A Free-Speech Controversy... At BYU Law?

Was a Federalist Society debate about Dobbs simply too hot to handle?

The J. Reuben Clark Law School at Brigham Young University (photo by David Lat).

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Controversies over free speech are apparently not limited to secular law schools on the coasts like Yale and Stanford.¹ 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.”

Back in February, I spoke at BYU Law, as part of its Law & Leadership Colloquium course, and I received a warm welcome. I came away very impressed by the law school and its sense of community; everyone there, from students to faculty to administrators, seemed to know and genuinely care for everyone else. It seemed hard to imagine ugly protests like those at YLS and SLS taking place at BYU.²

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”:

During Fall semester, the Federalist Society planned to host an event to discuss the merits of the Dobbs v. Jackson decision and the legal implications of Roe v. Wade’s reversal. We invited two professors, one liberal (BYU Law) and one conservative (Nebraska Law), to share their views on this issue. These longtime professors and friends would challenge our views, educate our minds, and persuade us to see the law through their eyes. Discussions like this are one of the few holdovers from the forgotten era of a truly liberal education. 

And then I was texted that word: Canceled….

Two days later, I sat in the Dean of Students’ office. Despite our agreement [to refrain from trying to cancel each other’s events], a student from ACS [the progressive American Constitution Society] had complained. The Dean explained that our event was just too controversial. Why? Because last year when the Nebraska professor spoke at the BYU Federalist Society, some students got “offended.” 

What caused these students to get upset? Here’s what Hostetter claimed:

The speech this 71-year-old law professor gave the previous year was titled, “True Diversity Means Inclusion, Not Exclusion.” During that Federalist Society debate, he explained that true diversity comes from our beliefs, backgrounds, and viewpoints. Therefore, we should never silence someone, whether liberal or conservative (or in-between). Equally dangerous as silencing is compelled speech, which is simply enslavement of the tongue. One example he gave was forcing someone to use your gender pronouns when they have elected not to.

In a National Review piece, Ed Whelan confirmed Hostetter’s account and provided additional information. Hostetter didn’t name the professors, but Whelan reported that the debate would have featured Professor Rick Duncan of Nebraska Law (no relation to Judge Duncan), for the pro-Dobbs side, and Professor Fred Gedicks of BYU Law, for the anti-Dobbs side. Wondered Whelan, “When such apparent cowardice exists even at a private religious law school sponsored by the Church of Jesus Christ of Latter-day Saints, is it any wonder that law-school deans elsewhere kowtow to the grievance-mongers?”

Yesterday BYU Law issued the following statement on the controversy. Here‘s the key language (and the full statement appears at the end of this post):

Last fall, we became aware that a Federalist Society officer was organizing an event and had invited a speaker without applying for approval under the Speakers and Events Policy. The student planned to stage a debate regarding the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. This topic is of great interest to our students, and we are eager to engage on this subject.

The assistant dean of students, who administers the policy, informed the organizers that the event would need to go through appropriate channels but expressed concern about the anticipated timing of the event and suggested that they explore hosting the event the following semester. The Federalist Society officers did not apply for the required approval for this academic year.

This statement left some questions unanswered for me:

1. Did a meeting along the lines described by Garrett Hostetter—or any meeting, for that matter—take place in the dean of students’ office? It doesn't seem that an entire meeting would be needed to remind FedSoc of the requirement to get approval for its event—an administrative oversight that would be easy to rectify (unless it was being cited for pretextual reasons to cancel an event).

2. Is BYU Law denying Hostetter’s claim that the the dean of students told him FedSoc’s Dobbs debate would have been “too controversial” (or something along these lines)?

3. Is the statement’s reference to “concern about the anticipated timing of the event” simply a euphemistic way of saying that certain topics—e.g., abortion—are too upsetting or divisive to be discussed?

I personally think such a view is inconsistent with a university's educational mission, which includes tackling the most difficult and challenging issues that society faces, regardless of whether some people might get distressed. It strikes me as nothing more than a paraphrase of Stanford DEI Dean Tirien Steinbach’s infamous “is the juice worth the squeeze” argument.

And if the objection was that the event would have been “too soon” after Dobbs, I’d respectfully disagree. Dobbs came down in June 2022, and it was endlessly debated and dissected from the moment of its issuance—in newspaper opinion pages, over social media, and on cable news. In light of all this discussion of Dobbs, why would a fall 2022 debate at a law school between two law professors—who would presumably offer more informed and thoughtful views than cable-news talking heads, in civil fashion (the professors are old friends)—be regarded as inflammatory or inappropriate?

Please don’t get me wrong. 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.³

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STATEMENT OF BYU LAW SCHOOL ABOUT THE PROPOSED DOBBS EVENT

BYU Law School has one of the most active student chapters of the Federalist Society. With Law School approval, the Federalist Society hosts numerous speakers each year, including this year.

We also have a speakers and events policy, which every student club must follow. We use the approval process to help students stage well-organized events, facilitate hosting visitors, coordinate among the many events at the Law School, and assist clubs in marketing the event to our students. Numerous Federalist Society events have been approved under this policy. To our knowledge, no Federalist Society event has ever been denied.

Last fall, we became aware that a Federalist Society officer was organizing an event and had invited a speaker without applying for approval under the Speakers and Events Policy. The student planned to stage a debate regarding the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. This topic is of great interest to our students, and we are eager to engage on this subject.

The assistant dean of students, who administers the policy, informed the organizers that the event would need to go through appropriate channels but expressed concern about the anticipated timing of the event and suggested that they explore hosting the event the following semester. The Federalist Society officers did not apply for the required approval for this academic year.

BYU Law is committed to maintaining a vibrant intellectual community. We welcome a diversity of voices and beliefs, including those of the Federalist Society, in an environment of intellectual honesty, academic freedom, and abiding faith.

1. One quick update on the fallout from the disruptive protest of Judge Kyle Duncan (5th Cir.) at Stanford Law School: in response to the SLS incident, the Texas board of bar examiners has added a question to its bar application that asks candidates whether they have engaged in “incivility and violations of school policies.”

2. Disclosure: I received a modest honorarium from BYU Law for my February talk, which was lower than my usual speaking fee, plus coverage of travel expenses. (This newsletter’s About page explains my disclosure policy.)

3. Yes, Original Jurisdiction has been heavy on law-school content lately, but this should change very soon. The academic year is coming to an end, which should give us a temporary respite from these controversies, and the Supreme Court will start issuing its biggest decisions, which will give us other things to talk about.

Also, you can always opt out of the law-school controversy content if you like. Just go into your account settings and uncheck the box for emails about “General News,” the category where I file these stories. You can also stop getting email notifications for other categories as well—or all categories, if you prefer to just follow Original Jurisdiction by checking the website from time to time or by reading stories using the Substack app. Thanks!

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