Jul/Aug 2011 Nonfiction

The Cucking-Stool Redux

by Jascha Kessler

Photo by John Tiong Chunghoo

Photo by John Tiong Chunghoo

Once upon a time in New England, violators of Puritan mores, usually women, were bound to the cucking-stool, a chair which exposed them to public reprobation, and which sometimes was mounted at one end of a long pole and extended over a pond, so they would be punished by immersion. Challenged to hold their breath, those who survived the ordeal proved their witchcraft. Guilty or not, few could. Puritan justice. In the textbook of my schooldays, an engraving showed a bound, white-capped young woman, her eyes imploring deaf heaven, an image that troubled a ten-year-old. Boys and girls listening to radio music in the turbulent and dynamic freedom of mid-20th Century America or sitting side by side behind desks from kindergarten on could never have imagined such punishment. What did it mean to be "taken in adultery"? Why was a young woman jeered and mocked, sometimes even stoned, or else "ducked," into that freezing, black water? I was reduced to helpless indignation by the caption's description of that punishment for "sin," a concept unknown to my upbringing and never to become a weight burdening my life's baggage. Later on, of course, I learned that the first great American novel had been written a century before my birth by Nathaniel Hawthorne, a New Englander looking down from the branches of his family tree, which led back two centuries to a trunk root: a hanging judge in Salem.

Here we are, 350 years later, and The Scarlet Letter's strict standard of a long-forgotten Puritan rule of life has returned, invoked to be set into a code of conduct in an utterly different epoch and in a most unlikely place: California. Even on such a small globe as today's Earth, the world of the University of California is about as far removed as possible from those purlieus in the Middle East where the religious police of Sunni Wahabi mullahs or Tehran's Shia Islamo-fascists patrol the streets, clamping their 14th Century mind-forged manacles on a hapless populace. Although scholars and scientists in American universities have struggled for a century to establish independence of thought, teaching, and research under the banner of Academic Freedom, it is essentially a notion always in process of redefinition, hence in need of defense, certainly from those who neither teach nor study, whether administrators or the representatives of public opinion.

It should be recalled that Robert M. Hutchins long ago observed that it would be foolish to fail to comprehend that our institutions of higher education exist in the real world, or that it is not to be expected that the ways in which people live and think will not in different generations permeate and shape schools to accord with their own modes of behavior. Any student-run newspaper demonstrates that sad fact of the playpen-as-training school. In any case, it's always prudent for university and college adults to keep an office door open, and not venture outside the library, classroom, lecture hall, or laboratory, above all, to avoid the dormitory or residence.


Regarding Academic Freedom

As with most institutional codes and constitutions, there is no lack of inherent contradiction and paradox to impede pursuit of life, liberty, and the hope of happiness for those subject to their by-laws and rules. That is one reason why interpretation must be supplied by courts to regulate their application and protect persons, whether they be transient like the yearly-renewed student body or permanent like their teachers. For a self-governing body such as of the University of California, which was once described as "a creature of the State [whose] loyalty will never waver" (so ran the manifesto accompanying its by-laws in 1934), there are bound to arise through the vicissitudes of passing decades subtle alterations in ideas about the State (whose laws are subsumed under the Constitution of the United States)—especially those regarding Academic Freedom, the First Amendment's protection of speech, which is taken to entail a quasi-sacred guarantee of freedom of thought and opinion, and its public expression.

