Jeff Zwiebel:
I am Jeff Zwiebel, I am in the Business School here at Stanford. And we have for this panel three very distinguished constitutional law scholars. We have Ilya Shapiro, senior fellow and director of Constitutional Studies at the Manhattan Institute. We’ve got Michael McConnell, Stanford Law professor and director of the Stanford Constitutional Law Center, and we have Eugene Volokh, professor of law at UCLA and writer of the popular legal and political blog, the Volokh Conspiracy.
So since I am not a legal scholar, I think my job is to announce these guys and mainly stay out of the way. So we will have Ilya Shapiro speaking first.
Ilya Shapiro:
Great. Well, thanks very much Jeff, and thanks to all the organizers of this conference. And the attendees, I mean, this has been just wonderful. Normally in conferences, you can select which time slots you’re going to absent yourself, take a break, whatever. But here, the whole thing is worth attending and watching, and I hope the folks watching the live stream feel that way as well.
I’m in the odd position of talking about myself. I mean, my ego’s healthy and all, but normally I do talk about constitutional doctrine or cases or something, policy, something like that. But my approach to what’s going on in legal education is very much informed by my lived experiences, as they say. And so even if I talk about my life, hopefully it’ll be more informative and knowledge based rather than emotional and feelings based.
And what I’ve witnessed I think this year is the illiberal takeover of legal education. In fact, that’s the subtitle of the book that I’m going to be writing. My first book was Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court. Now available in an updated paperback, so go check your finer bookstores. This one’s going to be Law and Disorder, the Illiberal Takeover of Legal Ed, and there’s three main areas here that I want to cover. One is professors getting canceled for whether extramural or other kind of speech. Two is events being disrupted, and three is student self-censorship, the kind of soft power stuff that Eric Kaufmann was talking about yesterday.
So the day that Justice Breyer’s retirement leaked in January, I was doing media that day because this is my area, and was upset about President Biden’s decision to limit his pool of candidates by race and sex. And I was doom scrolling late at night on Twitter, bad practice, not recommended, and tweeted out that if I was a Democratic President, I would pick Sree Sreenivasan, the chief judge of the DC Circuit, very well respected, very smart, progressive. Happens to be an Indian American and an immigrant at that, but still that’s not good enough in the current hierarchy of intersectionality as I put it. And so given Biden’s criteria, we would end up with a lesser black woman, and those three words got me in trouble. The logic of this was that if I determined that Sreenivasan was the best, that means everyone else in the entire universe was less qualified or lesser given the limits of Twitter.
And then I went to bed, tweeted that out and went to bed. Woke up and all hell had broken loose online. My ideological enemies had seized on my inartful phrasing and away the mob went. Now, normally I don’t care about the online mob, but I was in a precarious position of leaving my Cato job where I spent almost 15 years, and joining Georgetown to become the executive director of the Center for the Constitution, an important institution because of course the rest of the law school as we discovered, is the center against the Constitution.
So I was fearing for my job, for my livelihood, for supporting my family, imploding my whole career, my life, et cetera. Those were four very hairy, scary, hellish days. And I got great support from many folks in this room, especially FIRE, which is my favorite organization that I’ve never worked for, but I hope you think about them in your charitable giving. Survived those first four days of hell, which is followed by four months of purgatory to continue the analogy. It quickly became apparent that this was a farce, that the dean didn’t want to have to make a decision. I had these weird Zooms with him. I wrote it up in my Substack, Shapiro’s Gavel, which are welcome to visit.
Ultimately, at the end of four months after the students were off campus, I was reinstated on the technicality that the high-powered lawyers at WilmerHale and two university bureaucracies looked at the calendar and found I hadn’t been an employee when I tweeted and so was not subject to the harassment and anti-discrimination policies that were being investigated. I celebrated that technical victory, but then when I finally got the actual report from the diversity office, the Office of Institutional Diversity, Equity and Affirmative Action Idea, it became clear that they were setting me up for a slow motion firing. They said that anytime that I would say something similar that someone would claim offense to, that would be a hostile educational environment, subjecting me to discipline.
I thought, I can’t work that way. I have to resign. I did what’s probably the best lawyering in my life, putting together this four page resignation letter, which is available publicly on FIRE’s website among other places, and showed that not only is the standard that the university applied implicitly repeal their vaunted free speech and expression policy, it really is good in most universities, thanks in part to FIRE’s efforts, but otherwise, the policies on paper or on pixel are pretty good, but are enforced in the breach.
