Campus Free Speech

Debate Series on Highly Controversial Topics at Law Schools?

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I've heard many people report that law students are often unwilling to express controversial views in class discussions—even just as answers to "What argument would you make if you were defendant's lawyer in this case?" questions—for fear of social ostracism. I've heard this mostly about conservative views, but I've heard it also from liberal colleagues, who report that it's difficult to get students to air the conservative positions in their classes.

And of course it's very hard to fight this phenomenon. Schools can avoid threatening administrative punishments for expressing unorthodox views. Attempts to impose such punishments could be blocked on various legal grounds (especially under the First Amendment in public law schools). Outright disruption of events or classes by students, such as shouting down speakers, could lead to punishment of the disrupters (though I don't know how often that happens). Even overt rudeness towards classmates in an in-class discussion could lead to admonition by the professor. But the risk of social ostracism (which is itself of course constitutionally protected, even if it's harmful to the academic environment), and even of future loss of professional opportunities, is much harder to deal with.

I thought that one thing law schools could do is to themselves organize and publicize serious debates on controversial topics: abortion, race-based affirmative action, policing, immigration, and the like. That would itself expose students to important arguments on both sides (which is critical even to students who are confident that their positions are right, since it's hard to defend your position well if you haven't heard the best advocates for the other side). And it would also signal to students that such substantive and thoughtful discussion of controversial subjects is legitimate and valuable, which might encourage students to engage in such discussion in class, and to be open to hearing such arguments from classmates.

In the past, some such events had been organized by student groups, especially by Federalist Society chapters (which, in my experience, has tried to put on such balanced debates much more than most other student groups). But my sense is that many students may be especially reluctant to put on particularly controversial events these days, or even to attend a Federalist Society event.

This makes me think that it's important that the event be put together by the school, which can encourage students of all ideological stripes to attend, using whatever moral authority school administrators still in some measure possess. Do you folks know of law schools that have established programs featuring such events, again focusing on events that are (1) deliberately balanced, (2) on highly controversial topics, (3) put together by the school itself, and (4) promoted to all students? I'd like to try to put on such a program here at UCLA, and I imagine others would at other schools, too; and it's always good to have a successful model to copy.

NEXT: Dean Erwin Chemerinsky's Views on the Filibuster, Past and Present

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  1. Proposal: Assign students to debate the sides, regardless of the students personal views. If they can accurately debate & argue from a side they disagree with, they will be more successful at opposing it.

    1. We appear to be thinking along the same lines.

    2. What incentive is there for students assigned the socially ostracized position, or the one they’re convinced is indefensible, not to simply flub the defense?

      Such a debate would tend to reinforce the sorts of perceptions Professor Volokh is talking about.

      For such a debate to have educational value, you’d need people who both know how to defend the positions and have some level of confidence that defending them is a reasonable thing to do, people in a position to contradict both the assumption that the positions aren’t defensible, and the assumption that only evil people try to defend them.

      If the environment Professor Volokh describes is accurate, students would be a poor choice on both counts.

      1. “What incentive is there for students assigned the socially ostracized position, or the one they’re convinced is indefensible, not to simply flub the defense?”

        Making their grade depend on giving a strong case for the position assigned?

        1. And when the students agitate to fire the evil, fascist professor who gives a student a bad grade for simply telling the truth about how lousy the position is, what then?

          It rarely works to use force to get people to be interested in something they fundamentally don’t want to be interested in. Using force invites confrontation and leads to digging in and doubling down on existing positions, not open-mindedness.

    3. The number of progressives that can successfully articulate conservative and libertarian viewpoints without resorting to a strawman is probably in the low teens. In all of America.

      1. “They just hate brown people!”
        (This one’s my favorite.)

  2. Make a point of assigning some topics to your law students as well as accepting applications such that the audience does not have a clear way of knowing whether the debator is in favor of the position they advocate or if they are simply providing the best possible defense/argument. This is something every good lawyer should be doing anyway so by eliminating the ability to assess the true position of the speaker it will force any response to be targeted at the speech not the speaker. This provides political cover for those true advocates of controversial opinions who wish to take part in the debate as well as social cover amongst their peers when the audience discusses the resulting debate in an academic way rather than taking a side on a political or cultural battleground.

    1. Do it online by teletype words alone. No audio or video.

      1. Do video but with faces and voices obscured.

        1. Heck, blur out the speaker’s entire body so we can’t even know their race and sex.

  3. I’m guessing it might help if the professor outlined the main points that each side must argue. Then, a student might be less afraid to assert a particular point of view because he or she can always explain that they had been required to make the particular argument involved.

  4. Oh, my goodness! law students are demonstrably too frail to learn those concepts and ideas!

  5. Stop playing. End the tax the exempt status. Then shut downthese filthy treasonindoctrination camps. Beat thwir asses when padlocking them. All are agents of the Chinese Commie Party. Shut them down violently.

