Monday, September 21, 2020

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 Abstract

Excerpted From: Asian/Pacific Islander Law Students Association, Letter from the Asian/Pacific Islander Law Students Association Regarding Stephen Bainbridge, 68 UCLA Law Review Discourse 22 (2020) (39 Footnotes) (Full Document)

 

PREAMBLE

UCLAPILSAWhen I first saw Stephen Bainbridge's Tweets, which were shared by an outraged member of my Asian Pacific Islander Law Students Association (APILSA) board on Instagram, and then reposted by dozens of other students, my mind had been buzzing with concern for family and the Asian-Pacific Islander (API) community at large, who were vulnerable to racist and xenophobic attacks, especially those who are of a vulnerable age or are undocumented. The APILSA community, myself included, was exhausted. We were reconfiguring our lives in the middle of a pandemic. Some of us were struggling with health or family issues, and for those of us who had experienced violent racism in the past, the thought of intervening was retraumatizing. Moreover, we had seen past students appeal to the administration repeatedly regarding professors' hurtful, racist, and ignorant remarks, but had yet to see any real steps toward accountability.

But my second thought was that we had to respond. Far too few voices, both in the media and in our daily lives, were addressing the rise of anti-Asian sentiment, even as APIs were being spit on, stabbed, and shunned in public. I had seen a few frantic groups pop up on social media where APIs shared thoughts on the increasing violence, but far more people just felt helpless and unsure of what physical defense or legal recourse might be effective. Additionally, we needed to reinforce the unremitting student concern that our school was immunizing legal academia from accountability for racism. It is disorienting to consider the fact that law schools can simultaneously tolerate insensitive faculty remarks and offer courses that denounce the discriminatory nature of the law. Regarding this particular situation, I still find it shocking that some professors feel free to use or tolerate such racist and xenophobic language against APIs when classes at their very institution expose our immigration code's roots in the Chinese Exclusion Act and condemn Korematsu's bold generalizations about the threat API-Americans once supposedly posed to national security.

Six APILSA board members and I started writing this letter at midnight, only hours after Bainbridge tweeted. We collectively spent hundreds of hours over the next few days refining our language, seeking a kaleidoscope of input by reaching out to J.D. and LL.M. students, alumni, and faculty, and churning through late-night Zoom calls. Other Asian law student groups reached out in solidarity, some of whom were dealing with similar situations; alumni expressed to us that, when they were students, they too dealt with racist and hurtful remarks from faculty. We doubt this letter is the last of its kind because we know this racist episode is not the last of its kind. In the end, Bainbridge did not commit to sustained, concrete steps towards real accountability. Additionally, we recognize the fact that the UCLA Law administration responded more quickly and fully to these initiatives than it did to those of other students of color in the past, when student activists have been calling for accountability within the law school for a long time. Even then, the administration's response has not assured us that racist and xenophobic statements by professors at the law school will result in consequences.

If you are also engaged in the intersection between racism, campus leadership, and academia, please know that we feel your exhaustion in the most visceral way--and we see you when you choose to stand up for others.

Constance Chan

APILSA 2019-2020 Co-Chair

 

LETTER

Dear Law School Community,

On Tuesday, February 25, 2020, Stephen Bainbridge issued the following (now-deleted) Tweet:

"If we ask nicely, do you think we can get China to ban eating bats, civets, and other wild animals that serve as viral hosts?"

On Monday, April 6, 2020, Stephen Bainbridge issued the following series of (now-deleted) Tweets:

"1/ The Economist reports that an antibody test for the novel coronavirus will soon be available. I would be most curious to take one. As some of you know, I had a horrific cold/flu in late January/early February that I assumed was a bad case of bronchitis."

"2/ But I have a number of Chinese students in my class this semester and I wonder if one of them might have brought the virus back from China. I assume not because I know of nobody else at the law Schoo [sic] who got sick, but still ... One wonders."