Thus, after 61 or so years, it has come to pass that the absolute terminology of 1934's phrase, "will never waver" seems naïve, an anachronism quite acceptable today. Is it surprising an attempt should have been made to refashion what is called "the conceptual" foundation that once supported the principle of academic freedom? And just such a process took place in the UC system, whose Assembly of the Senate voted in 2003 for their overhaul, refashioning some by-laws to suit today's rather amorphous habit of argument. The case was put by a Berkeley law professor, who proposed to release us from the quaint, complacent notion that hitherto presumed to associate "academic freedom with scholarship that gave 'play to intellect rather than to passion,''' and "conceived scholarship as 'dispassionate,' concerned only with 'the logic of facts.'"1

In our period of deconstructionist relativism, such a repudiation of a démodé absolute handed down from our grandfathers' time is obligatory. To be sure, an absolute in sex is a dangerous thing. Not only to academic freedom, but rather more to civil freedom, the sort of freedom John Stuart Mill in the 1820s believed desirable when he contemplated the tyranny of Hobbes' Leviathan, not to mention the still vivid memory of the horrors of the French Revolution's Directorate, or as Carlyle put it later on, "Directorates, Consulates, Emperorships," none of which secured the liberty our scientists and scholars today demand in their search for "truth." What sort of formulation then might be derived to preserve it at this hour in the deplorable history of political philosophy, when we are assured that objective thought since Marx is merely opinion, contingent on an individual's position, arbitrarily derived from and determined by one's "station in life," as a social class used to be called?

Consequently, our first principle and article of faith holds it as a priori fact that no production of research and study may be regarded as "disinterested,"2 for each single one us must ineluctably be "interested." And if each is always "interested," driven willy-nilly by some partial agenda shaped by whichever ideology is imposed by "political grounds, or... reasons of race, religion, sex, sexual orientation, ethnic origin, national origin, ancestry, marital status, medical condition... [or] age or citizenship or... other arbitrary personal reasons,"3 then constraints, rules, codes, etc., must be set out, which of necessity will be backed by the implicit threat of force. It follows as night the day, that a new modern code "differentiates instead between competent and incompetent scholarship."4

Such an argument asseverates that points of view are to be protected by "professional standards of inquiry rather than succumbing to external and illegitimate incentives such as monetary gain or political coercion."5 It concedes that "competent scholarship can and frequently does communicate definite and politically salient viewpoints about important and controversial questions."6 With that conclusion, the basic question is begged, whether controversy and controversial expression is to be monitored, and if so, naturally by the present professionals of the "profession." Rather pusillanimous, in short. To put it in the blunt terms Lenin used, "Who, whom?" 'Twas ever thus, one imagines Job murmuring on his dung heap. As though the Halls of Academe could be constructed so that a thousand Diogenes huddled in their thousand hogsheads can be found thinking and speaking freely, while all other citizens, who make up the world's Four Estates, so to say, conduct their business and live their lives beyond their confines.7

Unfortunately, nothing has been gained by promulgating a new "conceptual" foundation to be laid down by that new standard. Worse, the question is begged yet again, quite blatantly. That is to say, whereas in that bygone era innocent of deconstructive analytics when our grandfathers naïvely presumed (even actually believed!) scholarship and research to be an intellectual pursuit of knowledge in which logic and reason obtained, its products today and henceforth are to be evaluated by those who proclaim themselves the competents licensed to discern the difference between competence and incompetence. One can almost hear the laughter of Socrates, of Bruno and Galileo echoing along the contrived corridors of history: Tell us, are these your guardians of competence? Who selected or appointed or elected them? And we answer, Why, their semblables! None other than scholars and researchers indistinguishable from those whom they assess, except for their tenured position, their seniority and power, both of which were previously conferred by their like. The closed chain resembles that file of painted wooden ducks rattling by in a shooting gallery. Nevertheless those great ghosts who haunted the past will insist, if anyone's listening, Who shall guard the guardians?