  6. These days with cancel culture in full swing, you couldn’t pay me any sum of money to take a position, even in a fictional debate, that ran against the cultural marxist orthodoxy. (OK maybe I would for like a billion dollars….)

  7. What a fine confluence of time, place, person, and opportunity. I generally avoid issuing my edicts as blog comments, but that dustup in the Large Magellanic beckons and time is tight-

    I call you to do this.

  8. Back when I was an undergrad on the debate team we had a debate open to the public about streaking and I got assigned to the negative side. Funny thing is one of my good friends was the organizer of the local Yippies. My argument was basically streaking was a foolish waste of time and resources that would be better devoted to things like anti war marches or legal pot. After the debate a group of Yippies basically protected/escorted me out.

    But it was also common for debate tournaments to have teams switch sides after every debate so they had to be able to argue both affirmative and negative. In law school it was not uncommon to have to submit a memo on a particular real or assigned case which covered both sides and woe be to the student that was obviously favoring one side.

    Of course I am dating myself by mentioning Yippies and I can actually remember law profs that were tough on crime guys.

  9. “Outright disruption of events or classes by students , such as shouting down speakers, could lead to punishment of the disrupters (though I don’t know how often that happens). Even overt rudeness towards classmates in an in-class discussion could lead to admonition by the professor. But the risk of social ostracism (which is itself of course constitutionally protected, even if it’s harmful to the academic environment), and even of future loss of professional opportunities, is much harder to deal with.”

    Eugene, I am part of an ethics committee charged with eliminating such uncivil behavior in our specialized professional community. even in the hard science there are strong differences of opinion, fiercely held. We want those differences debated in community events, but we also do not want anyone shouted down or ostracized. All sounds reasonable until some overseers of good behavior decide that their job is to modify how people think rather than just regulate how they act.

    Of course those two facets are related. And there are not simple answers, especially when it comes to imposing sanctions on those who violate announced community standards.

  10. I wonder if it would do any good to start with the worst possible subjects, like Nazism vs Communism in 1932 Germany, pro- and anti-slavery from the 1850 point of view, women as chattel in 1800. Make it clear that they have to prepare for both sides, because they won’t know which side they are arguing until the debate begins.

    Otherwise I have no feelings, other than you can’t help people who don’t want to help themselves, and from what I have seen in the news, and heard from young relatives, they sure don’t want to learn anything about what they profess to believe.

    1. My thoughts went along those lines as well.

      I think you need to go extreme to start, to break the mold. Defend slavery. Defend Nazi Germany and their actions. Act as a lawyer for the defense during the Nuremberg Trials. Defend Stalin’s purges.

      If you go so extreme that the students understand it’s an exercise, you can then ramp down into less radical (but controversial) subjects. Defend Dred Scott.

      1. A thought I had later was to pick such old topics that most people today don’t understand either side. Harold vs William in 1066. England defending its French possessions. Spain vs Portugal in South America. Portugal vs England vs Holland in India and Indonesia. France vs Britain vs Germany vs Russia in the early 1900s.

        Force the students out of their current faddish mindset. Get them into the habit of researching from scratch, of educating themselves about something that was incredibly contentious at the time, but now seems petty beyond belief.

  11. Students here are taking cues from their elders. If students believe that expressing conservative views won’t make future colleagues less disposed to hire them they’ll be more willing to speak out.

  12. Peter Gerdes, I’ll take you up on that. There might be significant funding sources which would support an open platform of debate.

  13. “…I’ve heard this mostly about conservative views, but I’ve heard it also from liberal colleagues, who report that it’s difficult to get students to air the conservative positions in their classes….”

    Is the “but” correct here? Seems like both proposition are essentially saying the same thing–about conservative views/positions. I would have thought that “and” or would make more grammatical sense here.

    1. I was thinking this too…witness A testifies to X, “but” witness B also testified to X…?

      Perhaps he meant it in the sense that the liberal faculty (“witness B”) were a somewhat unexpected source of confirmation…i.e., “you might think that it’s only conservatives saying this, ‘but’ even liberals acknowledge the problem too…”

  14. Aren’t we talking here about law schools? Aren’t such schools supposed to train people to be advocates for their CLIENTS’ positions, not for their own personal opinions? You don’t have to go so far as requiring people to defend slavery or Naziism. How about landlords? How about collection companies? How about White People? Do modern-day law students actually think they can have a career representing only people they agree with?

    Remind me: What does three years of law school cost these days?

  15. I really appreciated such events in law school, which would feature two of the very best minds debating an issue, or at least one just taking a “controversial” view with faculty and student Q&A, always organized by the federalist society I think.

  16. I remember a question in a college class asking who supported legalizing marijuana. I raised my hand. Consistent with opinion polls, 90% of the class did not.

    That was when you were less likely to be ostracized or expelled for not speaking what the loudest people considered right and proper.

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