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Category: Education

1

A Little History of Academic Funding and Freedom

When powerful individuals muck with professors or deans are they that different in the 21st century from the 19th? I don’t think so, but Siva Vaidhyanathan uses that contrast to critique recent events at UVA. Throw in recent efforts by Rep. Jeff Flake (R-Ariz.) “to prohibit the National Science Foundation from funding political science research” and it turns out that people love to pick on academia at various levels. The Flake issue focused on what he called “meritless” research such as “‘$700,000 to develop a new model for international climate change analysis’ and the ‘$600,000 to try to figure out if policymakers actually do what citizens want them to do.’” That these turns have problems is correct. To me, however, the problem may be that universities have been preaching to the choir. We have faith. Many do not. These problems are old. Our solutions may need updating.

Siva starts with:

In the 19th century, robber barons started their own private universities when they were not satisfied with those already available. But Leland Stanford never assumed his university should be run like his railroad empire. Andrew Carnegie did not design his institute in Pittsburgh to resemble his steel company. The University of Chicago, John D. Rockefeller’s dream come true, assumed neither his stern Baptist values nor his monopolistic strategies. That’s because for all their faults, Stanford, Carnegie, and Rockefeller knew what they didn’t know.

In fact, the tenure system traces its routes in part to Stanford, as in Leland, and a fight over what was good work. In 1998 tenure was under scrutiny as the economy was shrinking and many things were up for grabs. The Stanford Today wrote about tenure there and admitted:

An unpleasant chapter in Stanford history played a key role in the history of tenure. In 1900, sociology professor E. A. Ross was forced from Stanford after upsetting university co-founder Jane Stanford with public speeches against Chinese immigration and the supposed sins of corporations. Seven other professors later resigned in protest, and the incident fueled a national coalition that wrote the so-called Declaration of 1915.

Vaidhyanathan is correct that treating educational institutions like businesses is a mistake, but this pattern of questioning academics and education has a long history. The 1998 article from the Stanford Today hits the same notes about the difference between long term and short term goals, how business is different than education, and the need to “buffer [researchers] from political and administrative pressure.” The tenure process itself traces to fights over what is good research. So how do we explain why education matters and especially academic freedom? Siva, others, and I have called out the way education is different. My fear is that most don’t care about these points and that like debates in cyberlaw, saying “keep it open” is not that compelling. Patrick O’Donell’s comment to Frank’s post offers great resources to understand the problem, but whether any but the converted will read or care is the problem for me. The project may need to be a deeper look at what education does and why it should be funded for reasons beyond market metrics. Explaining education in ways that make sense to folks outside academia is probably necessary too.

The Corporate University: Recent Developments

There are many memorable images in Rob Nixon’s book Slow Violence and the Environmentalism of the Poor. Describing the “risk relocation” that is a prime function of the global economy, he offers this vision of Nigeria:

Often, as a community contends with attritional assaults on its ecological networks, it isn’t granted equitable access (or any access at all) to modernity’s basic infrastructural networks . . . . Like those Niger Delta villages where children for decades had no access to electricity for studying at night, while above their communities Shell’s gas flares created toxic nocturnal illumination. Too dark for education, too bright for sleep: modernity’s false dawn. (42)

Exxon is now “a corporation so large and powerful — operating in some 200 nations and territories — that it really has its own foreign policy.” As Steve Coll observes, the US “gives Chad only a few millions dollars a year in aid, while Exxon’s taxes and royalties can be worth as much as $500 million.” Had Exxon directed only 10% of its 2008 profits to political expenditures that year, it would have spent “more than every candidate for President and every candidate for Senate spent at the last election.” In a surprising number of contexts, corporations enjoy far more freedom of action, and secrecy, than states.