And so in my resignation letter, I gave examples of hypothetical situations, very realistic hypos of what would get me in trouble. For example, I logged the Supreme Court’s opinions overturning Roe vs wade or extending the right to bear arms. And a student says that an activist said that I’m denying women’s humanity, making her feel unsafe, directly threatened with physical violence. Or if I met with students concerned about my ability to treat people fairly, as the dean asked me to do, but I would’ve been happy to meet with students regardless, and someone files a complaint saying I’m the embodiment of white supremacy and was being disingenuous. Or when the Supreme Court heard the affirmative action case as it did this past Monday, I opined that racial preferences in admissions are unconstitutional, as I have throughout my career, and hundreds of Georgetown stakeholders sign a letter. It goes on and on. These were not a difficult part to come up with and that would subject me or any faculty member for that matter, this was a shot across the bow to discipline.
And that’s in contrast to some very inflammatory tweets by other professors in the past number of years. I’m not going to read them to you here, but trust me that they were a lot worse than even a willful misconstruing of what I said. And yet, they were not investigated, disciplined, punished, nor should they have been. But the point is, it’s free speech for thee and not for me. So I couldn’t live that way, and what Georgetown subjected me to, what it would’ve subjected me to if I’d stayed, was a heckler’s veto that leads to a star chamber. And so I drew on the lesson that Eugene taught me about a decade ago when we were working on a brief invoking Solzhenitsyn’s mantra of Live not by lies that has become my mantra. He wrote, “Let the lie come into the world, let it even triumph, but not through me.”
Then there’s disruptive events, and I experienced that myself as well. There’s no protestors here, that’s not unusual for my speaking events. Only once in my entire life of more than 1,000 public speaking events have I been protested, and that was at Hastings just across the Bay here, or up the Bay, however you’d describe it in Northern California geography. And I walked into this place and it was like an Occupy Wall Street meeting. There was chanting and banging, and I stood there for an hour and I couldn’t get a word in edgewise. And even though the deans there advised the students, in the few minutes when I briefly left the room to confer with the organizers, advised them that this was against school policy, nobody was disciplined. Apparently, now their policies have changed. I think their policies were fine, they just hadn’t been enforced. And the students there were demanding critical race theory training for all students and faculty and all this. The dean issued a very deanly 20 page memo a month later, not giving into any of the additional demands, but also not disciplining anyone.
And finally, the self-censorship. As I’ve been on a tour using this platform that I’ve been given to shine a light on the rot in academia, students have been coming up to me to tell about their stories of self-censorship, whether in class, in the hallways, on digital media and listservs and things like this. Chinese students have come up to me, more than once, not just one anecdote, anecdata, come up to me more than once and said that what’s happening on campus reminds them of stories their grandparents told them about the Chinese Cultural Revolution, with struggle sessions and all of this stuff. It’s scary.
And I want to emphasize that all of this that I’ve been describing is not the same old, decades old conservative complaint about the liberal takeover of academia, Berkeley in the ’60s on through, the okay boomer. This is different, this is the illiberal takeover. And part of that is, others have mentioned this at this conference, the explosion in the bureaucracy, especially these DEI offices, which is really an Orwellian term, because they subvert intellectual diversity, prevent equal opportunity and exclude those who transgress progressive orthodoxy.
And the deans and the university administrators, no offense to Hollis, are generally weak. They’re not generally woke radicals, but they are spineless cowards. And they got to where they are by playing the bureaucratic game and keeping their head down and giving the squeaky wheel grease and all of that. And the incentives they face from a public choice perspective, leads them to do what they do, which is not enforce even those very good policies that they have when they have them.
And more broadly, I think what we’ve had is a loss of grace, a sense of grace in our society more broadly. I’m not religious, but the golden rule for example is not part of any faith tradition. You don’t have to have any faith to treat people the way they want to be treated. But because of the secularization of America, the loss of grace, I think that craving in all our hearts for humans in time immemorial for some spiritual depth has been filled by politics. And in that case, if someone is your political opponent, that makes them a heretic and their sacrilege is no longer worth listening to.
I think that’s some of the dynamic that we’re facing. And too few administrators are strong, like Bob Zimmer at the University of Chicago, in Dorian’s case, too many just placate the radical minority mob at the expense of enforcing what should be universal university values of free speech and civil discourse. And Michael’s going to talk about some reform ideas, I have some too. For example, I’ve written in support of Judge Jim Ho’s decision not to hire prospectively clerks from Yale. We can get into that if you want. Deans have come up to me and said, what should we do? I’m like, well, you do very well in instilling values of public service and inclusion and what have you, the readings before you start school, the orientation, it’s infused, reinforced throughout. Why not enforce those values of speech and civil discourse as well? I think that’s very important.
But look, for society more broadly, like Brett Kavanaugh’s confirmation hearing, I live on the sunrise side of the mountain, and I think we’re seeing the pendulum swing back and green shoots and all that, as normal people wake up, not become woke, but wake up to some of the ridiculousness in our society. But in academia and concretely in legal academia, I’m not holding my breath. Thank you.
