My views about the proper role of a law professor (in and out of the classroom) were well set prior to the election of President Trump. My views haven’t changed completely, but have adjusted somewhat in light of Trump’s unique threat to rule of law values. I would like to share the evolution of my views to work through them in a public way. Although many use the phrase “not just academic” to disparage a particular mode of abstract thinking, we must continue to establish, question, and preserve important ideals and conceptual constructs even when human lives (and precisely because human lives) are affected by those abstract ruminations.
Ever since law school, when I found the approach of some politically motivated professors to be corrosive to open dialog (although fun and lively at times), I have believed that legal academics must distinguish themselves from policy advocates or politicians. The role of an academic is to explore, with an open mind, unexplored legal questions and remain open to changing her views. Legal academics should not take clear political positions in the classroom, nor should they evince biases about political candidates, or even the outcome of cases (in their scholarship, they can and should opine about cases and results, from a legal perspective). Law schools should avoid taking positions on political or social issues, to ensure that differences of opinion are permitted within an institution.
In my own classroom, I encourage students to debate the merits of cases, but seldom weigh in on my own views about the result. I explain the social ramifications of cases, but I critique both majority and dissenting opinions evenhandedly, focusing on legal reasoning. Still, I have come to recognize that some students benefit from professors who adopt a more transparent style about their own opinions and politics (and judicial philosophies), and that there are many ways to be an academic. So long as a professor allows students to form their own opinions and maintains a classroom conducive to learning and exchanges of ideas, I am not as unsettled by a professor who isn’t “neutral.” I have, however, maintained my opinion that law students don’t know enough, compared to the professor, to separate fact and opinion, and it is an abuse of power to use classroom time to foist your own political agenda upon them.
Many colleagues, upon hearing my views, have expressed the objection that there is no such thing as a neutral classroom. I am being paid, partially, to provide my own ideas about the law. In fact, the view that legal reasoning can and should be apolitical represents my own biases and opinions about the law. These colleagues are quite right; there is no way for me to teach a class that does not reflect my opinions about how the law does and should function.
My defense has always been that my biases and views enter my classroom at a higher level of abstraction. Sure, I have particular views about “rule of law” values – that judges should generally be bound by precedent and articulate legal principles in a coherent, logical, nonpartisan, somewhat results-neutral way. But these views are a level more abstract than my views about whether plaintiff or defendant should win a particular case. Plus, I also provide the students with more realist perspectives on cases, just to keep myself honest.
Binding myself to providing my views about the law at a higher level of abstraction (to operate based on ideals about rule of law, for example, or about abstract modes of constitutional interpretation) is, I believe, more intellectually honest. In the courtroom and in the classroom, importing biases at a higher level of abstraction binds judges and professors so they must allow for a range of values broader than simply what they find important or pressing about a case. Respecting formal ideals about the rule of law is a value at a higher level of abstraction because it is a value about how to deal with competing values that appear in every case (liberty v. equality, process v. outcome, distrusting corporations v. distrusting plaintiffs, etc).
I believe this approach, in professors as in judges, promotes leaders who are tolerant and open about values other than their own. This serves pluralism and reduces the likelihood that any one judge can impose his or her biases on a particular case or any one professor can indoctrinate students in what he/she thinks is “right.” It reduces the likelihood of institutions becoming susceptible to hegemonic thinking. It is a clear way that academics should be respected and considered apart from those of other professions.
Enter President Trump.
Even before he was elected, Donald Trump spread falsehoods about our constitutional rights, tweeting that he wanted to revoke citizenship for those who burned the flag. Although his comments were somewhat ambiguous, he boasted about creating a Muslim registry, a clear violation of the Equal Protection clause. This weekend, a rule of law crisis ensued when evidence emerged that executive officials were defying court orders staying the removal and detention of legal permanent residents and visa holders from the seven countries whose residents are temporarily no longer allowed to travel to the United States based on Trump’s sloppily written Executive Order — which itself may be a violation of the Due Process Clause, the Equal Protection Clause, the Establishment Clause, or federal immigration statutes (although there are arguments that this isn’t entirely clear cut).
President Trump is now challenging rule of law values, and I have somewhat altered my approach. Prior to his election, I took public positions against a political candidate, my first time as an academic (although I do not do so in the classroom). I now believe that staying silent about Trump’s unique threat to our democracy and our constitutional system is not the academically proper thing to do. I also have more sympathy for professors who, in the past, championed causes and values at a lower level of abstraction (not based on rule of law values that resolve other values but on more results-oriented issues).
Still, I remain wary about becoming too sure that my views are so correct that I can impose them on students. Being a First Amendment scholar has imbued me with a fair amount of epistemological doubt. When a cause is important to someone, she may always feel like there are no reasonable bases for disagreement. That is the essence of dogmatism that an academic should resist. I still want to keep my classroom a place where others can disagree. Immigration policy is complex, as is constitutional interpretation. But I will help publicly fight Trump. I believe his Muslim ban is unconstitutional, and that defying court orders (or complying with them but not allowing the public enough information to assess this) is a severe threat to our whole system. This is a political cause I will publicly pursue, not just in an academic way of discussing and opining on legal interpretation. My behavior here, however, should be the exception, not the rule.