Is it any wonder, then, that universities are beginning to shift allegiance, to pursue the agenda of corporate donors instead of public values? Conferences like EduFactory have chronicled the long history of the corporate university; Philip Mirowski has critiqued it in books and edited collections. But it feels like we are on the verge of a phase change, an irreversible acceleration of dynamics once muted and slowed by the ancient cultural identity of the university. Consider these developments:

1) Martha McCluskey has described “economics scholars simultaneously acting as academic experts on the public interest and as sellers of this expertise to the highest private bidder.” She has chronicled a number of troubling aspects of a recent report on fracking issued by the “Shale Resources and Society Institute” (SRSI) of SUNY Buffalo:
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An opening musing on legal education

Well, several days later than planned, here I am with my inaugural post as May’s guest blogger here at Concurring Opinions. Thanks to Gerard for the flattering invitation. This is my first venture as a blogger, so I’m not quite sure I’ll strike the right note. But here goes.
I’ve been thinking a good deal about the structure of American legal education lately. This bout of introspection has been prompted by the national mood of unease in the profession, and more personally, by Missouri’s three-year rollercoaster ride in the US News rankings — from 60-something to 100-something and now back up to 70-something — and by my work as chair of a curriculum committee debating whether we have to reinvent ourselves for our own and our students’ sakes.  Here, in short form suitable for the blogosphere, are some of my tentative conclusions:
1) So long as US News rankings remain the primary indicator of institutional quality in the eyes of student consumers, the top 20 or perhaps 30 law schools are at liberty to change or stand pat, as suits them. So long as they continue taking in and spending a lot of money per student on whatever it is they do, the combination of reputational inertia and a US News algorithm in which most of the supposed measures of educational quality are actually proxies for money, these schools will remain on top and free to deliver legal education however they like. Their high ranking will guarantee a constant stream of the statistically best students willing to pay top tuition dollar. The raw intellectual talent of their graduates (regardless of how well or badly they were educated) will guarantee employment of those graduates by the most elite employers. And so the cycle will continue, forever and ever. Amen.
2) This model cannot work for the rest of us. In a generally stagnant economy with a legal market offering fewer jobs at less pay, we cannot continue to compete with each other in what amounts to an endless race to drive up per-student costs. Legislatures will not fund perennial increases for state-supported schools like mine. For both public and private schools, philanthropic funding is not bottomless. And trying to fund our academic arms race with ever-rising tuition is neither economically sustainable nor, frankly, moral.
3) Exacerbating the stress on non-elite institutions is the emerging emphasis on producing more practice-ready graduates. I happen to favor this trend. Indeed, over thirty years ago I wrote my third-year paper at Harvard on how to restructure upper-division legal education to achieve this end. But any serious effort to enhance practice-readiness runs head-on into the economics and sociology of law schools:
      a) Increasing practice-readiness requires more training in the skills performed by actual lawyers. This in turn requires either more “experiential learning” (basically various forms of clinical education) or more in-house simulation-based skills training or some combination of both.
     b) Skills training, whether experiential or simulated, requires much lower teacher-student ratios than doctrinal courses. Therefore, at least if the law school is to maintain quality control and not simply farm the whole thing out to adjuncts, it is probably more expensive.
     c) I say that increasing skills training is “probably” more expensive if we conceive of the additional skills training capacity as an add-on to what we already do, and if we assume that the doctrinal faculty of law schools will continue to do what they now do in the same way they’ve grown accustomed to doing it. In other words, if law schools continue hiring the same number of doctrinal tenure-track faculty with the same set of entering qualifications, give them the same teaching loads, pay them in roughly the same way, and set the same standards for type and quantity of scholarship, then adding the staff and programs required to make graduates more practice-ready will necessarily increase the cost of legal education. And I’ve just argued that the vast majority of law schools can’t keep raising costs.
     d) There are only two obvious ways out of this box. Either we abandon the objective of making our graduates more practice-ready or we rethink the role of doctrinal tenure-track faculty.
The first option is not crazy. One could fairly argue that law schools should never have gotten into the skills training business in the first place. What was good enough for Langdell should be good enough for us. Teach ‘em basic legal doctrine and the intellectual skill of legal analysis and leave the rest to the first years of practice. Or, less dogmatically, we’ve added a lot of skills training options over the last three decades (legal writing, clinics, trial advocacy) and what we have is enough.
But if you think we could and should do a better job of preparing our students for legal work, then that requires an uncomfortable self-analysis by the tenured and tenure-track class at the top of the law school hierarchy. As a conversation starter, let me suggest several changes in our comfortable lives that would make law schools better for our students, and for matter, for the legal communities of which law schools are a part:

