From: Chancellor and Dean David Faigman
Sent: Wednesday, March 2, 2022 8:45:57 AM
Subject: The College is Committed to Academic Freedom and Free Speech
A Message from Chancellor and Dean David Faigman, Provost & Academic Dean Morris Ratner, and Dean of Students Grace Hum
We write to you on reflection of what transpired at a noon event yesterday. As lead administrators of UC Hastings, a public law school, we are deeply committed to creating an inclusive environment, and we will do so in a manner that is consistent with the values of academic freedom and free speech at the heart of our mission as a center of higher learning.
While the range of permissible expression is not unlimited, it is very broad. UC Hastings’ Policy on Academic Freedom states in relevant part:
UC Hastings is committed to the principle that the pursuit of knowledge and the free expression of ideas is at the heart of the academic mission, whether in the classroom, in the selection of clinical projects and clients, and in research, scholarship, public presentations, and contributions to public fora. This is especially true when the ideas or subjects are unpopular or controversial in society, as orthodox ideas need no protection.
UC Hastings has been consistent in its commitment to protecting free speech and academic inquiry. When some members of the UC Hastings community expressed objections to the content of a conference on Palestine in 2011, the law school’s faculty stood firmly behind the conference organizers, despite substantial disagreement among faculty members regarding the content. We demonstrated this principled commitment again last year, when we joined other UC law school deans and responded to federal government criticism of critical race theory. (UC Hastings’ approach to protecting both inclusion and free speech on campus was upheld by the United States Supreme Court in Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 561 U.S. 661 (2010), when the Court affirmed the UC Hastings’ all-comers policy, a tool meant to ensure that students would not be precluded from participating in UC Hastings activities and recognized student groups based upon their beliefs or views.)
The suppression of unpopular views deprives students of necessary practical, academic, and professional development opportunities. Legal professionals must be able to engage with the full range of ideas, legal arguments, or policies that exist in the world as they find it. The goal of education, and especially legal education, is to develop a broad and deep understanding of, and ability to engage on the merits with, the full panoply of viewpoints that exist in our society, including those we might find abhorrent. Indeed, possibly especially including those that we find abhorrent. As Justice Robert Jackson put it, “Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”
On our campus yesterday, a student organization, the Federalist Society, attempted to hold an event titled “The Breyer Vacancy: The Rise of Contentious All or Nothing Battlers for Supreme Court Nominations.” The stated goal of yesterday’s Federalist Society event was to consider how and why the nomination process had become so contentious and whether there were opportunities for improvement. Invited speakers included Supreme Court and Constitutional Law scholar and UC Hastings Professor Rory Little and Ilya Shapiro of the Cato Institute. Yet, Mr. Shapiro was prevented from speaking by some students who spent almost an hour shouting him down. The act of silencing a speaker is fundamentally contrary to the values of this school as an institution of higher learning; it is contrary to the pedagogical mission of training students for a profession in which they will prevail through the power of analysis and argument.
We understand the genuine pain felt by students who have been personally and negatively affected by Mr. Shapiro’s speech and positions. This has been an extraordinarily difficult few years where our students of color have experienced disproportionate COVID-19 infections, deaths, and economic hardship. And the rise of white nationalism and attacks on immigrants, AAPI and transgender/nonbinary people, and intolerable police violence against people of color and especially Black Americans have created a threatening national climate. Within this context, discourse will be particularly challenging because so many are experiencing trauma. Our intention as a place of learning is to find ways to express and address that pain that do not rely on stopping others from speaking. This can include expressions of speech through signs and passionate inquiry and debate during events.
Student organizations have the authority to invite whom they want to hear from, and the administration does not review or approve such invitations. We allow our registered student organizations to plan events and invite speakers to address the issues relevant to those student organizations without fear of censorship. The role of the administration is to help each and all of our student organizations with that endeavor, which includes providing space, resources, and other public safety measures. It is not the role of the administration to inquire about a speaker’s particular views and then to allow or disallow an event to occur based on those views. In fact, as a public law school, such a content-based evaluation would violate the First Amendment of the United States Constitution.
We may not support Mr. Shapiro’s previously expressed views – some of which we personally find deeply offensive – but we support his right to speak on our campus. As Voltaire famously stated, “I do not agree with what you have to say, but I’ll defend to the death your right to say it.”
Disrupting an event to prevent a speaker from being heard is a violation of our policies and norms, including the Code of Student Conduct and Discipline, Section 107 (“Harmful Acts and Disturbances”), which the College will—indeed, must—enforce. At the same time, we will continue our efforts to ensure that we equip all community members with the knowledge and skills to engage respectfully, thoughtfully, and sensitively with each other and with a wide array of theories, identities, political viewpoints, and perspectives. This project will be informed by our continued elaboration of principles of community, inclusion, academic freedom, and free inquiry.
We value and are protective of all our community members, including all of our students, who are to be future lawyers, judges, legislators, and changemakers. We value the principles of diversity, equity, and inclusion. And we value the freedom of thought and expression—including letting others speak—that is critical to any healthy academic community. This is the core feature of inclusion and is absolutely essential to the project of legal education. We firmly believe that, as a community, UC Hastings can and, indeed, must hold all these values and commitments at once.
David L. Faigmanl, Chancellor and Dean
Morris Ratner, Provost & Academic Dean
Grace Hum, Dean of Students