On Thursday, April 9, 2020, Alton Wang, a UCLA Law 1L, Tweeted:

"This is a @UCLA_Law professor, who gets to teach at an institution that will rather support racist professors than the students, particularly students of color. And we wonder why law school isn't an inclusive environment and why institutional barriers remain for many POC."

On Friday, April 10, 2020, Stephen Bainbridge blocked Alton Wang on Twitter, and Alton Tweeted about this development with a series of screenshots. Reappropriate, an Asian American media outlet, re-Tweeted Alton's screenshots and later asked Stephen Bainbridge a question regarding his intentions in posting the Tweets.

On Friday, April 10, 2020, Stephen Bainbridge replied to Alton's Tweet:

"1/ It was not my intention to offend, but now that they have been called to my attention I can see why those tweets gave offense. They were particularly inappropriate since this is a time for all of us to be especially careful not to contribute to racial antagonism."

"2/ I have deleted the offending tweets. I very much regret them and apologize sincerely. I hope that we can move forward in a spirit of reconciliation and mutual understanding. Personally I intend to treat this as a learning moment."

At around midnight on Saturday, April 11, 2020, in response to Reappropriate's question, Stephen Bainbridge Tweeted:

"I was shooting from the hip about whether I had gotten and recovered from a very serious disease and I was not thinking about how it might contribute to the negative racial climate to which you correctly avert [sic]. It was a mistake and one I regret wholeheartedly."

"2/ have [sic] apologized publicly to Alton. I have sent an apology to APILSA. Back during the last time I got into a twitter controversy, a brave student took me aside and quietly told me I had hurt my ability to teach our students and to be a witness for Christ at UCLA."

"3/ That really shook me up. So I have tried to be more careful be [sic] sensitive and empathetic. I realize now I fell short. And no-one regrets that more than I. In closing, at the risk of using a cliche, please be patient with me. God isn't finished with me and I'm still growing."

At midnight on Saturday, April 11, 2020, Stephen Bainbridge emailed an apology to Constance Chan and Brendan Pratt, co-chairs of APILSA, and Alton Wang.

We appreciate Stephen Bainbridge's acknowledgement of his mistake. However, on behalf of our community, we cannot fully accept his apology, in its current form, as sufficient redress for the material harm that his Tweets generated. The original Tweets were posted for a week and were only removed when students became publicly outraged. The Twitter thread that constitutes Stephen Bainbridge's only public apology for his original Tweets enjoys a degree of privacy, as they are buried in the "Tweets & Replies" section of his profile, and do not appear on the main page where the original Tweets were posted.

Stephen Bainbridge's April 6 Tweets caused material harm to the API community at UCLA Law. Dozens of students reached out to APILSA after screenshots of the Tweets were circulated on social media. These students had already been anxious about the growing number of API individuals who have become victims of hate crimes in the wake of COVID-19; several of these individuals had already faced discriminatory episodes at the law school themselves. When Stephen Bainbridge reached out to Alton, Brendan, and Constance on April 11, several APILSA and APALJ members, as well as a large group of LLMs, had already spent dozens of hours of emotional and intellectual labor on crafting a response. We gathered a list of grievances from a spectrum of perspectives within the API community, consulted with faculty members on our approach, and conducted in-depth research to ensure that the historical and normative underpinnings of our letter were comprehensive and accurate. Therefore, we felt compelled to issue this public statement, in addition to responding to Stephen Bainbridge privately.

We strongly condemn Stephen Bainbridge's egregious Tweets posted on April 6, which irresponsibly perpetuate xenophobic stereotypes. This is a blatant violation of the spirit of the UCLA Faculty Code of Conduct, which states that faculty at UCLA must not discriminate against students on the basis of race or national origin. This situation surpasses the lifespan of a deleted Tweet. What was a learning moment for Stephen Bainbridge was a deeply hurtful moment for his audience. For us, it is a time to recognize the historical racism our communities have faced, the continued racialization of a devastating health crisis, and the repeated failures of this institution to address faculty misbehavior in good faith.

