Thoughts on L’Affaire Ravicher (Updated)

Daniel Ravicher started and runs a successful entrepreneurship clinic (the “Startup Practicum”) at the University of Miami School of Law.  His office happens to be in the same pod as mine, so back in the days when people saw people I would see him from time to time. Like an increasing number of the people who teach students in law these days, Ravicher is not a tenured member of the faculty, and indeed was not hired for his scholarship. Instead he was hired for his skills, and has a term renewable contract.

He’s recently taken to social media – and even Fox TV – to claim he’s been fired for his pro-Trump tweets and other speech, or is about to be, or may not have his contract renewed when it expires. As far as I have been able to ascertain, at least the first two of these claims are simply false. The fate of the third lies well in the future.

While Ravicher has behaved badly – lying about your employer counts as behaving badly in my book – the University has, with one exception (discussed rather far below) [Update: as described in more detail below, according to the Dean, even this wasn’t anywhere as bad as the story that had been going around], behaved quite well, and held, so far at least, to its fundamental commitments to academic freedom.

But first, some lengthy background.

1. The Applicable Rules

The University of Miami, which has substantial powers to dictate rules regarding the terms of faculty employment to the law school, has an extensive Faculty Manual, which describes various rights and duty of the faculty. As regards freedom of speech and academic freedom, the Manual makes no distinction between tenured and non-tenured faculty, although its provisions do not in many cases apply to “staff” who are hired in a different manner and in some cases have fewer rights against dismissal for various reasons.

The UM Faculty Manual provides in § C.8 that

“Faculty members shall have full freedom of expression as teachers, researchers, scholars, and/or artists; this includes freedom to present their work, to advocate solutions to human problems, and to criticize existing institutions. This freedom does not abrogate faculty members’ responsibility to perform their academic duties or obligations they may have assumed in accepting support for research.  Research activities are also subject to University policies such as those on patents, copyrights, and inventions as set forth in the Faculty Manual.

“Faculty members shall have freedom in the classroom in discussing the subject but should avoid persistently introducing material that has no relation to that subject.

“When speaking or writing as members of society, faculty members retain all the rights shared with other members of society and shall be free from University censorship or discipline. It should be remembered that the public may judge a profession and the University by public utterances by faculty members. Faculty members thus should make every effort to indicate whether they are acting as spokespersons for the University or are speaking in a private capacity.”

That is a nice statement, and a pretty absolute rule.  But wait, there’s more.

More recently – very recently – the UM administration amended the Faculty Manual to add the following additional language, effective 11/03/2020:

POLICY

The University of Miami (“University”) is committed to the principle of free expression, and academic freedom, including the exchange of political viewpoints and ideas, for all members of its community. The University encourages its faculty, staff and students a to fully participate in their rights of citizenship, including exercising the right to speak, vote, campaign, and otherwise engage in the political life of our community, state, and nation. In addition to the provisions contained in this policy, employees within the University of Miami Health System have guidelines provided in University of Miami Hospital and Clinics’ Social Media Policy.

Nothing in this policy is intended to limit the rights of faculty, staff or students to express personal opinions or engage in political activity in their individual capacities and as private citizens.

The University acknowledges that social media may be used to further the University’s mission by providing channels of interaction and engagement between the University and students, faculty, staff, and the community. However, certain types of partisan political activities by the University or by University employees, in their official capacities, are incompatible with the University’s tax-exempt status under the law.

This policy describes the limitations on University involvement in partisan political campaign activities and the use of University social media sites.

SCOPE

This policy applies to all University faculty and staff who are employed by the University in any capacity. The guidelines also apply to others, such as volunteers and appointees who use internally managed University computing resources. This policy may apply to employees outside of work hours and while using personal accounts when use of social media affects an individual’s professional responsibilities, violates an applicable law, or constitutes a violation of University policy:

PURPOSE

The purpose of this policy is to encourage the use of social media by University faculty and employees while making sure usage is in line with applicable state and federal laws and regulations, and to provide protection to the University’s reputation and other members of its community. This policy primarily focuses on social media accounts that are University-owned and University-controlled, however, it also provides guidance when the University’s name or logo is displayed/used by a faculty member or a staff member on their personal social media account. More information about the University’s social media can be found here.

