UNL Policy on Free Speech and Academic Freedom

 

July 21, 2021

To the Faculty, Staff and Students of the University of Nebraska:

Recently there has been a great deal of conversation across our campuses about academic freedom and its importance to our university. Today we issue the following unified statement in defense of freedom of expression for all members of the University of Nebraska community:

The free and open pursuit of ideas is a cherished principle in higher education, and its preservation is vital for any great university. As our policies and practices make clear, the University of Nebraska is strongly committed to academic freedom. We support and defend the liberties our teachers and learners have to freely discuss ideas in and outside of the classroom.

Our central mission is to educate Nebraska’s future leaders, and in preparing students to be thoughtful and engaged citizens, our instructors expose them to any number of concepts and ideas. Issues around race, equity and the fight against racism are an important part of our country’s story and they have an appropriate place in our classrooms. Our policies guard against the introduction of matters that are irrelevant to the subject at hand. We further expect and believe that in discussing ideas, our instructors make their classrooms places of robust and open debate, where all viewpoints are considered and all may express their opinions freely. That commitment to free expression is at the heart of our work as an institution of higher learning.

 

Ted Carter
President, University of Nebraska System

Jeffrey P. Gold, M.D.
Chancellor, University of Nebraska Medical Center

Ronnie D. Green, Ph.D.
Chancellor, University of Nebraska–Lincoln

Doug Kristensen, J.D.
Chancellor, University of Nebraska at Kearney

Joanne Li, Ph.D., C.F.A.
Chancellor, University of Nebraska at Omaha

How Law Students Should Disagree With Learned Friends in the Law

 This is advice from Prof. Robert George of Princeton:

Summers bring me opportunities to speak with high schoolers in our summer seminars. This year the question that's most on their minds is "Can I be friends with someone I have deep moral and political disagreements with?" The answer is "Yes, of course!" But there's more to say.

 Friends love each other despite disagreements and honor each other's right to freedom of thought and speech. Never demand conformity to your own opinions as the price of friendship. Never submit to someone's demand for conformity to his or her opinions as friendship's price.

 Friends who have differences can respectfully challenge each other's ideas, but each must be willing to be the one challenged and not just the one doing the challenging. They must recognize their own fallibility and each must consider that he or she might be the one in error.

 Friends don't indulge in manipulative rhetoric or attempt to win debates by dictating the terms of the discussion or controlling the language of the discourse. Friends don't try to police each others thoughts or language. Friends let friends make arguments in their own terms.

 If you are an ideologue, a dogmatist, you will have trouble being friends with people with whom you disagree. If you don't have friends who disagree with you on important moral and political questions, you should ask yourself whether you've become an ideologue, a dogmatist.

Everyone *notionally* understands his or her own fallibility. But notionally isn't enough. The test comes when someone disagrees with you about something you regard as profoundly important--when someone dissents from your deepest, most cherished, even identity-forming beliefs.

  When it comes to our deepest personal and political commitments--things that most matter to us--we human beings find it very hard to believe we could be wrong. It takes genuine strength of character--and courage--truly, and not merely notionally, to recognize our fallibility.

 

Inclusive leaders in the law debate divisive issues and ideas respectfully, and treat their classmates as learned friends in the law, not as enemies who must be cancelled or shunned.

Wisdom Concerning Envy, Property and Social Justice

 "At the heart of so much social unrest, hatred, and warfare is the sin of envy...of discontentment with our own estate [and] envying or grieving at the good of our neighbor." --R.C. Sproul

Give this some thought as you view so many issues concerning property, income, and the role of government in taxation, regulation, and spending. Does social justice mean you get to keep most of what you earn (or obtain through consensual transfers)? Or does it mean that you are entitled to the earnings or property of someone else?

Inclusive Leadership: A Few Hypos For 1Ls to Consider

 Among the goals of the law college are building a community of learned friends in the law and  developing inclusive leaders in the law. What does it mean to be an inclusive leader in the law in a community of learned friends who do not always agree? Let’s discuss a couple of hypos to see what we think about what inclusion means in the law school community:

 

Hypo One

You are a secular progressive student in con law class discussing a case that held that the Constitution protects the right to same-sex marriage. In the course of the discussion, Student B (a member of your study group) says she agrees with the dissent and believes that the Supreme Court violated the rule of law when it judicially amended the Written Constitution to require the states to recognize SSM. You strongly support legal recognition of SSM. What should you do?