  • Reverse the trend toward competing for faculty by offering ever-lower teaching loads to tenure-track professors. I like working less for more money as well as the next guy, but paying law professors premium salaries in relation to virtually everyone else in the university for teaching 11 or 10 or 9 hours per year is increasingly hard to justify. In the Bizzarro World of US News rankings, this practice makes weird sense because reducing professors’ teaching loads requires hiring more of them, which reduces the student-teacher ratio and increases the overall expenditures per student, which raises a school’s ranking. If, however, one is trying to increase skills training without cripplingly raising costs, an obvious means of doing so is by covering the curriculum with fewer faculty and thus freeing budgetary space for the additional staff required for more skills training.
  • Rethink the constellation of preferred qualifications for entry-level tenure-track law professors. Right now, we tend to hire young people with high grades from a handful of elite law schools whose work experience consists of a judicial clerkship and a couple of years at a fancy big-city law firm. With all these youngsters’ potential, in practice, no sensible senior lawyer would entrust them with unsupervised responsibility for any matter of real importance. But law schools confer on them the mantle of wisdom that comes with the title “professor” and not only ask them to educate students about a world they themselves have barely experienced, but also to write authoritative “scholarship” about that world. Because they are surpassingly talented people, newby law professors figure out their jobs, teach well enough (and sometimes brilliantly), and churn out law review articles as required. In a Langdellian model of legal education, this approach to hiring works well enough since the core subject matters are legal doctrine and legal reasoning, subjects those in our hiring pool have self-evidently mastered. And if the legal scholarship produced by professorial rookies is not profound, well, no one is much hurt. But if law schools are reimagined as institutions devoted to producing practice-ready graduates, then the practical inexperience of most of the professoriate becomes a problem. Professors with little real-world experience are ill-suited either to teach skills-rich courses themselves or to supervise or assess the content of such courses taught by others. 
  • Reconsider the role of “legal scholarship” in American law schools. An immediate (and horrified) objection to the suggestion of increased teaching loads will surely be the decreased time available for scholarship. And the idea of hiring more tenure-track faculty with real practice experience will surely be rejected by those who view exposure to the law in action as an irremediable pollution of the mind of the young scholar. To which I say, “Fiddlesticks!” There is far too much “legal scholarship” now. Most of it is mediocre or worse. Much of its mediocrity stems from the naivete of inexperienced professorial authors. Even if it were far better than it is, the sheer number of law review articles spewed forth each year means that only the tiniest fraction of them will ever be read by anyone other than their author’s immediate relatives or P&T committees. In saying this, I cast no aspersions on the talents of my academic fellows. To the contrary, law schools are brimming with brilliant minds, but the odd conventions of our trade often force them to opine too soon about subjects of which they know relatively little and to channel much of their creative energies into the writing of law review articles — an exercise customarily equal in practical effect to shouting down a well. As a class, law professors should probably write less, not more. If possible, they should write about subjects they have some practical familiarity with.  If professors come to the academy without such familiarity, they should find ways to gain it.  This means we should hire more people with more real-world experience and encourage those already hired to gain it, not only to assist in producing practice-ready graduates, but in order to improve legal scholarship. And, finally, we should most often write with a conscious view to influencing real-world legal actors.

