Statement to the George Mason University Faculty Senate

The following remarks were the prepared text of remarks delivered to the George Mason University Faculty Senate during the deliberations on May 4, 2016 regarding a proposed Resolution by the Faculty Senate that expresses “Concerns” regarding the record $30 million gift received by the law school on the condition that law school bear the name of the late United States Supreme Court Justice Antonin Scalia. These remarks were co-authored by Professors Todd Zywicki and Lloyd Cohen and delivered by Cohen to the body. The language of the proposed resolution is available here.

The Faculty Senate approved the Resolution by a vote of 25-12.

Statement to the George Mason University Faculty Senate Regarding Proposed Resolution on Law School Naming by Professor Lloyd Cohen


So much pernicious error to refute, so little time.

Before this meeting I asked my law school colleagues to provide me with a list of the accusations they wanted me to counter and the arguments and evidence they thought most appropriate. Alas, it was overwhelming. Unless I was provided a couple of hours—please don’t– it would be impossible. Instead I will respond to the broad ignoble spirit of this resolution.

Consider the irony of this body’s proposed resolution: In purporting to take a stand in favor of academic freedom this body would adopt a statement that constitutes one of the most egregious attacks on academic freedom not only in the history of this university but in higher education in this country.

This body is prepared to accuse the faculty and administration of the school of law of selling out its integrity, independence, and academic values for a pottage—all while hiding under the gutless guise of expressing “concerns” about public perceptions and other weasel words designed to disguise what this really is—an unprecedented assault on the academic freedom of one unit of this university by a mob of faculty from the rest of the university.

And let’s not kid ourselves—the whole world knows what is going on here. If this were a gift from George Soros to create the Harry Blackmun Law School we would not be here today. The political agenda of this body is transparent.

And it is the transparency of this political agenda to attack academic freedom cloaked in the garb of a purported defense of academic freedom that leads me to call on every Senator to think about the principle that you would be voting for today if you go along with this statement.

Indeed, if this assault is in the name of defending academic freedom, then that concept has lost all meaning.

Consider the barely-concealed contempt for the law school faculty and administration that we would voluntarily sell-out our right to faculty governance and academic freedom for a donor and that the provision that requires the law school to notify the donor in the event of a change of leadership violates the principle of faculty governance.

This is nonsense. The donor reaffirms its commitment to academic freedom and faculty self-governance in the document itself. More than that, however, the argument of the Resolution demonstrates the embarrassing logical fallacies and dead-ends into which such thinking leads. For the donor does not request any say into decisions regarding the Dean. They do not ask for any right or authority to choose whether the dean is fired or authority over the appointment of a new dean. They simply ask to be notified if the Dean is terminated and they have a right to withdraw support if they are not satisfied that their money is going to be spent as intended. They ask for no recoupment or disgorgement of funds donated in previous years.

Thus, the idea that this amounts to a conflict of interest or infringement on academic freedom is simply tendentious nonsense. The law school retains unfettered rights to teach what it wants to teach and be led by whom it wants to be led. The donor—like every single donor that supports this university—retains the right to stop providing support if they don’t like how their money is being spent.

Indeed, so illogical and hate-filled is the Resolution that it fails to understand that it is the university that benefits from the donor’s commitment to provide support for several years instead of on an annual basis. The alternative is that the donor simply decide whether to contribute every year—the multi-year period of the gift simply allows the law school to plan its affairs more predictably. How does that possibly create a conflict of interest or infringe academic freedom? Indeed, it is the very opposite.

Perhaps most appalling and cowardly is Paragraph 4 of the resolution, which justifies an intensive inquiry into the curriculum and pedagogy of the school of law. Leave aside the astonishing labeling of such outlets as the Huffington Post and George Soros’s Center for Public Integrity as “credible” sources, which says more about the biases of those who have drafted the resolution than those sources. Leave aside the inability of the Resolution’s drafters to be able to distinguish between an opinion piece and actual reporting. The law school and the Law and Economics Center is long-accustomed to attacks by activist groups advancing a political mission. But to have our colleagues at the university join the lynch-mob with this thinly-veiled political attack is disappointing.