The University is exempt from federal income tax pursuant to Section 501(c)(3) of the Internal Revenue Code, and therefore prohibited from directly or indirectly participating or intervening (including the publishing or distributing of statements) on behalf of any political party or in any political campaign on behalf of or in opposition to any candidate for elective public office.

Additionally, the purpose of this policy is to define certain limitations that preserve the University’s tax exempt status and to protect against any conflicts of interest or commitment that may infringe on the ability of University personnel to perform their official duties and meet their responsibilities with maximum effectiveness and objectivity.

PROCEDURES

I. PERSONAL SOCIAL MEDIA SITES

There are no restraints upon the personal political activity of faculty and staff, provided the employee is acting as a private citizen, is not representing the University, and is not using University resources in connection with partisan political activity.

  1. Faculty and staff members may not use University name, logos, letterheads, symbols, or other identifiable marks of institutional affiliation, including pictures, for the purpose of endorsing or promoting political parties, campaigns or candidates.
  2. A faculty or staff member endorsing or opposing a candidate for political office, or taking a position on an issue must make it clear they are speaking as an individual and are not stating a University position.

II. UNIVERSITY SOCIAL MEDIA SITES

  1. On any University-owned and University-controlled social media sites, an employee’s posts must protect the University’s institutional voice by remaining professional in tone and in good taste. No individual University department or unit should construe its social media site as representing the University as a whole.
  2. The University’s trademarks are intended to present a positive image of the University, and may not be altered in any way. Nor can the University’s trademarks be used in the name of a business or logo, or in promoting services or a product in a way that could state or imply an endorsement of the University.
  3. An employee is prohibited from posting confidential or proprietary information about the University or its students, employees, or alumni. Employees must follow the applicable federal requirements such as FERPA, HIPAA, and NCAA regulations; and adhere to all applicable University privacy and confidentiality policies.

III.       POLITICAL ACTIVITIES

Faculty and staff are welcome and encouraged to participate or intervene in a political campaign in their individual capacity as a citizen. However, while all members of the University community are free to express their political opinions and engage in political activities to whatever extent they wish, it is very important that they do so only in their individual capacities and avoid the use of University trademarks, logos, and imagery in faculty and staff social media posts that are electoral or partisan in nature, or otherwise would imply the University’s endorsement of the views expressed in the post.

  1. Certain activities such as certain voter education activities (including presenting public forums and publishing voter education guides) conducted in a non-partisan manner do not constitute prohibited political campaign activity under Section 501 (c) (3) of the Internal Revenue Code for tax-exempt organizations. In addition, other activities intended to encourage participation in the electoral process, such as voter registration and get-out-the-vote drives, would not be prohibited political campaign activity, if conducted in a non-partisan manner.
  2. Voter education or registration activities with evidence of bias that would favor one candidate over another; oppose a candidate in some manner; or have the effect of favoring a candidate or group of candidates, will constitute prohibited participation.

VIOLATIONS

Violation of the provisions in this policy may lead to disciplinary action up to and including termination of employment.

If I were the University’s lawyers, I’d want to emphasize protecting its trademarks and non-profit status too.  Sensitivity to these issues is why I’ve always hosted this blog on an off-campus server that I pay for myself, and made clear that the opinions here are just my own.

2. Ravicher’s Speech & the Reaction to It

If you had asked me to name five Trump supporters on the full-time teaching faculty, I might not have been able to do that, but Ravicher’s name would have headed the list.  He was the only gleeful person I met in the week after Trump was originally elected.  But as far as I know, nobody made anything of that at the time, or indeed any relevant time until about the last week or so.

Similarly, although it’s all unsystematic hearsay, I am given to understand that political matters played basically no role in Ravicher’s teaching, and that there was no hint of any racial or political tinge to his teachings or grading. Indeed, almost everything I heard from students about his program was either positive or wildly positive.  He was, I believe, nicer to staff than some other people I can think of, which I often take as a marker of virtue.