With this letter, we enclose a list of demands which we intensely thought through, debated, and built consensus around, while always keeping in mind students and APIs most harmed by an endorsement of xenophobia and racism. We also wish to highlight the historical and contemporary context surrounding the April 6 Tweets in order to clarify our deliberative, collective process and why we strongly believe the April 10 apology was not adequate. We hope that by sharing our analysis, our requests can be seen for how reasonable they are and how they are necessary for our community's restitution and healing.

As APILSA, we sent a schoolwide letter about the hundreds of APIs who have been victimized by xenophobic attacks in the wake of COVID-19. We pointed out that violence occurs precisely due to a misguided and dangerous notion that anyone who could be mistaken for Chinese is responsible for the pandemic. The past few months have been harrowing for the Asian American community. In addition to the stress of a global pandemic, APIs have increasingly faced racism and racially-motivated violence. API individuals have been verbally harassed, spit on, kicked and punched, and barred from business establishments and ridesharing services because of a perceived link to the virus. As of March 19, 2020, over 1100 incidents were reported to Stop AAPI Hate, at a rate of about 100 cases every day.

You can imagine our dismay when, one week after our letter was disseminated, a faculty member propagated the same xenophobic and unfounded assumptions we condemned by stating that his Chinese students could have "brought the virus back from China." To have a faculty member publish this message on a public platform is unacceptable.

These tweets undermine UCLA's commitment to diversity and inclusion and create a hostile learning environment for API and international students, many of whom are enrolled in his classes. Xenophobia in the law school, particularly in a law school that virtue-signals inclusion and uses 'diverse' faces on its marketing material, is abominable. The API community at UCLA Law deserves a realresponse.

In particular, many Chinese students in our LLM community are particularly vulnerable and have experienced increasing racism. To address these concerns, an LLM student raised concerns of racism during a Dean's Student Advisory Council meeting and urged the Dean to institute substantive action moving forward. We cannot take pride in our UCLA LLM program while we simultaneously ignore the xenophobic acts and attitudes within the UCLA Law community.

We understand that some faculty members are afforded the privilege of tenure in the guise of academic freedom. But when faculty statements stereotype students, they directly frustrate the core goals of the university--promoting robust learning and collegiality. Although these tweets may not necessarily trigger violence directly, they perpetuate the same stereotypes that instill resentment, fear, and shame in their readers, ultimately inhibiting learning and a sense of belonging at the law school.

We anticipate the argument that we may be chilling free speech by policing social media, especially when an apology has been issued. Yet the distinction between censorship and accountability is clear. Language has a viral quality can pollute, infect, and distort our perception of the world and each other. We ask the administration not to sanitize Stephen Brainbridge's speech, but rather hold him accountable for exacerbating a dangerous situation. Akin to yelling "fire!" in a crowded theater, statements like the Tweets at issue weaponize hysteria against marginalized groups. There are consequences for the person who yells "fire!" even after an apology, and there must be accountability here.

We demand good leadership because leaders frame the problem--both its causes and its solutions. Those who occupy positions of prominence and power have a heightened responsibility to ensure that their messages do not become ammunition for xenophobia. Korematsu is an infamous blemish in Asian American history, where leaders declared their own citizens a yellow peril. Framing Asians as the "other" previously led to the abhorrent event of Asian Americans being interned in their own country.

Without proper framing about where the law school stands, the dean's administration is allowing for mass hysteria and anti-Asian sentiment to silently pervade the now-virtual walls of our law school. Xenophobic attacks have been plaguing the API community across the nation for months, and the law school administration has yet to issue a statement.