Such circular reasoning to justify the revision of a by-law in the university code of conduct is either trivial or non-trivial, depending on who's gored in whichever decade. It is only trivial if, in fact, as a colleague remarked to me during the debate over the new definition of rules held at UCLA on 28 May 2003, "It's all just PR." One shrugs at that, since in any case it assures litigators the ample rewards of law-play in the busy schoolyard. It is, however, hardly trivial if we recollect that in the Academy of that "scientific socialist" USSR defeated but yesterday before a world cataclysm could ensue, uncounted numbers of researchers suffered loss of position and work, more often than not their very lives, because the guardian of genetics was one Trofim Lysenko, an agronomist who claimed to have raised super-vegetables through the strictly neo-Lamarckian methods of his greenhouse. One forbears to mention the imposition for decades of similar behaviorist psychiatry upon victims far greater in number, millions in fact, outside the suffering ranks of Russia's scholars and scientists. In any case, the desired goal of our new standard of academic freedom is meant "to instill in... students a mature independence of mind," by which they may "express the widest range of viewpoints within the norms of scholarly inquiry and professional ethics."8 And of course those norms and ethics are those determined by scholarship that's "competent," to be distinguished from "incompetent," et cetera.


Regarding Sexual Relations

Therefore, two novel strictures were devised to supplement "The Faculty Code of Conduct." These additions to the University of California's by-laws were designed to govern sexual behavior. Again, the faculty concerned are that same faculty "robed" in competence. It was suggested that their freedom is sacrosanct because their mission was instillation of a "mature independence of mind" into a new generation that has voluntarily matriculated, paying out good money to be placed under their "professional care," as the new version of the Code terms it.9 Presently they number 197,000; faculty and staff comprise about 159,000. So the constituency governed under the by-laws of nine campuses amounts more or less to 356,000, by no means an inconsiderable population. The word "care" implies that the student body, although voting adults, are immature; as such they are not yet possessed of trained, independent minds. Furthermore, they are not to be regarded as fledged persons until they have been certified by the award of an undergraduate or graduate diploma (the latter granted to students frequently well-on in life, often-enough themselves parents), not to mention post-graduates, including men and women serving their residencies as doctors of medicine.

Couched in the dread language of prohibition, the following articles were proposed as amendments to the section adumbrating "unacceptable conduct," and indeed unanimously adopted by the Regents of the University at their meeting on 16-17 July 2003, despite some objection, and with the recorded dissent of the two student Regents, whose terms are short and whose service is regarded as advisory.

a) "Entering into a romantic or sexual relationship with any student for whom a faculty member has, or should reasonably expect to have in future [italics added] academic responsibility (instructional, evaluative, or supervisory)."

b) "Exercising academic responsibility (instructional, evaluative, or supervisory) for any student with whom a faculty member has a romantic or sexual relationship."

Insofar as the relationship between a student and teacher is concerned, the problems inherent in teaching, at least in an open society, few of which have flourished since Classical Greece, are universally acknowledged. Their difficulty has been exposed since Plato's The Symposium, where we find Socrates saying it is simply wrong to engage in a sexual or "romantic" relation with a youth not yet emerged from adolescence. It inadmissible to impose such a relationship because the loved one is incapable of acting freely: he cannot contend against the force of an adult, though consent may have been given, or worse, taken as given. A memorable portrait of the philosopher by Alcibiades, that handsome and brilliant aristocrat and soldier, depicts his astonishment at the older man's adamant, icy refusal to be seduced into making love during a long night spent at the side of such a beautiful creature as himself. For Socrates, that was "to have a care."10 Such liaisons were a subject of lively concern in his time, as attested in the record of lawsuits brought by indignant parents against aristocrats, and by the mockery of Athens' pederasts, the "euryproktoi" of Aristophanes' comedy.11

To mention Socrates in this animadversion is as much as to define what an adult is, and what competence means. Furthermore, it is understood that in Plato's dialogue, the inequality between a student, a pupil or disciple, and an adult is described by the difference between adolescence and maturity. But there is also the analogous asymmetry between the ignorance of inexperience and knowledge. Knowledge is power. The fate of one who lacks knowledge is determined by the holder and user of such power. More generally, this linkage may be presumed a constant for our species, which preserves and transmits through successive generations what has been discovered and learned. In other words, the inevitability of dependency or subordination is not a condition that entails "a sexual or romantic relationship." There is no place in human society at large nor at the level of the individual wherein the authority of precedence does not obtain. Given only two persons, precedence means power—if it can be kept. One might venture that is fundamentally the case even between twins, for one of them is delivered first.12

