Campus Free Speech

UC Irvine / Federalist Society Controversy

|The Volokh Conspiracy |

[1.] Late last month, Campus Reform (Michelle Weston) reported:

An Instagram post from the University of California, Irvine Law Admissions page sparked outrage because it spotlighted the Federalist Society, a campus organization that is "a group for people of all ideological backgrounds," as stated in the post description. Comments under the post include students saying that the timing of the spotlight was "extremely tone-deaf" and "ill-timed" due to claims that the Federalist Society "stands with the establishment and the oppression of the marginalized."

Commenters referred to the Federalist Society as "racist, sexist, white lawyering," and "anti-Black, anti-LGBTQ, and fascist."

The Federalist Society national organization describes itself as "a group of conservatives and libertarians interested in the current state of the legal order," that "is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."

After receiving online backlash, UCI Law Admissions issued an apology the following day in another Instagram post for "the timing of the post" and addressed concerns that the comments had been disabled at some point after its posting.

"In our desire to continue to highlight different student organizations each week, we highlighted UCI's Federalist Society," read the post. "We do not edit a student group's self-description. We apologize both for the timing of the post and for disabling comments. We appreciate the members of our community who reached out to us, and welcome conversations with any student or groups of students. You spoke, we will continue to listen, and we will take affirmative steps to evaluate how best to manage this account, keeping your concerns in mind."

Chapter leaders of the Federalist Society later received a letter from the Student Bar Association, offering an explanation for public condemnation of the post. The SBA wanted to ensure members that they did not mean to make the group "feel divided from our student body" or "to indicate that the Federalist Society should not have been featured on the UCI Law Admissions page" but that they only wanted to "call attention to the fact that admissions handled the timing of the post, and subsequent feedback, poorly."

The SBA shared that it had "received ample comments from students who support you as an organization and feel that their voices have been minimized."

This struck me as a bad sign about things at UC Irvine. A law school's job is to train future lawyers. Lawyers need to be able to understand and respond to a wide range of opinions, and to do that they need to be exposed to those opinions, and participate in debating about those opinions thoughtfully and substantively. That is especially so when those opinions are mainstream views that are held by at least a substantial minority of people, and indeed sometimes by local or national majorities. Even when students are certain of their own views, and want to be advocates for what they see as righteous causes, how can they be good advocates if they've never had to squarely confront the views that are held by many judges, jurors, legislators, regulators, and voters?

Given the left-wing ideological skew of most top law schools, especially in California—and there is such a skew, whether you think it's right or wrong—Federalist Society chapters are tremendously important to providing this sort of rich debate. Apologizing for including the Federalist Society's mission statement and noting the Society's presence on campus sends completely the wrong message, not just to Federalist Society members but to other students as well. And of course the explanation that it just has to do with "the timing of the post" doesn't change matters: If the school is reacting to people's claims that the Federalist Society is "racist, sexist, … and fascist," then what, in the school's view, would be the right "timing" to promote such a group?

I don't think there's any First Amendment violation here: I don't think the school has an obligation to promote student groups on the school's own Instagram account, and students are of course free to express their own views about other student groups. I just think it's bad legal education.

[2.] This having been said, I was glad to hear that this week the law school's dean (Song Richardson) spoke out about this (at an online Town Hall meeting Tuesday). She didn't respond specifically to the admissions office's apology, which is too bad in my view; but she wrote me to say,

Thank you for reaching out.  I was planning to reach out to you earlier, but didn't want to do so until I had a student town hall, which just occurred.

My colleagues and I treated this as a teachable moment about the importance of maintaining an environment where we can have respectful debate on important and controversial subjects, and not ideological conformity.

I also made it clear to the students that I welcome the federalist society and that we must have a culture where its members feel free to express themselves and feel a part of our community as much as the members of any other student organization. I also stressed the importance of learning to listen to ideas that they disagree with and learning to persuade others who hold opinions and beliefs that are different from their own. This is an essential skill for lawyers to have, and fundamental to our liberty and democracy.

And a UCI Federalist Society member who listened in to the Town Hall had a similar account:

[H]ere is an update on the town hall Dean Richardson conducted moments ago. She disabled the public chat so she could give a statement uninterrupted, then concluded the meeting.

She gave an excellent statement about the situation on campus, condemning the "silencing," "bullying," "shaming," and other "unprofessional behaviors" toward faculty and fellow students. She said, "Candidly, some of you have not lived up to UCI's values."

She spoke about the need for "dignity, courtesy, and respect" generally, and she brought up several "unprofessional" moments recently both related to the Federalist Society and other controversial situations at UCI Law. She said that "if you want the freedom to express your ideas but you seek to silence others' views, that is the definition of hypocrisy." She doubled down later, saying, "If you live your values only when it's convenient, only when it's easy, or only when it benefits you, then your commitment to those values is not real…. It is nothing more than shallow window dressing."

