconstitutional. But while the decisions in the Sixth and Fourth Circuits uphold the law, it is debatable whether they actually rule that the law is constitutional! This is clearest in the Virginia cases: The appellate court rejected the lawsuits on procedural grounds - it argued that the state of Virginia did not have standing (that is, the right to bring the case), and that Liberty University could not file a suit before the law had actually gone into effect. With respect to the Sixth Circuit, Lyle Denniston at SCOTUSblog makes the argument that the Sixth Circuit panel merely ruled that the law is constitutional on its face (that is, without considering any circumstances in which it was actually applied). According to Denniston, the circuit court indicates that the constitutionality may have to be decided again once the individual mandate is enforced, with possibly different results.
Will the Sixth Circuit's ruling that the law is facially valid be enough for the Supreme Court to find a conflict over constitutionality between the circuit courts? This is where my second argument comes in: Politically, I suspect that enough justices find it appealing to wait until after the next election before they take the case (four out of the nine justices are needed for the Supreme Court to hear a case). The argument that the issue needs more lower court "percolation" may be attractive for some of the more conservative justices. In 2012, President Obama may very well be defeated by a Republican; Congress may very well be willing to modify the individual mandate. If this happens, the Supreme Court could get around deciding the case. Why decide something now that you may not have to decide at all? Furthermore, to overturn the individual mandate, the Supreme Court would have to make an activist decision - it would have to overturn a federal statute, and doing so would require a re-interpretation (or direct rejection) of existing Commerce Clause precedent. More cautious justices may not be willing to do this if not absolutly necessary. While Justice Thomas is likely to insist on principle, even if it means overturning precedent, Justices Kennedy and Chief Justice Roberts (particularly in a Commerce Clause case), for example, may find the wait-and-see approach more palatable. The more liberal justices on the Court may decide to wait as well. If the law gets overturned or modified by Congress, upholding it now is useless; if the five more conservative justices are likely to overturn the law, waiting cannot hurt either. The arguably limited support of the Sixth Circuit decision for the law may be enough of an argument to avoid a decision in the coming term.
Obviously, this is pure speculation. We'll see soon what will happen.
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