New Title IX rules create barriers against the pressures of students, the enthusiasm of Title IX bureaucrats, and the pusillanimity of campus officials.
Many, if not most, law schools proclaim that they will advance “social justice.” My own law school recently pledged to use part of the generous 100 million dollar gift from the Pritzkers to do just that. Generally the pursuit of such justice is done through clinics, which represent clients, but have larger objectives in their choice of representation, such as ending the death penalty, protecting rent control, or increasing environmental regulation.
A commitment to social justice creates some tensions with the ideal of a university as a place of open inquiry. First, clinics are enterprises of political action. But the essence of a university is the production of ideas, and political aims are not easily made compatible with purely intellectual ones. Politics, including the politics of litigation, requires one to take positions with a view to success. The university, in contrast, prizes ideas that are novel, coherent and logically consistent, regardless of the immediate real world impact.
Beyond this abstract tension, the pursuit of a particular vision of justice can make it harder for research faculty to pursue opposing viewpoints. Some years back, Northwestern Law School’s criminal law clinic crusaded successfully for a moratorium on the death penalty in Illinois. This effort became part of the school’s identity. In that atmosphere few professors would have had the temerity to start writing in favor the death penalty.
Moreover, as activists, clinicians will likely move a school toward more activism if they can vote on its direction. Certainly if they are able to vote on tenured appointments for the research faculty, as they can at some schools, one might fear that their interest in activism would detract from the political neutrality of the principles by which scholarship should be judged.
The second problem is that there is disagreement about the nature of social justice, but law schools tend to define it from one perspective–that of the left. Indeed, the term social justice might be regarded itself as ideologically loaded. Libertarians, for instance, might think that justice is always individual justice. But, in any event, one can disagree about the justice of the death penalty or rent control. Few, if any clinics however, are devoted to defending the death penalty or representing the families of homicide victims or deregulating the economy. The one-sided nature of social justice pursued also has an adverse effect on the intellectual atmosphere. The research faculty at the typical law school leans decidedly left to begin with, but the largely uniform left inflection of social justice clinics makes for an even more insular ideological climate.
To correct this latter problem, I have a modest proposal. On any controversial matter where clinics will be pursuing social justice, a law school should establish two clinics. Thus, if there is a clinic whose focus is on representing those charged with death penalty, there should be another to represent murder victims to help them make victim impact statements. If there is a clinic representing tenants, there should be another representing small landlords. Cases could be chosen to avoid direct conflict. Such a dual focus would reduce the politicization of legal education and be pedagogically useful as well. Students could be encouraged to participate in the clinic that went against the grain of their social justice priors. Such an education might actually stretch their minds rather than close them.