Lawless V: Where Do We Go from Here?

There are ways to reform, but it won't be easy.

This isn't rocket science. University officials know how to set campus culture. Whether it's entrepreneurship, public service, environmental consciousness, or anything else, they instill values in their students all the time. It wouldn't be that hard to do with commitments to academic freedom, intellectual diversity, civil discourse, and returning to the core educational mission of truth-seeking and knowledge-creation. Fixing campus cultures seems like a management issue.

Indeed, the University of Chicago has largely avoided cancel-culture issues even in the last five years of campus upheaval. Former president Robert Zimmer was a rarity among his peers in standing up to all sorts of moral panics, most notably in defending geophysics professor Dorian Abbot's right to criticize the university's affirmative action programs.

UChicago's law school, which is where I got my JD, has similarly avoided shoutdowns and the like. For example, when a student facilitated the disruptive protest of an event regarding Israel in April 2019, he was effectively expelled and there haven't been any incidents since.

Creating such an environment requires intentional effort, which is to say: leadership. Dean Thomas Miles gave a presentation to alumni in May 2023 that explained the formula. First, he set out the "community priorities," which consisted of: (1) imparting the law school's core values (academic rigor, free inquiry, intellectual curiosity, and dialogue), (2) fostering a climate in which students build community and class affinity, (3) encouraging professionalism and respectful communication, (4) fostering a sense of belonging, and (5) promoting wellness and resilience. Miles had a separate slide on the freedom of expression, in which he discussed introducing students to the Chicago Principles (on which more shortly). Miles noted that the faculty works hard to "educate our community," including with orientation exercises and the practice of model discourse, as at roundtables where professors debate controversial issues.

Dean Miles did have a slide on diversity and inclusion, but there were no postmodern buzzwords; even "equity" was absent. His approach is to bring people of diverse backgrounds together and help them feel welcome and prepared to succeed—while emphasizing that academic freedom and free expression are the lodestars for doing so. As I said, it's not rocket science.

The best way any institution can stop the illiberal tide is by adopting the "Chicago Trifecta": the Kalven Report, requiring institutional neutrality on political controversies; the Shils Report, making academic achievement and merit (not viewpoint) the sole basis for hiring and promotions; and the Chicago Principles of Free Speech. More than 100 universities have adopted the Chicago Principles, including the statewide systems of North Carolina, Texas, and Wisconsin. Still, adopting the Principles is a necessary but not sufficient condition for a campus culture that fosters a spirit of open inquiry. Georgetown and Columbia have endorsed the Principles, for example, but their values are very much in doubt among both students and faculty.

Moreover, as we see from survey results, self-censorship pervades academia, detracting from any intellectual mission. Many "old school" professors leave academia entirely—such as my gracious host Eugene Volokh's move from UCLA to the Hoover Institution and the early retirement of five right-of-center law professors at the University of San Diego. As the Stanford Academic Freedom Declaration states: "Free speech, they say, so long as the speech does not offend or exclude; free speech, so long as it does not challenge institutionally approved narratives and conceptions of social justice; free speech, but only within narrow credentialed boundaries. These restrictions are counterproductive, sometimes even to their goal of advancing a particular ideology. People infer from censorship a desire to protect lies from being exposed."

For that matter, while much of my book is concerned with deans of student affairs and DEI, admissions deans should be evaluated for admitting students with the character to respect norms of open discourse. Admissions offices, particularly at higher-ranked schools, have been too focused on activists instead of advocates, social-justice warriors instead of scholars. Some schools attract the sorts of people who would undermine the rule of law instead of upholding it. It would significantly change law-school cultures if admissions officers valued the desire to be a workaday lawyer more than a "change the world" messianic fervor.

Moreover, U.S. News & World Report recently rejiggered its ranking formula—in part to hide objective measures and thus reinforce diversity regimes ahead of the Supreme Court ruling that outlawed racial preferences—so why not add a speech-protection criterion? And why not include it in the ABA's checklist for renewing accreditations? To be truly inclusive, law schools must provide students the freedom to engage the law. That'll also make them better lawyers, including for progressive causes. As FIRE's Robert Shibley wrote after Georgetown defenestrated two adjunct law professors for alleged thought crimes, "University decision-makers are insulated from much of the pressure that accompanies other jobs precisely so they can make principled decisions that will bear examination in the decades and centuries to come."