Jeff Zwiebel:
Michael McConnell is up next.
Michael McConnell:
Yeah, so let me just begin by saying that I teach the Free Speech and Press course here at the Stanford Law School and I include materials on free speech on campus and academic freedom. I wrote my first article about academic freedom back in the early 1990s. At the law school, we have these little courses, small courses called Policy Labs, in which the students learn how to use legal skills in a kind of policy advisory capacity. Almost all of these are coming from one political direction, I won’t mention which one, but I proposed one for the university on free speech policies for Stanford. So our client was the university and the students read cases, they thought about various possible reform efforts, and what are the recommendations that they made? And for the most part, what I’m going to be telling you in a few minutes is, some of the recommendations that the students came up with in my policy lab.
I should also say that I have made it a point of defending academic freedom of people whose politics I disagree with. I’m much more in a sense committed to that, because I think it’s important. I think both sides and our polarized environment, I think both sides really need to police their own team. It’s easy to point to the other guys and say how bad they are. It’s more important to look in the mirror with your own friends and allies and call them to the standard that you think ought to be there.
Now, this panel is on academic freedom in law schools, and I think all of us have decided that we don’t really just want to talk about how bad it is in all the law schools. We’ve heard about STEM, we’ve heard from the humanities, we’ve heard from climate and public health and so forth. It’s no different in law school, and it would just be boring to hear more about that. I do want to just mention-
Ilya Shapiro:
Perhaps disturbing in other ways, because these are the future politicians and leaders and that will face much more challenging situations in their careers than bad tweets.
Michael McConnell:
So true, so true. Although I’m not sure, I may be more worried about my doctors. But I just do want to mention two ways in which law schools are I think different with respect to the academic freedom problem, different than all the other schools. The first, and they’re related, the first is that we are actually in the business of training people how to advocate for one side or another. Our students are going to go out, they’re going to be arguing cases and it’s not going to be a bubble when they’re out there in the real world. The courts are actually, for all the claims about politicized courts, our federal court system is closest to being an actual bipartisan operation than any other level of government. It goes from 60:40 to 40:60 in the federal courts. To be a good lawyer, you must know two things. You need to know how the other thought side thinks, why they might be right so you can come up with the best arguments, and you need to learn how to communicate with people who don’t necessarily have priors that you’re right.
So that’s what we do in the law school. And so academic freedom is more important in the law schools I think, than in any of these other departments. And I’m really thinking more about students than I am about faculty. We’ve been talking a lot about faculty academic freedom, and I’m all for that. That’s important. But what I’m really thinking about is what the impact is of an intolerant monoculture on what goes on in the classrooms for students, and especially in law school.
So it’s especially important, but we also have I think a kind of restraint that other fields don’t have that works to the advantage, to the support of academic freedom. And that is that we are after all a professional school. And even my liberal progressive colleagues understand that the world out there is one in which our students need to be prepared. And so I can make a point to my colleagues and say, it’s really important that they understand that there are two sides of the abortion question. Because if they’re going to be lawyers, they need to know that. They need to be able to operate in a world where not everybody agrees with you, and where you are not permitted to just shut the other side up. And so that argument carries some weight. I’m not saying it wins, but it carries some weight. So more academic freedom is both more important in law schools, but it also has I think a practical argument in its favor that maybe other schools don’t have.
But the real victims of this, I do want to say, it’s the students. In a sense, it’s all students, because certain subjects have been taken off the table. I wrote a few down, but some of the more obvious ones are affirmative action, the professor may try his or hardest to get the students to actually debate, and it’s not going to happen. And it’s not because they fear that the professor is going to jump down their throats or grade them down or any of that. I really do think most of my colleagues try their best to have discussions on contentious topics and say, constitutional law. It’s the other students, and I think it’s not all the other students. I think it’s a fairly large, let’s say a large small minority. It’s like, they run the show, and the others just get into line. And the danger to the social reputations, friendship groups of students who express an unpopular point of view, that is the greatest threat to academic freedom in a law school classroom, and it is takes whole subjects off the table.
And it’s not all constitutional law. Talk to a professor of criminal law about teaching rape where the question of consent, that’s the issue in a very large, huge proportion of actual rape prosecutions. They are damned if they do and damned if they don’t. There is no way to teach the doctrine of consent and rape without making people self righteously indignant. And the easiest course is, well, let’s avoid, let’s talk about bank embezzlement. That’s a good thing to teach. So whole subjects, and that’s bad for everybody.
