The existence of ideological imbalance on law school faculties has been documented in numerous studies. Analyses of law school hiring, political contributions, and legal scholarshipall find left-right disparities. While most law schools have a few token right-leaning professors, these scholars are often relegated to “private law” subjects (e.g., business, contracts, intellectual property), and are less prevalent in “public law” subjects (e.g., constitutional law).
Indeed, most major law schools have fewer conservatives or libertarians on their faculty than can be found on the U.S. Supreme Court.
As a consequence, at many law schools, students rarely encounter the forceful articulation of right-of-center views. Thus it should be no surprise that many who study in American law schools fail to understand such views. Reading a book or some court opinions can only do so much.
Training lawyers requires teaching students how to understand and get inside the arguments of those with differing interests, outlooks, and orientations. It requires developing the ability to understand and articulate points of view that one does not believe. Doing this effectively requires exposure to differing points of view, and that’s difficult to achieve when faculties are ideological monocultures and echo chambers.
Go read the whole thing.
Two years ago, Northwestern University professor, noted feminist and cultural critic Laura Kipnis found herself targeted by student protesters when she wrote an essay in the Chronicle of Higher Education questioning the campus panic about sexual violence. The students went so far as to file a Title IX “hostile environment” complaint against Ms. Kipnis. Ultimately she was cleared of any wrongdoing, but it was a Kafkaesque ordeal at the hands of what she calls, in her new book, the school’s “midwestern Torquemadas.” Thankfully, the experience did not silence her but made her all the more determined to challenge prevailing politically correct mores about sexual politics and free speech.
In “Unwanted Advances: Sexual Paranoia Comes to Campus,” Ms. Kipnis tells the story of her own experience and the incidents that inspired her essay. It’s a disturbing tale of the abuses of Title IX, the federal law intended as a safeguard against sex discrimination. But the book is also a scathing indictment of the state of American feminism.
This story is a key cautionary tale in how revolutions eventually turn to eating their own.
William McGurn offers a compelling critique of the recent incident at Claremont McKenna in which respected conservative speaker Heather Mac Donald was effectively silenced by a radical student mob:
Ms. Mac Donald had been invited to talk about her book “The War on Cops” at Claremont McKenna College’s Marian Miner Cook Athenaeum. Among her arguments is that if you truly believe black lives matter, maybe you should recognize “there is no government agency more dedicated to the proposition” than the police who protect the law-abiding minority residents of high-crime neighborhoods.
You can imagine how well that goes over. At City Journal, Ms. Mac Donald offers a first-person account of that ugly evening. The day before, she says, event organizers told her they were considering changing the venue to a building with fewer glass windows to break. Such are the considerations these days on the modern American campus.
That evening Ms. Mac Donald ended up live-streaming her talk to a mostly empty auditorium as protesters outside banged on the windows and shouted. As a result, she could take only two questions before authorities deemed it prudent to hustle her out for her own security. ...
Today it’s common to lament the cheap and polarized politics in Washington. But no one asks whether this might have something to do with a generation of students indulged in the view that they should never have to hear an opinion different from their own. How much easier it is to bang on windows, block an entryway and drop your F-bombs than, say, engage the formidable Ms. Mac Donald in genuine argument.
This strikes close to home because an appalling similar incident happened just a few days before hand at UCLA. As Mac Donald explains:
My hosts, the UCLA College Republicans, had titled my presentation “Blue Lives Matter,” which campus activists viewed as an unspeakable provocation. After I finished speaking and welcomed questions, pandemonium broke out. Protesters stormed the front of the classroom, demanding control of the mike and chanting loudly: “America was never great” and “Black Lives Matter, They Matter Here,” among other insights. ...
At 8 PM, the organizers decided to end the event, and I was hustled out of the room with a police escort.
To my knowledge, the UCLA administration has not addressed the disruption of my presentation and interaction with students.
