The next post in the Series on Lee v. Tam will be coming ASAP.  (Petitioner PTO has now filed its brief.)  But, I want to address a more timely issue in light of the surprising election results and the response engendered by those results.

A state Senator from Iowa is planning on introducing legislation he calls the “suck it up, buttercup” bill.  The proposed legislation would subject schools to punitive budget cuts if they use state funds to administer election-related grief counseling beyond the normal mental health services offered.  Republican Bobby Kaufman, who plans to introduce the bill in January, also seeks to add criminal penalties to punish protesters who shut down highways.

The Washington Post article reporting on the proposed legislation was sent to me by a former coworker who noted the parallel between the “suck it up” phrasing and one of my law review articles.  My article, Emotional Duties, establishes a duty to reasonably regulate one’s own emotional well-being before he/she can sue in tort (which colleagues refer to jokingly as the “suck it up doctrine”)  — partially in order to harmonize tort law with First Amendment doctrine.

Despite my view that schools are trending in a direction that is solicitous to students’ emotional needs in a way that underserves both students and society, I do not believe this sort of bill should pass.  The bill interferes with a school’s prerogative about how best to educate its students and thus compromises core academic freedom values.  There is a constitutional dimension to academic freedom such that the bill may even rise to the level of a First Amendment violation.

Academic freedom is traditionally exercised by professors and students  against institutional control, but universities themselves also possess academic freedom rights as against the state.  In Grutter v. Bollinger, when deciding whether the University of Michigan Law School’s affirmative action program violated the Equal Protection Clause of the Fourteenth Amendment, the Supreme Court held that schools must be given “a degree of deference” in making academic decisions about how best to educate their students.  Although Grutter was decided in the context of determining whether a school violated a student’s constitutional rights, the institutional academic freedom values discussed in Grutter may give schools separate First Amendment rights as against state interference, especially when core speech like counseling efforts are concerned.

The power of state legislatures, based on the political will of their constituencies, to impose restrictions on universities about how best to accomplish the educational mission should be exercised extremely sparingly.  Our institutions of higher learning should not be co-opted by politicians to achieve their own ends, and schools need a good deal of leeway to experiment with different educational models.  Universities are forces for challenging conventional wisdom, and for allowing competing views to flourish and deepen through their interaction.  State interference will create a hegemony of approaches that is antithetical to the purpose of education.

That said, I do believe the way in which schools are handling students grieving over the election is not beneficial to either students or society.  I have been teaching at law schools for 5.5 years now, at three very different institutions (as a visiting professor, a fellow, and now as a tenure-track professor).  Students are coming to law schools, at all rankings, with underdeveloped writing skills.  Conversations with students and examination of their memos and exams reveal that many never learned in college to organize their thoughts in a way that best promotes clarity and logical flow.  Students also enter law schools, based on studies, overconfident in their abilities.  Undergraduate institutions, in attempts to woo students, are catering to their emotional needs at the expense of their intellectual needs.  Universities should remember their most important (and nonpartisan) academic mission – to prepare students with the skills to think critically, write clearly and cogently, learn difficult concepts, and struggle through intellectual challenges.

This election has hit many hard, and rightfully so.  But our country has been through trying times.  Many students are choosing to carry on with their studies, and even feel galvanized by opportunities to get involved.  Many, fortunately for the promotion of free speech values, feel like the results have exposed the limitations in their own worldviews, and have sought to understand those with whom they rarely or never interact.  Engagement on all sides of an issue is an important moderating force, a bulwark against extremism, polarization, and echo-chamber effects.  (Unfortunately, those most in need of moderating discourse — the alt-right for example — are least likely to seek it out.)  Of course, it is easier for those affected less personally by the election to behave more stoically, but schools have a choice – they can indulge and in doing so amplify emotional responses, or they can expect students to continue with their very important studies.  I do not believe legislatures should make this choice for universities, but I do believe many universities are making myopic decisions.

After the election, I tried my best to give a nonpartisan speech about the results.  I mentioned the beauty and danger of democracy, and how we possess our inalienable constitutional rights despite changes in power.  When a student came to talk to me after class, I worried my remarks were too preachy, or too offensive to those who may not share my views.  She said, “we are tougher than you guys realize.”  Even I, the author of a paper on the “suck it up” doctrine and a champion of protections for free speech, cannot escape wanting to ensure that students are not emotionally ruffled by my comments.  A balance must be struck between empathizing with students and encouraging fortitude, but we can all do better.