This letter does not signify a lone band of students trumpeting overblown concerns about an esoteric issue. Some may attempt to classify our reaction to Stephen Bainbridge's statements as a 'snowflake' response or a 'liberal' appeal to melodrama. But xenophobia in all forms is an issue that countless bar associations, nonprofits, community organizations, political coalitions, and scared family members have been struggling with for months. This is an issue that is couched in the fabric of our immigration and constitutional law, which has produced a narrative of yellow peril and the scapegoating of Asians and Asian Americans.

This is not the first time that Stephen Bainbridge has made an inexcusably insensitive public statement, it is not the first time students have joined to condemn his actions, and it is not the first time that the school has declined to take decisive action. Tweeted apologies alone do not erase his personal history of endorsing questionable views, nor do they mitigate the school's institutional history of inaction. Moreover, it has only been a matter of months since the Black Law Students Association called attention to Eugene Volokh's repeated use of the N-word, once in lecture, and then again in a nonlecture context, to which the school also did not respond publicly. Although we understand that the administration had plans to respond, their overall response to these kinds of issues has been lackluster.

We see this moment in time as both a tragedy and an opportunity. It is an opportunity for us to shift the school's attention to an urgent issue affecting the API community, as well as to call on the school for academic accountability for all marginalized people. Because our communal history is often swept under the rug in academic and professional settings, we are making efforts to not only publicize this letter but also to institutionalize this memory in an issue of the UCLA Asian Pacific American Law Journal.

On our part, and for the benefit of our API community at UCLA, we are also hosting an online forum to address grievances from students regarding xenophobia. During this forum, we aim to not cut off students and to fully allow students to air out their responses to this event, as well as other incidents that they feel have not been adequately addressed by the law school. The forum will take place at 2:00pm PST on Friday, April 17th. The Zoom login details and more information are forthcoming.

We are calling on Stephen Bainbridge to:

Address the specific concerns raised here in a public apology that should be emailed to the law school, posted on your Twitter account, and featured on your blog. We ask that you acknowledge and reflect on the history of xenophobia in which the offensiveness of your Tweet is lodged. So as not to obscure the impact of the original harm, we ask that you include the original language of your April 6 Tweets in issuing this public apology.

Consider making a donation to Stop AAPI Hate either on APILSA's behalf or on UCLA School of Law's behalf. We strongly suggest the sum of $1100--one dollar for every API victim of a reported hate crime as of March 19, 2020, since the start of the COVID-19 outbreak. We are not condoning the idea that monetary payment is enough to alleviate the pain and suffering of those affected by xenophobia during the COVID-19 pandemic. However, we are including this request as a means of contributing to the API community, whether it ultimately be in the form of donation or some other form.

Attend our April 17 online community forum, where we will be addressing grievances from students regarding xenophobia in general, and be ready to actively listen and learn from students. Our hope is that at some point in this forum, we will allot no more than fifteen minutes to turn to the specific harm that you caused students: you may be asked to answer questions from students regarding your Tweets. Understandably, there are some members of our community that doubt the sincerity of your Tweeted apologies. We ask that you not be defensive, but rather approach us with empathy as we share our experiences of racism in a larger discussion of how we can collectively heal.

We also call on the Dean Mnookin to:

Attend the April 17 online community forum and be ready to actively listen and learn from students. At some point in the forum, we hope to ask you questions from students regarding Stephen Bainbridge's Tweets and the school's failure to address the xenophobia sparked by COVID-19 thus far. As aforementioned, we will limit the amount of time for you to speak, as the focus of this community forum is on the students and their experiences. Again, our community forum is not a public shaming mechanism, but rather a vehicle for community healing.

Address and denounce Stephen Bainbridge's Tweets, as well as xenophobia in the wake of COVID-19 at large, to the law school and publicly on Twitter since that was the public forum in which this incident played out. In the interest of putting a face to the institution in a way that demonstrates substantive engagement and care for APIs, we suggest a recorded video, though we recognize a sincere, comprehensive apology may take many forms.

