Seeking a Pause on Scalia Law

George Mason Faculty Senate, citing provisions that professors say give inappropriate influence to donors, asks institution to hold off on renaming law school after the late Antonin Scalia under Charles Koch-funded agreement.

May 5, 2016
Antonin Scalia

The Faculty Senate at George Mason University took its concerns about renaming its law school after late Supreme Court Justice Antonin Scalia one step farther on Wednesday, asking administrators to put the plan on hold. Senators also expressed additional concerns about the agreement behind the renaming, asking the university for more transparency about just what’s being promised to an anonymous donor and the Charles Koch Foundation in the $30 million deal. The university acknowledged the senate's concerns but nevertheless signaled that it's moving forward.

“The grant agreements require the university to make complex organizational changes the exact nature and implications of which are not clear,” reads one of two statements passed Wednesday. “For instance, it seems problematic, given the university’s limited resources and the law school’s declining enrollment, to commit taxpayer monies to create two new centers affiliated with the law school and to hire 12 new law professors (some at tenured, senior levels), as well as an unspecified number of support staff. … Such a large financial commitment to this one project has the potential to distort the university’s future development by denying funds to other equally important academic programs.”

Wednesday’s resolutions amend another more general statement passed by the senate last week. That resolution didn’t ask the university to halt the renaming process but rather expressed concerns about some of Scalia’s public comments about historically marginalized groups, such as that minority college students may excel at “slower-track” institutions. Similar debates over Scalia’s legacy ensued elsewhere in the wake of his death, including at Georgetown University.

George Mason’s senate also last week wondered how the new Antonin Scalia Law School would be funded after an initial agreement ends in 2020 or is otherwise voided. The resolution passed 21-13, but some senators opposed it because they wanted an even stronger statement. They called a special meeting to debate the matter further.

In the interim, Ángel Cabrera, George Mason’s president, reached out to members of the Faculty Senate, saying in a letter that he understood Scalia’s legacy was polarizing and that the renaming didn’t signal agreement with his views.

“We are not endorsing his opinions on any specific issue,” Cabrera wrote. “We are recognizing a man who served our country at the highest level of government for 30 years and who many experts of diverse ideological persuasions -- from faculty colleagues in our law school, to his peers on the Supreme Court, to the president of the United States -- consider to have been a great jurist who had a profound impact in the legal field …. Rejecting a major naming gift in honor of a U.S. Supreme Court Justice on the basis that some of us disagree with some of his opinions would be inconsistent with our values of diversity and freedom of thought.”

Cabrera also addressed faculty concerns that the $10 million pledged to the law school by the conservative Koch foundation alongside a $20 million grant from an anonymous donor compromised the college’s academic integrity, or at least perceptions thereof.

Referring to a recent New York Times report that valued Koch donations to George Mason at $50 million over the last decade, Cabrera wrote, “To put things in perspective, that would amount to about 0.6 percent of our average annual budget over this period. The suggestion that gifts of this magnitude can shape the ideology of the largest public research university in Virginia is far-fetched to say the least.”

George Mason is far from the only institution to accept funds from Koch, whose donations to higher education are only growing -- namely in the form of centers promoting the study of free enterprise. But George Mason is, by some counts, the most Koch-funded institution in the U.S., with major support going to the Institute for Humane Studies for the “advancement of freedom” and the Mercatus Center for the study of “market-based ideas.” The distinction has caught the attention of major news outlets in recent years, and a last month an undergraduate publicly “quit” the economics department via a column in the school newspaper for being too tied to Koch. Yet overall, Cabrera said George Mason’s problem is that it doesn’t benefit enough from philanthropy -- not too much.

“With the continuous decline in public funding, philanthropy plays an increasingly important role for public universities, as it has always been for private ones,” he wrote. “However, compared to our research university peers, philanthropy is still a very small percentage of our budget. In fiscal year 2017, all forms of philanthropy will account for almost 5 percent of our $920 million budget. Four years ago when I arrived at Mason, philanthropy provided 3 percent of our $730 million budget.”

