The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Today, CUNY School of Law. Tomorrow, your Law School.

Threatening to burn a person with a lighter is peaceful free speech, but the name John Marshall is violent speech.


My experience at CUNY Law in 2018 was formative and frightening. Dozens of students took time out of their day to protest my talk on free speech. They called me a fascist, Nazi, and white supremacist. They said my ideas "harmed" them. That my mere presence on campus was a form of "violence" that "traumatized" them. The hate and vitriol in the room was palpable.

After the event, CUNY Law Dean Mary Lu Bilek defended her students. She said, "This non-violent, limited protest was a reasonable exercise of protected free speech, and it did not violate any university policy." (I wrote about the First Amendment issues here.) Dean Bilek never contacted me. Indeed, the following year, I introduced myself to her at a conference. She pretended not to know me. I also have not heard a word from any CUNY Law faculty members. Silence. I suspect some professors were embarrassed by their students, but were too afraid to say so publicly or privately. Other professors probably agreed with the protestors, and wished I had never come onto campus.

You see, CUNY Law is not a normal law school. It has expressly adopted a social justice platform. My presence was inconsistent with that platform:

CUNY School of Law is the nation's #1 public interest law school; its dual mission to practice law in the service of human needs and transform the teaching, learning, and practice of law to include those it has excluded, marginalized, and oppressed make it a singular institution. As the only publicly funded law school in New York City, CUNY Law increases access to excellent legal training through this mission.

CUNY Law is built on a tradition of radical lawyering: movements for social change are built with leadership and collaboration from the people and communities who have experienced injustice.

These sort of mission statement are antithetical to the purposes of institutions of higher education: scholars and students should be able to pursue knowledge, wherever it leads. The school should not direct that journey in a specific direction. But CUNY is not committed to the open exchange of ideas. The college has put its thumb on the scale on "radical lawyering" and "social change." Conservative lawyering has no place at that institution. I truly was not welcome on that campus.

Earlier today, David blogged about another episode that illustrates the dynamics at CUNY Law. A CUNY Law student threatened to burn a man who was wearing an Israeli Defense Force sweater. Watch the video! She held up a lighter inches from his chest.

In any jurisdiction, this action would be considered assault. In any normal law school, this student would be subject to severe discipline. But not at CUNY. Dean Bilek said that the student with the lighter "exercised her First Amendment right to express her opinion." Yes, the same line she used to defend the students who disrupted my talk.

Meanwhile, another CUNY law student reported that he was forced out of the school for her views on Israel: "If you are Jewish and you believe that Israel should exist in any way, shape, or form, you're basically blacklisted, there's no room for your point of view on the CUNY Law campus." The First Amendment for thee but not for me.

And here we are. The name "John Marshall" on the wall is an act of violence, but threatening a person with a lighter is free speech. To quote Justice Scalia, "words no longer have meaning."War is peace. Freedom is slavery. Ignorance is strength.

You may laugh and scoff at this situation. But beware. The absolute control that students have over the CUNY Dean will not remain isolated. Students at law schools across the country give demands to administration. Some of these demands may have merit. Others are ridiculous. Over time, the ability to say no to those ultimatums will fade.

Unless your Dean is willing to say NO to these demands, your school will slide towards CUNY. I fear most Deans lack the courage to resist the encroachment on the free exchange of ideas. Indeed, 150 Deans (including my own) asked the ABA to impose onerous anti-racism requirements on all law schools--requirements that each Dean could impose independently.

At CUNY Law, "I saw what might well happen." And you will see it too. Remember: graduates of these schools will become associates, partners, public defenders, district attorneys, and judges.