Here’s the latest on Bowen Law School’s legal troubles. The bottom line is that Monday’s hearing contained lots of good news — and a little bad news — for Professor Robert Steinbuch. As you may recall, Steinbuch recently sued Bowen, his own employer, in an effort to force them to disclose public information on law school admissions. Bowen’s parent organization — the University of Arkansas at Little Rock — reacted in an eyebrow-raising manner: it launched an investigation into whether Steinbuch’s grading practices were racially biased.
More particularly, Dr. Zulma Toro, UALR’s Executive Vice Chancellor and Provost, launched what she called an “investigation” into whether Steinbuch’s grading policy violates law school policy and whether there are “legitimate race bias concerns” with Steinbuch’s grading. This investigation was launched at the request of Bowen School of Law Dean Michael Schwartz. Toro demanded that Steinbuch appear before her at a special meeting she called, so that he could be “investigated” about his professional conduct, his academic research, and his political views. Toro also notified Steinbuch that bringing an attorney along to this meeting was disallowed.
It is difficult to see what the justification for Toro’s investigation would be. Dean Schwartz had previously written Steinbuch that “you are free to include or exclude class participation in your grade calculations. I do not see any inherent problems in the methodology you have used for class participation.” Apparently, that didn’t matter.
Steinbuch’s lawsuit triggered lively e-mail discussion among Bowen’s faculty. A significant number of faculty members seemed eager to infer that Steinbuch’s lawsuit, and his academic interest in law school admissions, made him a relatively poor classroom teacher and grader. For instance, Professor Adjoa Aiyetoro claimed that Steinbuch’s lawsuit made it “virtually impossible” for students in his classes to be treated fairly. In contrast, Professor Josh Silverstein wrote: “I think any move to limit how Rob grades because of his lawsuit and his related scholarly research and service work would be a violation of academic freedom….And I can safely state that Rob’s grading protocols fall well within established practices throughout higher education.”
Steinbuch’s attorney reacted to UALR’s investigation by requesting a court order that would allow Steinbuch either to bring an attorney or to skip the investigation. The appropriateness of this order was to be resolved yesterday in Judge Tim Fox‘s court. However, at the eleventh hour, UALR backed down: on Friday afternoon, while UALR was officially closed because of inclement weather, Toro emailed Steinbuch a memo stating that her investigation was concluded, and that she had found no evidence of racial bias in Steinbuch’s teaching or grading practices. (Toro’s facility with bureaucratic language is also notable: somewhere along the way, her “investigation” — in which she told him that she wrote him that “I expect you to confirm your attendance” — got redescribed in her summary of events: somehow, in that Friday memo, it retroactively transformed into an “invitation” to meet. An invitation, by its nature, is not compulsory.)
Nonetheless, the hearing took place yesterday, and it raised serious questions about UALR’s legal exposure in the future. (Taxpayers: this means you!) At the hearing, Dean Schwartz testified that he believed that Steinbuch was discussing the anonymized academic profiles of current students. But Steinbuch’s public statements, as his filings further emphasize, relate only to the data about graduates — past students — that the school provided him pursuant to the FOIA. This misunderstanding on Schwartz’s part would be notable even if he weren’t both a defendant in the suit and a law professor: is it really credible that Schwartz misunderstood the central issue in the lawsuit? (It’s pretty weird to get this detail wrong — it’s kind of like a guy who complains to the cops that a liquor store is selling booze on Sunday, but the only evidence that the complainant has is of liquor sales occurring midweek.) Perhaps UALR wants to accuse Steinbuch of discussing current students’ data — UALR might think that supports their contention that Toro’s “investigation” was independent, not retaliatory — but Bowen has to know what data it gave Steinbuch. Bowen has to know that its claim is groundless — because the data at issue is (old) graduate data, not (new) current student data. Maybe Schwartz really was completely out of touch with the basic facts of the issue he was testifying about. I guess that’s better for him than the alternative theory: namely, that he perjured himself in an attempt to bolster his employer’s chances in Steinbuch’s freedom-of-information lawsuit.
The embarrassment for UALR didn’t stop there. Judge Fox then asked UALR’s counsel, Sarah James, whether it contacted the “injured” graduates who suffered when Dean Schwartz, by his own account, violated the law in disclosing previous admissions data. UALR’s representative sheepishly said no. Judge Fox then asked James whether it contacted the Department of Education when Dean Schwartz violated the law — again, by his own account — when he disclosed previous admissions data. Once again, UALR admitted it hadn’t.
Accordingly, Judge Fox held that UALR demonstrated that it cannot be trusted to represent its graduates in the current proceedings. Curiously, Fox added that he doesn’t think he can order the school to pay for a separate lawyer to represent the interests of its graduates, who have allegedly been harmed by its past violations — and so he then ordered Steinbuch to pick up the tab for UALR’s graduates. If you are puzzled by this ruling, you aren’t alone. Apparently realizing the unusual nature of his ruling, Fox agreed in advance to send his own ruling to the Court of Appeals. This means that this case will continue working its way through the legal system for at least the next year, before the merits of the FOIA claim are even addressed.
Imagine, for a moment, that UALR took the commands of Arkansas’s freedom of information law seriously, and that it paid special attention to the law’s command that it must be interpreted liberally. Bowen would have avoided a fair amount of bad publicity, and UALR would have spent a lot less time and money dancing around the inevitable demands of the transparency that our law requires. I hope for their sake that they enjoy the press coverage that they’ve earned — coverage that could have been avoided by simple compliance with the law.