But the particular students who are the losers, the biggest losers, from the lack of serious debate on contentious issues in law school are the left progressive students. It isn’t the conservative students. They’re the ones who feel miserable, they’re the ones who are the victims. They’ll feel bad, but what a great education they get, because they will graduate from law school knowing what the other side thinks. They will have three years of practice at how to communicate with people who might not otherwise. They are not the losers. It is the left progressive students who can go through three years of law school and never hear why Originalism might be a good idea, the dominant, increasingly dominant methodology and constitutional law in the courts. And professors will usually not present it very fairly, and they may just graduate from law school in a bubble. They are really the biggest victims.
But what I want to spend most of my time on are some practical solutions. Do I have time?
Jeff Zwiebel:
Not much.
Michael McConnell:
How much?
Jeff Zwiebel:
Two minutes.
Michael McConnell:
Okay, so two minutes for six suggestions. Some of these have been proposed by folks like Greg earlier today. So these are not going to solve the world, I’m not a world saver. What I look for is, are there some little things that might be done that might make the problem a little bit less bad? And I particularly want to direct these to alumni, students, parents, people who they will come to me and they’ll say, well, I can talk to the president of my institution, but what should I say? What should I suggest? So that’s the spirit in which I throw these out.
Really good idea is to ask them to do a campus climate survey with questions like, do you feel comfortable expressing an unpopular view? Do you think your classmates do? And questions of that sort. Why is that so powerful? When you count something, it becomes important. And I’m trying to borrow some techniques from the left, and especially those who have brought feminist issues to the attention of the university very successfully. And so we have these surveys with respect to things like that, like do you feel safe? Have you been the subject of sexual assault? Et cetera, et cetera. Let’s do the same thing, let’s elevate freedom of thought in the university to something we actually count. And if they do a serious survey, I’m pretty confident that they’re going to find out that the problem is very severe.
Second, also borrowing a plank from the successful left-wing strategy, is to appoint some officers. DEI is all over the place, I can’t tell you how many administrators there are who do this. There’s not a single administrator at Stanford whose job it is to protect either student or faculty speech. I have had students call me, they’re undergrads, they don’t know me, they’ll call and say, this happened to me. Where do I go? And I can’t tell them a place to go, like there’s no phone number. There’s no office. And when you get an officer whose job it is to promote freedom of thought in the university, they become not just enforcement, they become advocates. That’s why the DEI people are so powerful, is that they elevate the issue. Let’s have some of our own freedom of thought officers.
And then, okay. The first question I want somebody to ask is, what were your other four suggestions?
Jeff Zwiebel:
Eugene Volokh is up next.
Eugene Volokh:
I’m just a humble country lawyer. I’m just here. My job on this panel is to summarize quickly the current law of free speech and academic freedom at American universities. Some of it you may know, some of it may be intuitive, some of it is not. Some of it you may like, some of it you may not like. But I just want to lay out what the situation is and then perhaps we can think about what can be done in light of that.
I want to talk about both students and faculty, so let me start with public university. So remember the first word of the First Amendment is Congress, Congress shall make no law, 14th Amendment says, no state shall do certain things, so the Bill of Rights basically applies only to the government. So public universities are governed by the First Amendment. And what that means is that students’ outside class speech is generally protected by the First Amendment. Generally means there are some exceptions. So for example, there’s an exception for threats of violence or other illegal conduct, fighting words, face-to-face personal insults. Maybe in principle libel, although I very rarely see universities try to punish students for alleged libel.
And of course, that includes speech that we don’t like. Includes speech that the other side doesn’t like, includes speech we don’t like. So just to give an example of something that came up before, let’s say at UCLA, somebody starts distributing leaflets, so the picture of me calling me a white supremacist, let’s say. It may be unpleasant, it may be menacing, it may interfere with my relationship with my students. I might feel it’s a hostile environment in the loose sense of the word, it is fully protected speech. They’re allowed to use my picture. Calling me a white supremacist turns out is treated as opinion, just like you used to be calling someone a communist or fascist or whatever else. If they accuse me of very specific misconduct, Volokh was caught with his hands in the petty cash and I wasn’t, I wasn’t, then in that case maybe I could sue them for libel, maybe university could go after them. But short of that, no, they’re free to say all sorts of bad things about us as faculty and about each other.
Part of the problem with the chilling effect on students that deters them from speaking might be, oh, they’re afraid that if they say something in class, it’ll be all over the, I don’t know, online discussion groups on Twitter and such, and they’re going to be ostracized, and that’s actually protected speech. Some states actually codify this in statutes, California does, a few other states do. It’s probably a good idea. This being the broader protection for outside class speech, a reminder to the universities about these protections and also sometimes broader protection.
