Free Speech Rules, Free Speech Culture, and Legal Education: Some More Recommendations

I was invited to participate in a Hofstra Law Review symposium on free speech in law schools, which will be happening in February, and I thought I'd serialize my current draft article; there's still plenty of time to improve it, so I'd love to hear people's comments. Here are some follow-up thoughts on what I think law schools should try to teach, though you can read the whole PDF, if you prefer:

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[D.] Evenhandedly Encouraging Debates or Conversations Among People Who Disagree

Law schools may also want to encourage student groups to prefer debates—or conversations that aren't framed as formal debates, but that are still aimed at thought­fully highlighting and discussing disagreements—instead of talks. For much the same reason that adversary presentations can help find the truth in the courtroom, they can also help people better understand the strengths and weaknesses of arguments in the university.

A culture where law professors are willing to serve as debating opponents or commentators for student-group-invited speakers, for instance, may encourage such programs. That's especially so since the presence of a faculty member may encourage more students to attend (since many students may know and, one hopes, like the faculty member). Student groups will often do a lot to get more attendees; it shouldn't be hard to persuade them to frame a program as a debate or as a conversation with a faculty member, rather than just as an outsider's speech.

This having been said, this should not be framed as a rule. Solo presentations can often be useful, even if they would be better still with some commentary from the other side. It may be too difficult to line up a commentator, for a variety of reasons—for instance, the topic may be sufficiently specialized that few faculty members may feel competent to comment on it; the relevant faculty members may be on sabbatical or otherwise occupied; and prospective commentators may sometimes deliberately decline to debate if they know that this will lead the entire event to be cancelled or to draw a smaller audience.

Requiring at least two speakers can also easily be circumvented, for instance by putting on speakers who have ostensibly different viewpoints but are nonetheless from the same side of the ideological spectrum on the issue. And any attempts to police such circumvention would require the law school to discriminate based on viewpoint, by deciding which viewpoints are different enough to qualify.

In any event, if there is any requirement of balanced debates or panels—or such a condition attached to school-provided funding—the school should apply it evenhandedly, rather than allowing one-sided presentations on some subjects but requiring balance on others.

[E.] Inviting Leading Successful Advocates from All Points on the Ideological Spectrum

Even apart from hearing all sides on particular topics, it's important for students to learn from successful lawyers of all ideological stripes. For every court decision that many students sharply condemn, there was a lawyer making the winning argument. For many such decisions, the lawyer's effective argument helped sway the court. And even if the judges would have ruled that way regardless of the lawyer's performance, the lawyer may have crafted the litigation strategy that brought the case before the court. Students who are on the other side of the aisle have much to learn from a lawyer like that.

[F.] Encouraging Faculty to Express Dissenting Views

For all these reasons, it is also important that law schools encourage their faculty to express dissenting views, even when some students may sharply disapprove of those views. Faculty speech, whether in class or at law school events, can expose students to a wide range of opinions even when classmates or outside speakers don't. (Indeed, faculty speech is supposed to be the primary source of opinions in an educational institution.) And the very presence of those views on the faculty is an important reminder to students that the world is full of people with many different views—held not just by some powerless rubes in some backward parts of the country, but by the very sorts of people they might encounter in their future law practice.

When students object that they have a hard time learning from faculty who have, for instance, condemned affirmative action or illegal immigration or trans­gender rights or what have you, law schools should clearly and unreservedly respond: In your professional careers, you will often need to interact with people who hold these views, and indeed to learn from them. They may be partners in your law firm. They may be judges for whom you clerk. They may be executives who hire you for in-house jobs. They may be professional leaders for whom you don't work, but who still have much to teach. Or they may even be clients who can teach you about business, life, courage, or enduring adversity even if not about law.

Few lawyers will craft a career for themselves that is always spent away from people who hold sharply different views. Few professional environments are as ideologically homogeneous as are many college departments and law schools. And the law school years are an easier time to learn how to learn across ideological divides—even divides on questions that one sees as central to one's identity—than are the years working as a law clerk or a junior associate.

Law schools should also work to make sure that they aren't excluding such dissenting candidates from being hired. Such an exclusion is of course also a facet of human nature: We naturally tend to view people who agree with us as smart, and people who disagree with us as foolish. Still, law school faculties should resist this human tendency.

I don't generally support ideological affirmative action, in the form of deliberately hiring faculty to provide some level of ideological balance, for many of the same reasons that I don't support race- or sex-based affirmative action.[1] But if a law school does indeed give some degree of preference to candidates based on race or sex, on the theory that this promotes diversity, I think it should do the same with regard to ideological belief as well.

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Still to come, in future posts (or you can see it now in the PDF), responses to some possible objections:

A. Student Upset (Especially as to Views That Are Seen as Derogatory of Their Identities)
B. Vulnerability of Powerless Minority Groups
C. Risk of Persuasiveness
D. Risk of "Legitimizing" Certain Perspectives
E. Losing the Opportunity to Chill Political and Ideological Participation and Organization by the Other Side

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[1] Cf. Eugene Volokh, Diversity, Race as Proxy, and Religion as Proxy, 43 UCLA L. Rev. 2059 (1996).