Freedom of Thought on Campus: Discussion and Debate at Georgetown
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Is open discussion and debate essential to the function of the university?
Many universities, including Georgetown, have adopted strong policies on academic freedom, affirming that deliberation or debate may not be suppressed because ideas put forth might be offensive, unwise, immoral or ill-conceived.
But when controversy arises on campus, concrete complaints about offensive speech can displace these abstract principles of academic freedom.
What does an environment conducive to learning require? What kinds of limits should govern the ideas that students are exposed to by their teachers and classmates? Should students be exposed to ideas or opinions that are offensive? Should students have recourse to administrative action when faced with an offensive opinion? What kind of harm does offense entail?
On the other hand, when administrators step in to punish offending speech, does that decision come with consequences? And who bears the resulting harm attendant on limiting who can speak or what opinions can be expressed? Who measures what kind of opinions or statements are harmful or not?
Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
Prof. Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law
Moderator: Hon. Stephanos Bibas, Judge, United States Court of Appeals for the Third Circuit
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Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society’s practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.
Alida Kass: Welcome to The Federalist Society virtual event. This afternoon, Wednesday, February 16th, we will be discussion “Freedom of Thought on Campus: Discuss and Debate at Georgetown Law.” I’m Alida Kass, Vice President for Strategic Initiatives at The Federalist Society and Director of the Freedom of Thought Project, an initiative addressing new challenges and questions involving freedoms of thought, conscience, and expression.
I’m delighted to introduce this program which we’re co-sponsoring with the Georgetown Law Student Chapter of The Federalist Society as well at the Free Speech Practice Group. As always please note that all expressions of opinion offered today are those of the experts on today’s panel.
Today we’re fortunate to have Judge Stephanos Bibas with us to moderate this discussion. Today we know that Judge Bibas serves on the Third Circuit Court of Appeals, but he also brings the insights garnered from his experience navigating the academic environment. He was a Professor at the University of Pennsylvania Law School from 2006 to 20017 and received the Robert A. Gorman Award for Excellence in Teaching. He also taught at the University of Chicago Law School and the University of Iowa College of Law.
We are discussing today the role of academic freedom on campus, focusing on some specific events at Georgetown Law. Many universities, including Georgetown, have strong policies on academic freedom but when controversy arises on campus, the concrete complaints about offensive speech often seem to displace those abstract principles of academic freedom.
We encourage our audience to submit questions for our panelists through the Q&A feature at the bottom of the screen. After our speakers have offered some opening remarks, our moderator will turn to submitted questions to direct the panel discussion. With that, thank you for being with us today. Judge Bibas, the floor is yours.
Hon. Stephanos Bibas: Thank you, Alida, and thank you to our distinguished panelists and guests and to The Federalist Society for hosting this. We’re discussing today this idea of free speech on campus and going to talk about the extent to which we can think about harms and what harms there are from speech but also what harms there are from reacting to speech or shutting it down.
John Stuart Mill, of course, wrote about the harm principle and the notion in which some people’s speech shouldn’t be treated as having actionable harm that justifies suppressing it. But many people understandably take offense at certain remarks and what should we do with that offense or emotional harm or other way of understanding their reactions, as well as the harms that would come to speakers and listeners in academic communities if we did react to it.
And we have two extremely distinguished speakers. You’re probably familiar with them, and they’re friends of mine. So all I will do is tell you the basics, both experts on First Amendment law, Professor Eugene Volokh at the UCLA Law School and Professor Andrew Koppelman at Northwestern Law School, and rather than read their extensive bios which would take most of the hour, I will jump directly to them.
So let’s see. Professor Volokh, would you like to kick off?
Prof. Eugene Volokh: Yes. Thank you very much. I very much appreciate the opportunity to be on this panel especially with my august fellow panel members. As is almost always for all presentations, I do them in PowerPoint because I believe in audio visual. So I’ll be the audio. The video will be very primitive, but there actually are some quotes here that I think are important to see, so I thought we would see them.
So the title of this talk is Heresy at Georgetown, heresy in the sense of belief in certain beliefs that are thought to be not just unbelievable, but something that is wrong to believe or even really entertain or discuss. I want to briefly talk about the three incidents, mostly the first two, again, just lay them out with a few thoughts of mine. And then we’ll hear from my colleagues, and then we’ll have a conversation.
So the first incident had to do with two adjuncts who were talking in—as I understand it, it was an after class meeting. No students were there, but still, it was being recorded. And one of them said to the other—let me make sure I can quote it—I don’t know where that “ing” is coming from. “You know what? I hate to say this. I end up having this angst every semester that a lot of my lower ones” — that is to say lower grades, that’s the context from before — “are blacks — happens almost ever semester.” And then she was expressing sadness about that. She thought that too bad, maybe. Who knows why. I think this was pretty clearly something she was not happy with. She was fired, basically, for saying that. And her colleague was pressured into resigning just hearing this and not objecting. So that gives you a sense of what is viewed as heretical at Georgetown.
Now, the dean sent out an email condemning these statements, talking about them as reprehensible statements. Let me offer you some other statements. We say something similar just with more numbers. I was a math, computer science major in undergrad. I’ve always loved numbers. I know lawyers aren’t big on numbers, but sometimes we have to deal with them.