Of course, in class or graded speech is unprotected. Content neutrality is an important principle protecting speech outside class, I very much hope none of us are content neutral in our grading. And there are certain academic norms that we have to be fair-minded with regard to people’s arguments and such. Very hard to see a court, and for good reason. It’s very unlikely that a court will ever try to really police these kinds of decisions, say, well this person gave a lower grade because of the ideology. That’s just not something courts like to do.
What about private universities? Well, it turns out in California, because it’s the only such state, but it is a big state, there’s a law that says no private post-secondary educational institution shall make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of essentially constitutionally protected speech, with exceptions for unprotected harassment, threats or intimidation. Whatever exactly that means, and there’s actually a pretty decent understanding of what that means.
Interesting question, should this be copied in other states? I will say it’s been around in California for 30 years. The skies haven’t fallen. I know of only one lawsuit at Stanford that blocked the Stanford speech code, I think Nadine Strossen mentioned it. I don’t think that private universities at in California are much better or worse as a result than in other states. Maybe it doesn’t matter that much, but you could imagine similar thing being implemented on a nationwide basis.
State contract law might be useful, for example, when a university expressly promises students academic freedom or free speech. Although of course many universities are careful not to expressly promise it, and to describe their rules as kind of general aspirations rather than a binding contract. And that applies to private as well as public universities.
Now what about us, because that’s what really matters. So public faculty speech, so let me start with public universities. Social media comments, op-eds speeches, broadly protected by the First Amendment. I oversimplify here, but that’s the general rule. Scholarship is also generally protected. We generally can’t be fired for the ideas expressed in our speeches or in our scholarship. But of course, again, hiring, tenure, promotion decisions are also necessarily content based, and often even viewpoint based. Again, you want to have a pretty broad latitude for people’s scholarship, but somebody expresses a crazy viewpoint, they’re going to be marked down for it. At least unless they have very, very strong evidence, and probably as it should be. Certain subjects, if you say something that is pretty broadly accepted or intuitive, you don’t need a lot of evidence. If you want to say something really radical, presumably at the very least you should have a good deal evidence for this.
Again, something that courts are very reluctant to intercede in. So if the university says you are fired because you said something in an article, courts may very well say that violates the First Amendment. If they say you didn’t get tenure. And why? Because your scholarship isn’t very good. We’ve read your articles and we think your articles just aren’t good articles. Well, courts are again, quite correctly, I think quite reluctant to step in. So one consequence is that people who are untenured, or perhaps not just untenured, not yet at the highest level of salary that they would like to have for their career, most of us would like in the next promotion. We are in considerable measure at the mercy of our universities there.
What about public faculty teaching? Turns out to be a very complicated question. After all, we’re teaching a university supplied audience for university provided credit. Some of our classes are mandatory, some are not. But still, this is not the normal speech environment where I’m speaking to people who are there because they want to hear what I have to say. It’s not like my tweets, it’s not like my blog. This is something where the university understandably has some interest in. It looks a lot like what the law calls government speech, such as K-12 teaching. And the cases on K-12 are very solidly established, that it’s the principal or the school board or the legislature, not the individual teacher who gets to decide what’s taught in 10th grade algebra or 10th grade US history or whatever else.
Now, some courts have provided protection for public college and university professor speech. It varies geographically, the particular federal circuit courts have so held. It’s also pretty clear that even if they have so held, it’s not as broad protection. Among other things, I take it my dean could tell me if I’m teaching First Amendment law, I should teach First Amendment law and not say, oh, I’ve decided to teach Second, Third and Fourth amendment law in my class instead. Content based restriction, but I take it you do that. It’s rarely done because there’s a lot of discretion given to faculty. But what if a university says, look, there are four sections of tort law that are taught to different students, they’re just randomly assigned, and we want to make sure that they cover the same material. So we’re going to give you the syllabus. Again, that’s not done, but I’m not sure it’s unconstitutional to have it done.
So it turns out to be a really difficult question, so I just want to flag that for you. It is not at all well settled that even public university faculty have broad free speech rights as to the curriculum or as to the way they teach or the viewpoints they express in the classroom.
Private faculty speech. I just love putting up maps, this is my own original map. This is not a map having to do with universities. This is a map having to do with employment law. But of course, university faculty are employees. These are the states in which there are state statutes that limit private employers from discriminating against their employees based on speech, political activity, et cetera. At the federal level, there’s no such statute. Federal level has race, religion, national origin, sex, sexual orientation, gender, identity, age, disability, probably veteran status, basically that. But in many states, it includes politics, California is one such. The gray states is broad protection at least for political speech. Political speech writ large, not just about campaigns.
