Yale Law School dean Heather Gerken wrote a rainbows and unicorns post at Time about how law students were special and adored free speech.
In this, the summer of our discontent, many college presidents are breathing a sigh of relief that they made it through a politically fraught spring without their campuses erupting. Nobody wants to be the next Middlebury or Claremont McKenna, where demonstrations disrupted controversial speakers.
Law deans, in sharp contrast, have reason to be cheery. Their campuses have been largely exempt from ugly free-speech incidents like these.
While the campus eruptions haven’t broken down by major or grad schools, but rather by broad-based, undifferentiated student protect, fair enough.
There may be a reason why law students haven’t resorted to the extreme tactics we’ve seen on college campuses: their training. Law school conditions you to know the difference between righteousness and self-righteousness. That’s why lawyers know how to go to war without turning the other side into an enemy.
This, of course, is true. Or at least, was true.
In law schools we don’t just teach our students to know the weaknesses in their own arguments. We demand that they imaginatively and sympathetically reconstruct the best argument on the other side. From the first day in class, students must defend an argument they don’t believe or pretend to be a judge whose values they dislike.
Again true, at least in the historic sense. But as much as this may be the pedagogical goal, recent experience suggests that law students, and young lawyers, no longer believe this to be their duty and, more importantly, are no longer capable or willing to argue positions or values in which they don’t believe.
We teach students that even the grandest principles have limits. The day you really become a lawyer is the day you realize that the law doesn’t–and shouldn’t–match everything you believe. The litigation system is premised on the hope that truth will emerge if we ensure that everyone has a chance to have her say.
Well then, law schools certainly sound like a bastion of free speech and thought. What say you, Eli law students? Hold my beer.
She argues that this professional decorum is the most effective way to overcome division, reminding us that it was powerful enough to protect lawyers like Thurgood Marshall from violence during the civil-rights era.
Unfortunately, Dean Gerken’s article mischaracterizes both the protest that we and around 20 other students helped organize against Charles Murray in October 2016 and the treatment of civil-rights lawyers in the South. If anything, our legal training has taught us that civility has its limits, and that disruption, creative protest, and rule-breaking are valid and often necessary tactics to effect change.
Civility does indeed have its limits, like when a bunch of smug, snot-nosed children take it upon themselves to disrupt others’ ability to speak and others’ ability to listen because they are so enamored by their own thought and feelings that they get to dictate what is worthy of expressing.
When students invite a racist social scientist to speak on a university campus, as they did in the case of these protests, all should respond with alarm. Instead, both conservative and moderate commentators across the country have turned their scrutiny on student protesters. They style themselves as free-speech martyrs, but disruptive protest is also speech, and we and our peers, particularly those subjected to racist and gendered attacks by people like Murray, will continue to raise our voices in opposition.
There was once a time when the students admitted to Yale Law School were considered reasonably bright. But to argue that “disruptive protest is also speech” calls into question whether they cheated on their LSATs.
We decline Dean Gerken’s invitation to adopt the “free-speech” framework propagated by conservative speakers who, like Murray, assert not only the right to speak but also the right to be heard by the very people they aim to oppress. We have no interest in civil conversation with a man who denigrates the cognitive capacities of women and people of color.
Well, these kids aren’t going to do well in the courtroom when they bravely get held in contempt.
Confronting racism is difficult, but essential, work. Promoting civility can undermine this work by policing the tone and speech of those who are oppressed, diverting our attention away from efforts to combat ongoing white supremacy. Though the study of law and its decorum may be sobering, it does not mean law students should abandon protest and dissent.
It’s no surprise that Gerken’s post evoked this sort of reaction. It was a rather ridiculously rosy portrayal of students who are no less overcome with the righteousness of their social justice feelz as their undergrad brethren. But one might have expected Yale students, potentially law profs and Supreme Court justices eventually, to have the good judgment to keep their mouths and pens quiet so as not to conclusively prove they’re every bit as foolish as the undergrads. Nope. It wasn’t to be.
But, of course, after one leaves the Ivy-covered walls, one certainly grows up to realize that law demands more than narcissistic self-indulgence, right? Maybe not.
It’s the sort of Pollyanna-ish professional lionizing every law school attempts but can never, ever do better than Yale.
When Gerken’s piece hit the presses, I mulled writing a detailed response about the perils of mythologizing legal minds as docile bulls**t receptacles incapable of voicing a thought beyond putting on a stoic grimace in a detached, sterile environment.
The “I” in there is no less valued a voice as Above the Law’s Joe Patrice.
Thankfully, Gerken’s own students wrote the devastating takedown that her article so richly deserved.
That he views the kids polemic as a “devastating takedown” explains why Joe writes for ATL and doesn’t practice law, a fact for which clients are deeply thankful.
This is what gets me about the “academic freedom means Richard Spencer gets to give the commencement address” crowd. The academy isn’t “bad ideas romper room” where every brain fart gets a full airing. He published his work, it sucked, and we’ve watched it get eviscerated by experts for 20 years. He doesn’t get to play at the big kid’s table.
Is there a place where “every brain fart gets a full airing”? Apparently so, Joe.