TaxProf Blog

Saturday, April 15, 2023

More On The Law School Free Speech Wars At BYU, Stanford, And Yale

Deseret News, Sen. Mike Lee Responds to Campus Free Speech Issues at Stanford, BYU Law Schools:

Sen. Mike Lee has expressed concern on Twitter about recent events on college campuses where conservative speakers were disinvited or, as was the recent case at Stanford Law School, met with anger, vitriol and loud protest, when invited to speak.

When federal Judge Stuart Kyle Duncan spoke last month at Stanford Law School, he was drowned out by student protesters, then lectured by a dean at the school. The dean is now on leave, and the law school president released a lengthy memo stating her commitment to free speech.

Soon after the event, Lee responded on Twitter, saying it was “anything but an isolated incident. While disparate treatment of conservative viewpoints has become all too common in American law schools, Stanford has managed to take this trend to a new low,” he said as part of a tweet thread. ...

When news broke Tuesday about the potential cancellation of an event at Brigham Young University Law School, Lee expressed similar frustration. While tweeting out an article by the Cougar Chronicle, an off-campus conservative news website, Lee wrote that he hates “to see this at any law school, especially my alma mater.” Lee’s father was Rex E. Lee, BYU Law School’s founding dean and a former U.S. Solicitor General.

Aaron Sibarium (Washington Free Beacon), Texas Bar Application Adds Questions About 'Incivility' and Free Speech in Wake of Stanford Law School Fracas:

The state of Texas is updating its bar application to include questions about whether applicants have engaged in "incivility and violations of school policies," according to a letter from the Texas Supreme Court obtained by the Washington Free Beacon. The change is a direct response to an incident at Stanford Law School last month in which students shouted down a federal judge.

Sen. Ted Cruz (R., Texas) wrote to the bar in March suggesting the change, arguing that Stanford Law School graduates should "be made to answer, in writing, whether they participated in the shameful harassment" of Fifth Circuit appellate judge Kyle Duncan, who was subjected to vulgar heckling when he attempted to deliver prepared remarks. The bar responded in early April, indicating that it planned to ask all applicants "directly" about their involvement in disruptive protests.

Texas's board of bar examiners made the change after concluding that schools like Stanford—which did not discipline a single heckler—cannot be trusted to attest to an applicant's character. The state "has historically relied on law schools to report disciplinary matters that should be considered in determining an applicant's character and fitness for admission to the Texas bar," Nathan Hecht, the chief justice of the Texas Supreme Court, wrote on behalf of the bar examiners, who evaluate applications to the bar. "School reactions to recent violations of free-speech policies suggest that reliance is not justified." ...

It's just one wave in the tsunami of backlash against Stanford, from both elected officials and Duncan's fellow judges. House Republicans are now pressing the American Bar Association to investigate the law school, saying it is not in compliance with accreditation standards that require it to promote free speech. And two circuit court judges, James Ho and Elizabeth Branch, announced this month that they will no longer hire clerks from Stanford Law School, broadening the boycott they began of Yale last year.

"Rules aren't rules without consequences," Ho said in a speech. "And students who practice intolerance don't belong in the legal profession."

Daily Caller, Red State To Revise Bar Application To Flag Students Who Participate In Disruptive Protests

David Lat (Original Jurisdiction), A Free-Speech Controversy... At BYU Law?:

Controversies over free speech are apparently not limited to secular law schools on the coasts like Yale and Stanford. ...

They take place even at schools like the J. Reuben Clark Law School at Brigham Young University, aka BYU Law. Located in Provo, Utah, BYU Law describes itself as “a religiously affiliated law school,” since it “receives support from and is affiliated with The Church of Jesus Christ of Latter-day Saints.”

Given the conservative teachings of the Church of Jesus Christ of Latter-day Saints on issues like abortion and same-sex marriage, you wouldn’t expect BYU Law to be a hotbed of progressivism or a place where conservative speakers get “canceled.” But that’s the claim that surfaced in the news earlier this week.

On Tuesday, Garrett Hostetter, a 3L at BYU Law, wrote an opinion piece for the Cougar Chronicle, a conservative student publication at BYU. He claimed that a debate the BYU Federalist Society hoped to host about Dobbs v. Jackson Women's Health Organization, the Supreme Court’s landmark abortion case, got canceled during the fall semester—because it was deemed “too controversial.” ...

Compared to the events at Stanford and Yale Law, I’m not terribly troubled by what happened—or what didn’t happen—at BYU Law. But I think it illustrates three points worth keeping in mind when it comes to free speech and intellectual diversity at American law schools.