Ravicher, like many of us, has a Twitter account. Last week he posted some things I would characterize as dumb and/or in bad taste, but not in violation of either the original University policy nor the policy as amended.  There were a number of standard modern Republican tropes relating to the recent election, the role of Hispanic and Black voters, and so on.  I thought some of the stuff about the election was quite obviously wrong.  I thought the suggestion that Black voters would lose clout as time passed because their relative numbers would suffer from a high abortion rate in the Black community to be tasteless (and, sadly, unoriginal), and easily misunderstood as supporting eugenics, and for that reason a really stupid thing to post in the nuance-free form of a tweet.  But again, it was nothing more than what for many years has come out of the conservative echo chamber.  He also posted that he was going to Walmart “to get what I need to protect my family from “peaceful protesters” who can’t accept the result of an election.#SecondAmendment #StandYourGround”.  In a world where the threats of post-election violence seemed to come from right-wing types like the Proud Boys, this seemed more than a bit odd, but it did come shortly after news reports of business in various (other) cities boarding up storefronts for fear of….something, so there did appear to be paranoia in the air.

Overall, to be brutally frank, the tweets gave the impression of someone who had been reading a lot too much echo chamber media, had no ear for how some people could easily read a subtext that might not be there, and generally was getting a little unglued between the stress of a pandemic and a tight election. But again, nothing violative of University policy.

It turns out, however, that students sometimes read what we write.  And a number of students understandably got upset by Ravicher’s tweets; some took their concerns to the administration.

And here’s where I think the U made a mistake.  After [S]everal students complained about what they saw (I’d say predictably) as “racist undertones” in some of the tweets[.], the law school responded by telling them that they could withdraw from Ravicher’s course without penalty. Our usual rule is that late withdrawals are memorialized on the student’s transcript. In an ordinary year, I would say that it was an error to let students circumvent that rule in the absence of any evidence of faculty wrongdoing (recall, in my view the tweets at that point were not in violation of any University policy, just of good sense). But this is the year of COVID, and all along the administration has urged us to bend over backwards in the face of student stresses to their physical and mental well-being. In the circumstances, therefore, I can understand the reaction even if I’m not certain it was the best one.

I have considerably more trouble accepting what happened next. I gather that the Provost’s office instructed the law school to reach out to students who had not complained – some of whom had not even heard of the controversy – and offer them a chance to withdraw from the class too.  Apparently, the Provost’s  office thought the law school should do this in order to treat all members of the class equally.

[Update (Nov. 15):  Dean Anthony Varona wrote to me to correct an error in the text above.  He writes, “The Provost wisely advised us to reach out to Dan’s current students to offer support and flexibility should they have concerns. We did just that, first in an email to his students from me on Friday evening, Nov. 6th, inviting them to contact me directly with any concerns. Several did, asking for various forms of assistance. Shortly after I sent out my message, Prof. Ravicher himself sent a message to his students saying that if any of them are no longer comfortable in his class, that they should contact the law school’s administration “to withdraw.” At my request, Vice Dean Dawson has been working with several students in the Practicum who reached out to us for assistance. He also, after consulting with Prof. Ravicher, reached out to his students early last week with an offer to switch to Pass-Fail grading for the Practicum, individually, should they wish to do so.”  I’m happy to say that I much prefer this version to the one that I had been hearing previously.  That said, I’m still somewhat unhappy about the Dean writing proactively to all the students in a professor’s class and inviting the students to express “concerns” in the light of complaints received — but that is nowhere as bad as inviting them to withdraw, given there was no actual reason to suspect anything amiss about the class’s grading.]

Meanwhile, a group of law faculty published a carefully measured open letter in the Miami Hurricane. (“While Ravicher’s unprofessional behavior may be defended as a matter of academic freedom or free speech, academic and free speech norms do not insulate lawyers from critique. To the contrary, the principles of academic freedom and free speech compel us to speak out against Ravicher’s promotion of disinformation, invocation of violence and racially derogatory commentary.”) The letter didn’t directly call for Ravicher’s head. The signers did express their revulsion at his speech, which is what academics – and other citizens – should do when confronted with speech they find revolting. That said, the suggestion of “unprofessional” conduct has an undertone that may not be evident on first reading, since unprofessional conduct is a grounds for firing, even de-tenuring (after much process!), faculty.

Ravicher’s response was partly to cheerfully acknowledge the free speech rights of his critics, and also of the creator(s) of a parody Twitter account, and partly to double down.

