How should leaders in the legal profession respond to controversies in the news?
Posting on behalf of a reader who emailed me (with their consent):
"When I attended Stanford Law School in 1991, it seemed like an obvious disconnect to me that Stanford was doing its best to attract students devoted to social causes—and then proceeded to load them up with student debt until they graduated and went to work for Wall Street corporate law firms!
Define 'professional judgment.' When you attract students and reward and facilitate their darn-near revolutionary viewpoints about social change, diversity and inclusion while they are in law school, how does that prepare them for the exercise of sound and sober 'professional judgment' in the corporate world?
Elite law schools have long tried to have it both ways. Woke culture predominates at school, yet funding comes and the legal pipeline goes straight to the establishment."
"Nice write up as usual. For what very little it is worth, as someone who has done traditional/mainstream advocacy for Israel most of my life, I’m not sure the offer revocation is a good thing—just creates one more martyr. I’d have much preferred that they be required to read the biographies of those murdered on Saturday. I’m probably being naive, but we need solutions much more than we need blame or a pound of flesh."
Actually (responding to both Person of BigLaw and Charles McKenna), my guess is that Workman knew losing their job was a possibility—and did not care.
I don't agree with their email (to put it mildly), but Workman is clearly an intelligent person; I think they acted with their heart, not their head. According to news reports, they are 24, and this is the kind of thing a 24-year-old might do.
"I see your question, and, a couple days ago I would have agreed with you, but the past couple days have shifted my perspective on these large-scale announcements.
I work at a BigLaw firm in New York City and my wife is a student in an NYC law school. Both of our institutions issued statements, albeit late and tepid. While I originally would have been dismissive of such statements, I’ve come to realize they can serve a more important goal than I once thought.
Since the events unfolded, neither my wife nor I—both of us obviously Jewish—have received any words of compassion or comfort from any of our non-Jewish colleagues or classmates. The Jews in our institutions have banded together, but no one outside of the Jewish community has even acknowledged any of the events to either of us. I don’t know if they fear weighing into politics, or haven’t been following what’s going on too closely, but I think those of us that follow the news a little too closely can forget that most people don’t.
Most people aren’t addicted to the day to day news cycle, and maybe brush off major international stories. It’s possible most people don’t realize the viciousness with which Hamas operates, and merely rubber-stamps their terror as 'conflict in the Middle East.'
Surely we can agree that it’s each individual’s responsibility to follow the news on their own, especially individuals at such intellectual institutions, but these sort of announcements can have an important function—to inform your constituents that egregiously immoral behavior is occurring overseas and it may be affecting the people next to you. Recognize evil when you see it, and offer compassion to those who need it. It shouldn’t take a firm-wide or school-wide email for people to realize such atrocities, but a strong condemnation of an evil terrorist organization is a good step in that direction."
Posting on behalf of an NYU source who emailed me (with their consent):
"I tend to think that you're correct—big institutions need not, and likely should not, feel the need to issue statements that respond to every news item near and far, immediate and obscure. I suppose we may see this phenomenon as another indica of the social-mediazation of American life. Everyone, from the ordinary social-media habitue to the big-account institution, has kind of just accepted that they must operate as their own press secretaries at all times and make grand declarations as part of a never-ending obligation of clarifying their public positions.
The problem here, however, is that if NYU Law does not make a statement, they can bet dollars to Sunday that one of the many affinity groups within the school, or even a generalist club like SBA, will make one, and more likely than not that statement will be far more extreme than what the law school can stomach. This has real implications for NYU Law not just because statements like Workman's are wrong-headed or antithetical to the school's values and therefore embarrassing as a public relations matter, but also because they have the real potential of enraging alumni and throwing donation and tuition dollars downstream into serious question. And then there's the prospect of federal government investigations, a whole separate beast.
So, the dilemma is: Make statements all the time and then get deluged any time you don't make one the right way or in response to this or that thing, or make no statements ever or make them exceedingly rarely and then let a doctrinaire 24-year-old fill the void for you. What's a school like NYU Law to do?"
It is relevant that the student made this statement in a post titled "Message from the President" and signed off as "Your SBA President." This means they are not speaking in their private capacity as a law student (or private citizen), but as a representative of the NYU student body. It seems correct that statements made in an official capacity should not have the same free speech culture presumptions as those made by a person in their private capacity. There is a difference between Elon Musk saying something on Twitter about whatever, and Elon Musk releasing a statement as CEO of Tesla.
If this student had made this statement on their private social media account instead, then I would be critical of Winston's decision to withdraw their offer. It would be healthier for society if companies didn't make employment decisions based on people's political beliefs. But here, Winston can plausibly argue that the withdrawal has more to do with the student's poor judgment in posting a politically controversial statement in her official capacity based on her private beliefs rather than from institutional policy; and thus a lack of attention to her fiduciary duties to the law school in doing so.
Yes, there is a positive outcome from an institution taking a stand on matters of moral importance. Specifically, it supports people who are suffering as a result of the outrageous action. For example, I am quite confident that there are many Jewish and/or Israeli students at NYU Law who know people who were killed or kidnapped. Having the vocal support of the Law School is a help.
Moreover, it helps to self-select. If NYU wants to build a community of people with a shared moral compass, it is well-served to broadcast what the metes and bounds of that moral compass.
I - simultaneously - believe that (a) Ryna Workman should be shunned by all moral people, including any prospective PRIVATE employer and (b) Ryna Workman should not suffer any consequences from any governmental actor as a result of their statement. If they have the courage of their convictions (which I have no way of knowing), they will welcome the consequences.