Here’s a reprehensible statement, “a real and serious problem. The average black law student’s grades are startlingly low. With the exception of traditionally black law schools, the median black law school grade point average is at the 6.7th percentile of white law students. So only 6.7% of whites have lower grades than 50% of blacks. One finds a similar result at the other end of the distribution—as only 7.5% of blacks have grades that are higher than the white median.” And this is from an article in the Stanford Law Review by Ian Ayres and Richard Brooks, who the question is does affirmative action reduce the number of black lawyers. I think they’re answer is no. They’re actually supporters of race-based affirmative action. They are what I think would usually be called progressives even by the standards of the legal academy.
But they lay out the facts because they appear to be facts. And they seem to think that it’s important to think about that in figuring out what to do about it, right? That if you want to make sure that, for example, that black law school graduate bar passing rates go up — that could be part of the problem because they are relatively low compared others’ bar passage rates. If you want to make sure that the grades — that this disparity is eliminated, you need to be able to talk about this disparity.
By the way, I should mention that this article was written in the mid-2000s, let’s say the first decade of this century. It’s based on data from the mid-1990s. So who knows? Perhaps the data has changed since then. I haven’t heard any indication that it would have. And unfortunately, this data is rarely available. Schools are reluctant to release it as I understand it.
But in any event, this is important data. And it’s hard for me to see how what the professors were saying in this conversation was particularly different from this, other than, of course, the former was impressionistic, and this is data, not just anecdote. I’m all for that. I like having more of a focus on numbers.
But obviously, this is the way that people often think about subjects. They look at their own personal experiences, then they may look at the data. Sometimes people focus more on one, sometimes more on the other. I would think that both the personal experiences and the data are legitimate things to talk about at a law school. But apparently the Georgetown administration did not think so.
Did I say talk about? At least according to some, apparently they’re not legitimate to even think about. So this is an email I got, an email that when I was writing about this I emailed some people on the Georgetown law faculty. This email, of course, I redacted the names of my correspondent because I don’t generally publish private email with a person’s name unless I get their permission. And I asked about this, and he says, “In my experience, it’s factually incorrect.” That’s useful. Maybe the professors were mistaken, as a matter of fact, in which it would be useful to have a conversation about what the facts are. It would be interesting perhaps, for example, if Georgetown were to release information that give the statistics about grades broken down by race for Georgetown graduates.
But he says, “It is also in my view wrong for faculty to be thinking–not just speaking–along those lines,”—that’s the mark of real heresy prohibitions, that you can’t even think it—”because it will tend to create the very facts that it purports to describe.”
So the concern is if you think black students are less capable, then in that case you may give them lower grades. I suppose you could have more broad examples of that. For example, if you think that people who belong to certain religious groups just believe things that are really weird and irrational and probably are kind of irrational themselves—though not my personal view, but lots of people take that view—then maybe if you are grading them, especially in a non-blind graded assignment and you happen to know their religion, maybe you’ll grade them less. If you think that Trump voters are fools, then maybe you’ll grade them down as well. That’s certainly not something you should be doing. I take it we wouldn’t say that it’s wrong for professors to talk about and certainly wrong for professors to think about. But apparently in this instance, that is exactly what was said.
So let me turn to the Ilya Shapiro incident which I’m going to spend a little less time on because it’s more on people’s minds. So this is Shapiro’s tweet where basically he’s saying after President Biden had said he was going to pick a black woman. He said it during the campaign, as I understand it, in order to get the endorsement of Senator Clyburn, which I think would have been instrumental in letting then Candidate Biden win the South Carolina primary and then move on to winning the election.
So Shapiro says the best pick is Sri Srinivasan who is the chief judge of the DC Circuit. And the thing that I think most troubled people is that it is Shapiro’s view was that because Sri Srinivasan isn’t a black woman, “we’ll get lesser black woman.” I think everybody agrees that was a poor choice of words. I think what he meant was less qualified black women. Some people said well, he means that black women are automatically less qualified. I don’t think that’s at all what’s a fair reading of the statement. I think what he was saying is in this situation, today, the objective would be best fit by Sri Srinivasan. A white man would be less qualified in this particular Asian man. A black woman would be less qualified because, according to Shapiro, the best qualified pick is Sri Srinivasan.
Again, it seems to me that’s something that’s perfectly legitimate for people to talk about. Now, as it happens, I actually don’t agree that one can put qualifications on this kind of axis. And even though I oppose race-based affirmative action in ordinary hiring and admissions, I actually think that considering race and sex and other classifications is actually quite legitimate for high level government officials. But again, I think that’s something we should be discussing. We should be debating.
And by way of background, you might have a look at the results of one particular ballot measure in 2020. And this is in California, which split basically 60 plus to 34 percent in favor of Biden. Deep, blue California had an item on the ballot that would have repealed the ban on race-based affirmative action in public education contract concession, not the same of course as appointments. I don’t even think it’s the same. But it’s a valid point. And that repeal, which essentially would have permitted race-based affirmative action, failed by basically a four to three margin in deep, blue California.
Now maybe all those no votes were all wrong. I doubt they were all white supremacists. A lot of non-whites among other things apparently voted that way. But maybe they’re all wrong. But again, it seems to me that’s a subject we should be discussing at law schools rather than condemning this heresy.
And then finally, let me just close with this other incident. It just happens to also be at Georgetown. I actually don’t think quite on point, but it’s there. So it was a professor who’s Swiss by birth referred to a student as Mr. Chinaman. Hey, I’m not sure. I don’t think the student was of Asian extraction. He may have actually identified himself as a student from China. And Chinaman is generally seen as offensive in America. And he was condemned for that, the professor was. And then he put out an apology that I think people are accepting, probably should be. He said, look, you know, essentially I’m not from here. I’ve never heard this term used pejoratively. He may have viewed it the same way as people view Englishman or Frenchman, which is sometimes going to be something you shouldn’t really focus on. But if somebody had said earlier, yes, I’m an LLM student from France, calling him a Frenchman doesn’t seem offensive. Now of course, we know that Chinaman doesn’t come across the same way. He might not. So it looks like the apology may be accepted because he just didn’t happen to know. So I don’t think it’s really fully on point, but again, I wanted to put that out there.
