At Legal Insurrection we have covered dozens of instances of false or misleading claims of racism and other “-isms” against professors and others by student and campus activists. Our ability to shine a light has won widespread praise. Some professors have been fired, others ‘merely’ harassed and tormented. Frequently, weak administrations kowtow to student and activist fabrications and prevarications, rather than standing up for truth.I’m not sure I’ve seen a case like that of law professor Bernard (“Bernie”) Burk at Seattle University School of Law. It’s one of those rare cases where there are recordings of the alleged offensive statements, and those recordings show Prof. Burk never made the key statements in question.I first read about Prof. Burk at the invaluable TaxProf Blog run by Pepperdine Law Dean Paul Caron. I don’t know Prof. Burk, but he followed a path similar to mine, practicing law for over 20 years before moving to teaching:
Visiting Professor Bernie Burk spent 25 years as a practicing lawyer at a larger firm in San Francisco before transitioning to law teaching in 2010. He has taught at a number of law schools around the country since then. Prof. Burk will be teaching Civil Procedure, Remedies, and Sales this year at SeattleU, and can’t wait to get started. He also teaches Professional Responsibility, Contracts, Conflicts of Laws, and litigation skills courses.Prof. Burk publishes in the areas of Legal Ethics, the Legal Profession, and Legal Education, and recently published a Professional Responsibility textbook through Aspen Press entitled Ethical Lawyering: A Guide for the Well-Intentioned. He’s also a regular contributor at The Faculty Lounge blog, www.thefacultylounge.org. He serves as a consultant and expert witness in Professional Responsibility and Professional Conduct matters, and has provided pro bono support to legal aid organizations on regulatory and ethics issues.
The controversy all started with a story at the Seattle Spectator student newspaper on January 18, 2023, First Year Law Students Allege Discrimination in the Classroom. The article is based on information provided by three anonymous first year students. The key accusation from anonymous student no. 2 quoted in the article was that Prof. Burk made these specific statements;
“He designated Brown students as terrorists,” a second anonymous first-year law student said. “He called Native Americans savages on the first day of class.”
Burk denied making those statements. The other accusations were more amorphous, having to do with student feelings and how Prof. Burk evaluated students in class. These complaints, the article noted, were not universally shared among students (emphasis added):
The second anonymous student also observed that Burk’s classroom recognition and awards failed to include students of color.“He has this thing called Geek of the Week,” the student said. “No BIPOC was ever selected for Geek of the Week until we had a student go up and tell him that was unacceptable. Then, he elected two the next week.”Beyond allegations of racially discriminatory treatment, the students shared stories of sexist and ableist incidents and a joke about gun violence that frightened some students. Students felt that Burk did not treat female-identifying students equally, did not give adequate disability accommodations and made comments patronizing students struggling with mental illness.“Professor Burk has spouted hateful and discriminatory comments towards womxn, BIPOC and LGBTQ+ students, so much so, that we no longer feel safe in our classroom, and we have lost faith in the administration’s competency in handling these matters,” a group of first-year law students wrote in a statement. “This professor uses racial slurs, stymies classroom participation by yelling predominantly at womxn and discriminates against students with school-approved accommodations.”The controversy surrounding Burk’s classroom has created significant division among the first-year law student body. According to the students, it has spawned rival groups among the class, with high tensions between those who do not see a problem with Burk’s teaching and those who feel uncomfortable being in the classroom.Andrew Siegel, vice dean for academic affairs at the Seattle U School of Law, noted a wide range of opinions on the subject among first-year law students.“Many students liked the class from the beginning,” Siegel said. “Many of the students who had concerns about the class have specifically said that initiatives we took have improved the experience.”
Additionally, there apparently was great disagreement with those accusations expressed in the comments to the Spectator article, but the comments were removed (unfortunately, they are not archived, at least not that I could find):
Editor’s Note (1/27/23): Due to unfortunate comments of a threatening nature against both Professor Burk and the anonymous sources in question, The Spectator has turned off comments on this feature.
An expedited investigation was launched (emphasis added):
Now Dean Anthony Varona is communicating with the law school community that an internal probe is underway. Noting Burk’s “strenuous” denial, Varona said that some of the serious allegations detailed in the Spectator were never reported to the administration:
Varona added that, while complaints had been made about Burk throughout the semester, “[s]ome of the most serious allegations reported by the Spectator, however, had not been shared with us at all during the fall semester.”“Our Office of Academic Affairs worked directly with Professor Burk throughout the fall semester to address and resolve various students’ concerns,” adding that in late October the University’s Campus Climate Incident Reporting & Response Team received various reports from students in the course, to which the team responded and engaged the Seattle University Office of Institutional Equity as appropriate.
Varona also noted, “we asked the Office of Institutional Equity to conduct an expedited inquiry to determine the accuracy of two of the most serious allegations reported in the Spectator.”
None of the alleged slurs, etc., are specific, except the two about “He designated Brown students as terrorists,” and “He called Native Americans savages on the first day of class.” That accusation was from the same anonymous student who complained about the racial distribution of “Geek of the Week” awards.