Provide concrete support for the LLM student body. Specifically, we ask that the school recognize and emphasize how this xenophobia has disproportionately affected LLM and international students. To inform faculty and students of the consequences of racist and xenophobic behavior at the law school, we suggest that you consider organizing a panel of international students to engage them directly about their experiences.

Send a faculty-wide email urging faculty to be sensitive about their social media posts. Let us be clear: We are not suggesting that the administration function as a sort of language or free speech police. However, we would like the administration to create standards for faculty members' public social media behavior. We want substantive engagement from the administration and believe that there is a difference between prohibiting language and pointing out language that threatens the privacy and wellbeing of students.

We call on the student body to:

Attend our April 17 community online forum if it would be of interest or benefit to you to share your own experiences and learn from your classmates' experiences regarding xenophobia, racism, and/or COVID-19.

Write to Dean Mnookin regarding this letter and your relevant experiences with xenophobia and racism at the Law School.

Post a link to this letter to the UCLA School of Law social media accounts, or at least comment, "Please respond to UCLA APILSA's letter regarding Stephen Bainbridge," and please use the following hashtags: #BainbridgeDoBetter #StandWithAPILSA.

There were members of our community who wanted us to make more taxing demands. Many members of our community found the Tweeted apology and the school's note on xenophobia disappointingly weak. They believed the casual nature of the apology, when combined with the lack of institutional action, rendered the aforementioned gestures disingenuous, facile, and latent in line with the school's historical record of sweeping student concerns under the rug. Some have called for Stephen Bainbridge to be suspended from teaching for a year without pay, for his textbooks to be cut from business law syllabi, and for academic disciplinary actions to be initiated against him per the Faculty Code of Conduct.

Although we deeply feel the hurt and frustration of our membership, we articulated our demands with an eye towards community healing, closure, and engagement. In light of the administration's historic inaction and the April 10 apology, we decided to not pursue other demands. Ensuring the restoration of our community is our main priority. We are treading on the ground of an important moment, where we have the distinct chance to make issues affecting the API community visible and to benefit marginalized students at large by demanding heightened accountability. We do not take this task lightly.

The words of Shakespeare capture best our choice to see these past couple days as an opportunity, as well as the undeniable urgency of these issues:

There is a tide in the affairs of men,

Which taken at the flood, leads on to fortune.

Omitted, all the voyage of their life is bound in shallows and inmiseries.

On such a full sea are we now afloat.

And we must take the current when it serves, or lose our ventures.

In solidarity and in disappointment,

Asian and Pacific Islander Law Students Association Executive Board

Asian Pacific American Law Journal Executive Board

International Student Peer Support Group Executive Board

Queer and Transgender People of Color Collective Executive Board

ORGANIZATION SIGNATURES UCLA Law Organizations

American Constitution Society

Armenian Law Students Association

Black Law Student Association

Criminal Justice Society

Disability Law Journal

Dukeminier Awards Journal of Sexual Orientation and Gender Identity

El Centro Labor and Economic Justice Clinic

Environmental Law Society

First-Generation Law Students Association

If/When/How: Law Students for Reproductive Justice

Indigenous Peoples' Journal of Law, Culture and Resistance

International Human Rights Law Association

International Refugee Assistance Project Executive Board

Latinx Law Students Association

Law Students for Immigrant Justice

Muslim Law Students Association

Native American Law Students Association

National Lawyers Guild--UCLA

Older Wiser Law Students Executive Board

OUT Law

Pacific Basin Law Journal

South Asian Law Students Association

Survivors & Allies Network

UCLA Law Review Executive Board

UCLA Student Bar Association

UCLA SBA Diversity Action Committee

Voting Rights and Political Law Society

Women of Color Collective

Women's Law Journal

Non-UCLA Law Organizations

UCLA Asian Pacific American Medical Student Association

Chicago-Kent College of Law China Law Society

STUDENT SIGNATURES

This letter garnered 525 individual signatures, which we have removed to respect the privacy of the studen 



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