In short, the move to restructure law schools so their graduates are better prepared to practice presents a fundamental challenge to the existing comfortable world of the tenure-track law professor. I think that is a good thing, one that would make our students and the legal profession a good deal better off. But I imagine others may differ…

Frank Bowman

1

Whoa, Just So Many Online Ed Resources

Like John Cusack in Better Off Dead when all songs seem to be about what is on your mind (see below), education seems to pop up everywhere I look right now. Well, why fight it? This link is to a host of online resources (HT: Esther Wojcicki). I listen to lectures while exercising. So far Berkeley has proven the best source for excellent lectures on philosophy (try Hubert Dreyfus, Wendy Brown, and Nathan Sayre (geography)). Some of the links take more work than others. Science.gov has a wealth of government studies etc., but you must hunt for what you want. In Property, Persona, and Preservation, I draw on Richard Lanham’s work to show that the ability to parse, sort, and organize is a source of value that can be seen in professors’ syllabi and other means of focusing attention. The list above sits in an odd place. It parses and sorts an array of options for online resources. Yet, the quality of the resources (how good and how easy to use) is not that clear. I’ll take the list and do some work, but in some possible future, a tool will do more to let me know which of this excellent list is most useful to various things one may want. Maybe a directory…paging Yahoo! white courtesy telephone. Or perhaps that whole search thing will evolve to read our minds, but only in the way we want. Well if I am in dreamland, I suppose I am still in Better Off Dead and about to hear Van Halen as burgers come to life.

0

Another Tip That Education Is Changing: Open Stax Textbooks

Costs of education need to come down. Open course materials are growing. Maybe education will indeed undergo a transformation in the next ten years. There are many things that will need to change for true education reform to take place. But better resources matter. Enter Rice University. Its OpenStax College initiative tries to address the problem of source fragmentation. In other words, resources, resources everywhere but no time to synch may be less of a problem than it has been so far. One nice touch is format flexibility: web, e-textbook, or hard copy options are available. “The first five textbooks in the series–Physics, Sociology, Biology, Concepts of Biology, and Anatomy and Physiology–have been completed, and the Physics and Sociology textbooks are up at openstaxcollege.org. The model is curious:

Using philanthropic funding, Baraniuk and the team behind OpenStax contracted professional content developers to write the books, and each book went through the industry-standard review cycle, including peer review and classroom testing. The books are scope- and sequence-compatible with traditional textbooks, and they contain all of the ancillary materials such as PowerPoint slides, test banks, and homework solutions.

So there is professional level seeding of content while also allowing for wiki-like contribution:

Each book has its own dashboard, called StaxDash. Along with displaying institutions that have adopted the book, StaxDash is also a real-time erratum tracker: Faculty who are using the books are encouraged to submit errors or problems they’ve found in the text. “There’s also the issue of pointing out aspects of the text that need to be updated,” notes Baraniuk, “for example, keeping the Sociology book up-to-date as the Arab Spring continues to evolve. People can post these issues, and our pledge is that we are going to fix any issues as close to ‘in real time’ as possible. These books will be up-to-date in a matter of hours or days instead of years.” When accessing a book through its URL on Connexions, students and faculty will always get the most up-to-date version of the book. Faculty can, however, use the “version control” feature on Connexions to lock in a particular version of the book for use throughout a semester.

If you thought that keeping up with authoritative versions of an ebook and citing it (trust me it is odd to cite to a location in a Kindle book) was messy, this new model will throw you. Then again, that is a small issue.

Group contributions for the latest on an issue and the ability to choose versions is a great idea. Law texts that could update the latest cases or a change in legislation as they happen and then be refined overtime would be wonderful. Of course teachers use other ways to reach these goals. But if crowds/commons style approaches to texts work, we may see better and less expensive versions of textbooks. How the system will mangage disputes about content and education boards’ issues with approval remains to be seen. Still, the promise of this approach should make the miasmic aspects of education boards look silly and create a press for improved ways to have quality content available for educators and most important, for students.

6

Education and Infrastructure

One way to think about any work is whether it helps understand a range of problems. Brett Frischmann’s Infrastructure does precisely that. Indeed, when done, I was not satisfied, despite the range of topics he addresses, such as roads and transportation, telecommunications, environmental, and intellectual infrastructures. Like a good novel, I wanted more. The framework and ideas Frischmann set out apply to complex problems society faces today. As a good theory and framework should do, Frischmann’s work digs into several areas and cries out for future work. One example that comes to mind is education.