All right. So that’s the summary, a somewhat opinionated summary of what’s been going on, and I turn things over to Andy. Let’s say Andy and Eugene and Judge. But Andy and I, I’m pretty sure at this point, are on a first name basis.
Prof. Andrew Koppelman: We are indeed. So one of the things that I thought was remarkable after Werro’s unfortunate Chinaman comment is that the remarkable charity with which it was received including when it was first reported by Above The Law, which is not the most charitable website in the world. They are not ordinarily kind to people, but in this case, they understood, not a native speaker of English, so let’s get past the offense and think about what we can do to make a better environment for students to learn. This is what should have been done in all of these cases. Try to think about how do we in fact make a better environment for law students, including African American law students.
I agree with Eugene. What is — and I guess I would add something to the Sandra Sellers/David Batson episode that [inaudible 00:15:09] told us about it. I take it was Sellers did was exactly what diversity training is supposed to teach us to do which is worry if we are white professors that our bias is affecting our grading. Sellars noticed that — or at least I have no idea what the underlying facts were, but let’s stipulate for the purpose of argument that she was accurate that there are more black students at the bottom of the class, that her data is consistent with the data that Eugene told us.
This is a pedagogical problem. And we know that one of the hugest problems of continuing structural racism in the United States is the black white achievement gap reflected in the statistics that Eugene gave us and reflected in a huge range of ways. And one of the most urgent ways to try to remedy racial inequality is to try to figure out how you address that.
There’s no question that it is casually related to the history of racism and slavery and discrimination. How to address it is not clear. It is a hard problem that we need to be able to think about clearly in order to remedy the awful history of racism in the United States. If you fire someone for even noticing that there is a problem and trying to think about it, which is all that Sellers did, then you mutilate your thinking process so you are disabled from addressing this problem. And that promotes racial subordination.
My distinct position on this panel is that I am on the political left, clearly to the left of my two friends on this panel. I am interested in people’s feelings. I care about how you feel. I care about how students feel. But my interest really is instrumental because some of things that we cover, certainly, in my constitutional law class are going to shock and hurt your feelings. We read Dred Scott. We read Prigg v. Pennsylvania. We study crimes against humanity whose objects were African Americans. It’s awful. And it is doubtless harder for African American students to watch this stuff being solemnly recounted in the language of the law.
But I presume that what my students really want is to acquire skills to become good lawyers, to be able to do things in the world and thereby to have an effect on the world with their lives and to materially prosper because good lawyers make decent livings.
So the left that I identify with is primarily interested in material change in the world. And feelings matter. Clearly, to the extent that alienation can affect student performance, it matters, and we need to think about that. But it is instrumental to the end of empowering students and giving students the ability to put themselves in a position where they are able to conduct their lives as they like.
What the best case scenario for black people is to be in a situation where it doesn’t matter what white people think because they haven’t got any power over you.
Hon. Stephanos Bibas: This is a very helpful framing, and I want to draw the contrast between Professor Volokh’s treating this as a matter of heresy and private belief and then Professor Koppelman’s focusing on what’s going on in the classroom.
So traditionally there’s been a divide between the way we treat academic freedom in what a professor does and says in the classroom, where of course there are hostile work environment rules. Other things will limit somewhat what a professor says, but there’s still a robust sense that you might be justified in making your student uncomfortable. And students are distressed by reading cases that involve the N word historically or other very troubling things that have happened, reading cases about rape. And then on the other side, things that professors do outside of class. Now, that could be technically after the period ends, but still about the class as in one of the instances you discussed. Or it could be in a tweet relating to nothing that was going on in the class by somebody who wasn’t teaching a class at the other extreme.
Can you talk about how the way in which we treat freedom of speech in the academy ought to be different depending on whether we’re talking about something that’s involved in the teacher’s interaction with students directly or maybe indirectly versus something that’s being part of a public intellectual and why one ought to think about those things as somewhat different?
Prof. Eugene Volokh: Andy, do you want to take that first?
Prof. Andrew Koppelman: Sure. Absolutely. So it’s clear that — well, first of all, here Werro was the only one who said what he said in the classroom addressing students. That wasn’t the case with the others.
There is a danger within liberalism and within the whole culture of free speech that we leave people free to say what they want, including to promote ideas that are deeply antithetical to a liberal democracy and to a culture of free speech. People are free to read Hitler, to read Stalin, the read Lenin, to read Mao, and even to say, “You know, I think they’re right.” People are free to promote racist ideas. We don’t have an unprotected category of hate speech in the United States. And the culture of free speech is based on a bet that the society will develop at least enough of a critical mass of people whom having considered the alternatives, have decided you know, Hitler hasn’t persuaded me even though I heard everything that he had to say.
And so that’s why we allow people to say — to play with ideas. And professors are given particular leeway here because part of our job is to be able to look at what is being done, particularly in the law, and say, “You guys are all doing it wrong. We need to do it differently.” And we can be ignored. We generally are ignored, but we have the — in order for us to be able to do our jobs, we have to be able to play with ideas.
