EDITOR'S NOTE: Boalt Hall, universally regarded as one of the top law schools in the nation, is a crucible of this country’s dispute over diversity. As a public institution, part of the University of California at Berkeley, Boalt is subject to the provisions of California’s Proposition 209, the ballot initiative passed in 1996 that banned preferential treatment based on race, sex, color, ethnicity, or national origin. The effect of 209 on the Boalt class of 2000 was noteworthy. One black student matriculated that year.
Proposition 209 has been much protested, by Boalt students and faculty alike. It is safe to say that a substantial majority of students opposes the post-209 admissions policies. The academic year 1997-98 saw widespread protests at the school.
This in turn has led to concerns on the part of some students about another kind of diversity at Boalt — namely, the openness of the campus to diversity of expression and point of view. Some student supporters of 209 felt their views were unwelcome, to put it mildly.
In 1998 David Wienir, a student in the class, put out a call for papers from his fellow students asking their views on diversity of expression at Boalt. He formulated the questions as follows: "How healthy is the marketplace of ideas at Boalt? Do you have a fair opportunity to share your ideas in the classroom? Does expression flow freely in an environment of diversity, or does the climate of tolerance at Berkeley paradoxically inhibit true diversity of opinion?" Wienir received more than two dozen responses, which have now been collected into a book, The Diversity Hoax, published by the New York-based Foundation for Academic Standards & Tradition (FAST). In the words of the non-profit’s executive director, Marc Berley, FAST’s mission is "to empower diverse college and university students nationwide to restore both high academic standards and humanistic study of liberal arts in the Western tradition to their schools." Three of the law students’ papers follow. They are reprinted with permission of FAST and the authors.
What Ever Happened to J.S. Mill?
By Nick-Anthony Buford
Law school is perhaps the greatest invention ever devised for taking individual creativity and free thought and locking it up in a box. Here’s the idea of law school: Get a liberal arts undergraduate education. Read Kant. Read Locke. Read Emerson. Read Frost. Read Thoreau. Debate the meaning of life, and liberty, and culture. Travel to far-away places. Study abroad. Immerse yourself in new friendships and experiences. Grow. Drink. Think broadly about the meaning of something you love, and enjoy. Get an education that personally fits you, and your interests.
Then stop. And throw it all away, and get a McLaw Degree — one size fits all. One opinion fits all. Or so it seems at Berkeley.
You see, at Boalt — or at least to the vocal liberal thought-police of students who think that they must police the law school for signs of intellectual heresy and conservatism — the only thing that the great lawyers do of value is push the envelope of civil liberties law. Contrary thought is not encouraged. Oneness is the rule.
Let’s consider the lawfulness of homosexuality, for example. Whereas sodomy is a crime in many places, a large number of students at Boalt evidently think that homosexuality is, or should be, constitutionally protected as a part of one’s personal privacy. They have a right to think so. But precisely because everyone is clearly entitled to their own opinions and expressing them publicly, the viewpoint of the students at Boalt who have been agitating publicly for homosexual rights can’t be considered to be the only viewpoint that should be respected. Gay rights is, after all, an issue over which reasonable people differ, sometimes heatedly. Perhaps homosexuals should be granted special legal protection in a number of areas. Or perhaps homosexual activity should not be protected at all, whether on constitutional grounds or to protect the superior interest represented by the traditional family. Or perhaps something in between is right. To say the least, a settled rule of law is unclear here; consensus is elusive. But clearly and loudly, the raised voices in favor of homosexual rights at Boalt have chilled contrary speech through intolerance of contrary views.
Where could the law possibly go on this issue? Well, existing trends could continue. It’s not unforeseeable, given recent judicial decisions, that in the future the utterance of an opinion contrary to the majority opinion at Boalt in favor of gay rights might be treated as the equivalent of racist hate speech. Or perhaps any meaningful public discussion about whether the dominant opinion on gay rights is the correct one would be treated as creating a hostile work environment in violation of sexual harassment laws. Regardless of the future, the current situation is that already; students who individually challenge the dominant paradigm with their own thoughts are ostracized by many other students at the law school — perhaps intentionally, perhaps unintentionally.
