Free Speech

SMU Law School "Revokes Incoming Student's Admission Over Allegedly Racist Posts"


So reports the Texas Lawyer (Angela Morris, paywalled); here's the school's statement:

The Texas Lawyer article adds that, "The law school did not release the student's name or any details on the allegedly racist social media posts."

I assume that, if the statements threatened violence or aimed to incite violence or some such—and the school had wanted to stress that it disapproved of such views (or even just of racist threats or racist advocacy of violence)—the statement would have said that. Likewise, if the statements used racist epithets to insult people, and the school had wanted to stress that it disapproved of racist epithets, it would have said that.

But I think the message the law school is trying to send, based on its statement, is precisely that it disapproves of racist speech generally, and that anyone who holds and expresses racist views is at risk of being denied admission ("Racism has no place" …). And I wonder to what extent the message that applicants will receive, whether or not it's intended, is that anyone who expresses views that administrators label "racist" (potentially quite a large category) is at similar risk.

SMU is a private law school, and it's entitled to act this way, assuming that revoking the admission didn't breach any contract, and I expect it didn't. (California has a statute limiting speech codes at private universities, and it's possible that California courts would read it as applying to admissions decisions; but other states don't, and the acceptance of government funds doesn't subject universities or law schools to First Amendment constraints.) But I think the decision is worth noting and discussing, partly because what one law school does others (public or private) may well follow in doing.

One question one might ask would be this: Do you think that private law schools in the 1950s should have revoked admission of students if administrators had concluded that the students had engaged in "pro-Communist offensive behavior"? I expect some would have and did, and again they would have been legally entitled to, but my question is whether they should have.

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  1. SMU is a private law school, and it’s entitled to act this way

    No it isn’t when it is acting as an agent of the state — which SMU is when it acts as a gatekeeper to the legal profession.

    1. It’s not a monopoly. More like a sieve keeper.

      1. Could we agree with “Oligopoly”?

        And as to “sieve keeper”, with the bar passage rates today?!?
        No, I’d argue “ideological filter” which raises Constitutional issues.

        1. Dr. Ed: If you’re making an ethical argument that law schools shouldn’t be ideological filters, for the reasons you give, fine. But, as a legal matter, even regulated monopolies aren’t state actors for constitutional law purposes; certainly private law schools wouldn’t be, either.

          1. I think that I’m reflecting on the fact that at least half the country holds higher education in open contempt in a society that is changing. Are you familiar with the backstory behind the trial of Socrates?

            1. To be fair, the contempt is mutual, and I think it actually started first on the side of academia.

        2. Law schools graduate about 35,000 students every year. Near as I can tell from a quick google, SMU accepted 700 students last year.

          Two percent is not a monopoly, an oligarchy, or anything else. It’s a sieve keeper.

          1. 2% isn’t a monopoly in the absence of coordination. If 50 firms, each with 2% of the market, coordinate? Yeah, monopoly. OK, technically oligopoly.

  2. Perhaps a different question to ask is weather such an individual could ever be admitted to the bar, given contemporary standards of legal ethics. Southern Illinois University Law School may have been obliged to admit Matthew Hale back in the late 80s early 90s despite his Neo-Nazi activity, but he was unable to persuade the powers that be that he was fit to be licensed to practice law.

    1. Well, if you’re right, and you can’t be admitted to the bar just because you’ve said something racist before going to law school (or even really, really racist), then we really are partying like it’s 1951.

      1. Actually worse because Communists could become members of the bar back in 1951. Look at “International Labor Defense” which openly existed as the CP-USA’s legal arm until 1946 when it merged with other groups to become the Civil Rights Congress which lasted until 1956.

        A lot of the ACLU’s lawyers were really close to the Communist Party if not outright members — by the “one statement” standard of today, probably the entire organization would have been declared “Communist”, along with the NAACP and every labor union….

        In his 1987 _Closing of the American Mind_, Allan Bloom argued that as bad as McCarthyism was, the Political Correctness of that era was far worse — and that was before we were destroying people’s lives and careers on the basis of a single tweet.

        Of course I like to remind people that Hillary Clinton was a Goldwater Girl…

        1. No, exactly like 1951, because in 1951 communists but not fascists could get into the bar, and today, communists but not fascists could get into the bar.

          The difference is that we’re headed toward large parts of academia defining “fascist” as “not communist”.

  3. With no details of any sort, it’s obviously impossible to judge this. (We don’t know what was said,¹ nor do we know when it was said.) But as a general policy, I do not think that schools should be poring over matriculating students’ social media posts to find something objectionable and then acting on it. Now, I assume that SMU didn’t actually do that directly; rather, I’m sure some random officious intermeddler brought it to their attention. But schools should not be encouraging that conduct by paying heed to said intermeddlers; schools should generally take the position that they’re not interested in what some random person has to say about one of their students. (But of course we don’t even know if it was random; it could be one of the student’s past professors who had written a recommendation for the student, and was now alerting the school to the fact that, and the reason why, the recommendation was being withdrawn.)

