Douglas Laycock: Liberal Target of Intolerant Liberalism

Liberalism and the left have become virtually indistinguishable (as Fred Siegel’s impressive Revolt Against The Masses persuasively documents), becoming more intolerant and hence more intolerable. An exemplary recent example is the recent attack orchestrated by GetEqual, a Berkeley-based militant gay rights group, against University of Virginia law professor Douglas Laycock.

Laycock, ubiquitously described, as here, as “husband of UVA President Teresa Sullivan [and] one of the country’s leading experts on religious liberty,” angered the militants because, as they claimed in an “open letter” to him, “your work is being used, and possibly mis-used, by those who oppose the ability of lesbian, gay, bisexual, and transgender (LGBT) Americans and women to fully and authentically live without interference from the government.” The would-be Laycock slayers, a recent UVa graduate and a rising fourth year (UVa-speak for senior), recognized that “occasionally” Laycock’s work had placed him “on the same side as progressives,” but they were outraged that his work has often been cited “in attempts to erode progress for LGBT Americans and to erode protections for women. These efforts to roll back progress and protections for LGBT folks and women has [sic] drastic, real-life consequences.”

The New McCarthyism

Although the angry authors gave lip service to the value of academic freedom “within the walls of the classroom,” where, presumably, it could do no real damage, and they claimed only to want “a conversation” with the professor on the “real world consequences” of his work. What they obviously really wanted, however, was not to hear from him but not to. They wanted to silence him and others who agree with him, as evidenced by the fact that they also filed a freedom of information request seeking university-funded travel expenses and cell phone records for the past two years. “His work,” said Heather Cronk, co-director of GetEqual, “whether he understands it or realizes it or not, is being used by folks who want to institute discrimination into law.”

The response was fast and furious and, with a revealing exception or two, unanimous. See, for example, the following comments on influential blogs: InstaPunditMegan McArdle,  PowerlineProfessor BainbridgeTaxProfBlogVolokh ConspiracyOverlawyered, plus discussion by liberal Dahlia Lithwick on SLATE and conservative Ramesh Ponnuru on National Review Online. Typical were (UCLA law) Professor Bainbridge‘s observation that the attack on Laycock “is a blatant effort at deterring public participation by anyone who does not hew 100% to the most radical version of the gay rights movement” and Cato’s Walter Olson on Overlawyered that it is “simply a matter of trying to arm-twist a tenured, well-recognized scholar who takes a position that the Forces of Unanimity consider wrong.”

These and other commenters noted both the high reputation of Laycock’s scholarly work and the fact that he was an odd target for gay activists since he was as likely to offer his services to liberal causes (writing a brief in support of gay marriage in the Windsor case; arguing for the plaintiffs in the Supreme Court that the heavily Christian prayers before Town of Greece (NY) board meetings, discussed here, violated the separation of church and state) as conservative ones (filing a brief supporting Hobby Lobby’s right to an exemption from the Obamacare contraceptive mandate.

‘Insidious’ to Disagree

The Cronk-ites, however, are not without their defenders. Peter Rosenstein, a former Vice-Chair of the Board of Trustees of the University of the District of Columbia, asserts on the Huffington Post that “[i]ndividuals like Laycock are often insidious. They claim to want people to have rights such as marriage-equality, and then at the same time attempt to create a legal loophole for discrimination to thwart full equality for LGBT people.” Moreover, Rosenstein continued, sounding for all the world like a modern-day witch-hunter with a list of subversives on the public payroll, “some consider his efforts to be questionable because he is paid by the University of Virginia, a public university using taxpayer dollars.”

Indeed, this entire kerfuffle is haunted by eerie echoes of McCarthyism. As the Richmond Times Dispatch noted, Laycock himself “said he believes the campaign is based on guilt by association.” And Yale law professor Stephen Carter began what I found the most interesting discussion of this controversy with a moving discussion of his great-uncle who, along with the writer Dashiell Hammett, was a trustee of a bail fund established by the Civil Rights Congress, which the House Committee on Un-American Activities had declared a Communist front organization. They were convicted of criminal contempt and jailed for refusing to testify about the source of the bail money.

“My own choice of the academic life,” Carter writes, “was spurred in no small part by my search for an arena in which what matters is not which side you are on but the quality of your ideas. So you will perhaps excuse me if I have no sympathy for the efforts of gay-rights activists to smear and intimidate Douglas Laycock.”

If You’re Not on the Left…

Carter needs no excuse for his disdain for Laycock’s gay-rights attackers, but if he still believes that what matters in academia “is not which side you are on but the quality of your ideas” he either hasn’t been paying attention or is a hopeless Pollyanna. Branding all those with religious reservations about aspects of the gay or feminist agenda as bigots is of a piece with defaming all climate change skeptics as science-denying neanderthals and all critics of race preferences as racists, something Carter surely recalls from some of the responses to his superb book, Reflections of An Affirmative Action Baby. Indeed, one of his criticisms there of “diversity” is that it assumes “that there is a black way to be — and the beneficiaries of affirmative action are nowadays supposed to be people who will be black the right way.” These days, quite clearly, if you’re not on the left side you’re on the wrong side.

