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First Amendment News 298: Commentary — Cancel culture at Seattle University Law School? Point-counterpoints

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cancellation

With ever-increasing regularity, complaints about cancel culture have become a common feature in the discourse about free speech and association in America. It is a frequent objection among conservatives that the powers of "political correctness" are silencing any who do not march to their ideological drumbeat. By the same token, liberals have been quick to point out that Rep. Liz Cheney "had been canceled by her party for voicing dissent." Of course, the cancel culture mindset is particularly troubling when it takes hold in the minds of those in the academy, especially the legal academy. It is against that backdrop that the latest controversy at Seattle University Law School (see also here) raises profound and practical questions about the role of free expression in institutions of higher education, including private institutions. 

The commentary below by Ms. Afton Gregson, a recent graduate of SU Law and past president of the student chapter of the Federalist Society there, speaks to these issues as do the comments of professor Nadine Strossen, who first referred Ms. Gregson to FIRE.

In fairness to the SU Law School, I sent an advance copy of Ms. Gregson's commentary to SU Law Dean Annette Clark (with a cc to Associate Dean Kristin DiBiase and Associate Dean Andrew Siegel). I also invited the law school administration to reply, which Dean Clark accepted. Her reply is set out below following Ms. Gregson's commentary. Finally, professor Strossen responds to Dean Clark's reply.

By way of full disclosure: While FAN is subsidized by FIRE, it exercises no substantive editorial control over the content of this blog and likewise does not exercise prior review over its content. As noted below, FIRE has been involved in the controversy over free speech at SU Law. Nonetheless, at no time have I communicated with anyone at FIRE regarding their actions. Finally, having years ago taught at SU Law, I came to know and befriend Dean Clark.

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Introduction

by Nadine Strossen

Prof. Nadine Strossen

I first learned of the chilly free speech and association controversy at Seattle University Law School (SULS), which Afton Gregson’s commentary below describes, when she sent me an e-mail in February. She invited me to speak at SULS “about the promotion of free speech and open discourse” on campus. Given the censorial developments that Afton described to me, I encouraged her to seek the assistance of FIRE (the Foundation for Individual Rights in Education), on whose advisory board I serve. FIRE subsequently sent two forceful letters to the SULS Dean, calling upon SULS not to “allow students to compel speech or infringe on other students’ associational rights.”

The SULS situation is part of a larger pattern that I have recently observed as someone who actively speaks on the law school lecture circuit, including at the behest of student chapters of both the Federalist Society and the American Constitution Society (ACS). Campus Federalist Society leaders have repeatedly told me that they are being ostracized by other student groups. As they see it, there is an effort to discourage students from joining the Federalist Society, or even attending its events. These students report that ACS and other student organizations are categorically rejecting any such cooperation. In the past, by contrast, these other student groups routinely co-sponsored programs with the Federalist Society and recruited counter-speakers to participate in dialogues with Federalist Society-invited speakers.

Fortunately, this situation is not (yet) “the new normal,” and I urge students and faculty members across the ideological spectrum to resist such speech-suppressive efforts on their own campuses. In the past couple of months, for example, I have spoken at law schools where the relationships between the Federalist Society and ACS (and other student organizations) remain cordial and professional. The leaders of those groups recognize the value of collaboration, discussion, and debate among ideologically diverse individuals and groups.

Students certainly have free speech and association rights to criticize any organization, and to decline to cooperate with it, as Ashton’s commentary expressly notes. Freedom of thought, speech, and association, however, cannot survive in any campus community when students pressure others not even to engage with any ideas offered by an organization’s programs and speakers, and when students seek to drive an organization off-campus. For future members of the legal profession, the price is forfeited opportunities to hone essential professional skills of analysis, advocacy, negotiation, and cooperation.

Commentary 

by Afton Gregson

Afton Gregson

Just this year, the Miriam-Webster Dictionary officially defined “cancel culture” as we watched the phenomenon sweeping across the nation. Cancel culture runs counter to the First Amendment’s marketplace of ideas principle by employing a “shut-down” brand of social ostracism to censor ideas rather than allowing for ideological competition, thereby constructing an echo chamber in which only “approved views” dominate.

Seattle University School of Law, my alma mater, has fallen victim to the cancel culture ethos that has jeopardized the free exchange of ideas on many campuses. Recently, SU Law’s administration turned a deaf ear to a student-led petition campaign to decertify the SU Chapter of the Federalist Society (SU Fed Soc) in the hands of the Student Bar Association (SBA). The SBA is made up of students who largely disagree with the conservative or libertarian perspectives held by members of SU Fed Soc.