And clearly, people’s behavior is affected by their thoughts. If a professor is a white supremacist, then that can affect their grading of students. It can impair their ability to do their job. But there’s got to be evidence of that. It is at that point, where you’ve got that tension between on the one hand the basic assumptions of competence among students and racist ideas that you can be presented with difficult problems at the margin.
None of these cases present you with anything like that. The hardest case I suppose is Shapiro whose tweet, I think, did play into or at least resonate with certain racist tropes about black women, although I don’t think that’s what he intended. But even there, I go back to what happened with Werro. We owe people an exculpatory reading of what they said. If we’re going to put the worst possible construction on what one another say, we are not going to be able to talk to each other, and we’re not going to be able to learn.
Hon. Stephanos Bibas: All right. Could you expound upon that? Some people would say, “Well, let’s just mind read whatever’s in their heads,” or maybe take the most charitable reading you seem to be suggesting. But other people would say, “Well, I understand it this way. Why isn’t my subjective offense enough here?” Why do you think that for us to be able to teach it’s important to take — is it an objective reasonable person test that goes out there or reasonable law student? Or is it if there are multiple readings let’s err on the side of the most charitable, reasonable reading?
Prof. Andrew Koppelman: Well, I would draw a distinction between in and outside the classroom. In the classroom, in order to do my job, I have to think about the sensitivity of my students. Teaching is an exercise in rhetoric. You can’t alienate the students, or the students won’t learn. So I absolutely think about the sensitivities of my students. But when I say things as a public intellectual, sometimes I want to irritate people. Sometimes I think that there are things going on in the world that you ought to get angry about.
Hon. Stephanos Bibas: Yeah. I want to hear Professor Volokh respond. And so let’s put it a little more directly. Say you’re teaching an intellectual history class and you want to put Mein Kampf on the syllabus. Or you’re teaching the history of racism in America, and you want to put John C. Calhoun on the syllabus or a speech of Strom Thurmond’s or something. Even, Professor Volokh, you’ve been a defender of using the N word not just as the N word but saying the whole word in class. And Professor Randall Kennedy wrote, a professor at Harvard, has written a book on this topic.
Why is it that you think that — you don’t think that we should be taking it from the perspective of a student in might be offended and sensitive in class, but nevertheless, I think it’s important to put these ideas out there even if someone might be the son or grandson of a Holocaust survivor or the descendent of slaves who will be very bothered by reading or hearing this?
Prof. Eugene Volokh: Oh, sure. First let me just say I totally agree with Andy and, I think, with the implication of your earlier question that the rules of academic freedom, which do apply to the classroom, are not the same as the ones that apply outside the classroom.
We might just take a general example. Let’s say tomorrow I decide not to write about the First Amendment anymore and to write about other things. I actually do like to write about the First Amendment, but my most recent article is about something really quite different. I don’t have to ask my dean’s permission for that. The dean isn’t going to complain. If I stop writing all together, the dean might rightly complain, but I have total flexibility. If I decide tomorrow in my First Amendment class to start teaching things other than the First Amendment, the dean probably would be within her rights to complain.
Likewise, I do think that it’s not my job in the classroom to start talking about how the students should vote in the next election, even if it’s somewhat on topic for the class but especially if it’s not on topic for the class. On the other hand, it’s something that’s perfectly legitimate for me to write an op ed, right?
So I think that the rules for academic freedom in the classroom, I think, are considerably more instrumental and focused on the importance of teaching students certain important material but also teaching students the norms of the profession that they are going into and teaching students to confront the reality of the world.
So for example, you give an example of the history of racism in America. It’s very hard to teach an honest class on the history of racism in America without actually presenting some racist material in America. You could teach a class, I suppose, that has only people who condemn racism, that’s to say readings only from people who condemn racism. And all of the actual racist arguments would be filtered through the positions of their critics. I don’t think that would be an intellectually honest class. I don’t think it would prepare students for doing history the way that historians generally think history should be done — which is by engaging with the materials as they are, even if the materials are very bad materials, that is to say, express very bad ideas or document horrible atrocities — and at the same time, not just engaging the materials, but trying to see the world form the perspective of those people. Not to say that you should endorse that perspective, but you’ve got to understand what it is, how this all made sense in their minds, even if it doesn’t make sense in yours.
Likewise just to close, with regard to court cases, my view is anything that is said in court should be sayable in the law school classroom. And taking the opposite view, you don’t prepare students for the norms of practice. Randy Kennedy’s and my article, I’m quoting it, that’s in The Classroom and Beyond, gathered information about this, looking at what actual court opinions are like. And we found basically at this point there are tens of thousands of opinions that use various kinds of slurs, racial, sexual, anti-gay. You want to break it down by a particular one, there are thousands for each, tens of thousands for some.
So that is something of a norm. It’s not exclusive. Some opinions expurgate in some measure in various ways. Some opinions expurgate in words like fuck for example. The famous Cohen v. California did not, but other opinions from more genteel justices — Justice Powell was prominent in this — do. But I think the norm is that the courts quote the facts because they think facts are important and because they do draw a sharp distinction between quoting the word and actually using the word as an insult.
I think that that’s the right norm for classes as well. And I think given that freedom protects the right to do that. Although you might make an argument that there’s not an academic freedom argument. I think it’s just actually sound, the sound approach. And that teaching students essentially, implicitly, oh you ought not be prepared for hearing or reading these words; you ought to be able to expect that you would never have to confront these words in your practice, I think would ill prepare them for being good lawyers.
But that too me is the really important question about what we say in the classroom. It’s a very different kind of question about what we say in practices, excuse me, in scholarship and op eds and in tweets.
