At that meeting Associate Dean Leah Terranova and Professor Pam Keller pressured the students to cancel the event. The administration representatives warned the student leaders that they needed to consider and understand the impact the event could have on them. The administration mentioned that at least five law professors had written to object. The students were told that even though it was their right to host the speaker, they needed to be warned about the impact of their choices. The student leaders were told several times to consider what this would do to their reputation.
Now, knowing the people involved, I can well imagine that there was no intent to threaten or coerce the board members of the student chapter. I can even see that this effort was likely an ill-conceived attempt to protect those students. After all, it is true that in the current environment, being willing to swim upstream may in fact harm a person’s reputation and even standing in the legal community.
But isn’t that the problem? Rather than acquiescing to this, my hope and expectation is that leaders in the legal community would instead help protect the reputations of students willing to engage in difficult discussions—and guide them in that process. Without that support, it took great courage for the students to carry on with the event.
Following this meeting, but before the lunch event occurred, I and the entire KU Law community received an email from the Diversity, Equity, Inclusion and Belonging Committee. The email described the speaker—by his association with ADF—as a practitioner of “hate speech.” The email went on to acknowledge, grudgingly, that as a public university KU Law was bound by “the tenets of the First Amendment” and would permit the event to move forward.
The email, by implication, accused the student leaders of the KU Law Federalist Society of facilitating hate speech. Worse, the email made it very clear that the principles of free and open dialogue are only acquiesced to as a legal obligation at KU Law—they are not celebrated, cherished, or valued. Here, the Diversity, Equity, Inclusion and Belonging Committee cemented in fact what was predicted by the administration only a few hours earlier—the student members of the KU Law Federalist Society chapter were held up before the entire community as pariahs….
Of course, it shouldn’t have to be said—but I will say it—that my criticism and concern over the handling of this incident by KU Law has nothing to do with the particular speaker, his institutional affiliation, or ADF generally…. [E]ngaging in reasoned, constructive, open dialogue on an equal footing among people of diverse backgrounds representing different viewpoints is the strength and glory of liberal democracy—and is in a real sense what makes the rule of law possible….
Now, I am not insensitive to the real fact that the conflict underlying this controversy is deeply felt and reasonably may be understood by many participants on both sides as existential in nature…. And yes, there is the dangerous and sickening fact of incidents of ideologically motivated violence. Such acts of brutality, terror, and lawless criminality threaten the peace and stability that benefit us all. And each of us can probably think of figures who want nothing more than to see the liberal public square disposed of as a relic of history—clearing the way for more direct forms of conflict.
But lawyers of all people must resist the temptation to turn our backs on the liberal public square—even when it may feel justified by the perceived offense given by one’s political opponents. In fact, lawyers ought to form the last and best line of defense of the liberal public square and its pillars—a fair hearing for all voices, dispassionate and deliberate judgment, individual not group guilt, protection for dissent, and an ethos that, if not quite capable of walking a mile in another’s shoes, can at least tolerate a few minutes of quiet listening in another’s presence.
Consider that—as reported in the local paper—several students were so distraught over this event and afraid for their “physical and emotional safety” that they claimed they could not even be inside Green Hall at the same time as the speaker. Perhaps this should alert us to an institutional failure to cultivate the norms, habits, and skills necessary to the task of lawyering.
As far as I can tell, there is no one that comes out of this unsullied. I understand that some have accused the student leaders of the KU Law Federalist Society chapter of not following the right procedure before inviting the lunch-time speaker—that the event was an “ambush.” I find that plausible given what is clearly a closed and stifling culture of discourse at KU Law. Certainly nothing that transpired suggests that KU Law would have welcomed a discussion or debate with this speaker if the chapter had only followed proper procedure.
Of course, that doesn’t justify a failure on the part of the Federalist Society chapter to be fully considerate of others. Two wrongs never a right make. The point is that the behavior on both sides indicates an institutional failure.
Consideration and respect for others is the common good bought and paid for by the sacrifices entailed in curating and maintaining a robust and vibrant liberal public square. We cannot have one without the other. And if the different sides of the societal conflicts we see all around us continue to anathemize each other before engaging in the hard, demanding, and sometimes tedious work required by the liberal public square, we are likely to see that square disappear entirely.