Education has been a crisis issue in the past several decades; Frischmann’s Infrastructure sorts major questions that I believe society misses in this area. An assumption is that education is a public good. Yet, I think we are straying from how we manage such goods. As education seems to be failing, the United States has turned to market solutions. The somewhat standard cry of government mistakes, lack of competition, etc. fit into one model of managing the issue. Yet, as Frischmann explains, education may be understood as a merit good and as such there is a demand side problem: “systematic undervaluation of the merit good in market settings.” (p. 45) I would add that mistakes in proper valuation of education as infrastructure lead to the creation of an education aristocracy that leads to problems of the so-called One Percent type many decry today (but are unwilling to address with tax reform).

Recent evidence from Finland shows that taking an infrastructural approach leads to outcomes that we would want, but currently fail to reach. As the article describes:

Decades ago, when the Finnish school system was badly in need of reform, the goal of the program that Finland instituted, resulting in so much success today, was never excellence. It was equity. Since the 1980s, the main driver of Finnish education policy has been the idea that every child should have exactly the same opportunity to learn, regardless of family background, income, or geographic location. Education has been seen first and foremost not as a way to produce star performers, but as an instrument to even out social inequality. … When Finnish policymakers decided to reform the country’s education system in the 1970s, they did so because they realized that to be competitive, Finland couldn’t rely on manufacturing or its scant natural resources and instead had to invest in a knowledge-based economy.

This approach strikes me as a good example of how thinking in terms of infrastructure, social goods, and externalities (p. 49) allows us to recognize different ways of managing complex societal issues. Furthermore, this example has data behind it. Finland is persistently in the top of PISA scores on language, math, and science. And if one wishes to say that Finland is homogenous, different than the U.S etc. there is a control. Norway went with the American model and did much less well. As the article points out, education is a state policy in the U.S. Some states are smaller and more homogenous than Finland. I suggest that a truly innovative state program would look at such an investment to allow the state a competitive advantage. California was arguably such a state with its plan for undergraduate education until folks, wait for it, undervalued education and stopped paying for it on the broad basis.

0

No More Grading? Machine Learning and Evaluation

Disclaimer of the future: A computer will grade your essay. You understand and accept that as you take this test. In other words, deal with it.

According to this release from Akron University “A direct comparison between human graders and software designed to score student essays achieved virtually identical levels of accuracy, with the software in some cases proving to be more reliable, a groundbreaking study has found.”

I know. I know. The coming tech wave will sap the best of teaching from the profession. Then again, a few years ago one of my best friends told me that machine learning was getting to the point where a computer could evaluate, not multiple choice, but essay writing to within 90 percent of a human grader. Well kids, we line in artificial intelligence land and as Ferris Bueller says “Life moves pretty fast.” Of course slowing down may mean you miss change more often.

If true, the breakthrough is one of great promise. We are moving to a world of the autodidact (self-teacher), sort of. As the release notes, repetition is a huge part of learning but with writing there is only so much time that a teacher can take to grade and provide feedback. If I had such a tool, I am not sure that I would grade for more than a did you do the work grade. When I was in grade school, we self-graded and then had to see where we went wrong. It did not work if the material was simply lost on us. But in many cases one caught sloppiness etc. Here a technology solution may allow a student to receive feedback and tips about the fundamentals they miss.

To the credit of those in the field, they admit some homogenization may occur. But I would argue that for grade school, high school, and even college much of the basics are in fact about whether one masters the homogenous type. Having many people able to write a persuasive piece using either pathos or logos as assigned would be a great problem. And that foundation is needed before one can move to manipulating forms to startle and be more creative (read books by writers on writing and most tell you to get the basics down first). For law, memo writing, brief writing, etc. follow a form. After one learns that skill, the creative use of argument is possible.

I also like that the approach by the Hewlett Foundation and others involved in this space is to run competitions and offer prizes so that many can take whatever approach they like and the goal of great tools to allow teachers to do more emerge.