And not just these days. Indeed, just as some of the worst abuses of what came to be known as McCarthyism occurred before the Senator from Wisconsin came on the scene (see, for example, here and here), the academic left has been bullying those who strayed from the liberal plantation since before the term “political correctness” was coined. As it happens, I have personal experience with an early example that is substantively identical to the current attack on Laycock, except it was conducted by enforcers far more powerful against a target far more vulnerable.

As I’ve discussed here and at greater length here, in the 1980s I “practiced history” with the small law firm representing Sears in EEOC v. Sears, Roebuck and Company, at that time (and perhaps still) the largest sex discrimination case ever tried. One of our expert witnesses was my ex-wife, Rosalind Rosenberg, then an untenured assistant professor at Barnard, who agreed to testify, for example, that Sears could not be held responsible for a labor force in which more men than women were interested in and available for such jobs as installing home heating and cooling systems.

Immoral to Testify for Sears

For this heresy Rosalind was attacked, not by a couple of undergraduates but by many of the leaders of her field, for precisely the same crimes as Laycock, except worse. She was attacked, the New York Times reported, on “panels at scholarly conventions, articles in educational, historical and feminist publications and an often vituperative private dialog,” and quoted  an influential women’s historian who called her testimony “an immoral act.” Jonathan Wiener of UC Irvine, writing in The Nation (9/7/1985), argued that historians should testify only if doing so “helps working women” and that arguments like hers in Sears “plays into the hands of conservatives.” One of our formerly close friends who went on to serve terms as president of both the American Historical Association and the Organization of American Historians commented to us at the time that she would never testify on behalf of a corporation accused — accused, mind you — of sex discrimination. Other friends said privately they admired what Rosalind was doing … but refused to write or say anything publicly.

Ruth Milkman, a future president of the American Sociological Association, wrote a widely quoted article, “Women’s History and the Sears Case,” favorably quoting a number of such criticisms, such as one by a prominent UCLA historian who asserted that Rosalind’s testimony “is the essence of conservatism and must be read as an attack on working women and sexual equality, an attack on the whole concept of affirmative action.” Milkman also quoted a resolution passed by the Coordinating Committee of Women in the Historical Profession at the American Historical Association convention in 1985 declaring that “We believe as feminist scholars we have a responsibility not to allow our scholarship to be used against the interests of women struggling for equity in our society.”

Fear of Your Vilifying Peers

In the best discussion of the Sears case in print, “Academic Freedom and Expert Witnessing: Historians and the Sears Case,” 66 Texas Law Review 1629 (1988), Rice University historian Tom Haskell and University of Texas law professor Sandy Levinson observed that the “vehemence of the criticism directed against Rosenberg raises troubling questions about academic freedom in terms of the consequences of political dissent within the scholarly community…. It seems plainly designed to insure that no other historian, especially one without tenure, ever will dare to express similar views in court or in any other forum.”

That design had some success. As the principal of a firm that, among other services, “identifies expert witnesses and gives them research support” wrote in the Chronicle of Higher Education, he has been disturbed by the reluctance of academics to serve as experts because they “fear being vilified by their peers for appearing on behalf of the ‘wrong’ side, as Rosalind Rosenberg of Barnard College was vilified by feminist academics for serving as an expert witness for Sears, Roebuck & Company.”

Making the same point over 25 years later regarding Laycock’s attackers, Glenn Reynolds noted on InstaPundit that they are “not really trying to intimidate him.” Adds Jonathan Adler on the Volokh Conspiracy, “[t]hey’re really trying to intimidate anyone else who might want to pursue similar scholarly lines of inquiry. Tactics that won’t intimidate Professor Laycock could well intimidate the next Laycock-to-be — and that’s a problem.”

The more severe problem is that the left’s attempt to intimidate dissenters has been a problem for a long time; it was not produced by today’s LGBT militants. At least now, unlike with Rosalind’s case, there has been commendable push-back against the bullies.

I’ve been writing my blog, Discriminations, since 2002, and every year I receive a request or two to delete comments because the commenter is applying for an academic position and fears that the comment will result in him or her being branded a conservative. In higher education today, as so often in the past, it seems Stephen Carter got it backwards: what matters is what side you’re on.

Postscript 1. In the trial Judge John Nordberg of the Northern District of Illinois held  Sears innocent of all charges, holding that “the EEOC was unable to produce one victim or prove the occurrence of even one discriminatory act.” His judgment was upheld by the Seventh Circuit. Despite the continuing vilification, Rosalind Rosenberg received tenure at Barnard.

Postscript 2. Nothing above should lead anyone to conclude that I believe Prof. Laycock, or any professor, should be immune from even severe criticism. If I thought that, I would not have been able to complain about Laycock’s contradictions regarding racial preference policies as I did here and here.

(Photo: Douglas Laycock. Credit: UVA.)

John S. Rosenberg

John Rosenberg blogs at Discriminations.

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