Tuesday, May 7

Law Professors Boycott Justice

Nat Hentoff, writing in the Times, reports that all five black faculty members of the University of North Carolina at Chapel Hill's Law School boycotted the recent visit of Supreme Court Justice Clarence Thomas. Mr. Hentoff explains why this was a particularly inappropriate response:

The irony of this abdication of professional responsibility to students is Justice Thomas' record at the Supreme Court as one of the strongest voices for free speech. From the bench, he has said (as the lone justice who wanted to review an egregious repression of free speech in Avis Rent a Car System vs. Aguilar): "A theory deeply etched in our law is that a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable."

Mr. Hentoff concedes that the professors have every right to protest the appearance of Justice Thomas but questions the message that doing so sends to their students. I agree. Their arrogance in refusing even to challenge the "anti-progressive" views of Justice Thomas will be discouragingly familiar to many students and faculty on law school campuses (see here for a reprint of a column I have written on this topic). Typical of this dismissive attitude is the explanation by Bruce Nestor, President of the stridently leftist National Lawyer's Guild, of why he is not concerned with the refusal of many faculty to engage in a debate with conservative or libertarian legal scholars: "They want to debate things that have been fundamentally accepted by the law-school community. I don't think the refusal to debate a bad and outdated idea is a bad idea or demonstrates a lack of intellectual diversity." What sort of "bad and outdated ideas" is Mr. Nestor referring to that are so beyond the pale that their very acknowledgment is a waste of precious breath? Phrenology, eugenics, slavery? Hardly. The taboo topics include the elimination of cradle-to-grave welfarism, the death penalty and the views of critics of affirmative action--in short, ideas considered not only possible but actually propitious by at least half of Americans.

The habitual stifling of debate is regrettable in any context; in law school it rises to the level of fraud. It is a fraud perpetrated on the legal community as a whole and on law students in particular. And the greatest harm is not even to those students whose views are cavalierly dismissed as extreme despite garnering the support of most of the country beyond walls of the legal quadrangle. They at least are constantly exposed to both sides of every issue and are able to hone their positions by testing them against contrary arguments. The greater harm is to the students who cleave to the academic orthodoxy. Mill warned that "[h]e who knows only his own side of the case, knows little of that." By that measure, most law students graduate knowing very little indeed.

There is another disturbing aspect to Mr. Hentoff's story. The black faculty at UNC apparently considered themselves obligated to protest Justice Thomas's visit because they share his skin color. According to Mr. Hentoff, Marilyn Yarbrough, one of the boycotting professors, explained that, "[s]ince we are all black, we did not want to lend cover to him." Professor Yarbrough believed that "[j]oining Justice Thomas . . . would have been seen as an endorsement, or at least a tacit approval, of his views." Why? The professors have every opportunity to make their positions known through their classroom teaching, their academic and non-academic writing, campus debates, support for and sponsorship of student organizations and public lectures. Judging from the extreme response of these professors to the mere presence of a legal figure whose views they regard as inimical to theirs, I would be surprised if any of their students was in danger of confusing their appearance at an event with Clarence Thomas as an endorsement of his jurisprudence.

That Prof. Yarbrough readily concedes that her fellow black professors would not have boycotted the event if Justice Scalia rather than Justice Thomas had been the guest demonstrates that, despite the more benign explanation offered for the boycott, it was really motivated by the faculty members' hostility to the combination of Justice Thomas's race and his jurisprudence. The common portrayal of Justice Thomas as a traitor to his race, an "Uncle Tom," and worse by prominent black commentators--even at law schools--is nothing short of disgusting. Ironically, it is in large part Justice Thomas's unwavering refusal to accept the inevitability or usefulness of racial stereotypes, whether applied by the government with invidious or "benign" intentions, that has earned him the enmity of these professors, who scorn him for not conforming to their "progressive" view of what legal positions it is appropriate for a black man to hold. It is the hostility of these professors towards a black judge whose jurisprudence is not "progressive" enough and their fear that students will think that they hold the same substantive beliefs as another man just because they share the same skin color that make Justice Thomas's presence on the Court and his refusal to condone any form of racial stereotyping so necessary.