Hon. Stephanos Bibas: All right. So let me ask Professor Koppelman to respond. Professor Volokh was making the case that in the classroom we actually need to push students maybe a little outside their comfort zone. And your reference to the sensitivity of students could be read more broadly.
So let me give you two questions from the Q&A that bear on this. One of them is “At what point does caring about the sensitivity of your students cross the line and become giving sensitive students veto power akin to a heckler’s veto to the detriment of providing a solid education to other students?” And I would add and is that different when we’re talking about not what happens in the classroom, but what someone posts on Twitter or writes as an article. Should we have a different approach to sensitivity or subjective approaches there?
And a related one by someone else is, “Do we believe those faculty and students who take offense are offended by the facts themselves or the speaker stating or interpreting those facts or as Professor Volokh suggested by from an email that faculty shouldn’t even be thinking these things?”
So how do we handle the tension between the subjectivity of offense and the spheres in which it’s maybe desirable to push people, and we’re shooting the messenger, perhaps, in the professor who says these things?
Prof. Andrew Koppelman: So as I said, yeah, I will not, out of sensitivity to my students, restrict what I say publicly outside the classroom. I’m supposed to say what I think. I am supposed to honestly say what I think. That is my job. That is, I think, what professors as public intellectuals are good for. It may be the only thing that we’re good for. So I just have to honestly say what I think.
In the classroom, I have, I guess, a different pedagogical approach to Eugene. I know the article that he wrote with Randy Kennedy. And I agree with him that students need to be prepared for all sorts of things. I just know that in my own teaching — and this goes to the question of at what point does it become coddling — I don’t want to lose the room. And it might be possible to articulate the N word without losing the room. I have not figured out how to do it. And so the norms have shifted. I now no longer will use the word in the classroom — I did in the past — because I think that it’s possible to teach these materials without doing that.
But I will assign materials that contain them, so I have not deleted Martin Luther King’s Letter from Birmingham Jail from my syllabus. It seems to me that far more hurtful is material that does not use the N word such as the opinions of the Supreme Court in Dred Scott and Prigg v. Pennsylvania and the Southern Manifesto after Brown v. Board. Awful ideas, and we have to address them. We have to take them seriously.
And then we get into questions of pedagogical technique. What, in fact, works? Which, like anything else that involves judgment, isn’t reducible to an algorithm. But I want students to engage with these ideas. I will not put a student in the position of having to defend Dred Scott or Prigg. But I will sit up there and say, “All right. Let’s pretend that I’m Chief Justice Taney. Attack my arguments, and I’m going to try to answer you.” And it turns out that it is harder than you thought to attack Justice Taney’s reasoning. And I want the students to engage with that in order to develop the skills of lawyering. And they’re more likely to develop it if they are convinced to their bones that the argument that they are attacking is evil so that they have to win this. So that seems to me to be the pedagogical value of attacking Dred Scott and Prigg, horrible decisions.
Hon. Stephanos Bibas: So let’s talk a little bit more about the problems on campus, and then maybe we can start talking about some possible solutions. Several students — several people in the Q&A have raised these issues about the shrinking of the Overton Window in class. Because of sensitivities professors and administrators are much less comfortable discussing things. Someone raises the example of COVID, others discussing affirmative action and racial sensibilities.
What does it tell us that these issues are taboo, and what constructively should or can professors do to expose students and get them ready for dealing with these issues that they are going to have to deal with when they’re lawyers showing up in my court room or counseling clients or arguing against people who take very different positions?
Prof. Eugene Volokh: I’ve tried to think some about this because I’m also a clinical teacher. I teach a First Amendment Amicus brief clinic. I also teach a class on persuasion, an intensive editing workshop. More than half of my units these days are teaching skills. And of course, the most important skill that the lawyer can have is the skill of understanding the best possible version, the most effective — I mean not morally best — the most effective possible version of the other side’s argument. That is the single most important skill. And that’s what we try to teach in many respect in the classroom classes.
Now the second most important skill which is what I mostly teach is writing. It’s also important. But that’s writing down your own argument. And in order to know what argument to make, you have to understand the best version of the other side’s argument because that might be the version that’s going to be in your audience’s mind.
So if we are in a situation where people — especially when faculty like that person who sent me that email — but also when students think that there’s certain things that people shouldn’t even be thinking, then the question is how can they think it.
Let’s say, for example, you think that — just to take another example that every woman has a basic right to control her own body including by getting an abortion, and it is the work of modern day slavers to try to limit that. Or conversely, you think that life begins at conception, and that it is a modern day holocaust to be killing millions of unborn children. You’re perfectly free to take that view. Many people do take that view. But if you’re going to be an effective lawyer, then in that case, you are doing to need to be able to understand the best version of the other side’s argument. If you haven’t exposed yourself to it or — the reason we have universities is because we expect professors to be particularly good at exposing people to it — if you haven’t been exposed to this by your professors, you’re not going to be an effective lawyer.
And I’ve seen, unfortunately, examples of where some students take the view that as a moral matter is it right for to not pay attention to those arguments. It is right for them not to have to listen to those arguments because those arguments are offensive and evil — and I don’t mean just in regard to abortion, but in regard to a wide range of things — are offensive and evil, and it is an imposition on them or on other students to have to hear them.
The problem is, then you’re not going to be a good lawyer. And ultimately it comes down to your client, right? Your job is to serve your client. Your job is to keep your client out of jail or out of the death penalty or in those situations, make sure that the client doesn’t have to pay money and the like. But in order to — or to get a law struck down on behalf of your client or something along those lines. In order to do that, you need to be able to confront everything. And I think unfortunately, that’s not happening.