Cabrera also said that the $30 million will go entirely toward funding scholarships, and that the revenue generated from tuition associated with those scholarships will be used to pay for the faculty, staff and other costs associated with the deal. The president’s comments didn’t do much to stop members of the Faculty Senate from pursuing further action against the plan, however, nor did they address details to which some have pointed as most troubling.

One of the resolutions passed Wednesday, 25-12, for example, notes that the grant agreements “link the funding of the promised scholarships to the ongoing service of the current [law school] dean, Henry N. Butler: ‘if the individual holding the dean position changes, the university shall immediately notify the donor.’” Such a stipulation constitutes “a violation of longstanding practices of faculty governance,” according to the senate.

The grant agreements also appear to be “risky for the university and to give too much leverage to the donors,” reads one resolution. “All of the money is not given up front: it is to be made in five annual installments. If the donors decide the foundation and/or university are not living up to any of the ‘provisions set forth in the agreement,’ then the donors can end the agreement within 30 days and demand the return of ‘all unexpended contributed amounts’ within an additional 15 days.”

“Especially troubling,” the resolution continues, is the provision in the agreement with the anonymous donor “that if s/he ‘determines that the school or any academic unit bearing the school name is no longer principally focused on the school’s mission, then the donor has ‘the right to pursue any remedy available at law or equity, and has the right to terminate this agreement.’”

In other words, linking vague concepts of donor satisfaction to such significant sums is financially unwise, the faculty resolution says.

Another resolution passed by a voice vote alleges that the university’s agreement with the anonymous donor violated its own gift policy saying that names will be conferred only after 50 percent of the total gift has been received. Under the current agreement, that won’t happen until May 2018 -- nearly two years after George Mason plans to rename the law school in honor of Scalia.

The resolutions ask the university to put the renaming agreement and associated terms on hold “to allow for a more careful discussion of the many serious concerns expressed by faculty, students, staff, alumni, state legislators and the general public.” The resolution also calls for the senate to draft a conflict of interest policy concerning private gifts, which George Mason currently doesn’t have, and the creation of a committee charged with monitoring the activity of affiliated centers.

It's probably worth noting that none of the biggest -- or at least biggest public -- critics have come from the law school. In fact, Scalia knew a number of scholars there personally. Several shared their best memories of the justice upon his death. Lloyd Cohen, a professor of law and member of the senate, spoke out against the resolutions before the senate. Prior to the meeting, Cohen told The National Law Journal that opposition to the renaming is “an affront, an intrusion and a hostile act. ...University administrators and law deans are in the business of raising money, and you raise money by naming things."

Charlene Davis, associate professor of nursing and past chair of the senate, described the meeting as  "collegial, though clear and sharp differences were aired. ...There was no vitriol, order was maintained and differences were aired in the spirit of the academy."

Craig Willse, an assistant professor of cultural studies who initiated a recent letter signed by 140 faculty and staff members opposing the renaming, applauded the senate's move. "How can an institution that links itself to Scalia hope to successfully recruit and retain African-American students?," he said, referencing Scalia's comments in an affirmative action case suggesting that black students might be better served at "less advanced" institutions. The administration "has failed to address the impact of this renaming on the members of our community, especially students of color and LGBT students, who were the targets of Scalia's racism and homophobia," Willse said.

Renell Wynn, university spokesperson, said in a statement after the vote, “Building a diverse and inclusive community is critical to George Mason’s success. This gift provides $30 million for scholarships and that money will help hundreds of students attend law school -- students who otherwise might not have had that chance. That is why this gift is so important to Mason, and why we believe we should continue to move forward.”

Wynn said the university was nevertheless “fortunate” to take recommendations from the senate. “We strongly believe the university should not be aligned with any single ideological position and should be a friendly home to people who embrace diverse points of view,” she said. “We are committed to explaining the university’s plan to manage its responsibility for future funding of new law school faculty and centers without detriment to other units at the university.”


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