I complained to the Chancellor and the head of "UCLA Equity, Diversity and Inclusion" about the lack of any official statement, let alone any official action. <sarcasm>To my surprise, nothing happened.</sarcasm>
I remain outraged by the way my employer's supine administrators allow unruly mobs to intimidate and silence conservative voices on campus. Especially because if the show had been on the other foot, and a conservative mob had shut down a progressive speaker, there would have been crying sessions, CrossCheck Live discussions, official campus statements of support, creation of a hate speech database, and probably police intervention. But I'm not holding my breath that anything will ever be done to protect those of us who decline to fall into line with the hegemonic far left liberalism that pervades this campus these days.
One of my colleagues set around this email today:
I hope you will look at the letter from the link below and consider signing on. Several of our colleagues have already done so. Among Trump’s Cabinet nominations, Puzder must rank as one of the worst.
Thanks for listening.
Thanks again so much for signing our national law student and faculty sign-on letter opposing Puzder's nomination.
Resisting Injustice & Standing for Equality (RISE), a new law student organization started by NYU Law students, is spearheading a national law student and faculty sign-on letter opposing the nomination of CKE Restaurants CEO Andrew Puzder for Secretary of Labor. The letter will be sent to the members of the Senate Health, Education, Labor & Pensions Committee, whose hearing on the nomination is set for February 2. It explains (with citations) why Puzder's history and views would make him a Secretary who is actively hostile to working people.
They already have over 780 signatures from students and faculty representing over 100 schools, and we are hoping to grow even further.
Please take a moment to read the letter. Then click here to add your name. (Affiliations will be listed for identification purposes only.)
They would also appreciate if you could take the time to forward this to three colleagues, including one at another law school.
It's bad enough to get this sort of unsolicited mass liberal spam from outside circles, but to have's own colleague cluttering up one's email folders with it is most annoying. (Not to mention the use of state- and tuition-funded law school email for political purposes generally.)
More generally, however, I deplore this sort of letter campaign anyway. The implicit claim of these letters is that the signatories are experts with special knowledge that makes their opinion more valuable than, say, the "deplorables" who voted for Trump. But notice that the sender sent it to everybody on the law school distribution list. Most of the recipients know about as much about labor law and Andy Puzder as, well, I do. Which hovers somewhere between nada and zilch. But that hasn't prevented countless law professors from signing.
When a similar mass letter was signed by over 1,000 law professors in opposition to Jeff Sessions' nomination as Attorney general, John O. McGinnis aptly wrote that:
Of course, these law professors have every right to oppose Jeff Sessions as citizens, but they are clearly here writing as legal scholars, noting their position as law professors at the start of the letter and signing with their institutional affiliations.
What is notable, however, is the lack of any scholarly argument in the letter. There is no analysis of why Sessions’ positions are wrong as matter of law or policy. I doubt many of the signers have examined the hearings for his district court nomination to come to independent judgment on his fitness for that office or any other.
Law professors have been writing such letters of mass advice to Congress for some time. They are almost always letters supporting the left-liberal positions, because law professors are overwhelmingly left liberal. Neal Devins of William and Mary has made a powerful case that these letters are a serious mistake, because they attempt to trade on law professors’ status as scholars to give credibility to unscholarly and sometimes partisan advice. Professor Devins has noted that many law professors who sign these letters lack scholarly expertise in the subject matter, and this letter is no different in that respect. But even the letters he critiqued, like that contending that President Clinton’s impeachment was unconstitutional, had at least the patina of an argument. But this letter just takes positions without serious reasoning of the kind scholars provide.
As such, this letter debases the enterprise of scholarship. What we as scholars can provide to politicians is more articulate reasons for political action. That deepening of deliberation does a service to democratic debate, which at its best is about reason, not raw preferences. Particularly in these days where politics is less and less about policy and more about loyalties to one’s tribe, scholars have a particular obligation to raise politics toward the ideal of reason rather than to lower scholarly discourse toward that of coarse politics.
David French similarly observed:
I’m curious — given that the letter touches on everything from climate change to immigration policy, what exactly are the scientific, economic, and national security credentials of the signatories? Can they speak to the impact of immigration on working-class wages? Are they authorities on the precise relationship between fossil fuels and climate, including on the relative effectiveness of Obama-era EPA actions? And if there are actual examples of in-person voter fraud, is it still a “myth?”