Though I have kept my true feelings about the gay rights movement to myself while at Boalt (talk about racial quotas is the topic du jour, it seems), I have felt ostracized nonetheless when I have chosen to express my opinion on other topics. And that shunning has been a direct result of what I have chosen to say in class: about crime and personal responsibility; about affirmative action; about taxes; about environmental over-regulation; about property rights being just that — rights; about the proper size and scope of government; and about law. And there are some folks that have managed never to say a word to me — or to say very little to me — all year. In a class of 273, however, that is kind of hard.
I suppose that that ostracization is self-imposed, in the sense that it results from my own voluntary behavior in choosing to express my views. But it is also the result of others — others who are perhaps oversensitive, perhaps petty, or who perhaps just cannot see that all coins have two sides. In my experience, other people at Boalt choose to penalize you when you speak up, by choosing to ostracize you. And at Berkeley — once the great home of the "Free Speech Movement" — this is not what I had expected. My undergraduate institution was full of opinionated people — just like Boalt. But unlike Boalt, the disagreements were not taken personally. In other words, even opinionated people recognized the right of other people to have contrary opinions. At the California legislature, where I worked for a year as a staff member, there were many disagreements, but by and large the disagreements were not taken personally there either. At Boalt, however, disagreements far too frequently appear to be taken personally. If you don’t agree with the dominant liberal strain of thought at Boalt, you must be a fascist. I know; I have heard this label used to describe me here. Funny, I’ve always thought of myself as a classical liberal — the type that defends vociferously the rights of people to disagree with me, and to say so, even if I think they are wrong.
Once, at a reception of some sort, I was asked by a student of color, whether, in spite of all the "agitating" at Boalt against the ethnic composition of the mostly white Class of 2000, I felt welcome at the law school as a member of that class? I didn’t know what to say, because I hadn’t expected the "I take things personally" attitude of other people at Boalt. I forced the answer "yes," but I meant no. I didn’t see the point in trying to explain myself to someone I perceived was making a tokenist effort to talk to me about how this student’s agitating compatriots had made me feel. I am a minority. That doesn’t make me agree that everyone with brown or black or yellow skin must think alike. If that point isn’t self-evident, I didn’t see how I could communicate it to someone who didn’t already understand.
It’s undeniable that at Boalt, free speech and free discussion are chilled. It affects all of us. And, ironically, the inspiring, "traditional" 1960s paradigm of Berkeley — of respect for diverse opinions — is subverted and trampled by the new intolerance of the activist student thought-police who police the discussions that take place daily in the classrooms and hallways. I remember one instance in particular when I was practically reprimanded by a fellow student for having spoken my mind. It struck me that this verbal, public, high-minded scolding — it was like being put in a New England-style pillory of sorts — implied several things: (1) that this is our turf, and you’re not one of us; (2) that on our turf, you’d better play by our rules; and (3) our rule is to allow you only to say that which we can tolerate, so fall in line. Unfortunately for any self-appointed censors, however, I’ve decided one thing for certain — whatever it is that bothers others about what I say, I don’t plan on stopping. I won’t fall in line. It is my prerogative to express myself.
Were he alive, John Stuart Mill, a libertarian, would not like the Berkeley of today, because he valued freedom of expression and public debate as a method of arriving at fundamental truth. Were he alive, Henry David Thoreau, a transcendentalist, would not like the Boalt of today, because he appreciated that the freedom to express unpopular views without retribution (the freedom to dissent, in other words) lies at the core of a free society.
But the late Rev. Martin Luther King Jr., were he alive today, would in fact like Boalt, because today, post-affirmative action, he would behold a truly color-blind admissions policy which does justice to the dignity of individuals in the Kantian sense — the dignity that results from not treating people as means to an end, but as morally significant entities in and of themselves.
Speak that last thought at Boalt and you will be ostracized, as I have been. You will be ostracized because the thought-police at Boalt can’t grasp the importance of the preceding two truths — about the value of public discussion — represented by Mill and Thoreau. One does not truly have the freedom to think, and grow, however, if one cannot express one’s thoughts without fear of retribution.
American culture glorifies the dissenting individual. That is in part a direct consequence of Berkeley’s 1960s legacy, the counterculture of that era, and the Free Speech Movement that was its genesis. We value the road less traveled when two paths diverge in the woods. We glorify the person who marches to the beat of a different drum. We value those who have done things their way. Perhaps Boalt will learn this valuable cultural lesson one day (after all, it once taught it) and stop ostracizing dissenting individuals. Until then, I will continue to be the back-bench dissenter in the classroom. I will continue to help expose the dominant paradigm for what it is — just one way of seeing the world.
