A dust-up over dissenting views at Ohio State law

|The Volokh Conspiracy |

In the wake of campus protests against institutional racism, a law student penned a provocative op-ed in a national newspaper expressing sympathy with the Black Lives Matter movement. The article touched a nerve. Some students liked the op-ed, but many others did not. Some were offended, and some were outraged. Accusations and angry messages appeared on social media. Some were hostile. One could have been read as a veiled threat.

The student author was distraught, felt unsafe and sought out school administrators. The student may have overreacted—mistaking a typically intemperate social media posting for a threat of harm—but the fear was real. The student met with three of the school's deans. Instead of support, however, the student faced an inquisition. In the hour-long meeting the administrators picked apart the student's article, scrutinizing specific sentences and claims, suggesting it should never have been written and recommending the student participate in facilitated discussions with other students who may have been offended by the article.

After such an experience, would the student writer feel welcome on campus? Would the student think the campus had a meaningful commitment to viewpoint diversity? Indeed, how would BLM activists respond if concerns from a like-minded student were received in such a hostile and unsympathetic manner? I think we have our answer. At campuses around the country mere indifference from school administrators has been enough to spark angry protests.

The above account is not entirely hypothetical. It is essentially what Ohio State law student Madison Gesiotto alleges occurred when she wrote an op-ed in the Washington Times responding to BLM protests. Instead of endorsing BLM protests, however, Ms. Gesiotto suggested they were misguided. "You won't believe what the number one killer of black Americans is," her piece began. "It isn't heart disease, it isn't cancer, it isn't homicide and it isn't motor vehicle accidents. In fact, the number one killer of black Americans is abortion."

Many of Ms. Gesiotto's classmates did not like her article. That's no surprise. Race and abortion are two of the most sensitive and divisive political issues today. The school's Black Law Students Association posted an online response, stating: "We take offense to the racist undertones of this opinion piece and question its journalistic integrity." Mic reported more on the initial controversy here.

One student wrote on Facebook: "The government cannot take action against you for your offensive and racist article. But your colleagues can." Ms. Gesiotto feared this might be an actual threat and sought out a meeting with school administrators. She was not seeking validation of her views, but did not expect to experience the opposite from those charged with overseeing her education.

Here is how Ms. Gesiotto recounted her experience:

The initial threat was ambiguous and stated, "The government cannot take action against you for your offensive and racist article. But your colleagues can." This was very unsettling, as I did not know this student and did not know what type of action she was referring to. I wanted to be sure this was not a threat of violence, which is why I called the Dean's office for a meeting.

The meeting with the Deans was very upsetting. Instead of taking the threat seriously, they continually focused on the content of my article. They referred to specific lines in the piece, even though I continually reminded them that I was there to report a threat and did not solicit any writing advice from them. I felt shocked, bullied, and disappointed during that meeting. Based on my experience in the initial meeting and subsequent events, I do not find the Dean's statement that Moritz encourages a "wide range of viewpoints" to be consistent with the school administrator's actions.

A Washington Times report adds more:

The deans also urged her to remove from her online biography her position as a staff editor of the Ohio State Journal of Criminal Law, she said, saying it would confuse those who might think she was a faculty member and not a student.

They recommended that she participate in a "facilitated discussion" with students who disagreed with the op-ed. She refused.

"The main dean said something like, 'Well, you said you feel unsafe. We're trying to alleviate the tension, so you can explain to the other kids what you meant by your article,'" said Ms. Gesiotto. "I thought that was completely out of line. It should have never been proposed. I was there to report a threat. And then they tried to flip it around and push me into a facilitated discussion with other kids about my article. It was bizarre and very disappointing."

Ms. Gesiotto was so worried about the threat that she also reported it to the main campus, where she said a counselor suggested that school officials could talk to the person who made the threat but warned that doing so might escalate the situation.

It's my sense Ms. Gesiotto overreacted. I doubt I'd read the offending Facebook post as a real threat, and if that was the harshest response she's received, she got off lightly. Still, it can be upsetting to get that sort of targeted response, and one would expect school administrators to respond to a perceived threat—any perceived threat—with greater sensitivity. The school administrators may have disagreed with her op-ed, but it was (as far as things go nowadays) rather mild and expressed a viewpoint that is fairly common in the United States today (even if it's a viewpoint almost wholly absent from the Ohio State Moritz College of Law faculty). Assuming Ms. Gesiotto's account is accurate, she would have received one message loud and clear: The real problem here is her point of view.

I contacted OSU law school Dean Alan Michaels for comment on Ms. Gesiotto's allegations and received the following response, which I reproduce here in full:

There has been recent press coverage regarding a student at the college of law and the aftermath of a published op-ed and the intense student reaction that it generated.

The federal Family Educational Rights and Privacy Act (FERPA) generally prohibits the university from discussing specific complaints, matters, or disciplinary or student conduct investigations with respect to its students. Accordingly, although we disagree with accounts in recent press coverage, we do not discuss specific cases. We can state the following:

1. The Ohio State University takes any alleged threat against its students very seriously. We do not tolerate threatening behavior. The university and the college of law each have procedures for assessing alleged threats and for responding appropriately. In many instances, both the college and the university conduct independent investigations and assessments. These procedures are used for each such allegation received.

2. An inclusive learning environment that provides a forum for a wide range of viewpoints is crucial for a law school. We aim to foster a culture of respectful dialogue when addressing tough, emotional topics as they arise in discussions of law and policy. To this end, the College of Law enrolls, welcomes, and encourages the sharing of views from students across a wide variety of perspectives: conservative or liberal, Democrat or Republican, pro-life or pro-choice, and many others. In fact, our student organizations frequently collaborate across the political and ideological spectrum on programming and events, and it is a point of pride for the law school that we were cited in a recent academic study as unusual among prominent law schools for having "a near perfectly" even distribution of alumni on the left and the right.

