The battle against the Diversity-Inclusion-Equity (DIE) colossus is not going especially well. Yes, we are resisting and occasionally score a victory, but our current repertory of weapons is obviously inadequate. Take heart, for there is an alternative: a tsunami of lawsuits over academic malpractice. This is not about our organizations filing suits to end racial preferences or unconstitutional speech codes. This is about private lawyers suing schools and individual professors for damages. Unleash the shysters, so to speak. Hopefully, colleges and universities will eventually mend their ways rather than wrestle with armies of fee-hungry, sometimes devious attorneys.
I don’t watch too much TV—mainly Fox—but I’ve noticed a growing number of slapdash ads from small-time law firms trolling for litigants. The pitches now can also be heard on the radio and seen on billboards. And judged by their proliferation, the business model must be succeeding. Initially, they only targeted big firms like Monsanto (makers of Roundup) and allegedly dangerous prescription drugs. More recently, however, are solicitations for victims of sexual abuse, notably the Boy Scouts, young female athletes, the Catholic Church, and even the elite Horace Mann High School. One commercial features a website that links to 48 New York law firms specializing in sexual abuse. A Fox TV ad singles out just one New York City doctor for sexually molesting his patients.
The lure for a financial windfall is almost irresistible—just call the 800 number for a free consultation and pay nothing if you don’t win, but enjoy “substantial compensation” if you do. The good news is that the ideological winds are blowing favorably, since in today’s hyper-sensitive world of thin-skinned victims, almost anything, even an innocuous aside about a person’s weight, can be construed “harmful,” and thus subject to the law of torts. Think of all the conservative or religious students who have suffered micro-aggressions or were unable to flee to a safe space when they overheard a threatening conversation. Ironically, attorneys for the plaintiff would love pleading their cases before progressives with their expansive definition of victimization.
Moreover, the entry cost for this sue-the-schools litigation is minimal, and the potential rewards are huge. The number of possible litigants must be in the millions and growing daily—there’s gold in them thar hills.
We must publicize a whole new class of injury—academic malpractice. PC-schools will soon become the next Boys Scouts or bankrupt Catholic dioceses. Hundreds of millions may be necessary to “heal the wounds.” Woke deans will now realize that hiring an academically unqualified “community activist” whose “lectures” consist entirely of anti-white rants will surely invite dozens of lawyers eyeing the school’s real estate and endowment.
Critically, college administrators must be made aware that their college’s liability insurance may not cover their maladministration, and this makes them potentially personally liable for their wokeness. Try advancing “social justice” if it risks your pension. Indeed, this withdrawal of school insurance coverage is likely to be automatic if state or federal anti-discrimination laws are violated—no small matter, since many “social justice” policies do, indeed, contravene these laws. Now, happily for our side, a department chair who forced her department to employ a semi-literate “English instructor” solely due his race might face hundreds of separate suits from every victimized student who ever enrolled in that incompetent teacher’s class, and may be personally required to pay for her own defense. Swarms of lawyers representing disgruntled students will give a whole new meaning to the term “class action.”
How can this tsunami of shysters strategy be implemented? The simplest tactic is just to encourage ambitious lawyers to comb the law books for possible precedents, or at least to find sympathetic judges who will extend laws regarding false advertising, violations of professional standards, or selling defective merchandize to the academy. It’s easy to imagine the plaintiff’s attorney calling distinguished scholars as expert witnesses to explain how the curriculum at some PC-obsessed school fails to meet the most minimal professional standards, and thus how their deceived enrollees deserve refunds for misspent classroom time. Lawyers could simply show that lectures, reading assignments, and impossible-to-fail exams fell short of what might be reasonably expected by the average parent who paid $200,000 for a “college education.” Did this swindled parent understand what they were actually purchasing when the school boasted of “advancing social justice” or ending “systemic racism”? The parallel are the settlements over faulty medical devices and doctor incompetence, where trusting patients incorrectly assumed professional expertise.
This battle against academic quackery will surely explode as lawyers troll for clients just as they now seek victims of Roundup. TV commercials will ask parents if they sent junior off to college to learn about advanced machine learning and he instead learned that 2+2=5 via Critical Race Theory, all while acquiring $50,000 in debt. What juror would sympathize with a professor who demanded that students master the proper use of 72 personal pronouns? Million-dollar settlements perhaps necessary for long-term psychiatric counseling here we come.
State legislatures can certainly enact laws to protect students from PC quackery, or can at least ensure that colleges offer instruction that conforms to the traditional understanding of “education” taught by appropriately credentialed instructors. The model is consumer protection, so, just as borrowers must be informed of the actual interest rate or consumers must know the chemical preservatives in food, parents and future campus enrollees must be informed that, for example, courses in English may not be about writing or reading the classics, despite their title. Parents may not be thrilled to discover that English 101 will expose how the classics are merely the patriarchy’s way to marginalize “communities of color.”
What about a special government agency with an 800-number hotline to handle possible abuse, just as progressives now demand similar protections from bad cops? Woke professors once free to energize the mob against heretics will now, thanks to a state’s Student Bill of Rights, live in fear of anonymous accusations of instructional malpractice. At a minimum, students might be given a legal right to challenge a professor’s statements, just as academics themselves often demand evidence from their professional colleagues. Surely few can argue against the right of students to demand documentation for their professor’s often wild accusations.
No doubt such measures will catch the eyes of college administrators about to embrace the next PC fad. Note well: unleashing the shysters is hardly radical, nor will it undermine free speech. Think of the transformation of medicine, accounting, engineering, and law, where quackery was once standard, and recipients of horrific treatment had little means for legal redress. Our proposal only gives students a legally enforced right to an education as historically understood, provided by those who are bona fide experts in what they teach. That is, if you enroll in English 101, you get what was generally understood as English 101, a right that will be especially important for those unfamiliar with how colleges often substitute proselytizing for genuine education.
This is not a right-wing plot to deplatform the Left. Spreading propaganda remains legal, and, indeed, ideologues are free to establish their own academies, provided they pursue their mission honestly. Nor is this an economic death sentence for today’s woke professors—thousands of youngsters might want to be under speech codes, to hear just one side of the story, and to be taught by activists, not scholars. Moreover, judging by the survival of many expensive and openly PC-dominated colleges, lots of rich parents willingly pay $60,000 or more for junior’s indoctrination. For the rest of us, however, hordes of fee-hungry lawyers are the best defense.
Image: Hunters Race, Public Domain
The problem with this is threefold.
First is the 11th Amendment to the US Constitution and the concept of sovereign immunity — you can only sue a state (or a state university) if the state gives you permission. Most states have tort claims acts which limit the total liability of a public university to a fairly small amount, e.g. $100,000. Some states extend this to “private charities” (i.e. private universities) as well.
This and the fact that courts are very reluctant to get into academic matters means that the university counsel isn’t likely to make a reasonable settlement offer because — worst case — the total judgment isn’t going to be much more than what a reasonable settlement offer would be, so why not go to court?
Third, lawyers are taking these cases on contingency — they get a flat percentage (usually a third) of whatever you get. Hence they are advertising for what essentially are “boilerplate” cases where they are going to get $10K-$33K for essentially filling out and mailing a form letter and accepting a $30K-$100K settlement for the “slip & fall” or whatever.
So why would they want to spend lots of time and effort in a complicated case where the best they can possibly get is the same $33K they could get just filling out a form letter? There’s so much more profit to be made chasing ambulances….
Nice piece, Bob. The problem I imagine is that the judges are on the same payroll that the university administrators and professors are on.