So the question you asked is what to do about it. I think that law schools should be doing more affirmatively to put on events where there’s a deliberate debate about how hot button issues, about immigration, about raced-based affirmative action, about abortion, about whether we should have more policing, less policing or as opposed to say moderate policing, and the like. And the law schools should do that precisely to model for students respectful, thoughtful debate about difficult issues and to highlight to students that it is not just legitimate but imperative to have those kinds of debates. And I think that will convey the message further to students in the classroom.
Hon. Stephanos Bibas: How about hiring for intellectual diversity?
Prof. Eugene Volokh: I’m not a big believer in hiring based on race or based on religion or based on sex. I think that similar distorting affects would happen if we were hiring based on intellectual diversity. You’d have to decide who has what kind of intellectual diversity, what kind counts and the like.
Now, there’s a plausible argument that once you already start hiring for diversity even when you’re using otherwise forbidden criteria like race and the like, then you should be also consider religion and politics and such. Maybe that’s the right answer.
I’m ambivalent, let’s just about, about this. My guess though is as a practical matter, it’s highly unlikely that most law schools are going to end up hiring a lot of people who are — deliberately hiring ones who are contrary to them politically. That’s just not human nature. And even if they do, it’ll be pretty slow and it’s not going to affect much of what a typical student’s’ going to see.
So that’s why I think that events set up for intellectual diversity are probably going to be more effective, but perhaps you’re right. Perhaps we need a combination of both. I’m just ambivalent.
Prof. Andrew Koppelman: I can say just a little bit about that. There are multiple justifications for affirmative action, and one of them is what’s been called discrimination blocking. If you think that the process is already discriminating in a certain way, then correction is appropriate.
Here at Northwestern, we actually have more conservatives than an awful lot of law faculty. And one of the reasons why we’ve done that is because we’ve noticed that it’s an undervalues asset on the market, that we’ve had, a number of times, hired people that didn’t have other offers nearly as good as Northwestern’s who turned out to be super stars. And it was clear that the only reason that they didn’t have other offers comparable to Northwestern’s is because there’s quite a lot of bias against conversatives in the hiring market.
And I — and I represent probably part of the far left wing of the Northwestern faculty — I think this is great. It just goes back to what Eugene is saying. I think that it has improved the quality of my writing and teaching to have colleagues who think that I’m completely wrong about everything and to have to seriously engage with what they have to say. It’s good for me. It’s good for the students.
Hon. Stephanos Bibas: All right. Let’s talk about some other solutions. And people in the Q&A have several good questions about them. One of them is about free speech and expression policies. At Penn, where I taught, even though it’s a private university, they decided that they were going to commit decades ago in the Vietnam era to following the First Amendment.
Now, let’s talk about public schools and private schools. Public schools are required to follow the First Amendment. Private schools are not. But what’s the role of campus policy, open expression, et cetera? Is there more to be done in the way of campus regulation to help protect this, or is that a lost cause at this point?
Prof. Andrew Koppelman: Eugene, you want to — I’m inclined to think that academic freedom policies should be the same whether the university is public or private. I’m saying that there are — punishing faculty for public statements, which is what almost all of these cases involved, it’s wrong whether it happens in a public or a private university. That antithetical to the mission of the university and a law school in particular for the reasons that Eugene said.
Prof. Eugene Volokh: Right. So I entirely agree. The problem is that Georgetown has a policy. When I say I entirely agree, I entirely agree it is a policy matter. I don’t think the First Amendment applies to private universities. Some people say well, what about all the money that they get from the government. Well, that’s not a basis for finding state action.
So I don’t think that Georgetown is currently covered by the First Amendment, but it is covered by its own policy which I just pulled up. And let me see if I can show it to people if I can share the screen. Dah, dah, dah, dah, dum. Share screen. Here it is. This is the policy. It is based on Chicago principles “committed to free and open inquiry, deliberation and debate it all matters, and the untrammeled verbal and nonverbal expression of ideas,” and “all members of the university community, including faculty, students, and staff,” not just tenure track faculty members, and “the broadest possible latitude to speak, write, listen, challenge and learn.”
“It’s not the proper role of the university to insulate individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.”
Lovely words that apparently Georgetown is treating as just words.
Hon. Stephanos Bibas: Are universities like Georgetown, are they opening themselves up to lawsuits? Is litigation on the table or an issue here? How about — professors are often unionized, the AAUP, historically. Is push back from the Unions an avenue here?
Prof. Andrew Koppelman: I don’t want to go where this question is asking because this is asking you let’s think like Oliver Wendell Holmes’s Bad Man, where we want to suppress speech to the extent that we can to the limits of being sued. We shouldn’t even be thinking that way.
As it happens, the worst case, Sellers and Batson, both of them were intimidated into resigning, to public making groveling apologies, to refusing legal assistance. So Georgetown Law as an adversary won this, but again, just that’s a betrayal of the university’s mission. Why are we here? So it’s like a doctor asking, “Well, can I kill some of my patients and not get sued?” [Inaudible 00:44:14] thinking.
Hon. Stephanos Bibas: Well, perhaps we can get Professor Volokh to talk about this. Another student –
Prof. Eugene Volokh: – I’m against it.
Hon. Stephanos Bibas: Another questioner put it a slightly different way. “Opponents of free speech get their way because they’re able to oppose costs on schools for ‘allowing’ protected speech. What, if anything, can or should we do to impose costs on schools for abandoning academic freedom and principles of free speech?” I think that maybe you might want to connect this up to recent discussions surrounding some of the incidents we were talking about. But it’s very interesting to see robust expression of views both pro and contra on some of this when for a long time a lot of the views were really just on one side.
