In George Orwell’s dystopian view of the totalitarian state in his novel 1984, freedom of speech and expression is controlled completely, and if the individual seeks to articulate his views openly it is considered to be something called “thoughtcrime,” “the essential crime that contained all others in itself.” And in that repressive future, the enforcers of intellectual conformity, using the mandatory relinquishing of individual thought and imagination, were the Thought Police, who forced “the assumption that every sound you made was overheard, and, except in darkness, every moment scrutinized.”
Now, in an effort to filter out any visible or invisible racism in their law school classrooms, the Black Law Students Association of University of San Diego’s Law School has proposed creating their own version of Orwell’s ThinkPol.
“As Black law students we are privileged with the opportunity to pursue a legal education and seek membership to the legal profession, however, we are not immune to the oppression that is inextricably linked to our Blackness,” the group whined in a six-page letter to USD law school faculty and students in the wake of the George Floyd death. And in order to create a brave new anti-racist world at USD, the BLSA letter presents a long list of specific demands, including the predictable ones which appear regularly in lists of anti-racist demands at other schools, such as: mandatory diversity and inclusion courses, access to complete biographies of law faculty, presumably so students can avoid taking courses from professors with unacceptable views, more scholarships for black students and students of color, and a call to hire more minority professors.
These types of demands are not atypical of the steps students and faculty try to implement when addressing what they see as racial inequity on their campus. What was most troubling about the BLSA’s “calls to action,” however, was the unusual demand that the law school “develop a classroom diversity officer position tasked with observing classroom practices and reporting questionable conduct within the classroom to the administration.” [Emphasis added.]
Apparently, the students who signed this letter either do not fully comprehend what they were proposing or they conveniently overlook the fact that what they are calling for is the creation of race-obsessed monitors who would presumably use their own bias and subjectivity to audit the teaching of faculty and the participation of students and decide which viewpoints would be permitted in law classrooms and which would not—a seeming violation, of course, of both the spirit and intent of academic freedom.
In the letter, BLSA claims that many students of color at USD’s law school are subjected to racist behavior and comments in the classroom, although, conveniently, no evidence is supplied to support such a dubious claim nor is it believable that, in a race-obsessed campus culture on campuses everywhere, would blatant racism show its face even rarely, let alone chronically. Additionally, the BLSA members claim to feel “uncomfortable ‘calling out’ the student or professor for fear of retaliation or because they second guess whether the experience qualifies as a microaggression.” This suggests that the students cannot themselves even identify so-called microaggressions, invisible racism, rhetorical slights, and other incidents of implicit or actual racism and a neutral observer has to be present to confirm something unacceptable has been said and track who said it on behalf of the victim students. Is it not valuable for future lawyers to be prepared to argue against opposing views, challenge ideological opponents with their own theories and opinions, and articulate their own vision of justice, equity, and fact—exactly why they are in law school in the first place?
It is certain, of course, that these monitors would have the effect of chilling speech and inhibiting the free exchange of ideas about the law, society, criminality, law enforcement, racism, and other likely topics in a law school classroom. And since the proposed monitors will report those individuals who commit racial thoughtcrimes at USD, what Orwell called “unapproved thought,” how is someone to know in advance what speech and thought is permitted and which is not? College speech codes, which is what this proposal actually amounts to, have regularly been struck down as unconstitutional for, among other reasons, being overly vague and highly subjective.
In a 1995 campus hate speech case, Dambrot v. Central Michigan University, for instance, the court found that “In order to determine what conduct will be considered ‘negative’ or ‘offensive’ by the university, one must make a subjective reference.” In that case, the court was troubled by the vagueness of university policy which governed what speech was permitted and what was not. “Though some statements might be seen as universally offensive,” the court found, “different people find different things offensive,” and “this ‘unrestricted delegation of power’ gives rise to the second type of vagueness.”
Additionally, are the monitors there only to protect the emotional sensibility of black students and is that their sole focus? Is it the belief of the BLSA members that only they—black law students—need to have their educational environment sanitized and expunged of any contrary, troublesome, challenging, or difficult thought and discussion?
The presence of these thought police would certainly inhibit inquiry and debate about issues concerning race and the criminal justice system, topics that will be highly relevant to these future black lawyers. Could someone in a classroom critique the ideology and tactics of Black Lives Matter, for instance—certainly a topic with great current relevance—and offer a factual counter-argument that the movement is Marxist, anti-white, and virulently anti-police and how its members have incited and participated in violence against police, white people, and others in their campaign for racial equity? Could someone cite statistical evidence that there is actually not an epidemic of racism by police against black males, something that the prevailing narrative now asserts, and that the shootings of George Floyd, Jason Blake, Breonna Taylor, and Rayshard Brooks, among other names, were not examples of white law enforcement officers randomly and wantonly shooting black people but yet other examples of suspects who, at the time of the shootings, were resisting arrest or attacking police officers?