3. It is always our full intent to help all students feel safe, welcome, and positioned to learn to become outstanding lawyers, and we are genuinely disappointed when any student has not felt fully supported to do so. The College is committed to remaining a place of free speech values that welcomes all viewpoints, where vigorous debate enlivens and instructs and where lawyers and lawyers-in-training express ideas back and forth and learn from each other.

I understand Dean Michaels's reluctance to directly address Ms. Gesiotto's accusations. I also think it would be perfectly appropriate to remind a student in this sort of situation that the public expression of provocative views can provoke. But this is quite different from what Ms. Gesiotto claims occurred.

In the wake of the controversy over Ms. Gesiotto's op-ed and the school's response, school administrators organized breakout discussions with various student organizations across the ideological spectrum. I've heard from several sources that some of these discussions highlighted the relative lack of viewpoint diversity in classrooms. Many students apparently feel unable to discuss hot-button issues in the classroom, and some report that alternative views are frequently belittled in the classroom.

Insofar as such problems exist at OSU, it may be a result (at least in part) of a lack of viewpoint diversity among the faculty. Ohio may be a purple state, but Moritz faculty is deep, deep blue. Although the law school employs some prominent right-leaning adjuncts, including local judges and political figures, there are only one or two right-of-center faculty members who teach public law courses, and only a handful on the transactional/private law side of the fence. For reference, the school website lists more than 50 tenured or tenure-track faculty.

When organizations lack meaningful viewpoint diversity they can create an echo chamber in which the dominant point of view is amplified and reinforced. When an organization lacks members who can articulate alternative points of view in an intelligent manner, the organization's members tend to discount those perspectives. This is why folks at the New York Times may think their opinions are unbiased and mainstream, and why folks at Fox News can think they are "fair and balanced." It could also explain why school administrators could respond inappropriately, in an official capacity, to what was ultimately a fairly run-of-the-mill anti-abortion op-ed.

Dean Michaels's statement, quoted above, noted that OSU alumni are spread across the political spectrum. So I asked him whether the same could be said of OSU faculty and administration. If not, I asked, is it possible that students with underrepresented views feel marginalized or less free to express their opinions? Some would argue that a lack of viewpoint diversity within faculty and administration could result in unconscious bias that could manifest itself in, for instance, taking certain types of complaints of harassment or discrimination more (or less) seriously than others.

Dean Michaels responded:

the statement from the College was not about faculty hiring, though we certainly welcome and encourage the sharing of views from faculty no matter their political perspective, as we do for students. The statement noted that the College was "cited in a recent academic study as unusual among prominent law schools for having 'a near perfectly' even distribution of alumni on the left and the right," and you asked whether "the same could be said for OSU faculty and administration?" I am not familiar with a comparable academic study that compares the political viewpoints of our faculty with other law faculties.

It seems to me that this response misses the point. It is quite clear that Ohio State's law faculty is well to the left of its alumni, its students and the people of Ohio. The school has faculty members who openly support BLM activism, but are there any who have supported (let alone participated in) anti-abortion activism? Are there even more than a handful who occasionally consider supporting a Republican candidate for office?

There is a growing body of research documenting the negative effects a lack of viewpoint diversity can have upon academic inquiry and institutions of higher learning. I believe this is a particular problem for law schools as understanding and appreciating alternative points of view is essential to being an effective advocate. As I wrote several weeks back:

The lack of ideological diversity is a particular problem for law schools as it leaves many law students unexposed to perspectives and arguments with which they will have to contend in the practice of law. Most legal academics are well to the left of those whom law students will represent, as well as to the majority of judges before which they will practice. One need not agree with one's client or a judge to be an effective advocate, but it is important to understand the perspective of the position one has to represent—as well as the perspective of the other side. The best legal advocates fully comprehend the strongest arguments for the other side and are able to present arguments that can appeal to decision-makers who may approach difficult legal questions from a perspective quite different from their own. On many issues, however, the perspectives of legal academics are relatively monolithic and reflect little understanding of (let alone sympathy for) common right-of-center viewpoints.

To return to where this post began, it seems quite obvious that the OSU law school administration would not have responded as was reported had the offending op-ed come from another perspective. Had Ms. Gesiotto's article lamented our nation's sad legacy of institutional racism and social inequality, and had it provoked an equivalent negative response, I doubt school administrators would have picked apart the essay at a meeting called about what a student perceived to be a threat. So why was that an acceptable response here?

UPDATE: Some have asked how I think the school administrators should have responded to Ms. Gesiotto's concerns. This is a fair question, and one I should have addressed in the original post.

As I see it, the appropriate response to Ms. Gesiotto's concerns (as well as to the hypothetical I used in the opening of the post) would be the same. In each case, I would think the best approach would be for administrators to tell the student that while this may or may not be an actual threat, they would look into it. I would also note that when one takes a public stand on a controversial issue, such as abortion, it inevitably invites a response, and that the more contentious the issue, the stronger that response will be, but then reiterate that actual threats (if there were any) would not be tolerated. I might offer to facilitate discussions with critics if that is what the student wanted, but I would not pressure the student to participate in any such discussions and I would certainly refrain from commenting on the merits of the article in question or opinions expressed therein.

SECOND UPDATE: A "MoritzProf" responds in the comments. As I note there, if that professor or another member of the OSU faculty or administration wishes to submit a more formal response, I will be happy to publish it as a freestanding post. Note that I offered Dean Michaels numerous opportunities to respond to my concerns and claims before publishing this post.