But they won't do it themselves, because the incentives are misaligned. When I left Georgetown, I wasn't holding my breath, but now we're seeing a backlash to our illiberal inquisitors. It can't all be done from within, so we need external controls from state legislators and attorneys general, and federal oversight tied to funding. We also need exogenous shocks like Judge Jim Ho's boycott of Yale and Stanford for clerk hiring and employers' shying away from hiring Hamas supporters or those who scream at judges that they hope their daughters are raped.

Beyond their ideological foibles, law schools are raising lawyers unable to stand up to tough judges and opposing counsel. Remember the words of the indomitable former UChicago president Hanna Holborn Gray: "Education should not be intended to make people comfortable, it is meant to make them think. Universities should be expected to provide the conditions within which hard thought, and therefore strong disagreement, independent judgment, and the questioning of stubborn assumptions, can flourish in an environment of the greatest freedom."

There's nothing wrong with diversity, equity, or inclusion as values or goals. It's good to assemble people with diverse perspectives, to prevent groupthink, promote ideas, and develop knowledge. Equity is a centuries-old legal concept that boils down to fairness and justice. Who can object to people feeling included, to better engage in their educational mission? The problem arises when dogma perverts those basic words to mean the opposite of their definitions: to stifle intellectual diversity, undermine equal opportunity, and exclude dissenting voices.

I haven't let those four farcical months define me, but am using my spotlight to expose institutional rot. I still marvel at the perfect storm. As a Georgetown Law alum wrote, "It was an unholy trilogy that attacked Shapiro. … the remarkably stupid who lacked the basic skills to understand his statement; there were grifters who saw an opportunity for self-advancement; and there were the invertebrates who saw appeasement as an easy alternative to integrity."

Regardless, I remain in the arena, trying to affect areas ranging from speech and federalism to civil rights and deregulation. And I continue watching the Supreme Court, including with an updated paperback of my last book, Supreme Disorder. I'm generally long on America—like Brett Kavanaugh at his confirmation hearings, I live on the "sunrise side of the mountain"—but I'm pessimistic about academia, if slightly less so than in summer 2022. Perhaps we've passed "peak woke" in society writ large, but we may have passed the point of no return on the illiberal takeover of higher education. Still, the battle has been joined.

Comments

[Not a Conservative but a Biden LOATHER]

Ave Maria University, Liberty University...any good religious school will be the best first solution. There are --let's pick 3--- problems that are basic.
1) Religious Freedom is the core value of the American Founding and who better to keep that in mind then religious schools
2) Teaching by cases has been lambasted for decades now. Let's abandon it. You get Sotommayor's from that approach.
3) No-fault divorce, gay "marriage", forced abortions --- all from neglect of the Natural Law founding. (Yes, I know that John Finnis trained Gorsuch but if you follow the conservative legal community , they have both been pilloried for the outrageously dumb Bostock outcome)
If you want to see fool Biden's ugly input to this watch him go full ugly bringing up 'natural law" at the Clarence Thomas hearings. It is on YouTube. This is the man who was bottom 10 in his law class, at Syracuse . He sounded like the complete incompetent assshole he has been for decades.

[David Nieporent]

Boy, it sure is odd that Mr. Not a Conservative holds all Conservative views on everything. (Well, what passes for "conservative" in the MAGA era, anyway.)

[emilyhere]

Google paid $195 a hour on the internet..my close relative has been without labor for nine months and the earlier month her compensation check was $23660 by working at home for 10 hours a day..

Here→→ https://da.gd/income6

[SRG2]

Religious Freedom is the core value of the American Founding and who better to keep that in mind then religious schools

Do Christian religious schools commonly promote religious freedom broadly (encompassing Jews, Muslims, humanists and freethinkers, etc.as well) or just religious freedom for Christians?

[Brett Bellmore]

"Creating such an environment requires intentional effort, which is to say: leadership."