Consider the insulting principle that the Resolution would advance. For over 40 years the Law and Economics Center has been providing cutting-edge instruction in economics for judges and law professors. During that time the LEC has educated thousands, perhaps tens of thousands, of judges at all levels. These are sophisticated people who every day have professional advocates stand before them to try to persuade them to side with their clients. Are we really to believe that these thousands and thousands of skeptics are susceptible to brainwashing? Does this body really want to be on record as taking the position that the hundreds of law professors that attend the LEC’s programs every year are ignorant sheep unable to think for themselves?

And does this body really believe that the dozens of distinguished academics, including Nobel prize winners who have taught in these programs are simply tools of “the corporations and wealthy donors who contribute to the LEC”?

But let me identify one more disturbing consequence of this resolution. The resolution states, “A decision about the truth or falsity of this journalism is beyond the scope of this resolution. The present point is that this negative criticism damages the reputation of our university and higher education in general…. Accordingly, it seems important to make sure these allegations of conflict of interest are either disproven or properly resolved….”

Is this really the position on academic freedom to which this body wants to commit itself. “The truth or falsity of this journalism is beyond the scope of this resolution.” Mere “criticism”–whether true or false–is sufficient to convene an academic star chamber to investigate?

Indeed, consider this–this very body and the instigators of this attack have received “negative criticism” from national media outlets (as opposed to “positive criticism”?) in recent days for laughable and nakedly political conduct in prosecuting this case. Is that criticism sufficient to launch an investigation into those professors who have sponsored the Resolution?

Does anybody in this room really want to teach at a university where mere criticism is sufficient to convene a tribunal of faculty drawn from remote disciplines of the university for the sole purpose of determining whether the substantive content of your lectures might be thought to fail some ideological litmus test because the tribunal subjectively believes that your research might “serve the economic interests” that they dislike?

Indeed, perhaps one of the greatest ironies of this resolution is that it is the current Executive Director of the LEC, Todd Zywicki, is probably most responsible for the decision last year abolish George Mason’s speech code, thereby earning a green-light rating from FIRE. And I note as well, that I and the prior Dean, Dan Polsby has proposed a standard on Free Speech and Free Assembly to this body a decade ago, a standard that a representative from FIRE said should be a model for all universities. It was received by this body like a lead balloon and went nowhere.

Those of us who teach law are fond of quoting the conclusion to Robert Bolt’s famous play, “A Man of All Seasons”, “Why Richard, it profits a man nothing to give his soul for the whole world… but for Wales?”

The thrust of this body’s resolution today is to accuse the faculty and administration of betraying its soul of academic freedom for Wales, or worse: for scholarship money. And, it hypocritically clothes this mean-spirited attack on academic freedom in name of academic freedom.

In conclusion, given the central subject matter of this resolution, I will quote an appropriate source to summarize this barely-concealed attack on academic freedom. One of Justice Scalia’s most famous dissents was written in 1988 in the case of Morrison v. Olsen when Scalia stood alone as a sole dissenter in voting to strike down the independent counsel statute on the grounds that although Democrats would enjoy turning loose the monster of an unaccountable prosecutor during the Reagan administration, they would rue the day when the principle was turned against them—as they did during the Clinton Administration. At which point a bipartisan coalition of Congress agreed to repeal the statute.

At the time, Scalia warned the country that the foul principle at the heart of the statute was manifest and should be rejected. He wrote, “Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.”

This Resolution today is a wolf that comes as a wolf. There is no pretense that this resolution is anything but an unprecedented, insulting, and egregious violation of academic freedom. And I ask this body to consider the principle for which they vote today.

I call upon this body to reject this Resolution.