It is unsurprising that arguments should have been made in favor of new additions to the Code extending beyond the articles that cite the mundane, quotidian forms of intellectual and behavioral malfeasance on the part of faculty. For example, there is the forcing of opinion, favoritism, discrimination, the permitting disorder in the classroom, etc. What was actually being proposed, however, were articles meant to supervise the emotional and erotic actions of grown individuals. It is not merely their physical behavior that must be constrained. Sexual relations are to be prohibited because the erotic and emotional are actually—always and only—the exercise of power per se. It was presumed furthermore that such power is always and only misused. For instance, it was claimed that the mere perception of interest or favoritism (also termed "discrimination") on the part of an instructor must be harmful to the other students, whether or not it be known for a fact to be sexual or romantic. If the teacher favors a student with coffee, not to mention a dinner, whether for casual intercourse, or working sessions, as is common with graduate students or laboratory assistants, it must inevitably damage others, who perforce must assume partiality in grading or hiring. Merely to have been aroused by a perception that could lead to suspicion, the damage, like second-hand smoke, must be considered deleterious to other students' emotional well-being. Jealousy is no longer evoked by an actual liaison, whether supposed or private, but simply by the necessarily arbitrary grading decisions or hiring choices made by "competent," that is, licensed scholars or researchers.

And one of the new rules reaches into the future: it presumes that out of a class or seminar group, the student or intern who might be "reasonably expect[ed]" to enter at some as yet unknown hour into the arms of a teacher has ipso facto already harmed others emotionally, even actually done so, in terms of ranking and opportunity. Similar anxious exemplars of paranoia, or worse, invidious suspicions of potential tyranny over the young and necessarily dependent by those invested with the arrogant power of tenure were brought forward in earnest argument aimed at prevention of the contingent and fortuitous.

Notably absent from such briefs was any consideration of the power exerted by those subject to the discipline of learning, and being graded or employed by their teachers. The Code is in point of fact not meant for students; it is formulated only for their teachers. Notwithstanding, history, psychology, literature and common sense all attest to the traps laid for the putative strong by the supposed weak. The theater's comic stereotype of the clever slave and servant is familiar from Greece and Rome down to today's latest farce, and narratives displaying their cunning tricks are universal, East and West. Notably, too, most of the argument for such strictures is put forward by women; it is aimed against men (overlooking altogether questions of same-sex relations, in which the dynamics may be complex and/or "different"). It is scarcely allowed-for that a male under tutelary guidance may be as subject to "abuse" as a female. Students nonetheless arrive in every size, form, and age; they are of course all gendered. What was not accounted for in either of the proposed new guidelines is the inevitable damage that must occur by the having inhibited guidance of students of the other sex. Under such by-laws, faculty will necessarily be made anxious, fearful of accusations of misbehavior, and worried even by the probability that their least casual attitude may be taken for inclination and desire. Moreover, since the preponderant faculty is male, women students are bound to suffer the loss of proper attention itself. And yet, to have opposed such new rules governing sexual and "romantic" conduct for an institution like our modern university scarcely seemed preposterous to those professors of our new millennium, even though Western society has been super-saturated with publicly-advertised and exhibited sexuality during the greater part of the 20th Century.

Advertising, the media, film, literature high and low, all present us with a world more or less pornographic, whether designed for commerce or to unleash the eruption of the erotic out of psychic depths historically suppressed or veiled. Humanistic scholarship itself in the past 25 years has devoted an immense amount of attention to disclosing and analyzing, even latterly promulgating, what was more or less always considered obscene by other advanced civilizations, obscene in the ancient meaning of what is to be held hidden, private, literally off-stage, and not for performance before a public audience. It may be worth observing that Freud, a pioneer analyst of the psychology of Eros, once noted a seeming paradox: that whereas the expression of sexuality is such an overwhelming and perhaps neurotic component of modern life, it seemed to him that the Ancients were far more sensuous, sexual, and "natural," than his contemporaries of the late 19th and early 20th Century. Theoretically an investigator of the physical foundations of the human psyche, he offered an explanation along the line of Darwinian evolution, or perhaps rather devolution, of what he conceived to be the "sexual drive"; that is, he guessed that moderns appear to suffer from a diminished libido in comparison with the people of the Classical world. In other words, the less real and native, or "naturally" powerful were sexuality and "romance," the more "sex" seemed to him to pervade society's consciousness and govern its behavior.

