Erin O’Connor quotes Harvey Silverglate — civil liberties lawyer, Harvard Law graduate, co-founder of the Foundation for Individual Rights in Education — who finds it “amazing” that a speech code would be seriously considered “at a law school, any law school, because one thing that law schools do is study the constitution and these codes are clearly in violation of the First Amendment” (Even at Harvard, a private school?).
O’Connor agrees:
It’s one thing when undergraduates demand rules and regulations that violate the First Amendment–such demands are usually motivated by ignorance, and are tempered proportionally by education. But it’s another thing entirely when law students at one of the nation’s most elite law schools demand unconstitutional policies. It says they neither understand that law nor respect it; it says they are in the business of rationalizing ill-conceived agendas rather than mastering the rationale embodied within the U.S. Constitution; it raises serious questions about the quality of legal education in this country, and it bodes poorly indeed for the future of civil liberties in the U.S.
In a similar vein, I have long been struck by how often law schools actually make constitutional law regarding race — by losing cases.
In our time, of course, there is Hopwood v. State of Texas, 78 F.3d 932, 948 (5th Cir. 1996), cert. denied, 116 S. Ct. 2581 (1996). And there is at least a good chance that the Supremes will reject the University of Michigan law school’s racial preferences when they hear the case. But these are merely the latest in a long series of law schools losing cases.
Consider the following. I’m sure it is less than an exhaustive list involving law school losers having to do with race:
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938)
Sipuel v. Board of Regents, 332 U.S. 631 (1948).
Sweatt v. Painter, 339 U.S. 629 (1950).
McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950).
DeFunis v. Odegaard, 416 U.S. 312 (1974), is a special case, because by the time this University of Washington law school case reached the Supremes DeFunis, who had been provisionally admitted, had graduated, and the case was thus held to be moot. But Justice William O. Douglas wrote a dissent arguing that the case should have been decided, and his stirring denunciation of racial double standards is a now a largely ignored reminder of the days when it was the liberals who argued for colorblindness. Douglas wrote:
There is no constitutional right for any race to be preferred. . . . There is no superior person by constitutional standards. A DeFunis who is white is entitled to no advantage by reason of that fact; nor is he subject to any disability, no matter what his race or color. Whatever his race, he had a constitutional right to have his application considered on its individual merits in a racially neutral manner.
….
The key to the problem is consideration of such applications in a racially neutral way.
….
The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized. The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish. It should be to produce good lawyers for Americans . . . .
The fact that law schools are so often wrong about what the Constitution requires of them does raise questions about what they teach, doesn’t it?
The fact that law schools are losers in court so often has more to do with the general direction of academia than it does with law schools in particular. Every study has shown that academics are overwhelmingly liberal Democrats and the Democrat party has made no secret of its support for probing the limits of permissable affirmative action. While the overall public is split on this and many other issues, in a faculty senate you can count on near unanimous support for the full politically correct monty. Of course, in such probing actions sometimes you will go a bridge too far and be cut back by the courts. It is not for nothing that Democrats see judicial appointments as a key battle ground – “obstructionist” courts are often the only thing that stand in the way of the complete fulfillment of their agenda. The Constitution itself is no problem, because with the right judges it can be interpreted to permit or require (or prohibit) anything that is in the interest of “changing notions of progress”. But only if you have the correct judicial appointments.
While the political leanings of the faculty have some influence on what is taught in law schools, for the most part it does not – contracts, torts, etc. are fairly neutral subjects. Even if the faculty allows its political beliefs to tinge its teaching, law school students (having long ago learned the key leftist principle that one should question authority) are not exactly clay in their hands. So I’m not too concerned.
Harvard law, the First Amendment, and free speech
The bottom line on Harvard law school’s proposed speech code: “What I do find amazing is that it should be