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State-Funded Law School Goes Partisan

By Luke Milligan

Since 1846 the law school at the University of Louisville has provided nonpartisan space for individuals to teach, discuss, and research matters of law and public policy.  Despite the thousands of partisans who’ve walked its halls, the law school as an institution has remained nonpartisan, preserving its neutrality, and refusing to embrace an ideological or political identity.

Unfortunately, this long run of institutional neutrality seems headed for an abrupt end.  Promotional materials for the law school now proclaim its institutional commitment to “progressive values” and “social justice.”  Incoming students and faculty are told that, when it comes to the big issues of the day, the law school takes the “progressive” side.

‘The Compassionate Law School’

The plan, in short, is to give the state-funded law school an “ideological brand.”  (The Interim dean says it will help fundraising and student recruitment.)  In 2014, the law faculty voted — over strong objection — to commit the institution to “social justice.”  Now we’re at it again, seeking to brand ourselves “the nation’s first compassionate law school.”

These branding projects are misguided.  For starters, the chosen brands are divisive, alienating about half the people in the country.  While terms like “social justice” and “compassionate” might seem “inclusive” to you, tens of millions of Americans disagree.  People hear these terms in a legal or political context and think “liberal orthodoxy.”  (Quick:  what’s the “social justice” and “compassionate” position on same-sex marriage, immigration, health care, affirmative action, gun control, securities regulation, equal protection, due process, Ruth Bader Ginsburg, Antonin Scalia, Bernie Sanders, Rand Paul?

Even those who benefit from our divisive brands (e.g., “progressive” faculty and students) can appreciate the costs to higher education.  Universities function as a marketplace of ideas, where conventional ideas are tested, year in and year out, against unconventional ones.  Ideological brands like “social justice” and “compassionate” obstruct this critical process.  They do so by formally prioritizing liberal orthodoxy in an array of university matters (including research, hiring, and student scholarships).

‘Social Justice Credentials’

Readily characterized as “uncompassionate” by progressives, libertarian and conservative viewpoints are bound to be boxed out.  Don’t be surprised when departments add their thirtieth liberal professor instead of their first libertarian, or when applicants with “social justice credentials” win scholarships over high-achieving conservatives.  Brands like “social justice” and “compassionate” promise to sap higher education of its vitality and usefulness, leaving universities little more than salons of ideological self-congratulation.

We’re already experiencing the fallout at the law school.  In the name of “social justice” and “compassion,” students were instructed on Day 1 of law school to rise and make public declarations regarding their race, religion, and sexual orientation.  Under the Interim dean’s gaze, new students came out as gay, the devoutly religious were told to cheer for atheism, and evangelicals were called on to applaud the LGBT community.

State-sponsored “comp0assion” and “social justice” left students wondering if they’d need to sacrifice personal privacy, political values, and deeply held religious convictions in order to succeed at law school.

Student Groups Lurch Left

Naturally, the student organizations have lurched leftward.  The Student Bar Association shrugged off student complaints about the “social justice” brand as the “best proof yethat students need more social justice.”  (This calls to mind George Will’s quip that it’s “theoretically impossible for people in the ‘Party of Compassion’ to behave badly because good behavior is whatever they do.”)  Another student organization gravely announced that “ideological and political diversity” adds “insult to [their] injuries.”

As you’d imagine, classroom discussions have grown one-sided.  In Criminal Procedure it’s nearly impossible to find students to defend federalism, standing limits, or qualified immunity.  In Criminal Law, last year, not one student was willing to argue in support of criminalizing drugs.  Students find it hard to square these arguments with the law school’s institutional commitment to “social justice” and “progressive values.”

Well-Meaning, with No Understanding

Louis Brandeis warned us that “the greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”  Brandeis was not a perfect man (he was conspicuously quiet on race issues), but he was one of America’s greatest advocates of political and ideological diversity.

By working to slap divisive and partisan labels on our state-funded law school, we betray Brandeis’s vision for public universities, revealing ourselves as men and women “of zeal, well-meaning but without understanding.”

There is a good reason why only three universities in the entire country (Spalding University, Central Connecticut State University, and Western Connecticut State University) have designated themselves “compassionate” institutions.  The University of Louisville should follow 99.9 percent of America’s universities and resist the “feel good” lure of these ideological brands.  State-funded universities should remain nonpartisan.

This commentary, published January 13 by the  Louisville Courier-Journal, is reprinted here with permission.


Luke Milligan is a Professor of Law at the University of Louisville’s Brandeis School of Law