Then depending on the state, in some states it’s only for election related speech. Like in Washington State, you can’t be fired for getting involved in some election campaign or say signing a ballot initiative, but you could be fired for other speech. But Seattle interestingly, cities and counties have their own rules on this, actually provides broader protection. And then there are some states that don’t provide any protection and some that only do as to particular political things. So you should always keep in mind what’s going on in your state, because if you are teaching at a university in private university let’s say in Missouri, say Wash U, turns out you are protected by the Missouri statute. Not because you’re a faculty member, because you’re an employee.
Here’s a sample of the Louisiana statute. It’s a pretty broadly protective statute. And by the way, in Louisiana, violating the statute is actually a crime, it’s actually criminal. Of course, you’d have to get a prosecutor to prosecute, but you could also sue under it.
There’s also state contract law, both for public and private universities, and it applies only when the university expressly promises faculty academic freedom, but they often do. So there’s an example in Marquette, for example, where the Wisconsin Supreme Court actually held that Marquette violated the rights of one of its professors for punishing him for the speech.
Finally, a few thoughts about enforcement, and I’ll sit down. One thing is the real threat in these cases is lawyer fees and bad publicity. People talked about punitive damages, very hard to get punitive damages in these kinds of cases like First Amendment cases, for a wide variety of reasons having to do with the fact that you often don’t have a lot of compensatory damages or limit to the ratio of punitive to compensatory damages. But the lawyer fees often are in the hundreds of thousands of dollars or even more. To be sure, occasionally you see, say for a liable lawsuit, you see something like the Gibson’s Bakery verdict. But a lot of these cases aren’t libel cases, they don’t have punitive damages attached, and in any case, even that’s quite unusual for a libel case. It’s all about lawyer fees, just for whatever it’s worth.
There’s possible room for more statutes like requiring protecting student speech as condition for federal funding, or a federal law like some of the state laws I mentioned. At the same time, remember, it’s very hard to challenge grading decisions, tenure decisions, promotion decisions, hiring decisions. And of course social and professional retaliation by faculty and students. And in fact, some such social and professional retaliation, sense of ostracism, condemnation and the like, is itself protected by the First Amendment, so it can’t even be stopped.
So I don’t know what can be done about it. I like some of Michael’s ideas, I’d love to hear the other four ideas. But it’s important to keep in mind that the legal solutions, there are some, there are some things available, we should keep them in mind. I’m delighted that FIRE isn’t limited to legal solutions, but it’s providing legal help in these situations. But it’s important to realize all of them have very substantial limitations. Okay.
Jeff Zwiebel:
Thank you. So I’m going to use my position to ask the first question and I want to ask Michael a question, but not the question you want me to ask. So Michael, you said our problems or issues with academic freedom in the law school are similar to what we see everywhere else on the campus. It strikes me that the law school is one of the worst places. Students who drift over from the law school to the business school talk about how in the law school they can’t voice their opinions on almost any issue at all if their opinions are not the accepted opinions. We hear talk of ideologically based and identity based hiring mandates. Many of the attacks on this conference, on the very existence of this conference at Stanford, came from inside the law school. Do you agree or disagree with the assertion that problems of academic freedom are especially bad in the law school?
Michael McConnell:
Well, I think the problems of academic freedom occur in the law school much more often because we are smack dab in the midst of contentious issues of all sorts. I hear it happens in math too, but it’s very hard for me even to come up with a hypothetical for academic freedom issues in math. It comes up in virtually every subject in the law school.
Ilya Shapiro:
Well, in math it’s mostly derivative.
Michael McConnell:
Ooh, ooh. Well, I can’t subtract from that. You can tell he’s into calculus, I stopped at arithmetic. But I have no desire, I have no dog in the fight, if law school is the worst, then it’s the worst. It’s where I happen to be toiling away and what I’m more interested in is, is there anything we can do about it?
Eugene Volokh:
I do sense that in law schools there is at least considerable element of the faculty appreciating that it is important to expose students to rival views because it is such a fundamental part of traditional legal training. I remember in civil procedure, of course one of the less contentious, although I’m not completely free from contention topics, I remember my professor after somebody said something, he said, “Well, okay, argue against yourself.” That’s a very standard understanding. So I think that makes it, at least in my experience at least at times, I found it easier to get across to my colleagues or to work together with my colleagues in trying to fight some of these things by appealing to that sense. Whether that’s adequate or not, I don’t know.
Jeff Zwiebel:
All right, let’s take some questions.
Speaker 5:
I’d like [inaudible 00:43:45].
Ilya Shapiro:
She has the mic.
Speaker 6:
Hi Professor McConnell. What are the other four proposals?