11

Diversity Day!

“Mom,” said my fourteen-year-old daughter. “What can I be for Diversity Day without being racist?”

As a good, progressive private school, my daughter’s school prides itself on its commitment to “diversity.” And like schools everywhere, it has a Spirit Week during which students and staff are instructed to do wacky things together in the service of building school spirit. Pajama Day! Crazy Hair Day! Superhero Day! This year, for some reason, the two mandates collided. Thus we got Diversity Day.

Someone, fortunately, had made a stab at thinking things through. We parents got an email from a school administrator warning us, “This is NOT a day to try to be someone else.” At least no one is going to show up in blackface, I thought with relief.

But what is Diversity Day supposed to be about? According to the email, “It is a day to celebrate a core aspect of the School’s mission by giving students the opportunity to celebrate their own cultural and/or family traditions. . . a day to express a certain amount of pride and respect for their families and backgrounds.”

Great, but there is complexity on top of complexity here. Begin with the fact that among the children of the Northern California professional-managerial class, there are hardly any who would claim a single “cultural and/or family tradition” for “their own.” These are kids with hyphenated last names and hyphenated backgrounds. The email to parents says, “They need to express themselves in a way that would make their grandparents proud of who they are.” Yes, but which grandparents? And who “are” these kids? Do they – or we – yet know? Yes, they have studied slavery and the Holocaust at school. My daughter and I have had lively discussions about President Andrew Jackson and his role in the Trail of Tears. But these children are fourteen and privileged and they live in the Bay Area; they are only now beginning to come into personal contact with the sharp edges of racism. I’m sure the parents of the eighth-grade black boys have already had several painful talks about being deferential and making no sudden movements when around strange white people or police officers. But I’m lucky; as mother of a girl, I only (!) have to worry about sex.

As in: “None of my friends think Asian boys are hot,” says my daughter. Some boy in her class has declared, “Black girls aren’t hot unless they look white.” To which my (black, curvy) daughter said sorrowfully, “I would have thought black girls would be attractive because they’re curvy.” We talk about the politics of personal ads; it seems grown-ups are also not quite post-racial in this area. And we try to unpack what “hotness” is supposed to mean, anyway.

Yet even these hard conversations are only tiny forays into the maelstrom of identity. High school and college, these days, are where the racial decisions really begin to bite for privileged kids. That accords, anyway, with the accounts of my “of color” students in their Critical Race Theory journals, who report being shocked when college classmates suddenly insisted on knowing “What are you?” or “Where are you from? No, really?” College is when those with complex identities and backgrounds are pressured by others to choose, to align, to make a stand.

Add to this confusion our national culture’s own vexed commitment to “diversity,” that peppy, All-American solution to the tragedy of racial subordination. Diversity is great because everyone has it already! Also, it’s good for everybody, since the corporate world, the military, and advertising can’t be wrong! But as Sheila Foster pointed out long ago, the downside of diversity is its emptiness; it can mean all things to all people and therefore nothing at all. And since everybody is different from everybody else, diversity is kinda automatic, no? “Should I just go as myself?” wonders my daughter. I respond, “If it’s their mission, then why isn’t every day Diversity Day?”

The truth, of course, is that race is the elephant in the diversity room. What we really care about when we talk about “diversity” is race and ethnicity, with perhaps a nod to gender, sexuality, and disability. But within the diversity framework, this commitment becomes fraught. When corrective justice was the paradigm, it made sense to put race and ethnicity at the center; flute players and yoga practitioners have not been targets for society-wide discrimination. If diversity for its own sake is the new goal, however, what do race and ethnicity become but skin color, eye shape, and quaint native costumes? Thus does Diversity Day pull us, ironically, toward the post-racial fantasy in which Martin Luther King, Jr. Day really is no different from St. Patrick’s Day in the United States: just another chance to be sold fun foods and drinks, and to feel good about how we are all the same beneath our superficial differences.