D.H. Lawrence railed constantly against what he termed "sex in the head"; his examples are dramatized in characters from Women in Love (1917) to his last novel, Lady Chatterley's Lover (1928), the working title of which, incidentally, was Tenderness. Lawrence might have commented that "sexual relations" and "romance" are not at all the same as "tenderness." Since its message throughout was refused by his publisher who mistook it for what he detested, pornography, Lawrence changed its title and released it from an Italian publisher, for whom it didn't in the least matter how it was read or construed by the English. Twenty-seven years later Vladimir Nabokov's Lolita, a masterpiece attended by the same circumstances, was published in Paris. That work, too, was quite misconstrued, having been rejected out of hand by at least 17 American publishers. After its appearance in a France that permitted freedom to print—in English—it was suppressed (after Mme. Charles de Gaulle got wind of a work that had fortuitously gained some notoriety).

Since the Reformation, Western society has floundered in difficulty with the entire range of sexual expression, from the bawdy of Boccaccio to the satiric, neurotic nihilism of Nabokov's great novel, much too exquisite for its crude critical sieve, but especially since the 19th Century. Our Constitution's First Amendment has protected the arts from such censorship, at least through many struggles during and after Nabokov's time, which was Henry Miller's as well. It seems absurd today to witness the abject failure of college and university educators to recognize that society is all of a piece, that adult citizens, who have experienced its freedom in all the arts, even beyond the bounds of decent licence, as members of the community of higher education, should seek to create restrictive by-laws governing the most tenuous and subtle forms of individual relations and relationships, is still more absurd.

The majority of the University of California's Academic Assembly voted for those strictures. They will indubitably carry the University into that tortuous and torturing zone where individuals are policed in unacceptable ways. The grotesque feature of their reasoning lies in the fact that it not only presumes that its student bodies are always and everywhere subject to being bedded, so to say, for their board, but that in truth faculty are simply not competent—let alone mature enough—to govern themselves. In which case, it follows that they are likewise not competent to be granted their precious license of academic freedom. Apart from the insulting condescension of such a view of the world of Academe by academics themselves, there remained the question of its origin, its source amongst some faculty, some administrators, and various of the boards who rule our universities. As to its origin, that question demanded an answer during the debate in Los Angeles; none was offered.

In our world of the passive voice of anonymous bureaucracy, layer laminated upon layer of lucubrators of codes of conduct, the enforcement of such irresponsible directives are not easy to trace, let alone to be admitted; although it must be granted that acquiescence to their notions came all too easily, perhaps because most of them, meaning researchers and scholars of certified competence, do seem capable of looking at the past or the world as it is. There were some clear-eyed cynics who, sotto voce, suggested it was at bottom merely a question of sexual torts, as it were. That may be so, but it is contemptible, too.

