Of Politics and Law Schools

This is my first post for a while, after coming up for air from a variety of other pressing matters. After not blogging much recently, the question I asked myself was, "On what urgent subject should I pontificate?" I keep a list, you see, and it always grows larger instead of smaller. What's a poor law school professor to do?

How about talking about the U.S. Supreme Court's decision in FAIR v. Rumsfeld? There is a lot out there on this decision (check out other law school reactions to the Supreme Court's decision in the FAIR case here and here). What I would like to talk about, however, is not whether law schools can take federal money and refuse military recruiters access to their campuses. Rather, I would like to discuss the current liberal-conservative political dynamic in the U.S. that underlies this case, and how law schools play into that debate.

First, there seems to be a broadly-held public belief that most law school faculties are overwhelmingly liberal and badly out of step with the times. Doesn't the FAIR Court's WWF-style smackdown of law schools--and the ensuing gleeful public reaction--demonstrate that the U.S. is more politically and religiously conservative than it was a generation ago? Or at least, isn't such conservatism more overt? Ask a conservative about this, and won't she likely tell you that longstanding public resentment of liberal elitism has finally risen to the surface to assume its rightful place in the national debate on morals and politics? Ask a liberal, and won't he likely tell you that the religious right has hijacked the Republic Party and is more interested in Intelligent Design than intelligent debate?

Chances are they would indeed tell you that. The two sides are talking right past one another without doing much listening. Ships in the night, and all that.

Ironically, however, that is where law schools can step in to break the impasse. Arguably, some do step in. Conservative schools have liberal faculty members. And liberal schools have conservative faculty members. That is just the way it should be. We can argue about the proper balance, but not about the question of whether there should be some balance of differing viewpoints.

I think any law professor reading this would think I am stating the obvious. As law faculty, we certainly do hold these truths to be self-evident. But many outside the legal academy apparently don't think it is so obvious. It is all well and good for a parent to say that "I want my child to go to a school that upholds my family values," or for a student to say the same thing. But if that institution is a law school, shouldn't it expose its students to differing views? Law schools aim to teach critical thinking in the realm of law and public policy--after all, the law can be seen as a system of social engineering. (Minimum wage and social security, anyone?) And law students are adults, and they are remarkably adept at identifying their professors' views and filtering class content accordingly.

So obvious though the message may be, it apparently bears repeating.

A recent news story from the West Coast drives this point home. It involves Professor John Yoo at Berkeley, a staunch conservative in a traditionally liberal bastion. Yoo, for those of you know don't know, was an attorney in the U.S. Office of Legal Counsel in the Bush II Administration, and in 2002 he wrote the government's memorandum regarding treatment of captured Al Qaeda operatives.

In the article "Protesting Yoo", the San Francisco Bay Guardian recently reported on weekly protests on Berkeley's campus aimed at Yoo. That's certainly not surprising, and it's in the fine Berkeley tradition, but then the article says the following:

Yet these days, Berkeley administrators look at Yoo . . . as just another qualified professor teaching constitutional law. When asked why the school provides a home for such a polarizing and controversial figure, Louise Epstein, assistant to the law school dean, told us, "We don't know if we can tell you that, because you are asking a heated question that I just don't know we have the answer to."

That is an absolutely astonishing excerpt. A liberal institution is being taken to task for providing a diversity of viewpoints to its students! We have a liberal law school supporting a deserving conservative scholar. The merit of that approach should be self-evident, shouldn't it? And yet the protesters (and the newspaper?) apparently believe it is bad for a proudly liberal law school to have a conservative with strong credentials on the faculty, and that the school should not provide its students with differing viewpoints. Shame, shame.

Even the law school seems uncomfortable with its position on Yoo! Re-read Louise Epstein's waffling statement above. Maybe she was uncomfortable making a statement because she is not on the faculty, so let's not be too hard on her. But I would have liked to see the law school be defiantly proud, since having Yoo on faculty does foment discussion and debate--which are good things in law school.

Interestingly, I haven't found a report about a conservative law school hiring (or refusing to hire) a left-wing liberal, but there are liberal professors at conservative law schools. I work with a few. And, by the way, the diversity of views they bring is a good thing for our students.

By the way, look at the picture at the top of this post again. Justice may not be blind in all cases--but at least it is balanced.