    So the bottom line is where I started: we can’t judge this specific decision, but we can criticize the abstract behavior by schools.

    ¹Indeed, we don’t even know if it’s something that was said. The tweet says the student’s “behavior.” That could mean either (a) leftists confusing speech they dislike with conduct, or (b) the student filming him/herself doing something beyond the pale.

    1. Was the applicant caught in a photo or on video doing something that was then posted to social media? For argument’s sake, let’s assume it was a photo or a video. Who posted the media? Who made the complaint? Are we certain that the applicant was the person in the media?

  4. Was the student blackmailed? How did school found out about the behavior after admittance and not before. Seems a little suspicious to me, if not unfair.

    On the one hand the university has an interest in minimizing the risk of future harassment cases. On the other hand, racism does not equal harassment. It all depends on the facts surrounding the case. So it does appear the university quite likely bounced a student in an unfair manner.

    1. Doesn’t seem the tiniest bit suspicious. (But I see your point about possibly being unfair, given his prior acceptance.)

      It’s totally easy to imagine someone who knows this chap, and hears about his admittance to law school. “What? What’s that?!? John Smith got into University of XYZ Law School? After all the racist things he said all through high school/undergrad/summer camp? I’m gonna call that law school and let them know!”

      I’ve had a dozen clients tattle or rat out someone they knew, just because they heard through the grapevine that something good was going to happen to a (in their opinion) Pretty. Bad. Guy. And I’ve had other clients be the recipient of these slings and arrows.

      1. Heck, I’ve had at least one internet commenter, (Who was posting using a burner account, naturally!) contact HR at my employer to get me fired over a comment I made at a left-wing site.

        Fortunately I work in the South, for a sane employer. HR dropped by to tell me what had happened, and assure me that they don’t fire anybody over politics, so long as they keep them out of the workplace. “And, anyway, there wasn’t anything offense in what you’d said.”

        A large and growing part of the left don’t think anybody is entitled to disagree with them, and are perfectly willing to try to destroy people over political disagreements. And think everything is political…

        1. AND fail to understand that there is an objective definition for the word “fascism.”

          “All sheep and no shepherd,
          everyone is the same,
          everyone wants to be the same,
          anyone who is different goes voluntarily to the Madhouse.”

          — Friedrich Nietzsche

  5. IMHO, schools should not throw out students because of ideology, including communism or other inert beliefs.

    However, an outspoken white supremacist could be excluded from a historically black college on the grounds that the belief is not inert, but rather combustible.

    1. “However, an outspoken white supremacist could be excluded from a historically black college on the grounds that the belief is not inert, but rather combustible.”

      Or he might instead realize that he’d been lied to and that Black people were actually nice. It wouldn’t be the first time that’s happened…

      1. Or, and this is wild speculation, any college that prides itself in racist admissions, past and present, should lose accreditation.

        1. Accreditation should be limited to how a school teaches. If bigotry alone is enough to deny accreditation, then religious schools should lose for having the wrong attitude towards evolution, Marxian professors should be banned for supporting genocide, and anti-vax and anti-GMO should be enough cause to ban most of the rest.

          1. Accreditation only has meaning because the Feds made the mistake of relying on it for the FinAid Largess.

  6. What is “racially offensive behavior”?

    If I say that Al Sharpton is a racist anti-Semitic grifter, is that racially offensive to Al Sharpton or SMU?

  7. SMU just saved that student a lot of money. They will be grateful when they look back in 10 years to see all those lawyers with 150K+ in debt.

    1. They may owe that student a lot of money, depending on how far along he was in committing to going to SMU. It’s getting kind of late in the year to switch to a different school, after all.

      1. Could he have a damage claim against them under estoppel?

        Basically, SMU failed to do its “due diligence” and he’s being harmed by their failure to have done it.

        1. This is my biggest concern. For a student who was accepted, and actually started attending, I think real damages would be easy to prove. But there is so many months between now and the start of the Fall semester . . .

          Unless this was his only acceptance, he should at least have to mitigate his damages by going to a different school, no? (If he had turned down other schools before this blindside, he can likely get reconsidered at those other schools that already accepted him. (Unless anyone at those other schools owns a computer and Googles his name, I suppose.)

  8. They can act as they want but they should give up all the fat grants, student loan funding, and all the other revenue streams their greasy hands are pulling out of the public coffers.

  9. Is Volokh on record disagreeing in the same vein with, say, Liberty University, who requires admits to sign a ‘Statement of Faith’ on a wide variety of oft contested positions?