As usual, David better understands the delicate balance of free speech and offense/listener harms than most law school deans and now, apparently, the leadership of a leading Big Law firm.
My only other thought here is that in addition to citing "professional judgment" W&S should have offered the student the opportunity to learn from this mistake and rectify it - for example, by writing a statement acknowledging the lack of judgment, the poor taste, the obvious harm the statement would have inflicted on a grieving community, and the inappropriate forum for such a message. W&S could also have conditioned the student's return to the firm on taking sensitivity and workplace judgment trainings, and meeting with relevant Jewish/Israeli organizations to understand the Israeli perspective and really complex history of the region. That would then be a learning opportunity not only for the student, but for young people everywhere: there are consequences for extremely poor judgment and horrific and reductive positions, but also a path to redemption and reform.
If there's anything I dislike about cancel culture, it's that instead of providing opportunities to "call in" individuals and bring them back from the outskirts of a normative community, it outcasts them even further. This student will almost surely now feel more outside the mainstream and take even more extreme positions in the future, because they have been afforded no path back in. That's a shame, and a lost opportunity, because this student will surely not be the last to take stupid, offensive, and reductive positions with respect to Israel and Palestine.
"I don’t think Winston should have rescinded the offer of the NYU student. I don’t want firms firing people for views they express on their own time. Next they will fire people for opposing abortion and affirmative action."
I asked this reader: what about the poor exercise of judgment, as opposed to holding a poor opinion?
"Poor judgment is a slippery slope to poor opinion. This person was still a student too. They should have even more leeway to state their views. Now we have to worry about not saying things in class lest our firms not hire us?"
The right to free speech is not the right to speak without consequences. In her position, with her platform, one would hope that she considered the consequences of her words.
What’s missing, and what might be the most interesting thing about this, is that the student very clearly had no sense that she would face professional consequences for saying what she said publicly. It speaks poorly to her education, both formal and informal. And what a bubble her world must be.
Thank you, David, for your thoughts. My feelings are still raw, so please forgive this confused post: It bothers me greatly that she made her statement on behalf of a student organization. If she'd posted on her personal Facebook/Twitter/whatever account, I think she might have learned a bit from the blowback (if there was any). This way, she becomes a very public martyr for Palestine and I'll expect her to be snapped up by some firm or organization with similar views to hers. (Kudos to Winston & Strawn for acting as it did, though we could quibble as to the wording.) On an unrelated note, many Muslims and Muslim states have denounced the attack, publicly, as it did nothing for Palestinians, and was a sickening, inhumane act in every respect. https://www.memri.org/reports/arab-social-media-users-criticize-hamas-large-scale-attack-defacing-corpses-raping-girls
"NYU 2L here. Some thoughts, anonymously.
(1) First, in defense of Dean McKenzie: I think it's uncharitable and incorrect for the anonymous NYU source to have said that 'it’s unsatisfactory insofar as it manages to give the impression that there’s a legitimate division of views over whether it’s appropriate to support the massacre of civilians.' What in the text of the Dean's message gives that impression? One gets the sense that the anonymous source would have preferred the Dean of the law school to publicly ream out Workman specifically and explicitly. The problem with doing so is not political. It's that he's the Dean and she's a student, and a public message that is any more explicit would have been mean and inappropriate, and contra to his duty to have compassion for all the students at the law school. Readers can read and understand the condemnation between the lines.
(2) Second, many students wrote emails very similar to Workman's on our private, intra-student (though unofficially run) list-serv. The specific problem with Workman's of course was using an official platform for it (without any assent by the students). So I agree that the issue was poor judgment and not per se the expression of contrary beliefs, and perhaps her firm should have said that more particularly. But the thing is that her comments were deeply offensive, and extended well beyond a rational political critique of the Israeli government or whatever, but seemed to blame the victims for the loss of innocent life. This, of course, feels like a line too far. And though our common discourse about free speech (and SCOTUS jurisprudence) doesn't seem to draw these lines (e.g. Westboro Baptist Church case), society does. Words, in short, can be deeply hurtful and without much social value beyond the injury they cause people. And it's a law school after all, where students (many of whom have family and friends in the conflict) still have to come to class and learn. So there ought to be a high priority on civil discourse.
(3) As we all recognize, behavior like this is nothing new by law students or college students. Perhaps with the benefit of this situation, students and faculty will look back at the Stanford incident, and upon any future incidents, with more clarity."
I just received an email from the principal of my six-year-old's elementary school and thought, "Really?"
But it was less performative and more practical, providing advice for talking to your kids about sensitive subjects (or protecting them from news and social media if that's your choice as a parent), linking to online resources, mentioning offline resources at the school, and the like.
This shouldn't be hard. If an organization's purpose is to directly related to some topic(s) in public discussion, it should have a clear position(s) on that(those) issue(s), and state that position clearly and publicly. For instance, an organization dedicated to protecting wilderness in the western US should take public positions on issues related to western wilderness. An organization dedicated to improving education for poor children should take public positions related to education for poor children.
No organization should take public positions on controversial issues not directly related to its primary purpose. Doing so will distract both members and the larger public from the organization's avowed purpose. Certainly, members of these organizations are likely to have opinions, but the organization doesn't need to take a position, and shouldn't. Officials of these organizations shouldn't make public statements that would be seen as representing the organization, nor should they take advantage of their positions to promote their views to their members.
I recommend a look at UVA President Jim Ryan's statement as an exemplar of how to respond in a manner grounded on institutional interests rather than political engagement.