Michael McConnell:
I’ll try to be really fast. My next is orientation, so deans should take over orientation. They should resume authority. At our law school, it’s run by administrators. And three years ago, I heard, some students came to me about an awful thing that was done in orientation, where they were given red and green cards and everybody had to do red or green. So first of all, that’s a highly dichotomous, lots of issues have shades of gray, but red and green and extremely, I do believe in same sex marriage, like hot button issues. And what this meant is that students on the very first time when they were encountering their classmates, they are being ideologically typecast. By the way, I heard that the business school did exactly the same thing. But I started demanding to know what the questions were. And about late September, it wasn’t until February that I finally was able to find out even what they had asked. And the administrators keep orientation under their control. It ought to be taken over. The faculty should do it, not the administrators, and how to respect conflicting views should be one of the really serious things that they talk about.
An idea that somebody put forward yesterday, I just want to endorse, free speech policies at universities ought to have, well, I think of it as a summary judgment procedure. So assume that what the student or faculty member is accused of, assume the facts are true of the accusation. If it is something that is free speech and is protected by your academic freedom policy, that’s it. No investigation. Poor Ilya, four months of investigation. I tell you, it is the process that is the punishment. And you look at this from the point of view of a poor student who is ordered to come to some administrator’s office in the dean of students’ office and answer questions and so forth. I think they should give out a Miranda warning of this nature. The student should be informed of what the Leonard law says, and that they do not have any obligation to answer any questions or undergo any investigation. Put an end to investigations of free speech. Conduct sure, free speech, never.
Last point within the university is just these DEI things, we don’t have them at the law school here, I don’t know how common they are, but they’re across the Bay at Berkeley, they have these. We now have appointments candidates attached DEI statements when we don’t even demand them. And it’s just completely politicizing the process, because it’s all about what are my political beliefs about these things? It is poisonous.
One last thing, if you’re thinking about legislators, my favorite thing that the federal government could do and should do is, as a condition to receiving federal funds, there should be a cap on the percentage of expenses that are administrative. My personal choice for the cap is, when we gave money to bail out the insurance companies like AIG, I think the cap was 42%. Whatever that is, put it on the universities, both because we need to reduce the cost of higher education, it’s ridiculous, but also because the administrative bloat is a huge source of the problem. So let’s limit it.
Ilya Shapiro:
State legislators could do it directly by defunding the bureaucracies that are not serving any particular purpose. When I was in law school 20 years ago, there were still Title IX compliance officer and Federal Civil Rights compliance. That’s fine, you need that, but you don’t need any of this other stuff.
Michael McConnell:
Yeah, ut it won’t be passed in New York and California and Illinois and so forth. Do it nationally.
Richard Lowery, UT Austin:
Richard Lowery, UT Austin. For Eugene. So clearly public universities, the departments and the administrators have enormous freedom over how to do promotion and hiring, mechanically that has to be the case and that’s not discriminatory. Is there a distinction between what a legislature could do directly at a public university in its state and what they can delegate to administrators? So could a legislature say, no, we’re not going to teach history in this way anymore?
Eugene Volokh:
So this is an unsettled question. Some people take the view that academic freedom is the freedom of the institution even with regard to the legislature. I’m skeptical about that view. There is some authority for that in the cases, but there are also a lot of cases that say, government institutions, not necessarily government employees, but government institutions or branches of the government. And if it’s the same government that’s created them, it’s the one that’s in charge. It may delegate its powers, and in some states constitutionally as a matter of state constitutional law, like in California the vote, the citizens could delegate powers directly to the Board of Regents, let’s say. But in most states it would be the legislature that votes the Board of Regents that can take it back.
Now the problem is, the legislature is not going to be any good at a lot of these decisions. For a variety of reasons, part of which is, they’re not academics fundamentally. And even if they do say you can’t have a Department of Women’s studies, let’s say, well, all right, how hard is it for an administrator who wants to reproduce that department to make it a concentration or a program or just reshuffle all the faculty members somewhere? Not that I’m saying necessarily that the legislature ought to do that, but even if it wanted to do that, I’m not sure it would succeed.
So I am very skeptical of micromanagement or even meso-management, mid-level management of the curriculum and the like by legislatures. I can’t say that it is clearly unconstitutional. There’s also a question about these laws that ban, for example, critical race teaching, I oversimplify here, but basically ban teaching of certain topics or perspectives by the faculties. And there, there’s somewhat more authority for the proposition that that’s unconstitutional. Again, not completely open and shut the area with regard to teaching as opposed to scholarship and extramural speech. It just ends up being quite uncertain.
Nadine Strossen:
Nadine Strossen of FIRE. Terrific panel. I have two points to make to Mike, both questions and comments. Well, the first one is just a comment. I really, really appreciate your not only saying, but actually practicing what you preach, that it is the hardest thing for us to do to call out our own team when they are violating the neutral principles that we espouse for academic freedom and freedom of speech. And thank you for endorsing it and thank you for doing it, in the example that I cited during my earlier remarks.
