Free Speech And Cancel Culture: A Tale Of Two Law Schools

GW and American University are the sites of the latest controversies.

The Jacob Burns Law Library at George Washington University School of Law. (Photo by Teotret via Wikimedia/Creative Commons.)

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In the wake of Dobbs v. Jackson Women’s Health Organization, last Friday’s big abortion ruling from the U.S. Supreme Court, Washington has become a leading battlefield in the culture wars. Pro-choice protesters have climbed up cranes to hang banners, camped out on top of bridges for more than 24 hours, and thrown paint over the fence at the Supreme Court building.

The nation’s capital is also the latest front in the law-school culture wars. Two law schools in D.C., American University Washington College of Law and the George Washington University Law School, have experienced free speech and cancel culture controversies in the past week. Here’s what’s going at American University (“AU”), per Karen Sloan of Reuters:

American University is investigating eight law students after a conservative classmate claimed they harassed him during an online group chat about the U.S. Supreme Court's Dobbs v. Jackson Women’s Health Organization decision, one of the students under investigation confirmed Monday.

The incident followed the May 2 leak of a draft of the decision, which was released in final form on Friday and overturned Roe v. Wade, reversing a Constitutional right to an abortion.

A male law student who described himself as Republican and “deeply religious” filed a complaint with the university alleging his classmates harassed and threatened him due to his political affiliation and religion, according to a May 25 letter from the university’s Office of Equity & Title IX.

The Foundation for Individual Rights and Expression (“FIRE”), which is assisting one of the students under investigation, has published an article about the episode, which links to a transcript of the GroupMe chat in question. As even cursory review of the chat reveals, it contains nothing remotely “harassing” or “threatening”; it’s just a heated disagreement between law students about a controversial topic. And it’s not even that heated, to be honest; the NYU Law listserv dust-up, which led to accusations of anti-Semitism, was far more contentious.

There are no threats, explicit or implicit, in the chat. Yes, there are some comments that are rude and uncivil—e.g., “can we shut the f**k up about personal opinions while people process this,” “no one asked for your personal opinion,” “[you should] have the decency to shut up while people come to terms with the fact that they’ve just lost a constitutional right”—but none of this rises to the level of harassment or threats.

There are a few comments that are critical of conservatives or Republicans—e.g., “I’m still stuck on the part [about how] conservatives shouldn’t be thought of as people who overturn rights like obergefell and loving when they are why we needed those cases in the first place,” “defending a whole party that is definitely at fault and pretending like the political isn’t personal for a lot of people [is] wild”—but this is pretty weak sauce. You can find harsher commentary in thirty seconds on Twitter.

Despite the complainant’s claims that he was harassed based on his religion, the chat contains no references to his religious beliefs, other than (1) the complainant himself saying that “baseless claims that abortion bans are ‘class warfare’ [are] deeply offensive to both me and my Greek Orthodox faith,” and (2) another student telling the complainant to “STOP MAKING THIS ABOUT YOU and what YOUR BELIEFS are.”

As I’ve said in these pages again and again, law students—on the right, on the left, or in between—should address these conflicts on their own, without running to the administration at the first opportunity. If they can’t engage in spirited debate without wilting, they’re going to have a rough time of it out there as lawyers.

And administrators need to stop indulging the complaining students by launching ridiculous “investigations.” As FIRE attorney Alex Morey stated, “American cannot let its process for investigating actual discrimination and harassment be weaponized to investigate students’ opinions, but that’s exactly what’s happening here.”

If administrators feel obliged to launch something nominally called an “investigation” because of university policy, they should close the investigation immediately after opening it. I could have “investigated” the AU controversy in all of five minutes by reading the chat and writing a one-line memo: “Nothing to see here, move along folks.”

At AU, the attempt to stifle free speech by claiming “harassment” and “discrimination” comes from the right.¹ In the controversy at George Washington University Law School (“GW Law”), the effort to cancel comes from the left.

Since 2011, Justice Clarence Thomas has co-taught a constitutional law seminar at GW with his former clerk Gregory Maggs (now Judge Maggs of the U.S. Court of Appeals for the Armed Forces, but for many years Professor Maggs of GW Law). They’re scheduled to teach the course again in fall 2022.

On Sunday afternoon, Jon Kay, a rising junior at GW, created a petition calling for firing Justice Thomas (“people with wombs” in the original):

With the recent Supreme Court decision that has stripped the right to bodily autonomy of people with wombs, and with his explicit intention to further strip the rights of queer people and remove the ability for people to practice safe sex without fear of pregnancy, it is evident that the employment of Clarence Thomas at George Washington University is completely unacceptable. While also factoring in his wife’s part in the attempted coup in January of 2021, Judge Thomas is actively making life unsafe for thousands of students on our campus (not to mention thousands of campuses across the country). Make your voice heard and help us kick Clarence Thomas out of Foggy Bottom.

The petition received more than 7,000 signatures, but the university didn’t cave. On Tuesday, as reported by the GW Hatchet, Provost Christopher Bracey and GW Law Dean Dayna Bowen Matthew sent out an email in which they wrote as follows:

Because we steadfastly support the robust exchange of ideas and deliberation, and because debate is an essential part of our university's academic and educational mission to train future leaders who are prepared to address the world's most urgent problems, the university will neither terminate Justice Thomas' employment nor cancel his class in response to his legal opinions.

Justice Thomas’ views do not represent the views of either the George Washington University or its Law School. Additionally, like all faculty members at our university, Justice Thomas has academic freedom and freedom of expression and inquiry. Our university’s academic freedom guidelines state: “The ideas of different faculty members and of various other members of the University community will often and quite naturally conflict. But it is not the proper role of the University to attempt to shield individuals within or outside the University from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.”

I like this response. First, and most importantly, Provost Bracey and Dean Matthew stood up for academic freedom and free expression, in clear and unmistakable terms.

Second, they did not include the expected condemnation of Dobbs—which we might have seen if this had happened at, say, Georgetown Law. Instead, they simply wrote that “Justice Thomas’s views do not represent the views of either the George Washington University or its Law School.” This is a true statement that doesn’t take sides in the culture wars; it could have been said just as easily about Justice Sotomayor. It is not the institutional role of a law school to support or condemn the views of individual justices or schools of thought (e.g., critical race theory), however awesome or awful those views might be.

Third, Bracey and Matthew rejected the request promptly, instead of letting it fester for days and allowing the brouhaha to grow. At Yale Law, it probably would have taken more than two weeks for the administration to respond.

The AU and GW Law controversies are some of the first over Dobbs, but they won’t be the last. May they provide useful lessons to law school students and administrators for how to handle—and how not to handle—Dobbs disputes in the future.

UPDATE (7/15/2022): It took far too long, but after more than six weeks, American University finally concluded its investigation—without taking any disciplinary action against the pro-choice students.

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1. This isn’t the first time FIRE has come to the defense of a law student on the left. For example, they defended Nicholas Wallace after a member of the Stanford Federalist Society complained about a satirical email Wallace produced that mocked FedSoc. Free speech is not—and should not be viewed as—a partisan issue.

Disclosure: I’m speaking at FIRE’s Student Network Summer Conference next month, for which I’m being compensated, as I always am for speaking gigs. I have admired FIRE and praised their work long before they invited me to speak.