    1. I don’t view Liberty as a serious center for free inquiry and development or examination of knowledge (see this post by FIRE), partly because of its precommitment to a particular orthodoxy, which it enforces through speech restrictions. But also partly because of its fairly low academic standing, I haven’t had much occasion to remark on it. SMU has a reputation as a serious university, and SMU as a serious law school. (Our own Dale Carpenter teaches there.) This sort of action thus surprised me, and struck me as noteworthy.

      1. Prof. Volokh,

        So you acknowledge that SMU has a serious law school yet instead of accepting their decision at face value, you question it and see some potential (evilness? hypocrisy? leftist kowtowing?) without any facts or evidence.


      2. Remind me what the “M” in SMU is for – – – –

        1. If you don’t know the difference between, say, Notre Dame and Liberty, I can’t really help you.

          1. One has a halfway decent football program.

            The other is Notre Dame.

        2. My understanding, in which I’m pretty confident, is that SMU law school is in all meaningful ways a secular institution, rather than one focused on spreading Methodist ideas.

          1. There is an important point which you are missing here — it can be neither. It can be a religious institution reflecting Methodist values AND concurrently respective of diversity which makes it neither secular nor Methodist-only.

            I think Boston College is that way, or at least was.

            Remember that there are two ways of spreading religious values — first by *living* them and having the world see who you are and then there is the Liberty University fiat method.

            An analogy is the Peace Core — the goal was to have countries reject Marxism because they saw that Americans were nice people.

  10. Wow, they did not radicalize anyone over this now did they? The Left will be coming for us all, just in different ways. So some 18 year old lean a tough lesson. Life is hard under Fascism. And the So Called Libertarians that are going to vote for Democrats or Libertarians, well you are going to screw us all.

    1. “Wow, they did not radicalize anyone over this now did they?”

      There’s another aspect to this — he may or may not have been racist before this, but he and every one of his friends definitely are now.

      Maybe he’ll become a cop….

      1. We can’t really judge the decision because we don’t know what the “racist act“ actually was. What is troubling is that SMU felt the need to tell the world what it had done. Would the school have posted a similar notice if it had revoked the admission of a student who had falsified his credentials, had failed to graduate college, etc? Why does it feel the need to take public credit over what appears to of been a matter generally unknown to the public?

        1. That’s pretty clearly getting ahead of the story in case the student went to the press.

        2. “SMU felt the need to tell the world what it had done”

          The more I think about this, they violated FERPA.

          They are not allowed to give out individually identifiable student information and with now 699 entering students, they’ve named the kid. (It won’t be this easy because there’ll be melt, but even still…)

          I do hope he sues.

      2. ‘Don’t do a political correctness to me or I’ll become a racist’ is something only already racist people argue.

        Like taking yourself hostage.

        1. “‘Don’t do a political correctness to me or I’ll become a racist’ is something only already racist people argue.”

          You don’t know much about human development, do you?

  11. And I wonder to what extent the message that applicants will receive, whether or not it’s intended, is that anyone who expresses views that administrators label “racist” (potentially quite a large category) is at similar risk.

    They will receive the clear an unambiguous message that SMU is a virtue signalling corporation completely without any semblance of due process or honesty.
    This post contains no facts as to what they consider racist, or what process (if any) they followed, or how the alleged behavior got through the admissions process to the point of the application being accepted. Add another institution to the rapidly expanding list of ones to ignore.

    1. First you guys said nope to the NFL (Kaepernick), then Chick-fil-A (something about something…), and now NASCAR.

      Can you still watch bowling?

      1. I’m actually really interested in these consumer-facing companies so enthusiastically rushing towards symbolic acts of social justice. My inbox is flooded with statements.

        It says interesting things about the market they see…who is actually willing to vote with their pocketbook, and how responsive people are to mere statements of allegiance.

  12. Without the facts, we can’t know if this was unjust or not. A lot of people today would say that voicing support for a Republican candidate for office is racist speech. When I was in law school, a school newspaper endorsement of Ronald Reagan for president was said to be racist.

    1. We may not know what exactly the student’s “racially offensive behavior” was — but we do know how SMU framed the decision for the pubic, and thus the message it’s likely to send to prospective future students (and to current ones).

      A thought experiment: Say that SMU had sent exactly the same message but with “anti-American” instead of “racially offensive” or “racist.” We still wouldn’t know what the person had said or done — maybe his speech was a threat of violence or solicitation of violence, which would be constitutionally unprotected even against retaliation by a government law school. But we would know that the message is likely to deter speech by prospective or current students that they are afraid will be labeled “anti-American” by someone. The same applies here.