What’s actually happening is that a collection of liberals are using the (rapidly-diminishing) prestige of their institutions and profession to make news when there is none. Of course liberals oppose a conservative nominee, and of course academic liberals are prone to play the race card. If any of them wish to make a detailed case based on law and facts, then make that case. Until then, however, their letter is little more than an especially pretentious version of a Change.org petition.
And, last but definitely not least, I invoke the great corporate law scholar, Stephen Presser, who was prompted to pen an oped for the Chicago Tribune, appropriately headlined Sen. Sessions and the Smug Self-Satisfaction of the Law Professoriate:
The first striking thing about the recent letter signed by 1,100 law professors urging the U.S. Senate not to confirm attorney general nominee Sen. Jeff Sessions, R-Ala., is its extraordinary arrogance and presumption. What makes such a huge gaggle of academics so sure that 1) the Senate is incapable of determining on its own the qualifications of Sessions for a Cabinet position, and 2) What makes them think they know more than senators?
If Congress has any sense (and, since there is a GOP majority, it does), it will simply ignore these sorts of letters.
We've learned of yet another example of post-election hatred and bias shutting down conservative voices on campus, this time at my beloved employer:
Bruin Republicans will not host controversial conservative speaker Milo Yiannopoulos in February, announcing Monday night that Yiannopoulos cancelled because the group could not accommodate his requirements for the event.
The group added they thought UCLA students would protest his speaking engagement and could threaten their members’ safety. Students created a Facebook group to protest the event, which amassed nearly 1,500 responses of either “Interested” or “Going.”
The Bruin Republicans ... added that protests against Yiannopoulos at other college campuses have become violent.
The comments from members of the "reality based community" following the article are especially enlightening.
Typically reasoned and thoughtful. I tend to be an absolutist on these issues, but I can still respect his position.
My friend and UCLAW colleague Eugene Volokh has more on the free speech mess at University of Oregon:
People often support disciplining and even firing professors who say things that are perceived as racist on the grounds that 1) those professors can’t be trusted to evaluate minority students fairly, 2) students will be afraid that they won’t be judged fairly, or 3) students will more broadly lose confidence in the professors (or just couldn’t stand to be in the room with them) or even in the institution, and won’t learn as effectively. I’ve seen these arguments made often, most recently as to the University of Oregon controversy. ...
I appreciate the force of these arguments, and indeed, if all you care about is maximum teaching effectiveness and reliability, you might take such a view. But, if accepted, these arguments really will be the end of freedom of expression — both casual and more formally academic — on university professors’ part, because they reach far beyond black makeup in Halloween costumes.
Precisely right. There is a pertinent case, by the way, Berger v. Battaglia, 779 F.2d 992 (4th Cir. 1985), in which a police officer brought § 1983 action challenging department's order requiring him to cease public performances in blackface while off duty and challenging denial of his request for permission to perform for compensation while off duty. The court held that "Berger's conduct in performing public entertainment in blackface was constitutionally protected speech and that the defendants as public employers were not justified by any sufficiently weighty countervailing state interest in taking disciplinary action either punishing Berger for that conduct or chilling in any way his continuation of it."
The court further explained that the "threat of disruption" cited by the Police Department as grounds for punishing the officer "was caused not by the speech itself but by threatened reaction to it by offended segments of the public." Imprtantly, the court explained that:
Short of direct incitements to violence by the very content of public employee speech (in which case the speech presumably would not be within general first amendment protection), we think this sort of threatened disruption by others reacting to public employee speech simply may not be allowed to serve as justification for public employer disciplinary action directed at that speech.
Back to Volokh. He goes several examples of other types of speech that some students might find offensive:
Imagine, for instance, a professor who says — at a party, in an op-ed, at a debate, in a scholarly article, or wherever — that she thinks that Catholicism is a foolish and evil religion, because it oppresses women and gays. ...
Or say a professor says that President-elect Donald Trump is a charlatan and a bigot and that Trump voters were therefore either fools or bigots themselves. Again, this could be in a conversation at a party where students may be present, or in an op-ed, or in a scholarly article. ...
