Natelson, QED

I've been looking forward to my chance to write this piece for some time. Some of you may be familiar with Prof. Rob Natelson and his ongoing dispute with the University of Montana School of Law about his qualification to teach the School's Constitutional Law course. For those of you who don't follow it, or don't remember it, there is a good summary with links here. You might also remember that I represented my former law professor in this case.

After a 17 hour hearing last summer, the University finally ruled that Prof. Natelson could teach the course Spring Semester, and his teaching would be evaluated by a three member committee, one selected by Prof. Natelson, one selected by the Law School, and one selected by the University proper. He taught the course, he was evaluated, and the committee has ruled.

Prof. Natelson is incredibly well qualified and able to teach the course. And in a 2-1 decision, the committee agreed with him. The lone dissenting voice was Jim Goetz, a Bozeman attorney who was appointed to the committee by the law school. You may recall that Jim Goetz once was lead attorney in a case in which Prof. Natelson was sued. (Prof. Natelson eventually won that suit.)

The other two evaluators are both law professors from out of state who have no connection to Prof. Natelson or the Law School. Both hold "an endowed chair in constitutional law at their respective universities," according to this article in the Missoulian.

It is incredibly interesting to read the dichotomy in the opinions between the two gentlemen with no axe to grind, and Mr. Goetz, who was appointed by Prof. Natelson's adversary, the Law School, and who has a history of opposing him.

The two neutral evaluators found that there was little question that Prof. Natelson is completely qualified to teach the course. Here are some random quotes from their decision:

Our conclusion is that Professor Natelson is fully qualified to teach Constitutional Law. We are able to make this judgment with confidence. It is based on an evaluation that in its scope and thoroughness might well be unprecedented for any decision about a teaching assignment in the history of the American legal academy. It is also based on our combined experience of 49 years as law school professors. (FN: Among other things, that experience involves teaching constitutional law at 7 different law schools, participating in innumerable hiring and tenure decisions, and evaluating scholarly manuscripts for publishers.)

We reviewed two sets of written student evaluations...These evaluations can only be described as extraordinarily uniform and affirmative. With few exceptions, the mid-term evaluations varied from positive to enthusiastic...Common observations included praise for his even-handedness and for his use of background materials. Several students said that his class was the best they had had that semester, and some said it was the best they had had in their law school experience. The praise was occasionally close to ecstatic. (Sidenote: The existence of poor student evaluations was one of the reasons used by the Law School to claim Prof. Natelson was not qualified to teach the course.)

We were also provided with the most relevant results from the Instructional Assessment System. Professor Natelson's scores are extremely high....These results are stunningly good. They are significantly better than those achieved by a prior constitutional law professor who had taught the course several times previously and had been chosen through a national search.

Before ever having taught Constitutional Law, Professor Natelson published a number of articles on the subject. We have reviewed ten of these articles. They all focus on various aspects of the history of the American Constitution. One appears in a top law review, some in mid-level reviews, and all the journals are at least respectable. In light of the dissent's sustained attack on his body of scholarship, it bears mentioning that we are not evaluating Professor Natelson for tenure or for a chaired professorship. It also bears mentioning that disagreement about specific positions taken in law review articles is altogether normal and accepted. We disagree with aspects of positions taken by Professor Natelson, and, indeed, it would be strange if we did not. Nevertheless, we are quite certain that these articles are s significant qualification for teaching constitutional law. They meet normal standards of academic quality. They are well-researched, engagingly written, and thoughtful. Without doubt they constitute a contribution to our understanding of the vocabulary and world view of the Founders.

We attended two classes (one each) taught by Professor Natelson. Our observations were very similar. Both classes were impressive. [He] skillfully employed a range of techniques, including traditional Socratic questioning, lecturing, problem-solving, and informal discussion. He was effective in all these methods. He demonstrated knowledge of complicated material. He pushed the students to understand the cases at a sophisticated level, yet he was respectful, polite, and sometimes humorous. The students seemed interested and at ease. The expectations were high -- students were prepared and attention was focused not only on legal doctrines, but also on important details and on broader jurisprudential implications. If representative of Professor Natelson's work, we think the quality of these classes was high enough to put him at the upper level of classroom teachers at most law schools. And student interviews and evaluations indicate that the classes we saw were in fact representative.
"The quality of these classes was high enough to put him at the upper level of classroom teachers at most law schools." And we have this fellow at the University of Montana. We should be proud of his presence, not committed to attacking him because he is a conservative.

Now, as I pointed out earlier, there was a dissenting opinion filed. (Which, by the way, was 42 pages long compared with the majority's 10 pages.) I know and like Jim Goetz personally, but there is not much in his opinion with which I can agree.

And, frankly, I think his opinion can be essentially disregarded for at least two reasons. First, as he admits in his opinion, he approaches the entire case with a "presumption" against Prof. Natelson, a presumption that was created solely by him, and not contained anywhere in the documents that created the Evaluation Committee and appointed him to it:
Thus I began my thinking on this issue with a presumption favoring a national search, to be overcome only by a showing that Professor Natelson is so eminently qualified and such a known quantity that a national search would be superfluous.
This is a complete and fundamental problem with his analysis. You see, part of Prof. Natelson's complaint against the School was that there was a long standing policy of allowing tenured faculty to change course assignments on request, and that it was only when Prof. Natelson requested the course transfer that this new national search policy was implemented. (In fact, we proved at the hearing that there had never been a national search conducted by the law school when an existing, tenured professor sought a position, except in Prof. Natelson's case.) Thus, such a presumption is wholly contrary to the basic charge of the Committee.

