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?"

Inclusive Leadership in the Law: Prof. McConnell on Why Campus Free Speech is so Important

Stanford Law Prof Michael McConnell made this truly remarkable assessment of why campus free speech is so essential in a speech he gave at a Fed Soc National event. Conservative viewpoints are often the target of campus censors, and McConnell was reacting to student concerns about that reality of life in academe. Here is what he said:

"You are not the victims. [McConnell told Fed Soc students.] And I don't have a lot of patience with whining.

Yes it is unfair. Yes it can be painful. But you've been through the refiner's fire. You don't go a day in your education without being challenged about the nature of your assumptions--why do you believe what you believe. And you don't go a day in your education without having to figure out how to communicate with people who don't necessarily share your presuppositions. You are getting the finest education that young lawyers can get.

The victims of this one-sidedness are your liberal and progressive fellow students, who can go through an entire education without ever having their precious beliefs challenged, and without needing to learn how to make a real argument--to make [logical] arguments instead of [merely shouting] 'check your privilege,' which I think is left-wing ideology-speak for 'shut the hell up.'

And there is one other set of victims, and that's society as a whole, because universities and especially law schools are raising the leadership class of our country, and I fear that we are raising a generation of people who either do not understand or do not believe that there are two, and often times more than two, legitimate points of view, and who believe that disagreement is something that can be suppressed. I think this is a major reason for the much-lamented extreme polarization that we are already seeing in our political culture."

That is a truly profound analysis by one of the major First Amendment scholars of this generation. Inclusive leaders in the law reject censorship and welcome  respectful debate in a wide-open university marketplace of ideas.

Here is the video of McConnell's talk. The entire panel is wonderful, but McConnell's comments are special and begin around the 47-minute mark. Inclusive leaders in the law reject censorship and the cancel culture and welcome a multiplicity of viewpoints on campus.

Universities & the First Amendment

Campus Censorship is Unconstitutional and Results in Damage Awards and Attorneys Fees

From Religion Clause blog (link) :

Thursday, May 27, 2021

Florida State Settles With Catholic Student Who Was Removed As Student Senate Head

As previously reported, last October a student court at the University of Florida concluded that the University's Student Senate violated the 1st Amendment when it removed Jack Denton, a Catholic student, from the Senate presidency. Student Senate took the action because Denton criticized Black Lives Matter, the ACLU and Reclaim the Block, saying they take views opposed to Catholic teachings. Now, the University has entered a settlement agreement (full text) with Denton under which the University has agreed to pay Denton $10,000 in damages and $1050 in back pay that he would have earned if he had remained Senate president. It will also pay Denton's attorney fees of $83,950. ADF, which represented Denton, issued a press release announcing the settlement.

 

 If you are the victim of censorship, I am always available to talk with you about it. 

If the censorship continues, you should get a lawyer and protect your First Amendment rights. Inclusion means inclusion, not exclusion.