Likewise, say a professor sharply condemns certain streams of Islam (e.g., Wahhabism), or for that matter just posts the Muhammad cartoons on his office door or when writing about them on his blog. Some Wahhabi students may be offended by the former. ...
Or say a professor publicly identifies as a hard-line Marxist, who thinks that the capitalist class has blood on its hands from its oppression of the workers. The professor might have praised Marxist mass murderers, such as Stalin or Mao, and talked of the justifiability of violent revolution. Or he might have just been seen wearing a Che Guevara T-shirt.
And then he goes in for the kill:
Yet I take it that universities’ (especially public universities’) general answer to the student who complains about a professor who made anti-Trump-voter or anti-Catholicism or anti-capitalist or anti-American statements at a party or in a blog post will be, more or less, “tough.” Professors are entitled to express their views, including controversial ones; indeed, they’re supposed to express such views, however controversial, as part of their scholarship and their public commentary. And that applies to condemnation of religions, economic classes and political belief systems, as well as debate on less heated topics. “[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom.” If you disagree with the professor, express that disagreement, the universities would say; but we won’t shut the professor up in order to prevent you from feeling offended or alienated.
Volokh is generally a pretty cheerful guy in my experience, which may explain why he thinks that opening the door to punishing Shurtz would open the door to all of these other types of speech being punished.
And that's where I disagree.
As I noted in a prior post, where speech offends left-wing sensibilities, Universities (like Oregon) fall all over themselves to punish it.
Double standard? Yep. And very few people in higher education care.
Reason has details on the hit to academic freedom and free speech at the University of Oregon arising out of the incident in which law professor trying to make a point about racism (admittedly doing so in a stupid and unwise way by wearing blackface) is being hung out to dry (at the very least):
Shurtz's costume involved the use of black makeup on her face and hands, which constitutes an offensive use of blackface in the eyes of many people. Blackface is always impolite, this thinking goes, because of its racist and discriminatory history—even if the person wearing it is portraying a specific black person, rather than black people generally, and even if the portrayal isn't intended to be mocking.
I'm not sure whether this logic makes any sense, but even if it does—even if blackface is patently and objectively offensive to a number of people—what right does a public university have to discipline a law professor for dressing provocatively? ...
The report notes that Shurtz enjoys certain free speech protections as a tenured law professor, but in this case, the university's interest in preventing racial discrimination outweighs Shurtz's claim to academic freedom.
It's impossible to overstate how radical and dangerous (and wrong) this finding is. As The Washington Post's Eugene Volokh points out, Oregon's policy forbids discrimination that arises not just from racial considerations, but a host of other status as well: age, veteran status, sexual orientation, perceived gender, and religion. If a problematic Halloween costume—donned with innocent or even positive intentions—is enough to constitute racial harassment, how easy would it be for the university to make a determination of religious harassment? ...
The report does not specify what Shurtz's punishment will be—she has already been suspended for weeks. That's disturbing enough, but the greater concern is the overall climate at Oregon. Unintentional, one-off slip-ups constitute discriminatory harassment, in the university's view—as long as enough students are offended. It doesn't matter if they are wrong to feel slighted. It doesn't matter if the expression in question is a matter of legitimate public interest. It doesn't matter if the faculty believe that education should, in some cases, provoke discomfort. It doesn't matter if it happens outside the classroom, and only indirectly concerns the university.
If Shurz had dressed up as a Catholic priest, with the deliberate intention of mocking Catholicism and making her Catholic students uncomfortable, would we not defend her right to challenge religious dogma? I think I know Oregon's answer: no way. If accidental exercises in controversial expression are prohibited, then the university simply put, does not recognize free speech rights—full stop.
Meanwhile, remember the case of the Drexel University professor who posted a tweet wishing for white genocide? Unlike Shurtz, he's getting a slight and muted slap on the wrist as Drexel walks back its initial condemnation of the tweet:
Drexel University responded, “The University vigorously supports the right of its faculty members and students to freely express their opinions in the course of academic debate and discussion. In this vein, we recognize Professor Ciccariello-Maher’s tweets as protected speech.
