The Volokh Conspiracy

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

Campus Free Speech

Debate Series on Highly Controversial Topics at Law Schools?

|The Volokh Conspiracy |

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.