Specifically addressing the reaction to the Federalist Society, she condemned the "bullying," "shaming," and "name-calling," both on social media and in the town hall, committed "against students who have done nothing more than join a student organization." She clarified that she made a deliberate choice to listen and not respond during her previous town hall so as to allow students to express their frustration and "let it out." She said she was disappointed by the unprofessionalism exhibited by some students. She cautioned not to take her deliberate choice to listen and not respond as evidence that she condones the "unprofessional comments," because, she said, "I do not." She stated plainly, "I hope the Federalist Society continues to exist at UCI Law."

She made no specific references to accusations of white supremacy or the like, but she generally reaffirmed the school's commitment to and appreciation of opposing viewpoints, adding that bad ideas should be combated with debate and respectful dialogue, not shaming, silencing, or "wishing them away." She encouraged us to treat each other with dignity, courtesy, and respect while also not avoiding hard conversations.

How all this will play out in the months and years to come is anybody's guess. But I thought I'd pass along the details of the law school's actions, both the bad and the good.

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  1. Just to be clear, the Dean tried to shame the students as not having lived up to UCI’s values in her speech about the importance of not shaming people? Did I get that right?

    People aren’t mad about so-called “cancel culture”. Powerful people have been canceling stuff they don’t like since forever. They’re mad they the stuff they approve of is getting cancelled, which is a strong indicator they don’t have as much power as they used to. Powerful people are terrified that they might get treated the way they have treated others, hence the backlash

    1. “Just to be clear, the Dean tried to shame the students as not having lived up to UCI’s values in her speech about the importance of not shaming people? Did I get that right?”

      No. The Dean tried to teach the students that their behavior is contrary to the values of UCI specifically and free speech and thought generally. If she adopted the strategy of the people she was lecturing, UCI would have just kicked them out of school. Calling the Federalist Society a “racist” group is also just a lie. But she met that speech with more speech, as she should.

      The people being canceled aren’t “powerful”. Powerful people don’t get canceled. They don’t have any need to succumb to the mob to maintain their viewpoints, jobs, lives, etc. The people who are rightfully concerned about weaponizing others being offended, are the ones who don’t have the power or prestige to protect themselves from overbroad accusations of, say, racism, sexism, etc.

      1. “Calling the Federalist Society a “racist” group is also just a lie.”

        It’s more of an opinion.

        1. Be more generous, it’s an unsupported opinion.

          1. How many race-targeting vote suppressors must hold positions in the Federalist Society before your ‘unsupported opinion’ claim becomes silly?

            1. How many opinions are in your opinion vote suppressing opinions, and further, how many opinions would it take in your opinion that it would be sufficient to make the opinion that the Federalist Society is racist a supported opinion, as opposed to an unsupported opinion.

              1. Hans von Spakovsky and Leonard Leo constitute enough evidence for most reasoning, modern, decent, educated people.

                Keep flailing. It is fun to watch.

                1. Oh ho! So your opinion, then is that it takes at least two cases for people who already share your opinion (though you don’t have any direct measure of them) to have the opinion that it’s a supported opinion that the Fed Society is racist.

                  Well, that’s damn near perfect scientific logic there, let me tell you.

                  Choose reason, every time. Right?

                  lol

          2. Bill Barr provides a lot of support.

      2. “Calling the Federalist Society a “racist” group is also just a lie.”

        That is quite the unqualified assertion. Plenty of evidence indicates the Federalist Society appeases (in large part) and embraces (in smaller part) racism and other forms of bigotry.

        1. The wikipedia article cites a piece (which does indeed use the term “originalism” to describe an emerging jurisprudential philosophy) that was pubished in the March 1980 issue of the Boston University Law Review. So it appears to me that the term itself (not to mention the underlying ideas) is indeed older than Kim Kardashian, for whatever that’s worth.

          1. Obviously this was intended as a response to your comment below about whether or not originalism is older than Kim Kardashian.

    2. re: “Did I get that right?”

      Not even close.

  2. A Mississippi election commissioner publicly declared concern that ‘too many blacks are registering to vote here.’

    There are reports that unidentified ‘federal officials’ in unmarked vans are grabbing people from the streets, interrogating them at a federal facility, then releasing them without apparent warrants or adequate cause.

    The federal government is failing to process DACA documents despite the rejection of its position in court, and causing otherwise compliant persons to become ‘undocumented’ by refusing to print enough documents.

    The federal government is botching pandemic management, in part by trying to reroute medical information away from the Centers for Disease Control and through the National Guard.