He insisted (falsely) that he had been fired, or was about to be fired, and speculated that if not, he would be non-renewed. In support of these claims he published private emails from the Dean of the School of Law which Ravicher claimed supported his story, but in fact by any fair reading do the opposite, and actually paint the Dean as responding appropriately and helpfully.

Since Ravicher is still employed by the law school, we know his claims of being fired are false. To the extent that we rely on the written record he’s made available, I think it’s also fair to say that his claims of looming termination are also utterly unproven, and likely false. (For an outsider’s view that broadly agrees with this conclusion see here.) As to the renewal of his contract, that’s far away, and we’ll see.

Then Ravicher worked hard to make at least one of his predictions come true, by repeating his false claims about his employment status in a wooden interview on Fox TV, and doubling down on offending people. He expressed support for a really loathsome proposal floated by Florida Governor Ron DeSantis, that Florida’s already broad ‘stand your ground’ law should be extended to allow store owners to shoot suspected looters and rioters even when the shooter is in no personal danger. (The proposal is loathsome because in addition to creating a de facto death penalty for property crimes, and demonstrations that cause “impairment or interruption of business,” it makes the shooter judge jury and executioner.) He repeated other ‘own the libs’ stuff from the paleoconservative hymn book.

But, again, loathsome as it all might be, none of it violated the University’s policies. Which is why he hasn’t been fired (yet).

3. What Now?

From the narrow perspective of keeping his job, Ravicher’s biggest problem is that he’s going around saying something false about his employer, which damages the enterprise’s reputation.  I’d put the rest of his statements under rubrics of bad taste, stupidity, and error, but none of that is a firing offense, at least if you do it on your own time and in your own name.

From the broader perspective, it looks to me like Ravicher’s problem is that he’s bought into a narrative in which he is, or wishes to become, the heroic victim of the PC Police. Unfortunately for him, and fortunately for all the rest of us, the University has failed to actually martyr him.  And, so far, other than lying about it, he’s not, in my free-speech-supporting view, done anything else to trigger it.

I’m not Ravicher’s buddy, but if I were then I’d tell him that when you are in a hole, you should stop digging.  He ought, I think, to take a week or two off Twitter to allow himself, and everyone else, to calm down.

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16 Responses to Thoughts on L’Affaire Ravicher (Updated)

  1. Eric says:

    Perhaps he tweeted about Walmart while gripped in the throes of panic.

  2. Eric S says:

    “If you had asked me to name five Trump supporters on the full-time teaching faculty, I might not have been able to do that. . .”

    What does this statement say about the state of academic discourse in academia generally and at our law school in particular? I bet you can name 5 socialists and at least one communist. Maybe if the conservative views were better represented, the students would not feel threatened from a tweet and there can actually be a debate between liberal and conservative viewpoints. I would love to see you a debate a similarly educated conservative and as a former student I would decide which side I find more appealing. But I am afraid this system is not much different than the ones my parents (and yours) escaped in Russia.

    Just a thought.

    • Note that I wrote “Trump supporters” not “Republicans”. We have a number of Republicans who were not and are not Trump supporters.

      Given what a disaster Trump has been, I think this speaks well of the academy.. It also to some significant extent reflects national trends in which people with advanced degrees were the least likely to be Trump supporters. I guess you could advocate for replacing university teachers with people who dropped out of high school, but that to me sounds a little Maoist for my taste.

      • Eric S. says:

        But the point remains: the University has no voice to defend and advocate for 72 million people that do not view Trump as a disaster. Surely, there are educated Trump supporters that are qualified to teach at the law school. Based on the recent numbers from Miami, any Cuban, Hispanic, or Jewish attorney that voted for Trump is a candidate. In fact, I personally know many such Trump supporters–and (gasp) some went to HLS and other top schools. I don’t think the law school will be hiring them any time soon. They would rather label them uneducated.

        • First, Trumpism doesn’t come up naturally in every course, especially those about common law or state law.

          Second, most of the faculty was hired long before Trump, so the ability to optimize for political leanings of the moment was not available.

          Third, hiring people for their politics is in the main a mistake. (Politics can be somewhat correlated with methodology, e.g. law and economics but that’s a different thing.)