Could a law student in a classroom discussion question legal cases such as Bakke v. UC Regents (1976), dealing with affirmative action, or question the fairness of black applicants being admitted to law schools with grades and test scores significantly lower than white and Asian applicants without being accused of being a racist? Would someone who argued against the validity of critical legal studies, who denied the existence of systemic racism, who questioned the power and even existence of so-called white privilege and white supremacy, or who debated the intellectual viability of any or all these topics be considered to be making black students “unsafe”? Would such discussions “trigger” non-white students? Most importantly, should anyone in a classroom be identified and condemned as a racist for questioning any of these prevailing, though theoretical, constructs, and should they face any punitive actions as a result of expressing their opinion about them?
The answer, of course, is no, which is why the idea of having thought police in a law school classroom—indeed, any classroom—is anathematic to an academic setting, even if the BLSA has the ostensible and otherwise positive intention of trying to eliminate racism from campus.
Moreover, is it even reasonable for the BLSA to propose classroom monitors who will narrowly identify and call out only anti-black racism? Why not other forms of bias, bigotry, and prejudice? For example, religious-based hate crimes on college campuses roughly doubled between 2009 and 2017, and a majority of these reported crimes did not involve blacks at all, but actually targeted Jewish students. An Anti-Defamation League (ADL) report revealed that between 2012 and 2019, anti-Semitic hate crimes and bias incidents on college campuses more than tripled, and in 2017 alone there was an 89 percent increase from the previous year. That same year, the University of San Diego itself experienced a rash of anti-Semitic incidents when multiple swastikas were scrawled on campus buildings and a Jewish professor, Rabbi Michael Cherry, found feces smeared in front of his office door.
In light of this rampant bigotry against Jewish students, would it be reasonable for students to call for the same mandatory “diversity and inclusion training/course graduation requirement” that the BLSA demanded, including anti-Semitism as well as anti-black racism? Perhaps these monitors should sit in on history classes, in Middle East studies programs, and in political science, sociology, feminist studies, black studies, or anthropology classes to assess the imbalance in teaching about Israel and the neighboring Arab states. Maybe these monitors should use the International Holocaust Remembrance Alliance’s (IHRA) Working Definition of Antisemitism as a yardstick to warn students and faculty they may be engaging in anti-Semitic thought and behavior when they: call for academic boycotts against Israeli scholars; promote divestment campaigns; accuse Israel of being a racist, apartheid regime and call its supporters on campus racists, too; or who mendaciously compare the behavior of Israel towards the Palestinians as equivalent to how the Nazis treated Jews, and, essentially thereby accuse Israelis of being the new Nazis.
Such monitors could also take note of which members of student governments accuse Jewish students who support Israel of being privileged, racists, white supremacists, and unworthy of being part of progressive movements on campus. They could also report on and condemn the anti-Semitic incidents and speech that regularly appear on campuses where there is anti-Israel activism (such as the 200 or so campuses where the toxic Students for Justice in Palestine have chapters)—bias that further marginalizes and hurts Jewish students.
Given the paucity of actual anti-black racism taking place on campus, and the enormous amount of anti-Israel, anti-Semitic bias, it may be reasonable that classroom monitors might just as well be allocated for this very prevalent form of hatred. Afterall, the animating cause of the BLSA‘s list of demands in the first place was the death of George Floyd, a long-time criminal who resisted arrest in Minneapolis and who happened to be a black man who died while being arrested by a white police officer. The manner of Floyd’s death was disturbing to many, and even if the incident were evidence of racism in law enforcement, Floyd’s death, along with the other recent police-involved incidents involving black suspects, does not actually have a direct impact on coddled, highly-privileged students on a California law school campus. They are internalizing this perceived injustice and racism and making it part of their own experience based on the color of their skin, but, unlike anti-Israel, anti-Semitic campus activism, anti-black bigotry largely exists outside the insulating campus walls. It is not part of the law students’ daily experience, and, in fact, actual on-campus racism, especially on the part of faculty, is so rare that it has to take the shape of invisible, implied racism in infrequent instances of microaggressions.
In his insightful book A Nation of Victims, Charles J. Sykes identifies a prevalent culture of victimization in higher education. On university campuses, Sykes observed, “students quickly learn the grammar and protocols of power—that the route to moral superiority and premier griping rights can be gained most efficiently through being a victim.” The black USD law students have realized, as other campus victim groups have quickly learned, that victim status can be used to extract benefits and advantages from college administrations. Controlling who may say anything about them is one way of exercising that moral and ideological power, but universities must push back against these attempts to compromise on one of the central tenets of higher education, namely, freedom of speech and debate—something which law students, more than anyone, should always be vigilant in defending.