In spite of the smothering political correctness at Boalt, I highly recommend it to anyone who likes to think for oneself. The hostility of the "audience" at Boalt to hearing your message can often be formidable. But press on. It’s worth it. There is, after all, no better place to preach the Gospel than in the den of the devil. You see, it is the very hostility of the audience at Boalt that makes your own personal viewpoint that much more worth expressing.
There are so many of us in law school each day, but how many are actually heard from? Not many. I ask you, is that the idea of an education? Is that the idea of law school? It shouldn’t be, but it is the idea at Boalt.
The Unprofitable Monopoly
By Heather McCormick
I
came to Boalt Hall with the optimism shared by many first-year students. If ever there were a place where open-minded people would engage in dialogue and emerge for the better, it would be uc Berkeley School of Law (Boalt Hall). Four years later, I no longer share that optimism. For I have found that the "marketplace of ideas" at Boalt is actually a monopoly.
My first big lesson in the silencing of dialogue happened in first-year property class. The professor — thankfully a visiting one — showed a video on housing discrimination. After the video, she called for an open dialogue, encouraging everyone to express what they felt about what they had seen. As the exchange progressed, one of my classmates raised his hand, with a hypothetical based on reverse discrimination. (Granted, it was a bit peripheral, but that’s not so uncommon for first-years and their hypotheticals.) "How could you even bring that up?" the professor demanded. "It just belittles everything you’ve seen here!" Her tirade went on for a good two minutes, while my classmate sunk down into his chair, lowered his eyes, and said nothing.
The professor’s response foreshadowed what too often passes for "open dialogue" at Boalt. Those on the far left are entitled to say whatever they want, without regard for simple civility or for restraint in levying accusations. Those who disagree with them are to remain silent.
Of course this is a simplification of the situation at Boalt. In fact, I believe that many Boalt students who lean toward liberalism nevertheless would like to see a more balanced dialogue. But, frustratingly, not many will stand up for it. Nor will those on the right. Why is it that we, as advocates in training, are nevertheless so reluctant to stand up for our positions?
Like most monopolists, the liberal voice at Boalt has achieved its position through unfair competition. One of the most powerful and destructive tools in silencing dissenting voices at Boalt is the casual use of various "isms." I am continually amazed by how easily certain students at Boalt will use one of their classmate’s particular comments or political beliefs, without more context, in order to label them racist or sexist. If you believe that disparate impact in and of itself isn’t enough to constitute an Equal Protection violation (i.e., if you agree with the Supreme Court’s jurisprudence), then you’re a racist. If you, despite your well-intentioned, fine-toothed combing of the Constitution, just can’t find a legal rule that says that veterans’ preferences are impermissible gender discrimination, then that is sexism. If you think that these veterans’ preferences are acceptable as a matter of policy — for the liberals who are willing to concede that there is a difference between constitutional permissibility and policy advisability — then that is extreme sexism. And woe to you if you believe that mothers on crack should lose their babies, you poor racist, sexist loser.
Holding any of these beliefs does not, in and of itself, make one a racist or a sexist. But expressing such beliefs in the classroom setting, with an acute awareness that certain of your classmates will use them to infer such traits about you, is really tough to do. When I say "infer," I don’t mean to believe in a silent way. I have heard all of the above beliefs expressly called racist or sexist in the classroom. And if your classmate is publicly calling the beliefs that you hold racist or sexist, then it doesn’t take a great inferential leap to recognize that your classmate is publicly calling you a racist or a sexist. No one wants to be called — or thought — such ugly things by their peers. As a result, many who disagree with the ultra-liberal viewpoint that dominates discussion at Boalt have learned to keep silent. I have tremendous respect for those who are brave enough to risk this unfair labeling in order to offer an alternative viewpoint, and I have tried my best to be among them. Still, there are times when it’s just not worth it to speak out, and this is the much more common response at Boalt.
The silencing of the conservative voice at Boalt is no trivial matter. All voices deserve the chance to be heard and considered. It’s a matter of respect and dignity for the individual. This is an argument long advanced by liberals, yet conveniently forgotten as applied to those who disagree with them.
