I was invited to participate in a Hofstra Law Review symposium on free speech in law schools, which will be happening in February, and I thought I'd serialize my current draft article (Free Speech Rules, Free Speech Culture, and Legal Education); there's still plenty of time to improve it, so I'd love to hear people's comments. Here are some follow-up thoughts on what I think law schools should try to teach, though you can read the whole PDF, if you prefer:
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1. The value of law-school-organized events
Sometimes student groups won't organize events on the most controversial of topics. They may be worried about disruption, social ostracism, or professional blacklisting. They may be daunted by the cost or logistics of organizing a debate or a panel, especially when local faculty members aren't willing to provide a counterpoint, and thus the group would have to invite two or more speakers and not just one. Or they may just not have much interest in that particular topic.
Law schools should fill such gaps, by organizing such debates themselves. This has several advantages:
- The events can be organized to bring in the most thoughtful, expert, and reasonable speakers on both sides. This would avoid the occasional situation where student groups deliberately bring in speakers who are colorful and controversial but shed more heat than light—or the likely more frequent situation where student groups just don't know who the best speakers are, or who can't persuade them to come. Student groups should of course be free to invite even the more-heat-than-light speakers, if they so choose. But those speakers generally don't provide as useful a learning experience, and law schools can do better.
- Because the events are organized by the law school, they may be somewhat less likely to be disrupted.
- The events can also model—especially with the law school's imprimatur—how students and lawyers can discuss such issues civilly and productively.
- The law school can be especially effective at encouraging the school's own faculty to participate in the program. Such faculty participation seems likely to bring in more students to listen. And faculty who may be reluctant to participate in a student-group-organized program, where they can be tarred by their side as sellouts or enemy sympathizers, may be more willing to participate in an event that is organized by the school itself.[1]
- Of course, a law school's organizing such an event, however balanced it may be, may particularly incense some people who believe that a particular perspective should not be heard on campus, especially in a school-organized event. But I think this too is an important teaching opportunity: It can help the law school remind people that they are training to become lawyers, and need to understand all sides of an argument (however opposed they might be to one side) in order to succeed.
2. The insufficiency of leaving such debates to the classroom
To be sure, on some such topics professors would presumably cover both sides in their classes. I hope that all constitutional law professors, for instance, do that when they teach the abortion or affirmative action cases.
But I think there's no substitute to hearing a perspective from an effective advocate who actually supports that perspective, rather than just discusses a Supreme Court opinion or makes a devil's advocate argument. And of course many of the most interesting questions that bear on controversial topics are empirical and moral questions. Constitutional law classes will likely focus less on those questions, even when the questions are important to legislative advocacy on such issues, or are indirectly important to applications of the constitutional rules (e.g., in deciding whether a certain restriction is really necessary to serve a compelling government interest).
3. Focusing on real current debates
Of course, if a law school is to organize events, it needs to choose the topics. One can protect the rights of students and of student-invited speakers to speak from all viewpoints on all subjects. But one can't organize events on all subjects, nor can one invite all speakers on each subject.
Here, I think, law schools should focus on real current debates. If states are sharply split on some important policy question, such as abortion or capital punishment, there is obviously a real debate; students should be exposed to both sides of it. If the public is sharply split on some such question, such as transgender rights or race-based affirmative action or immigration (legal or illegal) or "defund the police," there is obviously a real debate. If experts are sharply split on some question, such as the specifics of police reforms, there is a real debate, even if the public hasn't yet focused on it.
Other debates may be less salient, and there may thus be less urgent need for discussing them. For instance, whether the law should ban race or sex discrimination in private employment is an interesting and conceptually important question, both for the sake of its own merits, and because it bears on whether other forms of discrimination (e.g., discrimination based on political affiliation) should be barred as well.[2] But as a matter of current political reality, it is pretty well settled. Speech on the subject should not be suppressed, of course; but when a law school is choosing what debates to organize itself, it may be better to prioritize a more currently contentious question—such as whether affirmative action should be legal, or whether transgender athletes should be allowed to compete on women's sports teams.
Likewise, while law students should certainly have been exposed to debates about same-sex marriage before the Goodridge decision, and while such debates today would of course be legitimate and interesting, that question is considerably less significant today, at least in the United States. A law school may well prefer to focus on other questions, which remain on the judicial or political docket.
The law school should also seek to present the most thoughtful speakers on both sides of the issue (or perhaps on several points on the spectrum), preferably ones who could speak to the most politically relevant viewpoints on both sides. The law school generally shouldn't invite KKK speakers or Hamas speakers or Communist speakers or other extremists to participate in such programs—not because they are evil people (though many might be), but precisely because it's usually more important to educate law students about mainstream or otherwise practically important viewpoints (right or wrong) than about extremist viewpoints.[3]
Again, the goal here isn't viewpoint-neutrality as such—something that's impossible or undesirable in law-school-organized events. The goal is to better educate the students about the viewpoints that they are particularly likely to encounter.
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Still to come, in future posts (or you can see it now in the PDF):
II. Specific Practices
D. Evenhandedly Encouraging Debates or Conversations Among People Who Disagree
E. Inviting Leading Successful Advocates from All Points on the Ideological Spectrum
F. Encouraging Faculty to Express Dissenting Views
III. Responses to Some Possible Objections
A. Student Upset (Especially as to Views That Are Seen as Derogatory of Their Identities)
B. Vulnerability of Powerless Minority Groups
C. Risk of Persuasiveness
D. Risk of "Legitimizing" Certain Perspectives
E. Losing the Opportunity to Chill Political and Ideological Participation and Organization by the Other Side
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[1] Naturally, no faculty member should be required to participate in such an event. But I do think the Dean should encourage such participation.
[2] Cf. Richard Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws (1992).
[3] There may of course be plausible reasons to invite those speakers, for instance for events on extremism where you want students to better understand the mind of the extremist; I certainly don't want to suggest a norm that such speakers should never be invited. My point is simply that it's especially valuable to invite speakers who represent views that are within the public mainstream public (or expert mainstream) but are nonetheless too little known by many law students.
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