It requires both leadership, and that said leadership see creating such an environment as a desirable goal. I wouldn't assume that the new generation of university leadership actually think it is desirable.

[tkamenick]

This isn't where we expected to be.

[Ed Grinberg]

I wonder: Where were all the "liberals" who say this when conservatives were being frozen out of college faculties? When "political correctness" was being introduced? Where else could it have ended up?!

[Brett Bellmore]

"Perhaps we've passed "peak woke" in society writ large, but we may have passed the point of no return on the illiberal takeover of higher education."

That sounds about right to me, for most of these institutions; To the extent they're self-governing, they're already irreversibly captured by illiberal forces.

The institutions subject to external governance, like state universities, OTOH, might be saved.

The best option, though, is probably the creation of new institutions that start out based on liberal principles, and are governed out of an awareness that those principles need to be defended.

[Ed Grinberg]

There's nothing wrong with diversity, equity, or inclusion as values or goals. It's good to assemble people with diverse perspectives, to prevent groupthink, promote ideas, and develop knowledge. Equity is a centuries-old legal concept that boils down to fairness and justice. Who can object to people feeling included, to better engage in their educational mission? The problem arises when dogma perverts those basic words to mean the opposite of their definitions: to stifle intellectual diversity, undermine equal opportunity, and exclude dissenting voices.

Paging Dr. Orwell...

[Brett Bellmore]

Indeed. There's nothing wrong with diversity, equity, or inclusion, except that those words aren't actually being used in their commonplace meanings.

[Ed Grinberg]

I haven't let those four farcical months define me, but am using my spotlight to expose institutional rot. I still marvel at the perfect storm. As a Georgetown Law alum wrote, "It was an unholy trilogy that attacked Shapiro. … the remarkably stupid who lacked the basic skills to understand his statement; there were grifters who saw an opportunity for self-advancement; and there were the invertebrates who saw appeasement as an easy alternative to integrity."

Stalin's Great Purge would've been impossible without large numbers of "the remarkably stupid" (who actually believed that there were foreign agents all around), "grifters who saw an opportunity for self-advancement," and "the invertebrates who saw [going along with Stalin's murderous program] as an easy alternative to integrity."
I suppose the same is true of the Holocaust. There were the Nazis themselves, plus:
- "the remarkably stupid" (who actually swallowed the Nazis' antisemitic propaganda)
- "grifters who saw an opportunity for self-advancement"
- "the invertebrates who saw [going along with the Nazis' murderous program] as an easy alternative to integrity"

[Ed Grinberg]

the illiberal takeover of higher education

And every single "liberal" on this comment-board is onboard with that! All the non-woke "liberals" must be commenting elsewhere... (Just like all the wooly mammoths must be roaming out there somewhere...)

[Roger S]

This is all an argument over a retracted comment. If Shapiro is really for free speech, he could stand by his comment that Jackson is a lesser Black judge. Pres. Biden appointed a lot of Black judges, and they are not as good as the other judges. They were appointed for skin color, not competence.

[David Nieporent]

We already know you and yours are racist; you don't need to repeat yourself.

[Roger S]

I am not the one making appointments based on race. Or disciplining professors who notice race.

[fatnastyretiredguy]

This book just became available, at least in Kindle form, in the last few days. While it is quite readable, I must confess at the outset that while I have perused the entire book in brief, I am only at about the 50% line at detailed reading.

This is a well researched book espousing one side of an argument. Mr. Shapriro has obviously spent a good deal of time in researching the background of the argument but is a bit too invested. He at times is subject to the objection of “assuming and arguing facts not in evidence.” A book length argument should not be presented with such obvious holes in its argument. He also at times fails to follow his own guidance. He quite successfully argues the importance of intellectual argument in a civil atmosphere but then lowers his argument by the occasional uncivil style of name calling. “Educrats”, really? That is your best shot at civil discussion? Mr. Shapiro, you are obviously capable of better argument. Please use that capability. A suggestion is that you ask your editor to provide more assistance and point out to you when you cross the line, and then be mature enough to listen to that advice.