    Professor Volokh is troubled because someone said something that hurt the feelings of some members of a Federalist Society law school chapter.

    1. I think it’s perfectly right for a law professor to be commenting on issues affecting law schools.

      If the only criticism of him and his arguments is that he’s not crusading against causes you’re interested in 24/7, that’s pretty weak.

      If you’re not picking up your Pitchfork and joining the mob, you deserve to be run through with mine, right?

      Sounds pretty close to George Bush’s line of “if you’re not with us, you’re against us”

      1. Sorry that should be crusading for causes

      2. My criticism involves the paltry, partisan, polemical and misleading cherry-picking.

        And the hypocrisy associated with the Volokh Conspiracy Board of Censors.

        1. re: “paltry, partisan, polemical and misleading cherry-picking”

          Do you read your own posts? Perhaps you ought to attend to the beam in your own eye before complaining about the speck in others’.

    2. Oh, sh*t…some dingbat unheard of MS election commissioner said something racist….stop the presses. Call the DNC and Jussie Smollet and Bubba Wallace, we need struggle sessions to deal with this RIGHT NOW!

    3. You forgot to mention that the CIA is listening in on your private conversations via the fillings in your teeth. And ignore the black helicopters at your own peril.

  3. If the Federalist Society is concerned with their reputation (and I do think it has good reason to be), then it should consider why, exactly, its reputation is suffering.

    Scolding people for not wanting to associate with it or offering their own commentary in response to cheerleading for it is not only pointless, it is rather condescending and rude. Eugene is normally a bit more sensible than this.

    “[A] group for people of all ideological backgrounds”? The speaker here seems to assume everyone else is going to be polite enough not to laugh out loud here.

    1. It’s clear why its reputation is suffering on the left, originalism stands in the way of furthering progressive agendas in the courts.

      You can’t create new rights out of thin air if you stick with just what the Constitution says and what the writers originally intended as shown by historical documents

      1. Originalism — still younger and less popular than Kim Kardashian, and likely to age just about as well.

        1. Kim Kardasian, according to Wikipedia, was born in 1980.

          Originalism, also according to Wikipedia, can be traced to Robert Bork’s “Neutral Principles and Some First Amendment Problems”, published in the Indiana Law Journal in January 1971.

          So even your stupid satire is wrong on the facts. Listen faker, you need new material. You’re getting boring. Drop your pants, give us a real laugh. You’re like a Cesar Romero version of the Joker…you just don’t hold up well over time.

          1. “The term [originalism] originated in the 1980s.” — Wikipedia.

            Other than that, great comment!

            1. Noscitur a sociis
              July.17.2020 at 4:59 pm
              The wikipedia article cites a piece (which does indeed use the term “originalism” to describe an emerging jurisprudential philosophy) that was pubished in the March 1980 issue of the Boston University Law Review. So it appears to me that the term itself (not to mention the underlying ideas) is indeed older than Kim Kardashian, for whatever that’s worth.

              Keep flailing Rev, it’s fun to watch.

      2. Seems to me most of the criticism of originalism (as practiced by SCOTUS) has come from fellow-travelers these days, notably at least one regular front-pager here.

    2. Snorkle’s opinion, in so many words: “That’s a nice debate society you to there, be a shame if something happened to it….”

      1. You read it here first, choosing not to be a member, not wanting to listen to their horse shit, and having a negative opinion is identical with mob threats.

        By this logic, I guess abortion clinic protestors are equivalent to hit men.

    3. “The speaker here seems to assume everyone else is going to be polite enough not to laugh out loud here.”

      What’s there to laugh about?

  4. The Federalist Society’s homepage (“About” section), after stating the goals of the organization, goes on to say: “In working to achieve these goals, the Society has created a conservative and libertarian intellectual network that extends to all levels of the legal community.”

    What about all those diverse speakers and people of different ideological backgrounds? If they are such welcomed members, and important enough to include on advertising, why aren’t they even mentioned as part of the group’s “intellectual network”? It seems odd that in popular campus advertising the organization highlights it’s openness to all ideological leanings, but then on its website, likely to be viewed by a more defined group, it only mentions it’s intellectual network of conservatives and libertarians, with no mention of others. Where’s the reference to those diverse viewpoints that it’s spokes-persons keep pointing out to the broader public?! Are they not considered “intellectual”? are they not thought of as part of the organizations “network”? If not, then what exactly is the purpose of inviting them to speak?

    If FedSoc defines it’s intellectual network as consisting of conservatives and libertarians, then maybe the purpose of the “other” views is expose its own members to current “liberal” arguments, so that they can prepare counter-arguments. The liberal speakers aren’t invited to be part of the organizations network, they’re invited so responses to their positions can be crafted on a timely basis.

