Do Law Schools Truly Have to Worry About Students Not Being Able to Handle Real-World Disagreements?
by Neil H. Buchanan
I have continued to dig into the controversy that erupted after some students at Stanford Law School temporarily disrupted a talk last month by a visiting speaker (an extreme right-wing judge from the 5th Circuit). Thus far, I have published three columns on the topic: the first on Verdict last Thursday, the second here on Dorf on Law last Friday, and the third today on Verdict. The column that you are reading right now is thus the fourth in an unplanned series, with another likely coming next week.
There is no need to summarize all three of those columns here, so I will limit myself to saying that today's Verdict piece can be boiled down in significant part to this:
Reader: How should a university respond to a situation like Stanford's, where a national arch-conservative trolling operation contrived a controversy for national political consumption?
Me: Do you know how Stanford in fact responded?
Reader: Yes, they punished the one person who did the right thing (who was also the least powerful person in the room) and repeatedly apologized to the judge who escalated the whole thing and who acted like a petulant child and a bully.
Me: So the answer to your question is ... something other than that.
Here, I want to explore two issues that are relatively less important than the larger issues at play but which have been highlighted by Stanford's bungled response. The latter of those points is rather contrarian, which means that I am especially enjoying thinking it through. Here is a cryptic version of my bottom line: Maybe our students already know how to be grownups, but they rationally choose during law school not to be. But that is my final point. What of the first?
I start with an acknowledgement: In my columns thus far, one of my main arguments channels a conversation that I had with a friend at a top law school, who first pointed out to me the terrible power dynamic that played out in the dean's and president's suites at Stanford. This friend prefers to remain out of the public fray, so I am being a conscientious academic by acknowledging that one of my major arguments was not original to me, but I am also being a good friend by not revealing who first brought it to my attention.
In any case, the more I have looked into the situation, the more appalled I have become by Stanford's response. In particular, I was honestly surprised that a letter from the law school's dean (which has been praised on the political right and by establishment centrists as being "powerful" and "lawyerly") was more than a bit of a mess. Most notably, the letter uses the word coercion in two distinct contexts without acknowledging that that word cannot possibly mean the same thing in both, and it also manages to use that word incorrectly both times. More broadly, however, the central argument from the dean was to prove that Stanford could legally do what it is doing. Fine. Well, not fine. But fine.
In my three previous columns, I have said repeatedly (and I stated again above) that the law school's response only punished that one person. I should be clear, however, that although no one else was punished, the law school did in fact impose consequences on its students as a result of the event. It is not punishment, after all, to require that students attend "a mandatory half-day session in spring quarter for all students on the topic of freedom of speech and the norms of the legal profession" (p. 9 of the dean's letter). I suspect that it might feel punitive to many of the students at the law school, both those who protested and those who did not, but maybe the committee that puts together the program will provide valuable information and insight to those who are mandated to attend (which, again, is all of the students).
If I were not so angered by the overall situation -- especially Stanford's insistence on apologizing (and re-apologizing) to the most blameworthy actor in the whole morality play: Judge Kyle "Stanford students are dogshit" Duncan -- perhaps I would be less cynical about the involuntary class at which the topic will be freedom. In any case, I will limit myself here to a wry observation about forcing students to learn how to be good professionals.
An incident this past December flew under the radar, but it should have received more attention. During an oral argument at the Supreme Court, Justice Neil Gorsuch initiated this bizarre exchange, as reported in Slate:
During oral arguments in 303 Creative v. Elenis at the Supreme Court on Monday, Justice Neil Gorsuch cornered Colorado Solicitor General Eric Olson with an unforeseeable question. After noting that a state “can’t change” someone’s “religious beliefs,” Gorsuch brought up Jack Phillips, a Christian baker who was sanctioned for discriminating against same-sex couples.
“Mr. Phillips did go through a reeducation training program pursuant to Colorado law, did he not, Mr. Olson?” Gorsuch asked. Olson began to reply, but the justice cut him off, pressing him again: “It was a reeducation program, right?”
“It was not a reeducation program,” Olson said. Gorsuch asked him what he called it. Olson told him: “It was a process to make sure he was familiar with Colorado law.”
“Someone might be excused for calling that a reeducation program,” Gorsuch retorted. Olson stood his ground, responding: “I strongly disagree.”
The impatient sneer on Gorsuch's face spoke to his dishonest mindset. In any case, the national trolling organization that put Gorsuch on the Supreme Court is the very same group that scored a big public-relations win by concocting the Stanford incident. If simply informing someone of the contents and requirements under a specific Colorado law is a re-education program, what the heck is Stanford doing? Are Gorsuch's pals at the ramparts, decrying Stanford's overreach? The very idea is laughable.
So the first of my two new points in this column is to point out the hypocrisy, irony, or whatever one might call it that has come out of this situation. Once again, right-wingers are absurdly solicitous of the supposed rights of people they like but utterly contemptuous of those who disagree with them.