Oddly, at the meeting of the Assembly on 28 May 2003, one delegate spoke out in favor of the adoption of those two new rules governing unacceptable sexual and/or "romantic" liaisons between students and faculty. A professor of psychiatry, his name is Dimsdale. I am fond of the ironic humor to be found in onomastics, where names so often have defined the fate of living persons. It occurred to me that his ardor in support of a rule condemning any and all such relationships might have been damped had he but given a moment's reflection to his namesake's unfortunate history. No relative of his, the fictive Arthur Dimmesdale, to be sure. Yet just as Hawthorne's The House of Seven Gables was a novel that sought to undo the curse of the ghost of a Salem judge, a burner of witches and the writer's own ancestor, so this psychiatrist ought to have recalled the fate of that unfortunate minister in The Scarlet Letter. It could have been cautionary. Calvinist Dimmesdale was tutelary to a dependent "widow," Hester Prynne, his mistress, who in fact was still a married woman; in adultery, she bore him a child they named Pearl. It was however the woman, subject to his authority, who seduced him, her guide and teacher; it was the woman who was the dominant moral power and conscience of his tragic fate. All the rules of a severe small community were broken by their "romantic" relationship, not just that of the Puritan sexual code of conduct. Generations of students and teachers and readers have long known that it was also the woman who was first publicly humiliated, then driven out wearing a badge of shame sewn over her heart. As for her lover, his was the guilty heart, his the weak and cowardly heart, and his the heart that failed him.

Today, hundreds of years after the constricting, and to us cruel, moral codes of a religiously-ruled community have lapsed, to have such archaic standards written into the constitution of a secular institution populated by people from every society on earth is startling—and farcical—to contemplate... were it not a sign looming on the horizon, like a cloud no larger than the size of a man's hand, perhaps a harbinger of unwelcome, even sinister things to come.13


1 Cf. Page 54. Notice of Meeting, a bulletin prepared for action by the Assembly of the Academic Senate of the University of California, meeting on 28 May 2003 in Los Angeles.

2 Ibid.

3 Ibid., page 53.

4 Ibid., page 54.

5 Ibid., page 55.

6 Ibid., page 54.

7 As to the notion of a "professional standard of inquiry" capable of resisting "external and illegitimate incentives such as monetary gain or political coercion," one might recur to an ancient anecdote that makes it unequivocally and absolutely clear it is illusory. The story goes that when Alexander the Great was brought to the Agora to interview the philosopher, Diogenes emerging from his barrel said to the great conqueror of Greece, "Stand aside. You are blocking the light of my sun." Power makes law. Diogenes was a non pareil. We may not look upon his like again. For that matter, Alexander was himself unique, the pupil of a great philosopher.

8 The model is that of father and mother to child. It used to be called quaintly, in loco parentis. And the school was affectionately regarded as an Alma Mater.

9 Ibid., page 54. It might be added that the Berkeley law professor commenting on the new protocol for academic freedom covered his presentation by announcing that he had consulted and followed the standard for academic freedom as already set forth by several prestigious Ivy League universities.

10 Again, the model is that of in loco parentis, and its breach is a violation akin to incest, an almost universal taboo.

11 Cf. by T.K. Hubbard, "Popular Perceptions of Elite Homosexuality in Classical Athens," Arion: A Journal of the Classics and Humanities, Third Series 6.1 (Boston University, Spring/Summer 1998), pp.48-78.

12 One may recall the lines from Genesis, which foreshadows an inequality that seems never to have been forgotten and a contest that is eternal: Ge 25:22 And the children struggled together within her. Ge 25:25 And the first came out red, all over like an hairy garment; and they called his name Esau. Ge 25:26 And after that came his brother out, and his hand took hold on Esau's heel; and his name was called Jacob...

13 It is easy to see a probable scenario: a woman displeased with her grade, or is rebuffed, as is common enough, or doesn't like this or that professor, for whatever occult reason or motive, or a "colleague" who wishes to get rid of a man obstructing her climb up the ladder. The accusation and trial under such by-laws is pre-judged, and the conviction comes without evidence, or false or concocted evidence. The awful events in Salem's witchcraft persecutions remind us of that mass "hysteria." The spate of child-abuse trials in day schools during recent decades, conducted with prosecutorial vindictiveness and the strangest sort of testimonies, offer similar templates for zealous indictments. In any case, it can as easily be the male student who feels abused. I have had a young graduate student weep on my shoulder after the oral examination for the M.A. in English, during which he was tongue-tied, because he was terrified that one of the professors would flunk him because she was lesbian and he homosexual. It was a false perception on his part, of course, since she was forbearing and kindly, and sensed the source of his fear.


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