“However, his words, taken at face value and shared in the constricted Twitter format, do not represent the values of inclusion and understanding espoused by Drexel University. As we engage with one another in conversation, it is important to remember that these principles -- academic freedom, freedom of speech and the need for inclusivity and respect -- are not mutually exclusive.”
Thomas Lifson does a very good job of critiquing Drexel's retreat, using Drexel's own speech code to show its hypocrisy.
My point is not that the Drexel professor should be punished. As one of the very rare conservatives in academia whose own Twitter account is, shall se say, sometimes robust, I obviously have a strong self interest in strong free speech and academic freedom rights on campus. My point is only that the disparity once again illustrates that on US campuses free speech protects only language and conduct that does not offend the far left.
A “red light” institution has at least one policy that both clearly and substantially restricts freedom of speech. A “clear” restriction is one that unambiguously infringes on what is or should be protected expression. In other words, the threat to free speech at a red light institution is obvious on the face of the policy and does not depend on how the policy is applied.
Excellent op-ed in today's WSJ by Foundation for Individual Rights in Education executive director Robert Shibley on the glaring need for due process on campus Title IX courts:
In September, following allegations that Minnesota football players had sexually assaulted another student, Minneapolis law enforcement investigated and declined to charge any player with a crime. Yet the university’s Title IX investigation into the same incident—which lacked full access to some video evidence used by police—resulted in 10 players’ suspensions from the team, angering members and inspiring the walkout.
Such wildly divergent outcomes between campus and police investigations erode confidence in both systems. Yet they have become more common than ever since the Education Department’s Office for Civil Rights (OCR) began to do end-runs around the law five years ago. ...
My organization, the Foundation for Individual Rights in Education, which has sponsored lawsuits challenging the OCR’s decisions, has identified more than 130 lawsuits filed by students who claim they were wrongly punished for sexual misconduct since the Dear Colleague letter was issued. Victims and accusers also routinely complain of bad investigations by college administrators who are poorly equipped to handle felony crimes.
The OCR’s debased definition of harassment, meanwhile, has led to absurdities such as a feminist professor being investigated for criticizing Northwestern University’s Title IX efforts in a newspaper column. Confidence in the system is low for very good reason.
The change of administrations in Washington offers a valuable opportunity to erase these failed policies.
He offers a number of important changes that would improve processes for both alleged victims and alleged perpetrators.
There's an open letter to the Daily Bruin being circulated among UCLA faculty about how the faculty is united to defend our students of color, LGTBQ, etc.... And how UCLA is a safe space for them.
There is no mention of the increasingly violent riots--yes, riots. There is no mention of numerous trumped up (pun intended) false claims being made. There is no acknowledgement that not everybody at UCLA voted for Hillary. There is no acknowledgement that such a letter might alienate conservative faculty and students, making the former wonder about whether UCLA is a safe place for them to work and the latter whether it is a safe place to go to school.
Do you think a similar letter would have circulated to reassure our conservative students if Hillary had won? Do you think faculty would be united to offer those students a safe space?
No? Me neither.
Glenn Reynold addresses these issues in his latest USA Today column, observing that:
Trump’s substantial victory, when most progressives expected a Hillary landslide, came as a shock to many. That shock seems to have been multiplied in academe, where few people seem to know any Trump supporters — or, at least, any Trump supporters who’ll admit to it.
The response to the shock has been to turn campuses into kindergarten.
He then gives the reader a quick run through of the way schools like Michigan, Penn, Stanford, Cornell, and so on have held counseling sessions, play sessions, puppy sessions, crying sessions, and so on. Then he gets to the meat of the problem:
It’s easy to mock this as juvenile silliness — because, well, it is juvenile silliness of the sort documented in Frank Furedi’s What Happened To The University? But that’s not all it is. It’s also exactly what these schools purport to abhor: An effort to marginalize and silence part of the university community.