          Fourth, lawyers, in particular, are trained to ‘make the case’ for multiple sides of an issue. So, in those cases where Trumpism can be expressed as a coherent thing (which is only sometimes), one would expect our faculty to be capable of expressing it. Note, though, that in administrative law for example, the technical craft of Trump admin orders and regs especially in the first 2 years, was very very poor, leading to losing a lot of court cases. There’s no way to spin that.

          Fifth, given the financial exigency caused by COVID, I don’t know how much hiring we’ll be doing soon. But if and when we do, I don’t think making Trumpism (or anti-Trumpism) a key decisional factor would be a sensible strategy. Our goal is to find the most able and interesting scholars, not to mirror the polls. If would-be students don’t like our choices, maybe they would be happier at Liberty U Law School? That’s their choice.

          • Eric S. says:

            Agree with some of your points. But this is questionable:

            “Third, hiring people for their politics is in the main a mistake. (Politics can be somewhat correlated with methodology, e.g. law and economics but that’s a different thing.)”

            So, is it an accident that most (all?) law school professors are liberal? Forget Trumpism, how many originalists in the mold of Scalia are tenured at the law school? He had four clerks a year. Thomas has 4 a year. Multiple appellate judges are conservative. I was at the law school for three years and I do not remember a single conservative or right leaning professor. I do remember lots of jokes about Romney and her horses….

  3. There has been a a fair amount of work on so-called bias in the academy. I have only skimmed it. Some suggest self-replication bias in faculties. Others suggest self-selection bias in the applicants, with right-leaning persons more often interested in maximizing income which leads them to the private sector. (Many supreme court clerks choose to go into the private sector, which pays huge bonuses for their experience — up to $100K as a signing bonus if you can believe it.)

    I don’t find that literature illuminating in part because I dislike how they measure political leanings. For most of the time I’ve been a prof, while it’s true that law faculties skewed to Democrats, they were not IMHO really all that liberal. (Note that some other faculties, e.g. science, had far more Republicans and conservatives.) Thus, for example, the modal law prof might express mild support for a progressive income tax, but little support if any for substantially redistribute policies. Plus there was at all times a very strong, and usually growing, law and econ contingent whose devotees skewed very Republican (although I don’t actually see L&E as incompatible with liberal views). Often, the differences between academic Dems and Reps were in my view much smaller than people thought, and neither group cared much about due process.

    It’s possible that younger scholars now in the pipeline have a larger contingent that is focused on ‘PC’ issues, but I think that remains to be seen.

    Whatever the case, I think that hiring people on their politics will not serve any academic faculty well. What matters is whether they write interesting and insightful things.

  4. Just me says:

    “But the point remains: the University has no voice to defend and advocate for 72 million people that do not view Trump as a disaster.”

    One of the main characteristics of “Trumpism” appears to be that it is unhinged from facts. See the the current state of Trumpism and allegations of widespread election fraud as one example among a constant stream of post-fact Trump non-sense (my favorite being Sharpie-gate).

    Generally speaking, facts don’t care how many people agree or disagree. If we held a national referendum on the shape of the Earth and 72 million Americans voted for “flat,” that would not create an academic imperative to hire flat-earthers to defend flat-earth theories or to represent the 72 million knuckleheads who voted “flat.” On the contrary, a reasonable response to such a referendum in the academic community might be horror, revulsion, and a general doubling down of its efforts to educate students about how ridiculous flat-earther conspiracies theories are.

    • Eric S says:

      I dont think historic peace agreements in the middle east are fairly categorized as unhinged. Same for tax cuts. Same for undoing the Iran deal. In fact, some may categorize sending billions in cash to Iran–the biggest state sponsor of terrorism–as unhinged. Also, Biden’s claims that Trump CAUSED 200K Covid deaths may be unhinged. Professor Froomkin please weigh in on the cause and effect here and the suggestion that if Biden or Obama were president there would be no deaths or less deaths. please state the scientific evidence that backs this up, because it seems unhinged.

      Of course, you disagree with that these are positive achievements. But are they unhinged?

      Your post underscores my point: you believe that Trump and his followers are unhinged no matter what they do. Do you believe Cuomo is unhinged for sending thousands back to nursing homes. How about De Blasio encouraging NYers to go on with their lives because the virus will not affect them. Is that unhinged? have some respect foe people that disagree with you and have the humility to realize that you may not be the smartest person in the room.