Prof. Eugene Volokh: Right. Yeah. I think it’s complicated. And I think part of the answer is I just don’t know. I will say just to cover the bases that I entirely agree with Andy that the right question is what the right thing to do is for the universities and not just what’s the most we can get away with.
I will say, so there are university policies that have been viewed as binding contracts in this kind of situation. Also, some states, like my own California, do prohibit private employers, generally, from discriminating based on political activity or speech. And some read political activity narrowly, some like California, very broadly.
So in California, if a faculty member is fired for a tweet that expresses support for any candidate or cause — that’s the test announced by the Supreme Court in an important late 1970s case — advocacy of a candidate for a cause is protected by that statute. And that’s true whether it’s a public university, private university, or ordinary private employer. It may be different when it is somebody speaking as part of their job. So it’s an interesting question how that plays out, speaking, let’s say, in the classroom. But certainly firing someone for a tweet because they find that the tweet expresses a political view that they find abhorrent is just not allowed in California.
In D.C., interestingly, there is a prohibition of discrimination based on political affiliation which is defined as limited to political party membership. So firing someone for a tweet that endorses a candidate or political party might be illegal but firing them for endorsing a particular political idea is not. So it varies from jurisdiction to jurisdiction.
But what ultimately is to be done? I do think the first thing to be done is to make sure there is public pushback, that people express their views condemning the university and so that the university administrators see that they’re not just being pushed from one side. They’re being pushed from another side. Maybe ultimately that’ll keep them on the straight and narrow. I don’t know.
But ultimately what’s the best solution that is going to work as a practical matter? That’s for students of politics, including institutional politics, which temperamentally, I am not.
Hon. Stephanos Bibas: Well, let’s take something in that vein. Some people who say, “Well, we should think of the Millian harm principle in terms of the offense given to some students.” Let’s take that at face value. Some students suffer some subjective emotional offense. Now we’ve talked about some reasons why maybe pedagogically that shouldn’t be allowed, why it’s different now. But how do we balance against that the harm suffered by the individual who is being fired, the harm to other professors who — there’s an in terrorem effect on chilling them — the harm to many students who don’t speak up publicly, but privately are disappointed to lose out on a range of options that they could have taken whereas students who were offended mostly could have avoided taking some of these classes? If we’re going to go down this sort of harm, isn’t the current discussion of harm one sided?
Prof. Andrew Koppelman: My inclination is to ignore all of that except to the extent that it affects the mission of the university. Once again, in the classroom, it’s important not to lose the room. It’s important for teachers to think about that. But look, it really is the case that reading this stuff, some of the stuff that we have to read, is a distressing experience. And if you can’t look at that — it’s like, look, there are some people who can’t stand the sight of blood, get faint at the sight of blood. The science fiction writer Isaac Asimov was planning on being a doctor until he discovered that he got faint at the sight of blood. He went into another line of work after. If you can’t stand this stuff, you probably belong in a different line of work than lawyering.
What I tell my students, in the spirit of Eugene, if you’re going to, and particularly if you’re going to be a public interest lawyer who doesn’t really have a client except a cause, you are going to encounter arguments on behalf of what you take to be the forces of evil and darkness. If you have no idea how to deal with those arguments, then you’re not going to do a very good job yourself, and you’re going to lose and that will be bad.
Hon. Stephanos Bibas: Let me build on that. It sounds sort of like the argument professor Jeannie Suk Gersen at Harvard Law School, a feminist who teaches criminal law, has made where students have complained about the teaching of rape law, which decades earlier feminists had pushed to include rap law in the curriculum, and yet there are some students who say even using the word violate, as in you violated the speed limit, is itself traumatizing to them. But then there’s the question how are people going to be more or less prepared to be criminal lawyers or the like if rape law and some other subjects are not covered in the academy.
And so there’s this tension between what subjectively some students quite sincerely may be feeling — or maybe it’s insincerely being used, we can’t really judge that — versus what the long term dynamic’s going to be. And it seems, Professor Koppelman, you’re on the side of we as professors know some things you need to learn. Is that paternalist for professors or judges of others to be saying you should learn this even if it feels uncomfortable to you, no pain no gain?
Prof. Andrew Koppelman: You’re making with those decisions everything you write a syllabus. You are making decisions on behalf of students you have not yet met about what it is that it’s most important for them to know about if they’re going to study this field. This is just the job description.
Hon. Stephanos Bibas: All right. So now maybe some more — a couple of quick questions from the Q&A. One of them, “Isn’t academic debate like what we’re doing now a charade? There’s no free speech or objectivity or truth. It’s all subjective. It’s malleable. It’s all constructs of hierarchical structures of power.” And there was a related questions that said, “Well, most of the faculty are cis, het, white men, and so it’s already stacked towards this traditional patriarchal power. So there’s no truth, but if it is truth, it’s the wrong truth.”
So what does one say in response to someone who rejects the very premises of academic debate and discourse?
Prof. Eugene Volokh: I’m never sure, when I hear questions like that, especially in a forum like this, whether those are straight up questions or somebody trying to parody people. There’s some law — I can’t think of the name — that at some point parody becomes indistinguishable from the thing being parodied.
But taking it literally, I think I would return to Andy’s point, which is whether you think there’s truth or not, there is the process of being a lawyer and arguing to judges, to jurors, to legislators, to voters. And the question is how can we get students — and the question simply is just a matter of they’re paying good money to be taught to be good lawyers. How can we teach them to be persuasive?