Whether those statements were made is not a matter of opinion, or feelings. The classes were recorded, and Law School Dean Anthony Varona issued a statement, reprinted in the student newspaper, finding that there is no evidence from the recordings that the two statements ever were made (emphasis added):
I write to provide an update to my message from Monday morning about the January 18th Seattle Spectator article focusing on Professor Burk’s fall Civil Procedure course. As I shared with you, we had arranged for an expedited inquiry by the University’s Office of Institutional Equity (OIE) into the accuracy of the two most serious allegations reported by the Spectator (i.e., that Professor Burk “called Native Americans savages on the first day of class” and that he “designated Brown students as terrorists”).The OIE’s expedited inquiry involved the review of over five hours of relevant class recordings, including the entire first class, and a review of class transcripts. The inquiry concluded that the alleged statements were nowhere in the reviewed recordings or transcripts. Professor Burk neither called Native Americans “savages” nor “Brown students…terrorists.”
Later in the statement, Dean Varona called the specific accusations in question “unsubstantiated.” Which is a nice way of saying the student in question lied in order to damage Prof. Burk. The evidence be damned, the student is sticking to his or her story: “The anonymous source has confirmed that they stand by the relevant quotation as reported.” A future leader of the Bar, no doubt.
So what is this all really about. The original Spectator article gives a very strong hint – Some students felt the course was too hard and too much work:
Aside from worries about bias, some students found Burk’s teaching style to be ineffective. One student felt time commitments required in the class were unreasonable and made success challenging. Required meetings, unannounced extensions of class time, readings and homework added up to a crushing workload.“For a five credit class, you’re only supposed to be spending 10 hours outside of class to do this work,” the second anonymous student said. “[Burk’s mandatory preparation] takes upwards of 12 to 13 hours, which greatly exceeds American Bar Association requirements.”Burk believed that his assigned preparatory material was necessary to prepare students for advanced work in their later semesters.“Seattle U Law makes Civil Procedure the heaviest course in the first-term curriculum—five credit hours, which is between a half and a third of the entire first-term courseload,” Burk wrote to the Spectator. “The volume of material the Law School expects the course to cover is correspondingly substantial, and a great deal of reading and preparation is necessary for every class.”The disconnect between the expectations of professors and faculty may extend into the wider field of education. Varona highlighted the challenges faced by some legal faculty in adjusting to changing needs of students.“I don’t find some of these [student] concerns to be entirely unusual,” Varona said. “Particularly, over the last few years, I have been involved in helping some colleagues learn how to evolve their teaching and how to grow in their pedagogical approach to meet the needs of our students today.” …“It is possible that everyone is coming into the classroom with good faith and with good intentions, but still there is a mismatch between expectations and needs of current students and the approach of a faculty member that might not be as effective today as it once was,” Varona said.Burk expressed confidence in his teaching style, citing its widespread use among legal faculty.“The structure I use is not unique or original to me, and I’ve used it successfully for a dozen years. Variations are in use all over the country, including by some members of the faculty here,” Burk wrote.
So a small number of students who feel a law school course is too hard and too much work complain that various “-isms” are the problem rather than their own inability to handle the workload. This is my shocked face.
I reached out to Dean Varona for comment, asking specifically about his lack of condemnation of the student lying:
“I read about the Bernie Burk situation first at TaxProfBlog, and then the links at the Spectator, including your statement that recordings of the classes did not reflect any of the alleged statements. Is there anything you can add to that? While it’s important that you publicly exonerated Prof. Burk, that exoneration was not a condemnation of the false accusations — will any of the students who made the false accusations face any repercussions?”
“I do not have anything to add to my last public statement, sharing the results of the expedited inquiry.”
I also reached out to Prof. Burk, who provided this statement (emphasis added):
The anonymous students’ accusations that are specific enough to address have been conclusively disproved by class videorecordings. The accusers are persisting anyway. The school newspaper reports that one of the students whose accusations were decisively refuted by a formal investigation, an investigation that reviewed the actual class recordings, has stated to the paper that “they stand by the relevant statement as quoted.”When comments posted to the online story began to accumulate, many calling out the accusations as false and questioning the integrity of the school paper’s reporting, an anonymous poster responded to one of those comments with a threat, stating “We know who you are,” and calling the commenter racist. Instead of just deleting the threatening post, the paper has wiped all comments off the website, leaving only its content and Dean Varona’s Letter to the Editor. Now, the only permitted response to the school paper’s content on the subject is a “thumbs-up.” Other stories on the paper’s website continue to allow readers to post comments.As far as I know, the law school and university administration have made no clear public statement condemning the anonymous accusations now proven false or the anonymous online threat leveled against a student who called them out as such.
Prof. Burk is just more collateral damage in the pathetic self-absorbed world of the campus gripe industry. His situation is not unique, and in some ways better than most, because the classes were recorded. Personally, I’m thrilled that my classes are recorded. I’m not worried about defending what I actually say, I do worry — along with many professors — about fabrications.
Is it over for Prof. Burk? It’s never really over, is it?
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