      I respect your right to have an opinion and do not call you or your opinion unhinged.

        1. It’s clear that some other countries managed the COVID epidemic much much better than we did. It’s also clear we’ve done about the worst job in the developed world. Can I “prove” any other sentient mammal capable of being elected would have done better than Trump? No. But it would not have been hard. Let’s do the numbers:

          US death toll per 100,000 persons: 73.91. Compare to:
          New Zealand – 0.51
          South Korea – 0.94
          Japan – 1.46
          Australia -3.63
          Norway – 5.36
          Denmark – 12.99
          Germany – 14.46

          Exclude the islands (easier to control movement), the Asians (mask-wearing social norms), even the Scandinavians (just because), and you still have Germany with one fifth the death rate of the US. So given we’ve had about 240,000 deaths attributed to COVID so far (although the ‘excess death’ rate is considerably more) if we had managed to hold things to Germany’s death rate, that is in fact almost 200,000 fewer deaths than we suffered. That is an appalling failure on Trump’s part.

        2. I would call abrogating the Iran deal unhinged. Doing so created a much greater risk they would make nuclear weapons.and turned us into an unreliable partner for any future deals. No surprise Europe didn’t pull out.

        3. Whether one calls the tax deal unhinged depends on what one thinks the goals were. If they were to stimulate the economy then it was one of the least efficient expenditures of that kind of money one could possibly imagine. If, however, one sees the goal as transferring a lot of money to the wealthiest people in the country, then it has to be seen as an enormous success.

        4. The middle east agreements between despots and Israel largely reflect facts on the ground; they have some value, but I wouldn’t say it was all that great. In the Mideast enemy of my enemy is my ally, at least until it’s no longer convenient. The paper has some small psychological value in that it admits the anti-Iran coalition is forming but I’m not sure the paper does much else really. But we’ll see.

  5. Just me says:

    Eric, You may want to read this.

    https://en.m.wikipedia.org/wiki/Veracity_of_statements_by_Donald_Trump

    This is Trumpism unhinged from fact.

  6. Eric S says:

    Professor you are not accounting for the fact that European countries count Covid deaths differently. For example, in Illinois if you have Covid and you die in a car wreck that counts as a Covid death. Here is a link to the governor and his aide saying

    https://week.com/2020/04/20/idph-director-explains-how-covid-deaths-are-classified/

    I have not done the research but I don’t think Germany categorizes it this way, because it just does not make sense to me. I am also not sure if this moves the needle. I think this partially explains the higher death rate. Also, the difference in the death rates can be attributed by culture and not to leader. Chinese people are much more likely to obey government decrees because they enjoy no freedoms, Americans do not blindly follow their leader—no matter if it’s Trump or Obama. But we will see how much better Biden does. I really hope he does better no sarcasm.

    • This source suggests the German method of counting and reporting is, in principle, much like ours:

      Germany’s case numbers include those who died “of” COVID-19, and those who died “with” the disease, in accordance with the Infection Protection Act. Or as RKI head Lothar Wieler puts it, “a corona death is someone who was proven to have a coronavirus infection.”

      Certainly that doesn’t sound like the cause of a low number. I think the low number likely reflects something real: an early, large, testing and tracing program.

  7. Eric S says:

    Just me,

    I agree Trump lies. So does every other politician. Here is a small sample from

    https://www.politifact.com/factchecks/list/?category=&ruling=false&speaker=barack-obama

    So, is your argument that Trump is more unhinged than Obama because he lies more? Where exactly is the line on how many lies one must say to be considered unhinged? also do we only look at quantity of the lies or also the quality? As an example, Being a Holocaust denier should be a more consequential lie than lying about health care numbers or some other policy jargon. Have we weighed the lies and honestly determined that Trump is unhinged and Obama is not? Or do we not like Trump and we label him unhinged based on our dislike and bias and we give a pass to Obama because we like him and our bias tells us that his lies are not so bad.

    I would rather say that they both lie and implement the policies that suit their agendas.

    • Just me says:

      You didn’t read the article or you’re blinded somehow. All politicians, and I’d guess all humans, occasionally fall short. But Trump’s dishonesty, intentional or based on delusion, is off the charts and is not even remotely comparable to any modern US President. In either event, you can lead a horse to water . . .

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