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The psychiatrist who lost her Yale University position after tweeting that Alan Dershowitz, who defended former president Donald Trump during his first impeachment, may have “shared psychosis” has lost her court appeal.
The controversy invoked the American Psychiatric Association’s Goldwater rule. It’s named for Barry Goldwater—that earlier Republican presidential candidate whose psychological fitness was impugned by psychiatrists in the media.
“On occasion psychiatrists are asked for an opinion about an individual who is in the light of public attention … a psychiatrist may share with the public his or her expertise about psychiatric issues in general,” the rule says. “However, it is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a statement.”
Bandy X. Lee, who was, as Yale put it, a “voluntary” assistant clinical professor, lost her appointment after her tweets. She sued Yale in 2021, asking a federal judge to reinstate her and award her monetary damages, among other relief.
A federal judge in Connecticut threw out her case. Last week, a three-judge panel of the U.S. Second Circuit Court of Appeals unanimously upheld that dismissal.
“Lee argues that an express or implied contract was formed,” the judges’ summary order says, “primarily through Yale’s Faculty Handbook and a Yale committee report referenced therein (the ‘Woodward Report’), in which Yale promised it ‘would not consider or rely upon [Lee’s] exercise of freedom of expression and academic freedom when deciding whether to … renew [her] faculty appointment.’”
However, the appeals court judges concluded that “the statements that Lee relies on as the genesis for this alleged contract reduce merely to generalized support for academic freedom.” Quoting from an earlier case, they wrote, “A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties.”
The judges also declined to consider her an “employee” under a Connecticut law that would’ve made Yale liable for damages for firing her for exercising First Amendment or state constitution–protected rights.
“Lee alleges that, in exchange for her services as an unpaid voluntary assistant clinical professor, she received from Yale ‘office space, facilities, libraries, subscription-based access to research databases and journal articles, statisticians, laboratories, statistical programs and software, IT and technology services, computer programs and software, media studios (radio and television) and campus transportation, all of which she used for her research, writing, to assist with her speaking engagements, advocacy and other professional obligations,’” their order said.
Lee also said Yale’s malpractice insurance policy covered her.
“But ultimately these forms of indirect remuneration are insufficient, as they amount to benefits that are ‘merely incidental’ to the activities Lee was performing for Yale, rather than benefits that would have profited Lee independent of Yale, such as health insurance, life insurance or a retirement pension,” their order said.
Lee told Inside Higher Ed that her Yale position also gave her access to grants and gave her the option, which she used about every other year during her 17 years of working there, to see patients in a Yale clinic and to teach—both for pay.
“A large portion of my income was based on my appointment at Yale,” she said.
The Foundation for Individual Rights and Expression, which previously reported on Lee’s loss, denounced the court decision.
“Yale claimed in its brief to the Second Circuit that the university’s renowned ‘Woodward Report,’ which fundamentally reshaped the school’s free speech policies back in 1975, was merely a ‘statement of principles,’ and ‘not a set of contractual promises,’” FIRE wrote on its website. “That, despite the fact that there are decades of remarks by Yale leadership that explicitly point to the Woodward Report as the basis for faculty free speech and academic freedom rights at the university, and by which Yale purported to stand.”
Anita Levy, with the American Association of University Professors, said, “We’re disappointed with the court’s ruling because under AAUP-recommended standards, Dr. Lee’s expression, extramural speech as it were, should be protected under principles of academic freedom—unless it betrays a lack of professional fitness.”
Levy said Lee was not given a hearing before a faculty body on that question.
Lee said Wednesday that she and her lawyers are considering a motion for reconsideration and an en banc hearing before the full slate of Second Circuit Court of Appeals judges.
“If it’s concluded that there’s any possibility, I will do it,” she said, “because I believe this is critically important. It’s a critical issue that should not be blocked by a technicality.”
“If there is any possibility that’s communicated by my lawyers, I do intend to go ahead,” she said.
Lee tweeted this in January 2020 about Trump and Dershowitz:
Alan Dershowitz’s employing the odd use of “perfect”—not even a synonym—might be dismissed as ordinary influence in most contexts. However, given the severity and spread of “shared psychosis” among just about all of Donald Trump’s followers, a different scenario is more likely.
Which scenario? That he has wholly taken on Trump’s symptoms by contagion. There is even proof: his bravado toward his opponent with a question about his own sex life—in a way that is irrelevant to the actual lawsuit—shows the same grandiosity and delusional-level impunity.
Also identical is the level of lack of empathy, of remorse and of consideration of consequences (until some accountability comes from the outside—at which time he is likely to lash out equally).
The backstory is voluminous, and itself litigious.
Lee was apparently referencing Dershowitz’s statement, regarding a lawyer for the plaintiff in a Jeffrey Epstein–related case, that “he has an enormous amount of chutzpah to challenge me, and to challenge my perfect, perfect sex life during the relevant period of time.”
This was recounted in a New York magazine article that was linked in a tweet Lee quoted. That quoted tweet had drawn a comparison to Trump describing a “perfect” phone call—likely a reference to Trump’s description of his call to Ukraine’s president, which was the basis of his first impeachment.
Dershowitz, a Harvard University professor emeritus of law, told Inside Higher Ed Wednesday that he used “perfect” in a different context, and months before, Trump did.
“I used the word ‘perfect’ in like perfect attendance,” Dershowitz said.
“I never cheated on her, that’s the only way in which I used it, and it had nothing to do with anything Trump said,” he said.
Dershowitz said he “simply alerted the school” that one of its faculty members was “diagnosing me” without having met or spoken to him.
“She got all of her facts wrong, so I just alerted the school to it,” he said.
“It wasn’t just me,” he said. “She has made a policy of diagnosing people who she disapproves of politically, and medicalizing political debate, which I’ve argued that that’s been wrong for … I’ve written about it for years and years and years.”
He said he didn’t advocate for her firing.
Yale, which didn’t return requests for comment Wednesday, didn’t reappoint her.
The Court of Appeals judges said in their order, “We refer to Yale’s decision as a nonrenewal of Lee’s appointment, rather than as a termination, since a document the district court recognized was integral to the complaint makes clear that Lee’s term was already set to expire in 2020.”
“What I was alarmed about,” Lee said, “was the federal court’s willingess to negate free speech rights, in my opinion, based on a technicality.”
She also continues to take issue with the current interpretation of the Goldwater rule.
“All mental health experts have been silenced across the board in the media since the need for them to educate the public became dire,” she said, since the election of “a very obviously mentally impaired president in Donald Trump.”
Globally, with the COVID-19 pandemic, she said, “we don’t know how many millions of people’s deaths were contributable to his mental impairments and his mental unfitness, because there was criminality in addition to mental disease.”
“When an individual is posing a danger to the public, we do have an affirmative obligation to speak about it and to prevent it,” she said.
Trump spokespeople didn’t return requests for comment Wednesday.
As for Dershowitz, she said, “I wasn’t particularly singling out or diagnosing Dershowitz, but I was trying to educate on the general phenomenon of shared psychosis.”
Dershowitz said, “I would welcome a debate with her anytime.”
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