Barratry Bureaucracy

National Association of Scholars

The National Association of Scholars (NAS) condemns the Biden administration’s politicized persecution of Christopher Rufo. The Department of Education's Office of Civil Rights has opened an investigation into Rufo, who is serving as a trustee at the New College of Florida, on the grounds that he discriminated by "misgendering" a New College employee. Rufo explains the stakes of the matter so well that it would be better to quote than to paraphrase him:

As a tactical matter, the complaint is a clear attempt to disrupt the conservative reforms at New College, which represent a threat to the Left’s hegemony over higher education. …

As a strategic matter, a more dangerous element is in play: the manipulation of civil rights law. …

The stakes are immense. The complainants would like nothing more than to set the precedent that DEI bureaucracies, gender studies programs, and specified political speech are required by civil rights law. If they are able to make the link between “perceived disability and gender prejudice” and win such a judgment, it would be the ultimate vindication of Christopher Caldwell’s thesis that the Civil Rights Act, in its present configuration and usage, represents a mortal threat to the constitutional principles of free speech, democratic representation, and equal treatment under the law. …

This investigation is bigger than New College. If the state can force you to lie about basic reality—man and woman—then it can force you to lie about anything. If this effort succeeds, it will not only destroy the reforms at New College but will also effectively outlaw the core of conservatism, which as Russell Kirk explained long ago, is the “negation of ideology” and the adherence to unchanging norms.

All this is true. Nevertheless, we would like to make more explicit a point Rufo implicitly makes in his reference to Christopher Caldwell's The Age of Entitlement: America Since the Sixties. Caldwell argued that much of American civil rights law, where lawyers purportedly acting in the public interest seek test cases to establish yet new “rights” at the expense of our constitutional freedoms, used to be known as barratry, “vexatious litigation or incitement to it.”

Let us take the Caldwell thesis to be accurate. These barrators have until now mostly operated independently of the government itself, albeit with government consent to the innovative distinction between civil rights law and barratry, and frequently with nod-and-a-wink cooperation between private litigators and government bureaucrats. What the Rufo case therefore registers is the merger of private-sector barrators with the government bureaucracy into a barratry state dedicated to establishing identity politics ideology as law through the employment of the government's lawyers to engage in the systematic and abusive barratry of dissenting citizens—or, more accurately, dissenting subjects of an unfree regime.

It is a little above our paygrade to assert that Caldwell’s diagnosis is true of America's legal system in general—our remit is higher education. Still, the Biden administration's investigation of Christopher Rufo and of the New College of Florida, which seeks to negate the policies authorized by Florida’s democratically and lawfully elected governor and legislature, certainly is evidence that our institutions of higher education now are the victims of a Caldwellian barratry state.

We call on the Biden administration to end its specious persecution of Christopher Rufo and the New College of Florida immediately. We call on policymakers to remove the weapons of the barratry state from the governance of higher education—and, glancing outside the ivory tower, we look with sympathy on broader reforms to remove the weapons of the barratry state from the governance of our nation.

Photo by U.S. Department of State (IIP Bureau) // Education_Dept_01 // CC BY-NC 2.0

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