Civility and Discourse in Legal Education and Social Media

 By Eric Segall

Last week I debated affirmative action with UCLA Law Professor Richard Sander in front of GSU students (virtually) and was asked by my faculty, along with Professor Anthony Kreis, to prepare a presentation on the pros and cons of twitter for furthering professional development. These events caused me to reflect on when and where civility is important and how social media fits into that question. 

In an excellent and thought-provoking post on this blog last Monday, Professor Sherry Colb explained what happens when people abuse the civility norm or invoke it hypocritically.  I'll have a little more to say about her chief example below, but for the most part I want to talk in this post about the value of the norm when it's not being abused. I have come to the conclusions that civility is almost always essential in public discourse, that finding common ground with folks you disagree with makes for better, more high minded discussions and debates, and that it is quite difficult to achieve civility and common ground on social media, which is a major problem inside and outside of legal education.

Professor Sander is the leading proponent of the so-called "mismatch theory" that was the basis for Justice Scalia's remarks during the oral argument of Fisher v. Texas that maybe most Blacks don't belong at the University of Texas because they can't compete there. Sander has written numerous articles and a book arguing that Blacks and Hispanics who are admitted to elite schools with lower grades and board scores won't succeed there, fail the bar exam at higher rates than other students, and would be better off altogether at less elite colleges and law schools. 

I disagree strongly with "mismatch theory" and, unlike most academic enterprises, feel that this work has severely and negatively affected our public debates about affirmative action, as Scalia showed so awfully. I had never met Professor Sander before our first Zoom meeting to discuss the debate format. Because of my strong views about affirmative action, I approached this meeting and the debate (sponsored by GSU's Asia-American Student Society) with some trepidation. I wasn't sure how to approach someone whose work I not only thought was quite questionable but also caused harm outside the halls of academia.

Professor Sander seemed very pleasant during this meeting, however, and also unfamiliar with my work, so I said early on that, as a constitutional matter, my views on affirmative action were the same as my views on guns, abortion, and all other constitutional issues: absent clear error, judges should stand down. 

This position took Professor Sander by surprise, I think. He wasn't quite ready to meet a progressive with a long history of being against strong judicial review. He also surprised me by talking eloquently about the huge role class plays in maintaining hierarchies in legal education, colleges, and universities. He believes we focus too much on race and that the way to a less racist society is through dealing better with our class issues. I don't agree with that idea because I think we need to focus specifically on race to cure our racial problems but I liked his discussion of class overall. In other words, we found some common ground. 

If interested you can watch the debate here, but the point I want to make is that, although we disagreed strongly with each other on numerous issues, and those differences were important for the students to hear, we did so civilly and with respect, and we found numerous points of agreement as well (such as the Supreme Court has wrongly made it impossible for college and universities to be transparent about how they use racial preferences). I think people who watched the discussion appreciated the tone of the debate and that we both tried to compromise and engage in a real give and take where we could. 

All of which brings me to social media generally and twitter specifically. After a decade of tweeting and reading tweets night and day, I have come to several conclusions (none of them life altering but hey this is a blog post). It is much harder to carry on civil, focused, and open-minded conversations on social media than in person. I know this is an obvious point but, especially in light of the pandemic, most people arguing with each other have spent the last two years much more on-line than in person, and bad habits we develop on social media definitely affect our non-online lives.

There was a time on Twitter 5-10 years ago when I had heated and at times quite personal debates with a host of conservatives that always left me depressed. Then I decided to make a concerted effort to meet these people in person, and we did. I think to our surprise, we all learned we had more things in common than we thought, we discussed and debated in each other's presence where it is harder to be overly snippy, and I can say for myself at least that to varying degrees I now consider these folks my friends. 

On Twitter, however, we sometimes return to old habits, and that is more a reflection on the medium than the people. The conclusion being, I think, that we all need to be much more self-aware how social media encourages uncivil exchanges that are not helpful to anyone. Moreover, although I do not use Facebook much, I have seen debates there that are full of hate and invective, and that's sometimes between family members! The internet may, indeed, bring out our worst selves.

So, I think civility can help decrease polarization and lead to more valuable exchanges, and that we have to be more attentive to how the separation between people on social media makes all of that much harder. But, on or off social media, is civility always a good posture? That is a harder question than maybe it appears at first blush.

Last Monday, on this blog, Professor Colb suggested that there may be times when civility is not appropriate, such as when Professor Robert George of Princeton University was at Cornell talking about the new Texas anti-abortion law and "spouted the bogus talking point that other fans of SB8 have been repeating, "comparing the new anti-choice weapon  to other statutes enlisting private citizens to enforce the law." Professor Colb noted that the moderator, Professor Sheri Johnson of Cornell, "[b]ecause of the civility norm that [she] was observing ... did not school Professor George on why his analogy between SB8 and any existing law is silly (at best), though oft-repeated." Professor Colb also stated that "civility is quite frequently (though admittedly not exclusively) the demand that powerful people make of those less powerful than themselves. This is where civility is oppressive."

First, I have to admit that in the past I have had uncivil discussions with Professor George on Twitter because his absolutist, take no prisoners, in-your-face-approach to abortion is so extreme. How much, if any, civility to show when bombarded with that kind of rigidity is a hard question that I need to think more about. Three times on this blog I have written about how to talk about abortion civilly given our county's strong polarization on the issue. Professor George, however, exceeds all reasonable boundaries even for me (someone who is pro-choice but thinks the issue should be returned to the states). In other words, Professor George is an extreme case on maybe the most polarizing issue of all, so I'm not sure how much to generalize from that. 

As far as civility being a weapon of oppression, I'm guessing there might be a gendered element here that I do not fully appreciate. An uncivil man might be called just overly passionate (something I'm called a lot) whereas the same behavior by a woman (or a minority) might be viewed very differently. But I will say, and I am not suggesting this example is the same as the ones I just gave, I am frequently debating law professors from much more elite schools than mine and my resume disadvantage is pretty obvious to the room. In those cases, I still think that civility is quite important and being uncivil should be a tool of last resort for all the reasons I've discussed in this piece. Having said that, I do think Professor Colb's position needs to be taken quite seriously and I will do more thinking about it in the future.

Three of my favorite in-person debate opponents are Professors Ilya Somin and Jonathan Adler, and Clark Neily of Cato (among others). I disagree with them on a host of major issues but over the years we have worked successfully towards finding common ground and compromise. That journey should be where people start and, if we can all do that better, if nothing else, it might make our differences less important. Reducing those differences and the polarization that goes along with it seems like quite a worthy goal most, but, as Professor Colb pointed out, maybe not all of the time.