Further, Mr. Goetz's presumption against Prof. Natelson pointed up the second, serious flaw in his approach.

Mr. Goetz stated from the outset of his decision that he found "little meaningful guidance either in the FINDINGS or the President's DECISION." Let's consider some background. We held a two day hearing last summer. After that hearing, the Hearing Examiner, Donald Robinson, issued extensive, detailed and thorough Findings of Fact. Based on these Findings of Fact, etc., the President of the University of Montana, George Dennison, issued a Decision. This Decision created the Evaluation Committee to which Mr. Goetz was ultimately appointed.

Yet, Mr. Goetz, despite not being present at the 2-day hearing, despite not being privy to all of the discussion, correspondence, and pleadings in the case, announced at the outset of his decision that he intended to disregard the very documents that created the Committee upon which he was serving, and proceed to judge the case as he saw fit, and with an initial, stated bias against Prof. Natelson. I simply cannot find such a dissenting voice to be credible under these circumstances. Even if he has legitimate points to raise concerning the underlying decisions, it is certainly unfair to raise them now when Prof. Natelson cannot respond, and it is also clearly in excess of the jurisdiction he has in the case.

The bottom line is this. Professor Rob Natelson is now the Constitutional Law professor at the University of Montana. The practice of law in this state will be better for this fact. He is a highly competent, intelligent professor, and it is truly a travesty to him, as well as to the taxpayers of this state, that so much time, money, and effort was expended to prevent our law students from being taught a basic course by a nationally recognized scholar in that field.



Michael Daly said...

Maybe President Bush should keep Professor Natelson in mind.

Douglas Strunk said...

It's so refreshing to read a legal argument from a lawyer that I can actually understand.

Perhaps its because you're argument was grounded in reality?


TallDave said...

Interesting reading, a bit surreal even. I have to wonder how much more media attention this would receive if Natelson were being discriminated against for being "too liberal" rather than too conservative. Ward Churchill is practically a celebrity despite major personal and professional misbehavior.

Thanks to you for sharing, and Glenn for linking.

Anonymous said...

My question is, what can he do to make the University pay for this offensive action?
Removing him due to his political views (which are now documented to be within the mainstream) is clearly beyond the pale.

Anonymous said...

At best, this Goetz character sounds like a hack and/or a ninny. At worst he sounds like a vindictive, petty little man.

Either way, he's not someone you'd want to argue a case for you.

Steve said...

Good job on your evaluation of the situation. As an attendee at the UofM Law school, I had Prof. Natelson for Property and Water Law. There were two things that I noticed about him with regards tothe faculty and the student body: The faculty, being almost universally liberal, effectively ostracized him for having an opinion different from their own; and the student body, who were for the most part made up of eager young liberal minds, were aghast that someone at such an institution should not validate their world view.
As an aside, I never thought of him as my personal favorite teacher, that being reserved for Larry Elison, who taught Con Law, and was a Libertarian who would tear down anybody's preconcieved notions, but do it with grace and class. My only problem with Natelson, is that we spent a week on the Rule against Perpetuities, only to find out that it doesn't work and is totally useless.
For UofM, which prides itself on turning out practicing attorneys, not future law school professors, that was particularly annoying.
However, I think that the way that Natelson was treated (and apparently still is) is shameful for the School of Law, and the UofM.
But I will make a predicition: Nothing will change, the faculty will feel that this is a temporary loss, but that eventually, they will be able to drive Natelson out of their conclave, and the school will be sorrier than it already is because of that.

James Fletcher Baxter said...


The missing element in every human 'solution' is an
accurate definition of the creature. The way we
define 'human' determines our view of self, others,
relationships, institutions, life, and future. Important?
Only the Creator who made us in His own image is
qualified to define us accurately. Choose wisely...
there are results.

Human is earth's Choicemaker. His title describes
his definitive and typifying characteristic. Recall
that his other features are but vehicles of experi-
ence intent on the development of perceptive
awareness and the following acts of decision and
choice. Note that the products of man cannot define
him for they are the fruit of the discerning choice-
making process and include the cognition of self,
the utility of experience, the development of value-
measuring systems and language, and the accultur-
ation of civilization.

The arts and the sciences of man, as with his habits,
customs, and traditions, are the creative harvest of
his perceptive and selective powers. Creativity, the
creative process, is a choice-making process. His
articles, constructs, and commodities, however
marvelous to behold, deserve neither awe nor idol-
atry, for man, not his contrivance, is earth's own
highest expression of the creative process.

Human is earth's Choicemaker. The sublime and
significant act of choosing is, itself, the Archimedean
fulcrum upon which man levers and redirects the
forces of cause and effect to an elected level of qual-
ity and diversity. Further, it orients him toward a
natural environmental opportunity, freedom, and
bestows earth's title, The Choicemaker, on his
singular and plural brow.

Human is earth's Choicemaker. Psalm 25:12 He is by
nature and nature's God a creature of Choice - and of
Criteria. Psalm 119:30,173 His unique and definitive
characteristic is, and of Right ought to be, the natural
foundation of his environments, institutions, and re-
spectful relations to his fellow-man. Thus, he is orien-
ted to a Freedom whose roots are in the Order of the
universe. selah