Mr. Shapiro finds substantial fault with the DEI approach to a problem. Just to be clear about my bias/position, his fault finding is entirely justified. While my experience is that the initial idea of DEI was not objectionable, its practical application has become a near catastrophic episode in American culture. It promotes continued racial discrimination, albeit changing the focus of that discrimination. It has attacked one of the key underlying principals of American culture, freedom of speech. It promotes the mimicking of the Cultural Revolution in China by putting the students in charge of the school. Tatamount to putting the fox in charge of the hen house. However, the disagreement with the proposed solution in no way diminishes or corrects the underlying problem. Fair warning here, a sort of trigger so beware. Systemic racism is and always has existed in American culture. Discrimination based upon that racism is and always has existed in American culture. Any who deny the validity of those two statements ought just hit the delete key now. Our discussion will and can go no further. I am sure you are not into wasting your time and I certainly am not.

This is the true failure of Mr. Shapiro’s argument. He offers us nothing of substance which might correct this underlying problem. He seems to acknowledge it exists. He more than adequately describes the failures of the suggested remedy, DEI. Yet for all his obvious capabilities, he totally fails to offer any solution to the underlying problem.

This is a book length critique. I don’t think it is too demanding to request that such a lengthy argument ought to at least offer some ideas about a better approach to the problem. Getting rid of the abuses of DEI, isn’t going to accomplish much at all. Getting rid of systemic racism might just be an improvement on our culture. So if you are so damn smart that you know this suggested remedy is not working, kindly favor us with at least some idea you may have about a workable solution. And that is my problem with Mr. Shapiro’s book. He didn’t finish his job.

So, let me at least offer a suggestion and avoid Mr. Shapiro’s failing. He describes the amount of resources being used and abused by the DEI approach. Why not use those resources to correct the problem. While it appears dangerous to do so, I think it has to be acknowledged that there is a problem getting the desired diversity among licensed lawyers. Affirmative action was once the recommended solution. But, as the Chief Justice has pointed out, you don’t get rid of racial discrimination by discriminating based upon race. Two wrongs really do not make a right.

One of the arguments agains DEI is that it is resulting in the lowering of admission standards. Why not keep them lower. But also provide the resources diverted from the failed DEI programs to more helpful and objective programs.

DEI is burning up way too many resources. It is nearly exactly the opposite of my understanding of American values and society. So what is a better use of those resources? Shapiro suggestions do not cure the issue which DEI seeks to address. He acknowledges a perceived decline in the student body caused by DEI measures. Yet all his suggestions do absolutely nothing to address the underlying issue of the effects of continued systemic racism.

Why not use at least part of DEI resources to actually help the student. Set up a tutoring program. Keep admission standards lower. Anyone admitted who is by objective standards in the bottom 15% of the admitted class must initially take part in a tutoring program. For all other students who are in the lower 15% to 25% of the admitted class, they may voluntarily take part in the tutoring program. The mandatory nature of the program remains until the student has completed at least 1L. If the student grades are above 25% at the completion of 1L the tutoring program becomes voluntary, so long as that students cumulative grades are above the 25% level. Should it occur that that student has fallen at or below the 25% line, for that student the tutoring program is once again mandatory until his/her cumulative grades rise above the 25% line.

For students who enter school above the 15% line, should their cumulative grade score fall below the 15% line, then the tutoring program becomes mandatory for them for at least one year and then may be optional so long as their cumulative score is above 25%.

Obviously this tutoring program will be at no cost to the student as it is funded by the previously wasted DEI resources. At no point is any decision about any student based upon race. While the admissions standards remain lower to encourage participation in law school, grading standards should not be lowered. Neither should the standards for graduation nor admission to the bar. The goal is not to lower the quality of the bar but to make admission to the bar more likely for all students. Instead of basing actions upon equity they are based upon equality of opportunity. Now the challenge. This idea occurred to me shortly after beginning reading Mr. Shapiro’s book. Maybe with just a little diversity and inclusiveness others can come up with much better ideas. Why don’t we quit calling each other names, arguing over methods and spend our time constructively identifying the problem and working for a viable solution. While I once was a licensed attorney I have long since retired and have never been in academia. But this is at least a plausible idea. If one guy can come up with something this quickly, a concerted effort by several people not vested in any specific position ought to be able to come up with much more.