This is what I have seen play itself out at KU Law this fall—and it is especially concerning to see it take root within the leadership of the school. To the extent the movement calling itself Diversity, Equity, and Inclusion is an effort to encourage the imaginative effort on everyone’s part to consider what it is like to walk that proverbial mile in another’s shoes, it is laudable. But if—as demonstrated by KU Law’s Diversity, Equity, Inclusion and Belonging Committee—it is the operational arm of a bigger effort to silence large segments of our society, then it is an ideological movement committed to principles that are contrary to the principles of a free and equal society living under the rule of law.
There is a perennial temptation to cheat on the social contract—to shortcut or bypass the liberal public square on the road to achieving one’s preferred outcomes. Such efforts are drawn to censorship, reprisals against those espousing disfavored views, and to dividing people based on shared group identities and characteristics. The result is likely to be the crushing viewpoint diversity, the elimination of a level and equal playing field, and the exclusion of disfavored individuals and groups—dquite the opposite of the chosen aspirational name of the DEI movement.
I know all too well that these disturbing trends—and the authoritarianism at work behind them—are not limited to any one wing (or wings) of our political and cultural moment. So the tell-tale tricks and sleights-of-hand that mark such ideologies must be opposed wherever and whenever they are found—not only when practiced by those one disagrees with (and not only when it is easy or convenient to do so). Indeed, such ideologies threaten the foundational tenets of liberal democracy and the free and open society it enables—principles and practices such as a basic respect for all people as individual human beings; tolerance; openness; the free exchange of ideas without promises of favor or fear of reprisal; and privileging individual character and merit above group characteristics when rendering judgments.
Last year, for example, I took the unusual step of publicly defending a judicial nominee from those who sought to punish him for representing a despised minority in society—people charged with serious sex crimes. As I wrote in the Topeka Capital Journal [link -EV]:
At a time when different segments of society seem less and less inclined to give a fair hearing to voices, ideas and people they disagree with, it strikes me as imperative that we reacquaint ourselves with the majestic principles that serve as pillars of justice delivered under the rule of law. … In the face of hard disagreements—and unfair name-calling—the civic temperament demanded by the rule of law calls us to strive for the ideal of a public-spirited, deliberative and reasoned engagement with others. For a lawyer, this may mean speaking vigorously and boldly on behalf of a client or cause that society has turned against. … [A]t a time when many are wondering if our political structures are hopelessly broken, the American constitutional tradition of sheltering, protecting and cherishing an open public space for the full airing of all viewpoints and facts—even on behalf of unpopular people and ideas, and doing so with deliberation and reason—deserves the respect and support of all of us, together.
And here it must be added that these core commitments are likewise vital to the mission of a place like KU Law—the training and education of the next generation of lawyers who will become stewards of the institutions of law and democracy. Educated citizens of such a society have a minimum obligation to listen to opposing viewpoints and engage in reasoned dialogue. Lawyers have a heightened duty to do so—and are supposed to be receiving training and expertise in the skill set necessary to accomplish that difficult task.
KU Law is not serving its students well—nor is it preparing them to take their place as lawyers in the great conversation (or in Kansas courtrooms)—when it engages in bullying and censoring tactics, fosters a spirit of fear, drives dissent into a guerrilla posture, and gives institutional backing and support to overwrought grievances which can and do cripple a persons’ ability to critically engage with ideas or people with whom they disagree….
In my view, KU Law owes its students (all of them, not just those in the Federalist Society chapter) and the future of the rule of law in Kansas better. And it is possible to course correct. But until that time, I can’t continue to provide tacit support to the current direction through my teaching affiliation with KU Law. Not when that direction so clearly threatens the basic pillars of our profession—and not when the duty to ensure the great conversation continues is so clearly ours to shoulder….
The letter is long, so I took the liberty of excerpting it and (as I sometimes do) adding a few paragraph breaks; you can read the whole letter here.
I’ve asked the Dean for comment, and will pass along anything I get back; but an article on the subject at the Sunflower State Journal (paywalled) reports that the Dean had “declined comment” to that publication. The article does note, though, that a KU spokesperson responded, “The university takes pride in its role as a marketplace of ideas, and we strive to provide opportunities for various perspectives to be debated and discussed within our community.” Thanks to Lance Kinzer for the pointer.