    According to Volokh’s claim, law students of all leanings would benefit just as much from joining a chapter of the American Constitution Society, which would also expose them to different views (the same benefit FedSoc apparently offers). The UCLA ACS chapter is currently promoting an interview from 7/16 featuring Eugene Volokh discussing masks; that’s diversity!

    Since both groups are exposing their members to diverse ideas and opinions (so they claim), and that exposure is what it’s really “all about,” then one of them is redundant. Fortunately, marketplaces are wonderful at eliminating unnecessary redundancies.

    In other words, markets gonna market.

    1. I find you comment and misunderstanding of what a “market” is particularly silly. First off, there is no “market” because there is no profit/loss incentive.

      Secondly, if a liberal wanted to join the Fed Soc they would be more than able, and welcome. Third, the main practical accomplishment of the Fed Soc is having debates between liberal and libertarians/conservatives, so it is serving the purpose of furthering intellectual diversity.

      Fourth, there are other organizations, like ACS for liberals to join, which they do. Fifth, birds of a feather flock together…people like to be around those that think like them, so naturally you will have a Fed Soc and ACS regardless of any organization’s supposed openness to ideological diversity (which doesn’t seem a problem to you when we are talking about faculty hiring lol).

    2. Is there a chapter of the American Constitution Society at Liberty? At Regent? At Ave Maria? At any of the other clingerverse schools? Chapman? Brigham Young? Charleston?

      1. I don’t know, is there? And why does it matter. C’mon you fake, do the work.

  5. This article makes a great point that leaving budding lawyers in a progressive safe space leaves them unprepared and untrained to do battle with conservatives in the courtroom.

    It’s like saying your Soldiers shouldn’t be exposed to the enemy’s battlefield tactics in basic training because they’re scary and evil.

    I would think that if you’re a conservative lawyer, it might be in your best interest to encourage this behavior, if only so you can trounce them

    1. I would think that if you’re a conservative lawyer, you would be aware that no one creates an academic “safe space” like conservatives, who turn just about every campus they control into censorship-shackled, dogma-enforcing, academic freedom-rejecting, speech code-imposing, loyalty oath-collecting, reason-defying bubble.

      1. Accusing others of your own sins again? Just a lazy, argumentative and tiresome fool, you are.

  6. Do you have any evidence to back that up? cuz we have a whole lot of evidence of progressives keeping conservative thought out of colleges.

    1. And you haven’t provided any counter to my arguments or thesis, only another ad hominem.

      Are you always this intellectually lightweight?

      1. You seem especially dense, Joe41 2, even for a clinger. You should apply for a position as a Conspirator. Or, at least, for a position on a conservative campus that censors liberals (and libertarians, and moderates) strenously.

        1. Only Liberals are violent, and insane in large numbers. So open-minded their brains fell out! Of course, you are convinced that it was those MAGA hat wearers in Seattle and Minneapolis. Right? LOL, stoke your own insanity a little more, please.

  7. Pretty much every discussion about the Federalist Society is dumb. They’re just the law school equivalent of the College Republicans.

    The Federalist Society pretending it is not out there to promote conservative views is dumb. They obviously are. When people smugly say they NEVER file amicus briefs so they can’t be a conservative advocacy organization, that is dumb.

    Liberals portraying it as a shadowy network deviously planning on taking over the judiciary is dumb. It’s all out in the open and the people who are members would be the same people who Republicans pick to be judges even if it didn’t exist.

    Calling it racist/sexist/fascist in particular is dumb because it is going to be just as racist/sexist/fascist as Republicans or the conservative movement as a whole generally. No reason to call it out in particular.

    At the end of the day it’s just a club for conservative students to invite conservative speakers to law schools during lunch. Some of the members were conservative but really smart. Others were clowns. Some of the speakers were interesting and smart and others were clowns.

    And some of them go on to be effective and good lawyers and judges and others go on to be clowns who whine about Blue June or write for the DailyWireCallerBreitbart etc.

    Sometimes the clowns end up in prominent political or judicial positions anyway, but that’s just life.

  8. One problem is that many, perhaps most, of the students at UCI Law have never had a conservative, libertarian or otherwise non-left-leaning professor in college or law school. If you’ve never heard the other side articulated by someone other than, say, a snippet on tv from a talk show host, or someone on the left criticizing it, you are likely neither going to understand the position nor have much respect for it. This can be mitigated by having professors on the left assign readings on the other side and play devil’s advocate well, but many are either not inclined, don’t understand the other side themselves, or are sufficiently far left that they see the “other side” as mainstream liberals (whom they sometimes lump together with conservatives and libertarians in the amorphous neoliberal category). Put more simply, this would have been less likely to happen if UCI law had even one self-indentified Fed-Soc type on the faculty.

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