The silencing of dissenting voices at Boalt also means that our classroom discussions are much less rich than they might otherwise be. In reading this article, maybe you have assumed that I am a conservative. I am not. I am a moderate Democrat. That my viewpoints can pass for conservatism in the classroom (which they sometimes do) appalls me and shows just how flat the debate is. Our expectations are anchored far to the left at Boalt, and in most classes, we don’t hear from true conservatives at all, only less extreme liberals. This lack of exchange is not only boring, it is antithetical to the educational mission of a university. The concept of a marketplace of ideas is based on the benefits of competition, from which the most meritorious ideas will emerge. But the liberal monopoly at Boalt has squelched the competition, and as monopolists tend to do, has left us with a product that is both costly and less than optimal.
During the Proposition 209 protest that took place on the first day of school this year, I listened to a professor speak about how Boalt’s entering class is less qualified than those of the past. She wondered how Boalt students could have an informed discussion about interpretive concepts such as probable cause and reasonable doubt without the input of African-American and other minorities who bring a unique perspective to the debate. She was absolutely right. Yet we continue to ignore, even silence, the conservative voice that is present at Boalt and which could also contribute to the richness of the debate. How can we expect to have an informed discussion about Proposition 209 when I have not heard — not once — anyone at Boalt publicly admit to supporting it? How shall we talk about gender discrimination in a class with only a few males? Once we leave Boalt, how shall we be effective lawyers, politicians, and businesspeople, when we have spent three years completely isolated from the political tide that predominates in our state?
The unfortunate result of this one-sidedness is that many Boalt students are completely ignorant of the arguments put forth on the right, except in their grossest generalities. Whether your agenda is liberal or conservative, it pays to understand the other side. If the exchange were robust, we might even learn something.
Sadly, the liberal monopoly has made robust exchange a scarce good at Boalt. This is disappointing, because most of us in law school are relatively young, still trying out new ideas and testing the bounds of our beliefs. Yet this type of development requires a tolerant, forgiving atmosphere, one that allows for the full exploration of ideas, including directness, exaggeration, and even mistakes. But because no such atmosphere exists at Boalt, students are rarely willing to put their necks on the line. Knowing that what you say can and will be used against you makes students very careful — too careful — about what they say. They cautiously state just enough to get a point across, lest any passionate overstepping forever be ascribed to their belief system, rather than viewed as what it was meant to be — an exploration. So discussion is couched, watered-down at Boalt. We have "debate lite." In our quest to all just get along, we avoid the controversial, especially challenges to the liberal hegemony. Our behavior is more like that of polite dinner guests than that of law students. This self-imposed reservedness is every bit as inhibiting to our development as is the lack of dialogue along the political spectrum.
In all fairness, some professors do try to encourage a more vigorous, balanced discussion. For example, I am currently in a gender discrimination class with Professor Linda Krieger. While she comes at the issues from a liberal perspective, she has made clear from the beginning that alternative points of view are welcome. But so far, we haven’t had many takers. This has to do with the composition of the class itself. We have only three men in the course, and I don’t think it’s going out on a limb to say that none of them are conservatives. Any true conservative has long since been scared away from even walking into any course at Boalt on discrimination, because the type of tolerance Professor Krieger proposes is almost nonexistent at Boalt. As a consequence, her offer of tolerance for diverse viewpoints falls flat on homogeneous ears.
Of course, it’s easy to say that men just aren’t interested in a class on gender discrimination, whites just aren’t interested in a course on critical race theory. But this doesn’t ring true with my experience. Many men and many whites at Boalt would like to take discrimination classes; it is an interesting and evolving area of the law. Yet, the conservatives among these groups are fearful of exposing themselves to an atmosphere in which their ideas, and sometimes even their presence, is not welcome. So, while the vast majority of corporations and law firms are headed by conservative males, we have none in our class on gender discrimination. Those who could learn the most from the class never walk in the door. Professors teaching discrimination law go on preaching to the choir, and the ideological gap at Boalt continues to widen.
This brings me to my final point about why the lack of dialogue between liberals and conservatives at Boalt is critical. It has created division where there might otherwise be tremendous opportunities for alliances. For example, many people at Boalt believe adamantly in the importance of having strong minority representation in the law school. You would think that this would lead to coalition-building around the Proposition 209 issue. Instead, the most extreme at Boalt organized the movement and engaged in activities that alienated most of their initial supporters, and I count myself among that group. While I endorse efforts to increase minority enrollment at Boalt, there was no way I was going to stand in the Dean’s office and shout down a woman who has devoted a lifetime to defending the rights of women and minorities. Nor would I barge into first-year classrooms asking white men to give up their seats. Such actions make misguided, unfair accusations. But there was no room for dialogue between the extreme voices and those of moderation.
