What to do with a racist law student?

Preston Damsky, a law student at the University of Florida, took a seminar on "Originalism" taught by John L. Badalamenti, a federal district court judge appointed by President Trump. 

Judge Badalamenti based his students' grades on a final "capstone" paper. The New York Times (on its front page) summarized what Damsky wrote:

In his capstone paper for the class, Damsky argued that the framers had intended for the phrase "We the People," in the Constitution's preamble, to refer exclusively to white people. From there, he argued for the removal of voting rights protections for nonwhites, and for the issuance of shoot-to-kill orders against "criminal infiltrators at the border." Turning over the country to "a nonwhite majority," Damsky wrote, would constitute a "terrible crime." * * * *

Damsky concluded the paper by raising the specter of revolutionary action if the steps he recommended toward forging a white ethno-state were not taken. "The People cannot be expected to meekly swallow this demographic assault on their sovereignty," he wrote, adding that if the courts did not act to ensure a white country, the matter would be decided "not by the careful balance of Justitia's scales, but by the gruesome slashing of her sword."

Judge Badalamenti awarded Damsky's paper the highest grade in the class. 

When this all came out, there was an uproar.

Judge Badalamenti declined to explain why he deemed Damsky's paper best in class. (The Times did not describe the other students' papers. It's conceivable, though unlikely, that they were more outrageous than Damsky's.) 

A stunning story. It resonated with me, in particular, because for many years I taught law and graded papers. 

Granted, I'd taught in leftish venues unlikely to draw students like Damsky (San Francisco, Berkeley, Oxford, Haifa, and the like). But I've never come across any situation remotely resembling this one, or any student like Damsky - on the left or the right. 

But I could have. What would I have done?

I might have flunked Damsky right after I'd read his egregious conclusions. Suppose a geology professor picks up a doctoral candidate's dissertation, and skips to the conclusion, where the student wrote: "So based on the above analysis, I conclude that our Earth is flat, sitting on the back of a large turtle." Need the prof read more? Can't one assume that "the above analysis" must be a load of hooey that couldn't possibly support such a thesis? 

Not so fast. Damsky's paper was about law, not science. Law is mushier and less predictable. After all, who would have expected that, after decades of consistent holdings that the Second Amendment's militia clause does not protect the private, non-militia ownership of guns, the Supreme Court would overturn those holdings -- based on historical "research" (funded by the NRA) that ignored strong evidence that the Second was drafted by Southern slaveowners who feared that Congress might disarm their militias/slave patrols? See District of Columbia v. Heller, 554 U.S. 570 (2008). (On a more personal note, I've persuaded courts to overrule centuries of common law by adopting an "implied warranty of habitability" in rental housing. Hinson v. Delis (l972) 26 Cal.App.3d 62; Green v. Superior Court (1974) 10 Cal.3d 616. Who wudda thought?)

So, before making my final decision on Damsky's paper, I would have gone back to the start of his paper and read it, examining the cogency of the arguments that led to his bizarre conclusions -- trying hard to keep an open mind (not easy). 

I obtained a copy of Damsky's paper and read it. I found it well-organized and well-written, and it probably presented the best legal arguments and evidence that might support his conclusions. The "We the People" preamble to the Constitution could be read to refer to white people only, because all the Framers were white, and virtually all of their constituents were white. Also, certain parts of the Constitution implicitly recognized slavery (the three-fifths clause, and the restriction on importation of new slaves). So maybe Damsky's "We the People" argument deserves a grade somewhere north of F- (not much). 

On the other hand, what about the 14^th and 15^th Amendments -- adopted to give rights to ex-slaves? Didn't that cleanse any exclusion of Black people implicit in "We the People?" Damsky argued that those Amendments are invalid, because Southern states were occupied by federal troops, and they had ratified it under duress (as a condition to re-admission to the union). And he argues that the short, vague preamble trumps any express language in a later Amendment that conflicts with his white-race-centered view of "the People." 

A short digression. Good lawyers always consider "the other hand." If they don't, they'll find themselves blindsided by opposing counsel and judges who shoot holes into their arguments. But this type of thinking does not come easily to most law students.  It takes them a while to get used to it -- if ever. Dansky didn't do a lot of "the other hand." I wouldn't penalize him much for that -- though I'd prefer to give the top grade to a student who wrote a more balanced paper. 

So -- "on the other hand" -- there were some free Black people in the U.S. when the Constitution was adopted, and the Bill of Rights says nothing about excluding them from its protections. Plus we now have an enormous body of law applying the 14^th Amendment to a wide variety of situations (not just race), and we can't wipe all that out merely because Southern States who had abandoned the union were not immediately given full rights after they'd been defeated in a war they started.

Damsky's paper was, as the Times put it, "written in a formal style consistent with legal scholarship." In form, it was quite good. In substance, however, it was weak. It failed to give adequate credit to "the other hand," and it was very result-oriented. 

The Times then moved on to describe Damsky's extracurricular voice: "his social media posts have been blunt, crass and ugly." 

A critic of Israel's war in Gaza, he argued in one post that President Trump and Secretary of State Marco Rubio were "controlled by Jews," whom he called "the common enemy of humanity." In posts about Guatemalan illegal immigrants, he said that "invaders" should be "done away with by any means necessary." He lamented the "self-flagellatory mind-set" of modern-day Germans, noting their failure to revere Hitler.

Plus, in an interview, Damsky "said that referring to him as a Nazi 'would not be manifestly wrong.'"   

The University of Florida reacted. It heard from both sides. One prof said, "We should not be giving awards to things that advocate for white supremacy and white power," while another professor countered "it would be academic misconduct for a law professor who opposed abortion to give a lower grade to a well-argued paper advocating abortion rights. If it were a good paper, you should put aside your moral qualms and give it an A." And a Dean opined that "the law school, as a public institution, was bound by the First and 14th Amendments, meaning that no faculty member may grade down a paper that is otherwise successful simply because he or she disagrees with the ideas the paper advances." 

Ultimately -- due more to Damsky's social media posts than his paper -- the school "suspended him, barred him from campus and stepped up police patrols around the law school".  And expulsion is on the table. Damsky responded that "he belonged to no organization or group, and that he did not pose a physical threat to anyone. 'I'm not, like, a psychopathic ax murderer.'"

If, while I was grading Damsky's paper, I knew about his posts (I don't know if Judge Badalamenti knew of them), I would do my best to put them out of my mind. So long as he is properly enrolled in my class, I would have a professional obligation to assign a grade based solely on the four corners of his paper. 

But wait a minute. Don't I have an obligation to take some action to keep a nut like this from joining the ranks of the bar? Aren't law professors "gatekeepers" of a sort, guarding the legal profession from entrants who would degrade the reputation of the bar and perhaps the entire legal system? 

But why us? Couldn't the Bar Examiners keep Damsky out because his posts show a "lack of character" or "moral deficiency"? Maybe not -- this could violate the First Amendment. Anyway, the Bar Examiners might not do as thorough a job of this as a prof who has dealt with the candidate for several months during law school. 

One final thought. If he was still a kid (he's not; he's 29), I might cut him some slack. He has the smarts, and he's a hard worker. Youngsters sometimes outgrow youthful crazies and turn into decent human beings and good lawyers. After they can prove they've grown up, maybe let them take the bar exam. But if Damsky's this nutty at 29, there's probably not much hope for him. 

A fascinating mental exercise -- about a problem I no longer need to worry about.