First, the problem is more widespread than one might think. It affects not just super-lefty, secular institutions like Stanford and Yale, but more moderate, religiously affiliated institutions like BYU Law.

Second, the problem manifests itself not only in terms of things that happen, but things that don’t happen. How many worthwhile events never even take place because either the organizers or the administration fear blowback? It’s analogous to how many students—not just conservatives, but also moderates and even progressives—engage in self-censorship, in class discussions and social situations.

Finally, when it comes to law school administrations and student events and speech, sometimes “less is more.” I have no doubt that the BYU administrators, like administrators at so many other schools grappling with these issues, had good intentions—just as the administrators involved in the Stanford and Yale controversies would claim that they had only good intentions. But we all know the old saying about good intentions.

So law school deans, chillax. Don’t get involved in student controversies. Let students make their own mistakes—if they are in fact mistakes—and learn from them.

Eric Segall (Georgia State), Federalist Society Judges Acting Badly:

Judge James C. Ho of the Fifth Circuit Court of Appeals was nominated by Leo/Trump and confirmed by the then-Republican-controlled Senate. Judge Ho's mean-spirited legal opinions are infamous but I'm not going to delve into that here. Instead, Ho made a national name for himself by publicly announcing (at a Federalist Society meeting of course) that he would no longer hire law clerks from Yale Law School (he was later joined in the boycott by Judge Elizabeth Branch of the 11th Circuit, who is the adviser to the Georgia Lawyers Chapter of the Federalist Society). Why you may ask? What was Yale's big sin? Apparently, Ho believes Yale has an unhealthy "cancel culture" that is rude to conservatives. Whether or not that is true, Ho was under no obligation to hire Yale clerks in the first place, so why make such a public fuss and call for other federal judges to join the "boycott?"

One theory is that he is auditioning for the Supreme Court. Another theory is that he just likes publicity. Or maybe he is just a true, true believer in free speech values and is sincerely upset at Yale. But the theory does not matter. Except to the extent that actual cases before him sometimes call for judgments that are as much political as legal--which is substantially less frequently for a lower court judge than for the Supreme Court--Judge Ho has no business getting involved in culture wars and taking obvious political sides. To do so is inappropriate for a sitting federal judge.

Neil H. Buchanan (Florida), Fabricated Outrage and the Right's Attack on Higher Education:

By now, almost everyone who would be inclined to read a blog like Dorf on Law will have heard some version of a story about the outrage du jour in the American right's ongoing effort to subvert higher education. This one comes out of an incident at Stanford's law school, which made it especially useful for anti-liberal propaganda purposes. ...

[T]he standard response to any situation in which left-leaning university students express their displeasure involves a chorus of people across the political spectrum harrumphing and saying that it is simply awful that any students would dare to express negative opinions about a speaker's views. You kids get off my lawn! (Except of course, the commentators do not own the lawns in question.) Universities are supposed to be places to learn, these people say, so it is absolutely unacceptable for students to protest against ideas with which they disagree. No room for nuance; no allowing for the possibility that it could be acceptable for young people to have opinions and push back on their betters; no skepticism that the videos that go viral have been edited to make the situation look as bad as possible for the protesters.

Soon after the Stanford story broke, I happened upon a piece in Slate by Mark Joseph Stern, who provided a much more complete story than was available in more mainstream publications (much less right-wing outlets). I wanted to push his analysis further, so I published a fantasy piece on Verdict yesterday in which I imagined myself as the president of an institution of higher learning known as FU (Fair-minded University) [A Public Statement About Law Students (and Others) Acting Like Children, from a Fictional University President— Or, the Stanford Incident is Not What You Think]. There, my purpose was to push back strenuously against the claims (from the hyper-reactionary federal judge at the center of the controversy, among others) that the Stanford protesters were a bunch of "coddled children."

The key takeaways from my column were: (1) that the judge in question was the most childish of any of the actors in that over-hyped drama, a shameless bully who apparently thinks that being invited to speak at a major law school gives him license to be a fucking asshole braying jackass and then whine about how he was treated; and (2) that the other students in the story, the members of the conservative law school club who invited the judge to speak, were acting like nasty, vindictive children. ...

In the end, the rest of us do not have to go along with the fantasy that these incidents are unplanned, guileless matters that provide insight into the heart of modern universities. These are modern morality plays, produced and directed by people who know exactly what they are doing, all as part of an authoritarian effort to undermine genuine intellectual and academic freedom. And they barely even bother to try to hide it.

Prior TaxProf Blog coverage:

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