This typifies the "either you’re with us or you’re against us" attitude that characterizes the far left at Boalt. These monopolists have bundled their practices, and either you buy them all, or you are not welcome to participate. In this way, the same unwillingness to engage in dialogue, restraint, and compromise that has hindered classroom exchange at Boalt has infected Boalt’s political movements as well. Of course, all the blame cannot lie with the left. During the objectionable protest activities, the moderates engaged in their usual silence, lacking the guts to stand up and say, "No, that is wrong." Instead, they quietly distanced themselves from the movement. A great opportunity for political alliance was lost.
Currently, the divide between liberals and conservatives at Boalt causes suspicion on the left, and resentment on the right. Yet imagine a Boalt where these differences instead produced a rich exchange, fostering respect for individual viewpoints, learning and enlightenment in the classroom, and productive political alliances. I have no easy answers about how to get there, and I am quite certain that no easy answers exist. Yet, there are steps we can take to change.
More conservatives must be willing to express their viewpoints in class, in spite of their fears of being demonized. Should the debate become one-sided nevertheless, more liberals and moderates need to offer alternative perspectives, even if that means playing devil’s advocate.
In addition, we must all use restraint in our use of the various "isms," and in our tendency to hurl accusations. I sometimes think that activists at Boalt think they have succeeded when they have silenced the other side. I have indeed learned much from liberal classmates at Boalt — about unconscious racism, about supposedly neutral legal and social standards, and about different perspectives in general. But when I think about the moments that produced this learning, they were either moments of dialogue or of quiet self-reflection. Never were they moments of racially charged debate, for it seems to me that very little deep learning occurs from a defensive posture. When you call your classmate’s views racist or sexist, he naturally becomes defensive. Take on his viewpoints with counter-arguments, not with convenient labels. And despite the fact that law school has instilled in us the litigator’s value of debate, remember that discussion, not debate, is often a more effective tool for enlightening a colleague.
I do not mean to suggest that enlightenment, or agreement, should be the ultimate goal. One of the traditional, annoying, and arrogant aspects of conservatism is the idea that liberals are naive idealists, who will see the wisdom of conservatism once they learn the ways of the world. The far left at Boalt suffers from a similar annoying arrogance. They seem to think that conservatives are ignorant of the perspectives of the oppressed and would come around to a better view if only they were more enlightened people. Perhaps that is why some Boalt liberals have deemed a "be silent and listen" agenda appropriate. But just as liberalism is not necessarily a product of naiveté, neither is conservatism necessarily a product of ignorance. Well-informed people disagree. That is the richness of the marketplace of ideas, a richness we should celebrate, not suppress.
Professors, you, too, have an important role. Make clear at the outset of your courses that diverse viewpoints are valued, repeat the offer throughout the course, and be sure you live up to it by encouraging those who do offer competing perspectives. If you sense a dearth of discussion on one side of an issue, then play devil’s advocate and prompt it. If you see a student engaging in the type of accusations that will stifle debate, then discourage this behavior. Many of you have learned to be effective moderators of discussion, but more of you could learn to be better facilitators. You have colleagues — for example, Professor Jesse Choper — who are masters of this art, so learn from their expertise.
I certainly do not mean to imply that every course or discussion must be ideologically balanced. It would be ludicrous, for example, to expect that a course in critical race theory would be so, since a political perspective is inherent in the material. You as professors have your own perspectives, and by all means you should teach from them. But the richness of your scholarship can only be improved by contrasting it with competing assumptions, exposing its flaws, and highlighting its strengths. You professors who teach courses that traditionally scare away conservatives (or liberals) have a special duty to be proactive to recruit and welcome them. If nothing else, I guarantee it will enliven your teaching experience.
We cannot rely on the bravery of conservatives or the self-restraint of liberals to solve the problem in its entirety. Nor can professors play the facilitator role alone. Each and every one of us has responsibility to maintain the conditions that foster open dialogue — conditions of civility and tolerance for diverse viewpoints, including conservative ones. Maintaining these conditions includes admonishing those who violate them. It isn’t easy to censure your classmates when they make statements or accusations that silence dialogue. Yet, we as Boalt students manage to enforce all kinds of informal norms in the classroom. Witness the demise of most of the red-hots (those who talk to hear themselves speak) after the first year. Let’s add civility and tolerance to the list of norms we demand of one another.
