There is a new reason for partisan bickering, and perhaps a reason for legitimate concern, at Tenth Circuit Judge Neil Gorsuch’s already fraught Supreme Court confirmation hearings. A former student wrote the Senate Judiciary Committee to allege that Judge Gorsuch informed her ethics class that “many” female attorneys manipulate maternity leave by taking time off and then departing their firms once they have used the firm’s maternity leave benefits. These allegations are concerning, not just because they may evince biased attitudes about women that are unacceptable in a jurist. These allegations, and the responses to them, also evince an increasing unwillingness by students to grapple with controversial, sensitive legal and intellectual questions that will inevitably offend someone’s sensibilities.
I do not know what Judge Gorsuch actually said in last April’s legal ethics class. There are accounts that verify the former student’s allegations, but there is also a letter by another former student refuting the student’s perception of the incident. I can, however, contribute to the conversation on this issue by adding my own experience, as a professor and as a woman, about the challenges presented by the law school classroom environment.
First, although students have not (yet) accused me of crossing a moral or ethical line in the classroom, that accusation remains a concern for me. Law teaching is a constant balance. My job is to challenge students to question their assumptions, work hard, and struggle with difficult material, while ensuring that they feel sufficiently comfortable and respected to participate freely and open themselves up to learning. A completely “safe” classroom environment is a sterile classroom where no growth will occur. However, students coming from diverse backgrounds and having a diversity of views and experiences must also be respected as equals.
As a First Amendment scholar, I try to thread this needle by telling students they should feel free to express any idea, no matter how objectionable, so long as they do so respectfully. Sometimes, however, I say things that I later regret (for a variety of reasons), or a student will say something that offends even my fairly coarse sensibilities. In the spontaneity of the classroom, our mouths sometimes outpace our brains. We must make allowances for this. This is often a good thing.
Second, I have heard students complain about offensive things that have happened in other classes, and their accounts of the same incident tend to diverge based on their prior views about the material. During classes where criminal law professors teach rape cases, for example, students grappling with the definition of consent often say things that indirectly call the experiences of survivors of sexual assault into question. These issues need to be raised. The nuances of the definition of consent, and the possibility that some complainants are not being truthful, affect whether the state takes away the liberty of those accused of sexual assault. Every aspect of this difficult and sensitive issue should be explored freely, for students to really understand the topic and the variety of perspectives and approaches.
When a student, hatefully, ignorantly, or thoughtfully, inevitably says something offensive during that class on rape, many students will reproach that student. Then, the class splits between those who think the professor should chastise the student and those who think the professor should defend the student. Depending on one’s perspective, allegations could be made that the professor was not sensitive enough to victims of sexual assault, or worse, sexist. Alternatively, allegations could be made that the professor was too pushy about his or her views and attempted to stamp out other perspectives, a decidedly un-academic thing to do. Teaching this type of class is more problematic for male professors than it is for female professors; I do not spend much time worrying that I will be perceived as sexist by my students.
Because Judge Gorsuch’s remarks were made in a classroom and involved a hypothetical scenario, I am inclined to, and I hope students and others would, give him the benefit of the doubt. Claiming that “many” women manipulate maternity leave is likely a gross overstatement. Most professional women I know wish they had more time to spend with their tiny infants before having to send them to day care. That said, I do know some women who have manipulated the system, who have stayed at firms long enough to reap the benefits of maternity leave, knowing they would depart soon after. This tactic does impose a cost on others and creates resentment, and Judge Gorsuch was right to discuss this topic in class. Perhaps Judge Gorsuch should have done so more sensitively, but the academic enterprise demands that we all give each other some leeway when broaching sensitive subjects. I would also prefer that professors not share their own views so forcefully with the class, but I know many professors on both sides of the political spectrum who use class time to preach about their own causes. We should require much more evidence than this one classroom incident to demonstrate that Judge Gorsuch does not embody values that will allow him to fairly judge women and issues that affect women.
Finally, I hope that Judge Gorsuch is afforded the respect that was not given to Judge Merrick Garland. We have entered a critical turning point in the politicization of the nominations process, and the only way to cure our current pathologies is for Senators to model taking the high ground. Even if you disagree with Judge Gorsuch’s judicial philosophy or even some of his rulings, if you believe he is qualified, you should encourage his confirmation. We will all benefit in the end by easing the process for qualified judges to be confirmed.