Even if you think there is no such thing as truth, there is such a thing as persuasion. And you have to persuade — by the way, you have to persuade people — I totally agree — if all racial, ethnic, sex, religious, sexual orientation groups out there. As it happens in American, whites are still the majority, and cis are very much the majority. Heterosexual are very much the majority. Males are about half. So you’ve got to know how to persuade whites. You’ve got to know how — more importantly because I think the gulfs based on race are nothing compared to the gulfs based on ideology — you’ve got to know how to persuade conversatives and liberals. You’ve got to know how to recognize that a lot of the people you look at and stereotype — oh, that person’s black. They must be — well, probably being black, they’re a Biden voter, let’s say, just what the numbers tell us. But a lot of them are very conservative on many issues, a lot of black voters just like a lot of white voters. A lot of them are liberal on various issues.
So you’ve got to — I’m totally on board with people saying you’ve got to go past your stereotypes. You’ve got to understand that there’s a diversity of people you’re talking to and trying to persuade. But that’s what we’re trying to do is to try to teach students how to deal with all of these issues and how to persuade groups of people who may be sharply different from them, who may have beliefs that are evil, who may be deplorable.
Well, the one thing you can’t do to a jury or a judge — you could deplore them. You’re perfectly free to deplore them. You can’t convey to them that you are deploring them. You can’t try to persuade them from a mental perspective of them being deplorable. So you’ve got to figure out how you can best reach them as the people you’re trying to persuade, whether or not there’s truth, whatever you’re race, sex, sexual orientation, religion, whatever theirs is.
That’s what we’re trying to teach our students. And to do that, we have to open it up to the broadest possible range of arguments, rather than just good, decent arguments that they find morally appealing.
Prof. Andrew Koppelman: I just want to very briefly add to that. Let’s just stipulate the radical, post-modern presumptions of the question that there is no truth. There is no goodness. There is simply people trying to impose their will on the world. Well, so then you think about your legal education as a way to impose your will on the world, to bring about the world you want. Well, it turns out that your skill here — we are not giving you a gun. We are not giving you a backhoe. We’re not giving you physical things. We’re giving you skill to try to use words to get people to behave in the way that you want them to behave. And in order to do that, you have to be a skilled sophist. You’ve got to be skilled at rhetoric. Sophists understood you’ve got to know our audience. You’ve got to understand what the views are that are out there.
So even if you don’t believe there is any such thing as truth, even if you think that it’s all power, you still need the skills that law school provides. Maybe you need it more than ever.
Hon. Stephanos Bibas: Final question. So both of you are professors. Neither of you is an administrator. And administrators seem to be involved in some speech controversies. Maybe you don’t have the same commitment to First Amendment values or pedagogy or the like, have a different focus from you as First Amendment scholars.
What do we do in universities, in law schools that increasingly have more administrators handling more of these things to keep a First Amendment culture vigorous in practice where people are increasingly afraid of liability, of sanction, where the educational mission isn’t paramount in the same that it was in an institution that was mostly professors and hardly any administrators?
Prof. Andrew Koppelman: Personnel is policy. I’ve been disappointed particularly by the administrators who previously were faculty. The reason why you pick administrators who previously were faculty — and same reason why it would be good to have the chief administrator of a hospital be a doctor — you want people who understand the mission and understand the point of the administrative apparatus is to further the mission of the institution.
Prof. Eugene Volokh: So I think that’s right. A brief story, it happened at a top rated law school. There was around the time of the Elonis case which involved threats. There was a moot court problem that was being drafted by the students where which was based on Elonis. And they were quoting Virginia v. black, the earlier threats case which involved cross burning. And an administrator said, “You can’t include Virginia v. black in the quote in the materials because it involved cross burning, and some black students might be offended. By the way, I don’t know that any black students actually were offended when ultimately this all happened, but that was the concern of the administrator.
And then they said, well, wait a minute, all these other cases, even if they don’t include Virginia v. black, all the other cases refer to Virginia v. black and explain that. He said, oh you have to redact that. And then it went through three other administrators and then eventually went to a faculty member who was ready to pull the fire alarm and do all those things. And eventually he asked, on the advice of a senior faculty member, asked another administrator, who was in fact a full time faculty member and just was a part time administrator. And within two days everything was straightened out and the right answer was reached which is you better read Virginia v. black and apparently, as I said, nobody seemed to be much upset.
So sometimes indeed, just going for administrators have been acculturated into the norms of the academic profession in an institution where there was a good deal of faculty self-governance, I think that that could improve things quite a bit. This having been said, when enough faculty have the view that these things should be suppressed, then there’s nobody’s who’s going not help at least inside the institution, right? So I’m not sure what the best answer is when both the faculty and the administration is, I think, on the wrong page.
Hon. Stephanos Bibas: Very good. Well, we’ve reached the end of our hour. I’d like to thank The Federalist Society and especially Professors Volokh and Koppelman for a fascinating conversation. Thank you all for questions and apologies that we didn’t have time to get to them all. But I hope that this conversation continues both at FedSoc and in and outside of classrooms in Georgetown and elsewhere.
Alida Kass: Absolutely. Thank you all. On behalf of The Federalist Society I want to thank our panelists and moderator for the benefit of their time and expertise today. And thank to the audience for joining and participating in the event. We also welcome listener feedback by email at [email protected] As always keep an eye on our website and emails for announcements about upcoming events. Thank you all for joining us today. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.