One of the biggest obstacles so far in accomplishing this goal has been guilt — white guilt, male guilt, whatever you want to call it. Because the voices of women and minorities have been silenced for so long, and because these groups are feeling attacked by California’s current political climate, we are reluctant to censure members of these groups, even when they do cross the lines of civility. Perhaps we even worry that those lines of civility are the ones drawn by the dominant culture, and that they might not be the same for other groups. I believe that this reluctance and fear are why some of the activities of the Proposition 209 protest, which offended many people’s sense of fairness, nevertheless failed to draw much public criticism at Boalt (though they drew a lot of criticism in hushed voices).
In short, at Boalt we tolerate more extreme behavior from women and minorities and those advocating on their behalf than we do from other individuals. Maybe this is right in some degree — I’m not sure — but it is not right when applied without bounds. Discouraging the incivilities and accusations that stifle classroom debate while maintaining a healthy respect for our historical inattention to the voices of women and minorities is a difficult balancing act. But we must not give up on the task, allowing the voices of an extreme few to silence dialogue among many.
I hope that all groups at Boalt, including the far left, will view the current situation as an opportunity for positive change. For unlike a monopolist in the marketplace of goods, the monopolist in the marketplace of ideas suffers alongside those whose voices have been silenced. A free and open marketplace of ideas benefits all without regard to ideology.
Quibbles about the Margins
By Joshua Rider
M
y initial reaction to being asked to contribute to a collection of thoughts on the state of free discussion at Boalt was hesitance. While I looked forward to reading such a collection, I felt that I had little to say that would be of interest, as my opinions on this issue are neither particularly passionate, nor to my mind, exceptional among my classmates. If anything, I feel I am more staid than many of my classmates. I am a bit older than the average — perhaps my fire for such things is somewhat abated.
Still, the invitation came from a friend, who swayed me with the desire to make the collection as broadly representative as possible, reminding me that even the mediocre need representation. Persuaded by this and by his chiding that a diary-like tone was not only allowed but expected, I reluctantly agreed. I hope the result is neither too obvious nor too boring to delay the reader from the rest of the tome.
The question before me is: "How open and free is the flow of opinion at Boalt?" To which my immediate and considered answer is borrowed from my constitutional law professor, his all-too-familiar refrain of "compared to what?" Is the Boalt community as tolerant of dissenting voices and opinions as one might ideally desire? Surely not. Is it as bad as anywhere else? Has this important center of the Free Speech Movement paradoxically become a place where little is tolerated except lock-step conformity? Hardly.
Boalt strikes me as freer and more tolerant than I expected of a law school (even the law school at Berkeley), in most ways, and less so in but a few. I was particularly struck my first semester by how genuinely curious and open-minded most of my classmates seemed — how willing they were to consider alternative viewpoints both in the classroom and out. Far different from the enervated pre-professionalism I had been warned of and had prepared for, at even the best of law schools.
Surely there were exceptions, students who seemed strident in pushing a point upon both professors and classmates, and less than gracious with disagreement, but they were just that: exceptions.
Admittedly, things have changed a bit as we have gone through the first year. Some of the tolerance and civility of the first days seems to have been generated by the uncertainty of new environs, and the lingering possibility that we might not succeed here as we had done before. This wore off. The process accelerated after the first-semester grades were released. Most students found that if they didn’t do as well as they wished, they certainly weren’t in danger of being run off campus.
The second semester has been less civil than the first. While I’m not sure political convictions are any more strongly held than before, they are certainly expressed more openly, and difference of opinion is more likely to be thought of as error. More students tuned out their classmates more readily. More whispered comments, giggles, eye rolls, shoulder shrugs, sneers, etc., during class signal when a comment is unpopular (I admit to being guilty of all this from time to time, although I do try to police myself in such things). Appellations previously absent, like "fascist" and "terrorist," are used by some, if only at the margins or among like-minded spirits. I know not whether this trend will continue or accelerate throughout my stay here, but I think not. The atmosphere has seemed to me to reach a stasis, and we seem no more or less civil to one another than the second- and third-year students I know.