Where I’m afraid I disagree with you, Mike, and I wish I didn’t, is your notion of the relationship between professional training at the law school and what is going to be experienced in the profession. Your hypothesis is that law schools are going to support vigorous discourse and exchange of ideas because that’s what will be expected in the profession. I think the causal relationship is running in the other direction, and it’s only anecdotal at this point, but many, many reported cases of young lawyers going into law firms and government offices and bringing with them the anti-free speech and the anti-adversarial and advocacy system values.
And let me just give you one example that relates very much to Eugene, that fantastic article that you co-authored with Randy Kennedy about the use mentioned distinction of a certain racial epithet. And you were kind enough to send me the draft version of it, and I sent it around to my student research assistants thinking it’d be really interesting to get their perspective as students. Do they think that these would be appropriate guidelines in the classroom? By the way, that was a couple of years ago. I would not do that now. I tell you, I’ll admit to self-censorship, even though I think that would be pedagogically value, it’s just not worth the risk and the firestorm that I know I would face. But I didn’t get canceled for doing that.
But one of my students reported to me that he had been interning that summer in one of the DA’s office in New York City, interning for the Hate Crimes Unit. And in the training session, guess what, the cases they read and the testimony that they read included a lot of racial epithets because that is a very potent way to prove that something is a biased crime or a hate crime and subject to enhanced punishment. There was an eruption on the part of the law student interns, and they demanded that that element of the training be pulled, and that’s what happened.
Eugene Volokh:
Yeah, that’s really appalling, the story that you describe, and it may very well be that the rot is spreading. The data point that Randy Kennedy and I, Randy Kennedy’s a professor at Harvard Law School, began or focused our article around is we searched for various references to various epithets, racial, sexual orientation. We focused on some, but we also looked at others. And the number that we’d found, searching on Westlaw, which is the archive for court cases, court opinions, the number we’d found in the last 20 years is over 10,000. These are court cases, and then of course there are briefs, there are more briefs, more other things, where of course, judges routinely accurately the record, including racial epithets. That’s hate crimes, but it’s other things. Some of it is just ordinary criminal law, this is the way that people talk. A lot of it is prisoner rights cases, because perhaps unsurprisingly in prisons, things get even rougher. Some of them are immigration law cases, there’s a wide range of things.
And our point is anything that occurs in a court opinion has to be discussable in class without expurgation, euphemisms. By the way, some court decisions do use euphemisms or expurgation, but the majority don’t. And that’s what students need to be acculturated to the norms of the profession, which you are suggesting the student demands may be changing the norms of the profession and putting people in a position where they go in and they read a case or they read a brief or the judge asks them a question, and they’re so shocked because they’ve been taught that of course, no decent institution would ever actually accurately discuss these things.
So it’s a very dangerous thing potentially. I will say that so far it does appear that in courtrooms and in people’s briefing, including prosecutors’ briefing, maybe not in Manhattan, lawyers talk about what actually happened and what was actually said. So maybe they’ll keep doing it.
Jeff Zwiebel:
One more question.
Speaker 9:
So my name is Aaron, and my question basically is, is there any organized effort to address the knowledge gap as to how we got here? Because it seems to me that the notion of wokeness itself was kind of born in law schools with the work of Kimberle Crenshaw and people like her. And basically from my perspective, the work of James Lindsay has been the most expressive of the mechanism of how this problem has promulgated itself, and it’s basically through the reve definition of words. Basically things like redefining white supremacy to not mean just a guy in a clan hood, but also to mean representative of western civilization. And then when you’re attacked, you swap out the meaning back to the original motte-and-bailey system.
So my question is there any kind of organized effort to document this and to bring it to the attention of the public and help people identify when it’s happening in their institutions?
Ilya Shapiro:
Greg, when’s your book come out?
Speaker 13:
It’s supposed to be fall of 2023.
Ilya Shapiro:
There you go. The cancellation of the American mind, right? No, I mean, Jonathan Haidt talked about this, it started about a decade ago, 2012, 2014. Again, the illiberal takeover, not that continuing trend in terms of faculty hiring with an ideological bias, but this real different, the changing nature of words. As a Princeton and Chicago man, I was against Yale before it was cool, but a lot of that kind of Yale English department type stuff where words lose their meaning and all that. It’s interesting, so I was in law school in the early 2000s and critical race theory was something that had just been poked its way up and had been defeated eight years ago or so, recent, but in the past, and now it’s flared up in a way that certainly was not what those of my generation or even 10 years younger were really expecting.
Jeff Zwiebel:
All right, well we are out of time. Join me in thanking [inaudible 00:59:40].