The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
To second an important point made in Dean Martinez's new letter (discussed in David Bernstein's post below): law schools, like other institutions, sometimes have good moral reasons to stay silent on important moral questions.
At the same time, I want to set expectations clearly going forward: our commitment to diversity, equity, and inclusion is not going to take the form of having the school administration announce institutional positions on a wide range of current social and political issues, make frequent institutional statements about current news events, or exclude or condemn speakers who hold views on social and political issues with whom some or even many in our community disagree. I believe that focus on these types of actions as the hallmark of an "inclusive" environment can lead to creating and enforcing an institutional orthodoxy that is not only at odds with our core commitment to academic freedom, but also that would create an echo chamber that ill prepares students to go out into and act as effective advocates in a society that disagrees about many important issues. Some students might feel that some points should not be up for argument and therefore that they should not bear the responsibility of arguing them (or even hearing arguments about them), but however appealing that position might be in some other context, it is incompatible with the training that must be delivered in a law school. Law students are entering a profession in which their job is to make arguments on behalf of clients whose very lives may depend on their professional skill. Just as doctors in training must learn to face suffering and death and respond in their professional role, lawyers in training must learn to confront injustice or views they don't agree with and respond as attorneys.
The more that we disagree, the more that we need limited-purpose institutions, in which people can come together on discrete issues notwithstanding their disagreements on others. That kind of neutrality isn't moral indifference; it's moral commitment to achieving the institution's goals. As I argued in 2020:
Some of those people might have been surprised at political spam from their expense reporting company. . . . And a few customers have dropped Expensify since, protesting the misuse of their email lists. But whatever happens to Expensify, the episode reminded me of a passage by Yuval Levin, on treating institutions as platforms:
We now think of institutions less as formative and more as performative, less as molds of our character and behavior, and more as platforms for us to stand on and be seen. And so for one arena to another in American life, we see people using institutions as stages, as a way to raise their profile or build their brand. And those kinds of institutions become much harder to trust.
Institutions get weaker as their purposes expand. Once every #brand has had to pick a side on Kashmir or the filioque clause, no one can tell them apart. Whatever makes Expensify distinct, whatever unique contribution it offers—saving time and money! making employees' lives easier!—seems pale and wan next to the great causes of the day.
But the great advantage of limited-purpose institutions is that they let us achieve their limited purposes while still disagreeing on other things. Everyone gets this instinctively when it comes to "Sir, this is a Wendy's." Sometimes mundane things like lunch take precedence over great moral conflicts: not because the conflicts are unimportant, but because we shouldn't hold up the drive-thru line until the great conflicts are resolved. It's precisely when the issues are important—and divisive—that we need limited-purpose institutions most.
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