What’s the effect of the sort of minor incivility that characterizes our classroom interaction on the real flow of ideas around here? Not much. One thing that accounts for this is that the eye-rolling, shoulder shrugs, and sneers during class seem equally directed toward students who feel the occasional need to voice calls for the Revolution and those who suggest everything went wrong at the New Deal. Also, most of those who have some real political conviction don’t seem to be anything but energized by the reactions they receive. While I’m sure at times the "micro-aggressions" (if I can borrow and probably misuse that evocative term) that characterize our classroom and extracurricular behavior hurt those who are subject to them, this pain doesn’t seem to silence.
There are some exceptional examples of bad behavior: Boalt Hall building walls spray-painted, fire alarms pulled, posters for certain groups pulled down. All I can say to this is that no one is willing to claim responsibility, we’re not even sure law students are involved, everyone seems willing to say it’s a bad idea, and the targets of such actions naturally blame their political opponents, all of which strikes me as pretty lame. No one here has been beaten, threatened, ostracized, or even seriously snubbed, as far as I can tell, for their political opinions or actions. I don’t mean to suggest that an atmosphere is non-representative simply due to the absence of these things, but I do mean to say that democracy does require a thick skin. The incivility at Boalt is just that and nothing more. Being called a racist or a terrorist may not be much fun, but, hey, anyone silenced by this doesn’t have much interest in speaking.
If I’m right and the discourse here at Boalt is occasionally puerile but otherwise evenhanded in its civility, why all the complaining? Make no mistake, there is a lot of complaining, as I’m sure some of the other contributions demonstrate. As seems all too common in our larger political discourse, everyone at Boalt is a victim. Everyone is a target for the forces of (take your pick): the liberal bias of established academia/cultural elite, the conservative backlash of the right-of-center, the hopelessly politically correct, or the white, able-bodied, straight, well-to-do males (in the interest of full disclosure: this last is an incomplete but nevertheless accurate description of the author of this submission).
I think the explanation for this is perfectly simple: We are law students, pursuing a career in, arguably, vindication of rights, slights, and yes, social causes. We do not take slights gracefully, it is not in us. We are not selected (or self-selected) for our stoicism. Law is the center of whiners, in the very best sense of the word. Not Woody Allenesque, get-on-the-couch-and-bitch whiners, but the "I-can’t-believe-the-world-is-this-screwed-up" whiners. So it does not surprise me when we all seem a little more ready to complain of the injustice of it all than even the mainstream American victim. This explanation may strike one as glib, but I’m convinced it is a large part of the story.
I’ve spent a lot of time talking about the student body. What about the faculty, staff, administration? I’m not really qualified to hold forth on these things other than to say that I haven’t seen or heard a professor silence a viewpoint in the classroom that was even tangentially related to the course of study — with one exception. On about the fourth or fifth day of my first semester, Professor Dwyer informed the 120 first-year students in his property class that, while the view that could be summarized "all property is theft" was perfectly coherent and could be argued cogently, such a view would not allow one to score well on the bar exam. He discouraged, but did not disallow, taking such a view as one’s first premise in doing our reading and our writing assignments for the class. He merely reminded us that one would be accountable for the nuances of the rule against perpetuities regardless. He further suggested that if one held that view seriously, one might be at the margins of the law curriculum and might want to think about a joint degree of some kind. This approach seems pretty typical of the faculty I’ve encountered.
One final observation, put forward even more reluctantly than the rest. There is one kind of silencing that pervades the Boalt discourse: admissions to the community, both for faculty and students. In this Boalt is suffering. The racial/ethnic/economic diversity of my class (and of the classes that preceded me, and certainly of the classes to come during my time here) is not representative of that of the state of California or of the nation. No one is silenced once they get here, it’s getting here that’s the gag. There are opinions and positions and voices in the American debate that are not heard here. Not because those here don’t speak them, but because those who speak them are not here.
I don’t know what to say about this. Here, this problem is horrific, but only marginally less so throughout the rest of elite legal education. The causes run far beyond Boalt. I believe, though I’m willing to be convinced otherwise, that the faculty and administration are not doing everything that could be done to combat the re-segregation of this campus. I believe, though I would hope to be convinced otherwise, that even were they doing everything within their power under the law (and yes, somewhat beyond it) the situation would confound them — they simply do not have enough power to cure this. That, of course, does not excuse the insufficiency of the efforts. Similar observations could be made of the diversity of the faculty itself. Given the magnitude and scope of the problem of entrance to this community, the problems of censorship once we’re here are quibbles about the margins.