And I would be fine with that, were my daughter actually growing up in a world where no one would make her hotness depend on how “white” she looks.

Well, by the time she’s ready to go to college, of course, no doubt the Supreme Court will have ruled that diversity is not a compelling state interest after all and that higher education admissions in public schools must be race-blind. The question will be what these well-meaning private schools should do with their Diversity Days. New awkward rituals await, I’m sure.

But perhaps an awkward commitment to justice is better than no commitment at all.

P.S. I know: All these race problems are supposed to disappear in twenty-five years or less. Our innocent, colorblind children are going to lead us into the promised land. OK, I’ll wait.

P.P.S. Oh, and for those who want to know — She’s going to wear a pink triangle.

0

UCLA Law Review Vol. 59, Issue 3 (February 2012)

Volume 59, Issue 3 (February 2012)


Essays

Essays in Honor of Joel F. Handler: Introduction UCLA Law Review 504
The Pursuit of Legal Rights—and Beyond Scott L. Cummings 506
Poverty Unmodified?: Critical Reflections on the Deserving/Undeserving Distinction Noah D. Zatz 550


Articles

The President’s Unconstitutional Treatymaking David H. Moore 598
Freedom of Contract in an Augmented Reality: The Case of Consumer Contracts Scott R. Peppet 676


Comments

Balancing Judicial Misvaluation and Patent Hold-Up: Some Principles for Considering Injunctive Relief After eBay Nicholas P. Chan 746
Learning in Lockdown: School Police, Race, and the Limits of Law Aaron Sussman 788
7

Santorum: Please Don’t Google

If you Google “Santorum,” you’ll find that two of the top three search results take an unusual angle on the Republican candidate, thanks to sex columnist Dan Savage. (I very nearly used “Santorum” as a Google example in class last semester, and only just thought better of it.) Santorum’s supporters want Google to push the, er, less conventional site further down the rankings, and allege that Google’s failure to do so is political biased. That claim is obviously a load of Santorum, but the situation has drawn more thoughtful responses. Danny Sullivan argues that Google should implement a disclaimer, because kids may search on “Santorum” and be disturbed by what they find, or because they may think Google has a political agenda. (The site has one for “jew,” for example. For a long time, the first result for that search term was to the odious and anti-Semitic JewWatch site.)

This suggestion is well-intentioned but flatly wrong. I’m not an absolutist: I like how Google handled the problem of having a bunch of skinheads show up as a top result for “jew.” But I don’t want Google as the Web police, though many disagree. Should the site implement a disclaimer if you search for “Tommy Lee Pamela Anderson”? (Warning: sex tape.) If you search for “flat earth theory,” should Google tell you that you are potentially a moron? I don’t think so. Disclaimers should be the nuclear option for Google – partly so they continue to attract attention, and partly because they move Google from a primarily passive role as filter to a more active one as commentator. I generally like my Web results without knowing what Google thinks about them.

Evgeny Morozov has made a similar suggestion, though along different lines: he wants Google to put up a banner or signal when someone searches for links between vaccines and autism, or proof that the Pentagon / Israelis / Santa Claus was behind the 9/11 attacks. I’m more sympathetic to Evgeny’s idea, but I would limit banners or disclaimers to situations that meet two criteria. First, the facts of the issue must be clear-cut: pi is not equal to three (and no one really thinks so), and the planet is indisputably getting warmer. And second, the issue must be one that is both currently relevant and with significant consequences. The flat earthers don’t count; the anti-vaccine nuts do. (People who fail to immunize their children not only put them at risk; they put their classmates and friends at risk, too.) Lastly, I think there’s importance to having both a sense of humor and a respect for discordant, even false speech. The Santorum thing is darn funny. And, in the political realm, we have a laudable history of tolerating false or inflammatory speech, because we know the perils of censorship. So, keeping spreading Santorum!

Danielle, Frank, and the other CoOp folks have kindly let me hang around their blog like a slovenly houseguest, and I’d like to thank them for it. See you soon!

Cross-posted at Info/Law.