My second new point today, as teased in the title of this piece and my quick summary above, is to wonder about the hand-wringing that we are seeing from legal educators about the supposed problem when our students "cannot handle" being exposed to ideas with which they disagree. The letter sent out by Stanford's dean put it this way:
Law students are entering a profession in which their job is to make arguments on behalf of clients whose very lives may depend on their professional skill. Just as doctors in training must learn to face suffering and death and respond in their professional role, lawyers in training must learn to confront injustice or views they don’t agree with and respond as attorneys. ... And learning to channel the passion of one’s principles into reasoned, persuasive argument is an essential part of learning to be an effective advocate. (pp. 6-7)
That was a bit much, but it is possible to put the point in a less precious way. In my columns, I cited with approval a two-part Verdict series by Illinois Law's Dean Vikram Amar and his colleague Professor Jason Mazzone. They gently poke holes in various of Stanford's arguments (so gently that they seem not to be doing it at all), and I quote them extensively in today's Verdict column. They do, however, agree with Stanford's dean about the importance of teaching students how to be able to handle discomfiting and unpleasant arguments:
[U]niversities in general, and law schools in particular, are places where students need (for their training as citizens and professionals) to get used to handling in a disciplined and productive way speech that makes their blood boil. How is a lawyer supposed to do her job effectively after graduation if she can’t calmly occupy the same courtroom or boardroom with someone whose speech might undermine, rather than promote, the lawyer’s sense of justice? In this respect, each law school should not merely tolerate but embrace controversial speakers (provided they are serious people and not just incendiary propagandists).
What could I possibly find objectionable in that (especially given that their last sentence perfectly aligns with my argument that universities are not required to pretend that trolls are not trolls)? As an aspirational statement, I am completely on board. People who are going into the business of confronting disagreement need to be able to handle hearing the arguments with which they disagree. I would simply offer two thoughts, one short and one a bit longer.
First, plenty of legal jobs do not involve "occupy[ing a] courtroom or boardroom." We in the business of legal education, even someone like me who has never been a practicing attorney, continue to imagine that a lawyer's job is mostly about confrontation and disagreement. But just as many law school graduates take jobs that are "JD-advantaged" but do not require "being a lawyer," a lot of lawyering simply does not involve toe-to-toe exchanges with people whose views you might despise.
My reaction here is similar to an argument against cold-calling in law classes. When students object and say that they freeze up or are not confident public speakers, I am one of the first to say: "Well, they'd better figure out how to become a decent speaker, or they're in the wrong line of work." But honestly, I think that I might be wrong about that, and it is even possible that merely because I was a high school and college debater who enjoys that style of communication, then I think that everyone who gets a law degree should be at least adequate at public speaking. The fact is that plenty of soft-spoken and nonconfrontational lawyers can do their jobs quite well.
We have no problem with students choosing careers in "deals" and legal planning rather than litigation, because not everyone wants to be Perry Mason (which is once again a current pop culture reference -- fantastic show.) Why are we so certain that our students cannot be effective professionals unless they can stand next to a bigot and listen to him spew hate? To me, that presumption should at least be subject to honest doubt.
Second, why do we assume that students who ask to be shielded from hateful words in law school will not be able to step up when they need to do so in real life? I have heard war stories from law professors about students who were disrespectful to them in class, and the takeaway is always the same: "Do they think that they'll get away with saying that to a judge in court, or a managing partner in a firm?" As much as I like to imagine that my job is an exalted position that demands the respect of students, I think we need to get over ourselves just a bit.
The fact is that a student who chooses to be disrespectful to a professor is making what could be a perfectly sensible decision, given the stakes. No law school of which I am aware would permit a professor to give a student an F for back-sass in class. Indeed, almost no law schools allow us to give F's at all, except in the most extreme cases where a student has simply not shown up or done any of the work. Why is it not plausible that a student might be thinking: "The worst that can happen to me is that this pompous-ass professor will ding my grade from an A to an A-, and I'm fine with that, if it means that I can say what I truly think to this jerk"?
Several years ago, I agreed to help a colleague moot a pair of lawyers who were preparing for a Supreme Court oral argument. Playacting as an Associate Justice, I went hard at the advocate, asking about a gaping logical flaw in his argument. After a series of flailing responses, including the repeated cry that "we have 80 years of precedent on our side" -- to which I asked, "We're the Supreme Court, so we can overrule ourselves, can't we?" receiving only a blank stare in response -- he finally looked at my colleague and said something like this: "Can we move on? I'm confident that no real Supreme Court justices will have so much trouble following our argument." Let us say that I was not amused.
During the real argument, I was pleased to see Justice Ginsburg zero in on precisely the same logical black hole that I had found. Did the lawyer then ask the other justices if he could ignore their colleague who is obviously too dim to understand his brilliant argument? Of course not. Because he had stubbornly refused to listen to my argument, he had not bothered to come up with a better answer, and he twisted in the wind while RBG made it clear that he was confused. Even so, he listened respectfully, muttered something meaningless, and moved on. Different stakes, different behavior.
What should we think about students who are asking not to have to listen to a guest speaker at their law school -- a speaker who is there to tell them that, say, they should lose the right to bodily autonomy on the basis of religious dogma? My point is that it is not at all clear that such students lack grit or toughness or (more importantly) that they will wilt in a professional situation because they were not forced during law school to let their blood boil as part of a process of "learning to channel the passion of one’s principles." They might simply understand that law school is not real life, and when it is possible to avoid engaging with hateful bigots, maybe it is OK to do just that.
I should say that my views on these two issues are not absolute. That is, I am not saying that we should simply assume that our graduates will find the kinds of jobs in which they can choose whether or not to confront hateful people and ideas. Similarly, having seen some truly ridiculous courtroom behavior from some real-life attorneys, it might well be a good idea to include in our curricula exercises in professional deportment.
In other words, I am not saying that law school is useless. Legal education is quite useful in a myriad of ways, and I am proud to be part of the enterprise. I do have some rather strong doubts, however, about the claim that our job is to force our students to "face uncomfortable situations." Perhaps it is, but the knee-jerk pronouncements from legal educators about snowflake students strike me as more than a bit overblown.