The Volokh Conspiracy
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Lawless I: The Illiberal Takeover of Legal Education
My "lived experience" at Georgetown gave me a unique perspective on the higher-ed crisis.
Thanks to Eugene for inviting me to participate in the Volokh Conspiracy's venerable tradition of the author's weeklong guest-blog. I'm particularly excited for the opportunity not only to preview my new book, Lawless: The Miseducation of America's Elites, but to dispel some Ilya Confusion. Then again, it may also make Ilya Confusion harder to discern, because the most common way I recognize interlocutors who are thinking of "the other Ilya" (Somin) is when they reference my blogging on this site. Well, now we're both VC bloggers.
In any event, my new book Lawless uses my "lived experience"—what one friend called "the Troubles"—as a jumping-off point for diving into the illiberal takeover of law schools and the legal profession. It discusses failures in (1) bureaucracy, (2) ideology, and (3) leadership, and (4) proposes reforms. My remaining posts will cover each of those numbered items.
VC readers no doubt know my story. When I accepted Randy Barnett's offer to become executive director of Georgetown's Center for the Constitution, I thought it would be a chance to have a different kind of impact on public affairs. After nearly 15 years at the Cato Institute, having become a vice president and published a critically acclaimed book on the Supreme Court, I was looking for a new challenge. Well, that's what I got, but not quite how I'd imagined it.
In late January 2022, when news of Justice Stephen Breyer's retirement broke, I tweeted in opposition to President Biden's decision to limit his nominee pool by race and sex. I argued that Sri Srinivasan, the chief judge of the D.C. Circuit—who also happens to be an Indian-American immigrant—was the best candidate for a Democratic president, meaning that everyone else was less qualified. So if Biden kept his promise, he would pick what, given Twitter's character limit, I characterized as a "lesser black woman." Then I went to bed.
Overnight, a fire storm erupted on social media. I deleted the tweet and apologized for my inartful choice of words, but stood by my view that Biden should've considered "all possible nominees," as 76% of Americans agreed in a poll by that right-wing outlet ABC News. (I stand by that view to this day.) But it was too late. My ideological opponents were out for blood, or at least my new job—even before I was due to assume it on February 1.
That day, January 27, was the second-worst day of my life, after another January day nearly 25 years earlier when my mom died. I thought that I had blown up my life and killed my career. Everything I had worked for over decades, the sacrifices my parents made in getting me out of the USSR, the life my wife and I were building for our two young sons—we added twins later that year, our "cancellation babies"—all of it was crumbling. Over a tweet.
Never mind that no reasonable person could construe what I said to be offensive. It's willful miscomprehension to read my tweet to suggest that "the best Supreme Court nominee could not be a Black woman," as Dean William Treanor did in a statement that afternoon. Although my tweet could've been phrased better, as I readily admitted, its meaning that I considered one candidate to be best and thus all others to be less qualified is clear. Only those acting in bad faith would misconstrue what I said to suggest otherwise.
Thanks to friends with public platforms and private backchannels to Dean Treanor, I wasn't fired during those initial four days of hell. Instead, I was onboarded and immediately placed on paid administrative leave pending an investigation into whether I violated university policies on antidiscrimination and harassment. That investigation continued for more than four months of purgatory, during which I was prohibited from even setting foot on campus.
It's become clear now that the "investigation," conducted by both Human Resources and an office with the Orwellian title of Institutional Diversity, Equity and Affirmative Action (IDEAA), was a sham. And that the process was the punishment. On June 2, about a week after students left campus, I was reinstated on the technicality that I hadn't been an employee when I tweeted and so wasn't subject to discipline under the relevant policies.
I celebrated that technical victory, but further consideration showed that Georgetown had made it impossible to fulfill the duties I had been hired to perform. After full analysis of the IDEAA report that hit my email inbox later that afternoon, and after consulting with counsel and trusted advisers, I concluded that remaining in that job was untenable.
I won't rehash the explanation here; you can read it in a Wall Street Journal oped, and indeed in my June 6 resignation letter. But suffice it to say, Georgetown had implicitly repealed its vaunted free speech and expression policy and set me up for discipline the next time I transgressed progressive orthodoxy. Instead of participating in that slow-motion firing, I made what lawyers call a "noisy exit."
My case was no anomaly. Institutional cultures are so weak, thanks to a bureaucratic explosion and increase in academic activists, that administrators are easily overwhelmed by moral panics. This pernicious dynamic is reminiscent of the Chinese Cultural Revolution, in which students publicly shamed professors to scare them into ideological obedience.
And then there's the disruption of outside speakers. Indeed, one "fun" aspect of my Georgetown purgatory was being shouted down at the University of California Hastings College of Law (since renamed UC College of the Law, San Francisco, because of Mr. Hastings's political incorrectness). That was no isolated incident, not even in that one month of March 2022. The week after, a similar thing happened at Yale, ironically over a panel bringing together lawyers from the left and right who agreed on the importance of free speech. Dean Heather Gerken basically buried her head in the sand. Then it happened again at the University of Michigan, when students obstructed a debate on a Texas abortion bill. Then it happened a year later with the shutdown of Fifth Circuit Judge Kyle Duncan at Stanford.
This is all particularly worrisome because it's going on at law schools. If an English or sociology department is led astray, that's unfortunate and a loss to the richness of life and the accumulation of human knowledge. But the implosion of legal education has much more dire consequences, as I told Tunku Varadarajan for the Wall Street Journal's "weekend interview" feature in March 2023. Law schools train the gatekeepers of our institutions and of the rules of the game on which American liberty and prosperity sit.
These future lawyers will be bringing cases, occupying corporate counsel's offices, and filling big-firm partnership ranks. It would be a disaster for our way of life to have them think that applying the law equally to all furthers white supremacy or that one's rights depend on one's level of privilege—or that due process protects oppressors and perpetuates injustice.
The problem isn't limited to canceling professors and shouting down speakers. The illiberal takeover of law schools involves the clash between the classical pedagogical model of legal education and the postmodern activist one. The dynamic was crystallized in Stanford DEI dean Tirien Steinbach's memorable question, "Is the juice worth the squeeze?" It's just a cute way of giving ideological opponents a heckler's veto.
These are systemic issues. What we're seeing isn't the age-old complaint about liberal professors, but spineless university officials who placate the radical left. I've long been an advocate for free speech, constitutionalism, and classical liberal values, but only by living through this crucible did I truly understand the crisis we face.