      1. I wonder whether a distinction can be made between racist speech on the one hand and anti-American or pro-Communist speech on the other. The University has an interest in making sure that all of its students are treated with respect by their fellow students. In law school, the learning process is supposed to be a collegial one in which all students are learning together. Perhaps an applicant who expresses racist views is unlikely to treat students whose race is different from that of the applicant with the appropriate respect and cordiality, thus impairing the learning environment. I’m not sure there’s a similar concern with respect to applicants who is pro-Communist or anti-American. It depends, of course, on what the applicant said: Was it the kind of statement from which one could infer an inability to work collegially with other students?

  13. From a quick skim of the Texas Lawyer article, the odd thing about this is that the school apparently published the announcement on the same day that the decision was taken, so apparently not in response to an inquiry or another article.

    I mean, if you admit someone, because they seemed like a decent fellow, but later see them running up and down the street laughing manically and throwing dogs into people’s windows, and, after a bit of reflection, you decide that you’d rather not try to spend three years teaching him to argue at the bar, that’s certainly rational. But why would you put out a press release advertising that?

    Mr. D.

    1. As “running up and down the street laughing manically and throwing dogs into people’s windows” would be symptoms of mental illness, which is protected by the ADA, you’d be looking at both an OCR complaint and an expensive lawsuit were you to rescind an admission based on such an off-campus observation.

      Now it gets WAY more complicated and depends if you are in the 1st Circuit, 2nd Circuit, or somewhere else — but in general you can have neutral conduct regulations on campus (i.e. no throwing dogs through windows) providing that (a) the rules apply to *all* students and (b) the student has received proper and appropriate accommodations. (And defining those two adjectives make lawyers rich.)

      But as to booting a kid because you learned he is crazy, before he even has done anything in violation of your campus rules — no, that’ll get you lots of problems….

      1. Canem ipsa loquitor. Wasn’t unable to restrain his conduct, the act wasn’t a product of mental disease or defect, and he was able to tell right from wrong. And he was on peyote at the time.

        Mr. D.

  14. Hard to know what to think about this without more facts- and SMU clearly doesn’t want to give us all the facts.

  15. Artie Ray Lee Wayne Jim-Bob Kirkland is still unavailable for comment, a target of this blog’s viewpoint-controlled censorship.

    Other than that, though . . . interesting post!

    1. It is odd that Prof. Volokh is criticizing potential censorious action but yet allows his co-bloggers to censor commentors, n’est-ce pas?

      1. apedad: in your opinion, is reasoned discourse likely to be furthered or hindered if contentious posters generally adopt multiple sock-puppet accounts?

        My sense is ‘hindered’, which is why forums generally have a policy against sock puppet accounts like RALK’s banned second persona.

        There is a similar question for posts that are simply content free insults, whether those are ‘fuck off slaver’ or ‘open wider, clinger’. Reason (and the VC on prior platforms) are generally much more tolerant of that kind of adolescent name calling than most forums, for the simple reason that people start a forum on gardening or fly fishing or violin collecting because they want to discuss those particular topics, and if you don’t do some level of moderation you end up with the peculiar sorts who revel in that kind of name calling crowding out the reasonable people you want to have a discussion with.

        Every private forum has rules to prevent the few from destroying the enjoyment of everyone. They won’t even let me sing along at the opera (but censorship!!! muh rights!!!!)!

        1. Artie Ray was pseudonymous (or, perhaps more accurate, pseudonymous squared — an obvious and intended voice of Arthur Kirkland). Artie Ray was not a sock puppet.

          The proprietor knew precisely who Artie Ray was — that’s how he knew where to send the e-mail that banned Artie Ray for the crime of making fun of conservatives.

          1. If you prefer ‘multiple accounts’ to ‘sock puppet’, peachy keen. IMHE almost all forums ban multiple accounts/sock puppets for the reasons stated. If anyone doubts this, a google search forsomething like ‘forum policy on multiple accounts’ will show the policy is common … and in fact in my experience almost universal, at least once the first such troll comes along.

            1. The reason identified in writing for the banning of Artie Ray did not involve the use of “Artie Ray Lee Wayne Jim-Bob Kirkland” rather than “Arthur Kirkland.” The reason identified was the content of the Artie Ray comments.

              Other than that, great comment,

  16. Is this standard being applied equally according to race?

    I doubt it, but anything is possible.

  17. something tells me that the school will be less than robust in the application of this standard to anti-white racism or racism by minorities even against other minorities.

  18. It’s revealing neither SMU nor anyone else is publishing his remarks, and note they cite their committment to diversity. Did he write that diversity is a screen for illegal (and immoral) race preferences and they’re generalizing that to “racist”? Given what most academics believe these days who knows what it could be. Criticizing BLM counts as racist to many.

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