... when you treat an election in which the “wrong” candidate wins as a traumatic event on a par with the 9/11 attacks, calling for counseling and safe spaces, you’re implicitly saying that everyone who supported that “wrong” candidate is, well, unsafe. Despite the talk about diversity and inclusion, this is really sending the signal that people who supported Trump — and Trump carried the state of Michigan, so there are probably quite a few on campus — aren’t really included in acceptable campus culture. It’s not promoting diversity, it’s enforcing uniformity. It’s not promoting inclusion, it’s practicing exclusion. And, though it pretends to be about nurturing, it’s actually about being mean to those who don’t fall in the nurtured class. Schlissel says he wants the University of Michigan to be “a welcoming place for all members of society,” but how welcome can students who backed Trump feel in the wake of this performance?
Precisely. I'm nearing retirement (7 years), have an established reputation as a conservative curmudgeon so none of this should come as a surprise to anybody, and have a achieved a certain degree of success in my field (if I may say so) that (I think) insulates me from the worst risks of speaking out (fingers crossed). And who knows, I may end up as the next SEC Chairman yet. But what about the junior faculty? Or the students? Who protects them?
And what about the country?
A viral (and profane) YouTube rant by Jonathan Pie points out that this sort of fear and “othering” of political opponents is why Trump won, and why Democrats were shocked by his victory. Pie’s right to tell people that they should engage in discussion rather than dismissal of people they disagree with, and colleges and universities should listen to him.
If, that is, it’s not too triggering.
Tomorrow, UCLA is a holding a "Processing the Election" event. The event's posted description states:
This event will offer us, as a community, a chance to gather, discuss, and digest yesterday’s Presidential election. Many of us were shocked by last night’s results. For some, this shock was accompanied by earnest excitement about our new President-elect. For others, the results have generated deep anxiety and distress – an understandable response given the rhetoric targeting certain communities throughout the campaign.
As Bruins, as members of a great university, it is our obligation to model how a community comes together in a moment like this to listen, to assess, to move forward. Together. Tomorrow’s CrossCheck Live, which attempts to bring together a range of perspectives and voices from across our campus, has been crafted in that spirit.
I know three of the folks on the panel and the moderator. They are all people of good will whom I like and respect. But they are also very much people of the left (indeed, I think it would be fair to say, very left in most cases). I don't know the rest of the panel members, except by reputation, but as far as I can tell none of them of them are right of center. In fact, as far as I can tell, none of them even fall into the center-left.
This qualifies as a "range of perspectives"?
Who on this panel will speak to--let alone for--students who have "earnest excitement about our new President-elect"? Nobody is the answer.
Sadly, but not surprisingly, this is happening at universities all over the country. What the people putting these programs together don't seem to get is that it is not every student or faculty member shares their world view. As such, while they worry a lot about people being alienated, they are blind to the sense of alienation felt by students or faculty who don't share their PC orthodoxy. Of course, they also don't seem to get that the election result is, in some small--but not, I think insignificant--part, a reaction to the pervasive left-liberal hegemony on college campuses.
Update: I am very pleased to report that they are adding my friend and colleague Eugene Volokh to the panel. Eugene, of course, is the popular head of the libertarian-leaning Volokh Conspiracy blog. He'll be badly outnumbered, but Eugene can more than hold his own.
The UCLA Faculty blog reports:
The University of California is the biggest source of cash for Hillary Clinton’s presidential campaign, according to the nonpartisan Center for Responsive Politics.Individuals affiliated with the University of California system gave nearly $1.2 million to Clinton’s campaign committee, the largest bloc of contributions she received for her presidential run.
A few months ago, Inside Higher Ed ran a story that noted "that grades continue to rise and that A is the most common grade earned at all kinds of colleges." (emphasis added). This finding surprised me. I knew grade inflation was becoming more and more common, but I did not expect A to be the most common grade earned, especially in the undergraduate setting. ...
Is grade inflation simply an extension of the participation trophy phenomenon? "Entitled" might be the most common adjective I hear used to describe students today. "65% of Americans Say Millennials Are “Entitled,” 58% of Millennials Agree." And if these students grew up being rewarded for just showing up, why wouldn't they be entitled? For the most part, I agree with Pittsburg Steeler, James Harrison, who famously returned his children's participation trophies. To be clear, I think there is a place for team (and individual) achievement trophies and for most improved trophies, but trophies for just showing up seems to encourage mediocrity.
Go read the whole thing.