Tuesday, August 28, 2007

III. Toward a kinder, gentler (and more intellectually rigorous) law school --Concluding Reflections (rev'd)

Now to step back for a moment. I believe in academic freedom, defined in fairly expansive terms. The academic community must fight, often against powerful external actors, to protect freedom of thought and freedom of speech, even when those freedoms are exercised in ways we find distasteful, offensive or just plain wrong. (And we are free – indeed, obligated – to speak out against the substance of “wrong” ideas, without compromising the principle of academic freedom.) Professors should not risk their employment when they explore controversial ideas, even, and perhaps especially, when those ideas are unpopular, perhaps even hateful. (I put to the side deliberate personal insults and clearly discriminatory practices in the classroom, which should be neither tolerated nor protected.) That sets what I would consider the inimal or enforceable standard for faculty conduct. But it does not end the discussion.

There should also, I believe, be a more aspirational standard or set of communal norms at play, reflecting our widely shared commitment to the kind of open, respectful and sensitive learning environment that we seek to create. In such an environment, all members of a diverse community can feel fully at home and able to flourish.

Those who violate these norms in the exercise of legitimate academic freedom should risk not their employment, but their good names and reputations among colleagues, students, and the community. The lines here are not easy to draw, and differing recollections may make confident judgment difficult in evaluating some instances. Recognizing that others will differ on this point, I would argue that when students are offended by an arguably proper and good faith exercise of our teaching function, the first recourse should normally (unless this is demonstrably futile) come in the classroom, where engaged discussion can contribute to our shared learning. Where conflicts persist, we as an academic community must treat our offended students with compassion and support, but must also stand ready to rally to protect the good name of our colleagues when we are convinced, after due inquiry, that they are acting in good faith in the honest pursuit of our calling as law teachers.

Filling in the content of these aspirational communal norms, and learning how better to pursue them in the classroom, is one of the challenges we face in attempting to move beyond the expression of fine sentiments toward concrete transformational actions that will make our law school a more active, collaborative and mutually respectful place for learning together. I do not think it will be easy. I do believe we will dramatically improve our chances of getting close to this target in a law school community more like the one I have tried to sketch out here.


I would be delighted to receive constructive comments on the ideas expressed herein. Please submit your comments directly on the blog. Thank you.

2 comments:

AJW said...

A personal comment on this draft will be made public after the March 20 meeting. TWB

TWB said...

I find myself in the exceptionally peculiar position of adding a personal commentary to my own personal statement--even weirder that a judge writing a concurring and dissenting statement to his or her own opinion (since that is understood as a statement for the Court, and my statement only purports to speak for me).

The reason is that my statement prepared for the March 20 forum is exactly that: prepared for a particular purpose and occasion, which is intended to be forward looking rather than retrospective. In deference to the wishes of colleagues preparing that event, I trimmed significant parts of one paragraph (as well as some other materials less relevant here) to avoid distracting from that forward-looking purpose at the meeting. I was subsequently asked to cut the paragraph entirely, and refused to do so. What remains was carefully negotiated.

Here is a slightly edited version of the relevant paragraph of the original statement. It is offered in my own name only, to make my own view clear on a point of some moment (at least to me), and not to affect discussion at the March 20 meeting. Publication has been deferred for that reason:

There should also, I believe, be a more aspirational standard or communal norm at play, reflecting our widely shared commitment to the kind of open, respectful and sensitive learning environment that we seek to create, in which all members of a diverse community can feel fully at home and able to flourish. Those who violate these norms risk not their employment, but their good names and reputations among colleagues, students, and the community. The lines here are not easy to draw, and differing recollections may render the task of judgment difficult in some instances. But when students are offended by the proper exercise of our teaching vocation, we must insist that the first recourse come in the classroom (unless this is demonstrably futile), where it can contribute to our shared learning. And when we as faculty believe that a colleague has acted in good faith in the honest pursuit of our mission as law teachers, we as an academic community must rally to protect the good name of that colleague.

Let me now also add the following: I believe that in the case of Len Kaplan, we as a faculty have largely failed to live up to this responsibility.