1. Raise your hand and make your best constitutional argument in support of SSM?

2. Resolve to ask your study group to vote to remove Student B from the group?

3. Raise your hand and tell the Professor you are offended by Student B’s arguments?

4. Go to the Dean’s Office and ask the Dean to call Student B into his office for a scolding?

 

Hypo Two

You are a religious conservative student in con law class discussing a case in which a commercial wedding cake artist has declined to create a wedding cake celebrating same-sex marriage. The issue is whether the First Amendment protects the cake artist’s right to decline to create a message that contradicts his religious beliefs about the nature of marriage. In the course of the discussion, Student B (a member of your study group) says she believes the cake artist is the “H” word and that the First Amendment should not be interpreted to protect him. You strongly believe in religious liberty and freedom of speech and support the right of the cake artist in this case. What should you do?

1. Raise your hand and make your best constitutional argument in support of free speech and religious liberty?

2. Resolve to ask your study group to vote to remove Student B from the group?

3. Raise your hand and tell the Professor you are offended by Student B’s arguments?

4. Go to the Dean’s Office and ask the Dean to call Student B into his office for a scolding?

 

Hypo Three 

You strongly support the reparations movement and, in a conversation in the student lunch area, a classmate quotes Justice Scalia and says: “[U]nder our Constitution there can be no such thing as either a creditor or a debtor race. In the eyes of government, we are just one race here. It is American.”

What should you do?

1. Respond with your best argument in support of reparations?

2. Decide you will shun the classmate in the future?

3. Go to the Dean’s Office and ask the Dean to call Student B into his office for a scolding?

 

In a community in which people believe very different things about the good life and the meaning of social justice, how are diversity and inclusion best served? By silencing and excluding those with whom you disagree? Or by welcoming a rational and thoughtful debate about things that matter a great deal to everyone--right, left & in-between? The gold standard for diversity is viewpoint diversity in a wide open marketplace of ideas.

Suppose someone with a different view of social justice makes a rational argument with which you strongly disagree. Should you scold that person and say "your argument offends me"? Is that response a persuasive argument?  Or is it a power play--an act of social aggression--designed to deprive those with whom you disagree of their best arguments and force them to adopt your narrative? If an idea offends, the problem is not with the idea, but with your response to the idea.

How should inclusive leaders in the law deal with debate on issues that divide us? If you believe an idea is wrong debate it, but never try to censor it or label it as "offensive." Debate is always welcome in this class. But censorship and the cancel culture have no place in a law school committed to reasoned analysis of legal arguments. My advice to you all is to acquire tough skin when engaged in legal debate.

A University committed to true diversity and true inclusion should never--never--scold a student for making an argument that other students don't like. Even if they don't punish you for your thought crime, when a university official chastises you for making a rational legal or policy argument, it has a chilling effect on freedom of speech. It chills freedom of speech by sending the message that you should remain silent rather than risk the wrath of university officials. A university that censors free speech is involved in indoctrination, not education. At Nebraska Law we encourage you to "listen graciously," "speak thoughtfully," "act courageously." and "build community." So listen, debate, and treat those with whom you disagree respectfully as learned friends in the law.

 

Herein of a lost rare stamp, absentee ballots, and Florida voters

Check out my post about a lost (or abandoned) postage stamp over at PropertyProf blog.

More On "Possession As the Root of Title"

Prof. Richard A. Epstein states the problem we will be studying for the first few classes:

"A beautiful sea shell is washed ashore after a storm. A man picks it up and puts it in his pocket. A second man comes along and takes it away from him by force. The first man sues to recover the shell, and he is met with the argument that he never owned it at all. How does the legal system respond to this claim? How should it respond?"

Now suppose the first man goes to a barber shop for a hair cut. He puts the shell on a table in the shop and leaves forgetting it. A second man ("Joe") comes along, picks the shell up, and hands it to the barber to hold for the true owner. After a few years have passed and the true owner has not returned to reclaim the shell, Joe demands that the barber return the shell to him. How should the legal system respond to this dispute between Joe and the barber? Should it matter if the shell were found on the floor of the barber's shop instead of on a table? Which rule would best protect the interest of the true owner? Should that matter?

What are your thoughts?

Prof. Richard Epstein on "What is Property?"