On the one hand, SU Law prides itself on standing up for free expression and access to divergent viewpoints. (In its Campus Demonstration Policy, the Law School “recognizes that the right to freely express oneself and the right to have access to divergent viewpoints are fundamental to an academic community,” and it “encourages the presence of speakers on campus representing a broad range of viewpoints, including those whose views may not agree with the stated aims of the university.”) On the other hand, the law school has yet to fully vindicate the expressive rights of SU’s Fed Soc chapter. (The Federalist Society does not take policy or legal positions or engage in any forms of political advocacy. The SU Fed Soc chapter has about five to six active members and invites speakers from across the political spectrum to debate and discuss legal topics.)

The issue began when the SU Fed Soc chapter hosted an event celebrating the presidential inauguration of Joe Biden in January. When the event was advertised on social media, current and former SU Law students demanded that SU’s Fed Soc chapter formally denounce the actions of congressional Federalist Society members related to the insurrection at the United States Capitol on January 6th. As the president of the SU Fed Soc chapter, I explained that the Federalist Society’s policy on political and legal advocacy prohibited the SU Fed Soc from making any such formal denunciations. Some students were incensed.

As this tumult unfolded online, a student e-mailed the SU Law administration requesting assistance in decertifying the SU Fed Soc chapter as a recognized student organization on campus. He explained that he felt that the organization’s existence on campus is “painful and triggering,” and that the Federalist Society’s positions “resulted in the legitimization of bigotry, racism, sexism, transphobia, and homophobia by disguising it as academia.”

Though the Associate Dean for Student Affairs found the student’s intent to persecute the SU Fed Soc “troubling,” she ultimately told the student that the “decision on [his] request was not [hers] to make.” She informed the student he could go to the SBA to lodge a formal student organization complaint.

Shortly thereafter, the petitioner abandoned his efforts with the promise that he would take action again the following semester, and that he would lobby SBA candidates to “commit to having every student organization make a formal commitment to condemning white supremacy, anti-blackness, homophobia, transphobia, xenophobia, racism, sexism, and ableism.” No mention, however, was made of condemning religious bigotry.

Make no mistake: Without itself taking a position, the law school should absolutely support this student’s right to share his opinion that SU’s Fed Soc chapter is a painful and triggering presence on campus. What is alarming is the administration’s failure to notice the obvious problem with deferring the decertification decision to the student-run SBA Judicial Board — a group made up of students who largely share the political and philosophical viewpoints of the petitioner. Then there is the problem of requiring such formal commitments as a precondition of certification for student organizations.

The law school’s approach flies in the face of its own commitments to free expression and its opposition to viewpoint discrimination. It clearly puts the future of the SU Fed Soc chapter in a tenuous position as the only conservative and libertarian student organization on SU Law’s liberal Seattle campus. It thereby exacerbates the already chilly reception of conservative and libertarian viewpoints on campus.

When I spoke with the Associate Dean on March 26, she attempted to reassure me that this student would probably not be successful in his efforts. But the issue is not the speculative success of one student’s petition. Instead, it is the fact that the school has embarked on an untenable and even disingenuous mission: While it promises to protect students’ free expression and claims to encourage representation of diverse viewpoints, it nonetheless appears open to delegating to the SBA the largely unchecked authority to determine which student organizations may exist on campus.

During my meeting with the Associate Dean, I requested that the administration reaffirm, in writing, its commitment to the SU Fed Soc’s expressive rights, and to clarify that the SBA lacks the authority to deny certification to organizations based on their viewpoints. My request was met with silence. The law school also ignored two letters from the Foundation for Individual Rights in Education (FIRE), sent on April 2 and April 23, requesting the same.

I will continue to invite the administration to reaffirm its commitments to free expression. When SU law surrenders to cancel culture and protects students’ passions at the expense of our legal education, our expression drowned out in the echo chamber of political correctness.

Editor's note: A draft of this op-ed was previously presented to the administration for fact-checking purposes.

Afton Gregson is a 2021 graduate of Seattle University School of Law. She has been actively involved with the SU Chapter of the Federalist Society throughout law school, most recently serving as the 2020-21 Chapter President.

Dean Clark's reply 

Dean Annette Clark

On January 25, 2021, a Seattle University law student contacted Kristin DiBiase, Associate Dean for Student Affairs, to inquire about a process for removing the Federalist Society chapter from campus based on that group's refusal to denounce the actions of U.S. Senator Josh Hawley in conjunction with the January 6 insurrection at the Capitol. In an email dated February 3, 2021, Dean DiBiase responded to that student and copied Afton Gregson, the president of Seattle U Law’s Federalist Society chapter. In that response, she included the following statement:

As you noted, we are a law school known for its emphasis on social justice; but first and foremost, we are a law school. While I do believe that individuals have the right to zealously and respectfully challenge opposing views, I find the desire to take action against a student organization in these circumstances troubling. The concept of a free exchange of ideas is a bedrock principle in American jurisprudence, and as a representative of an institution of higher learning and more specifically, a law school, in the absence of activity that violates student conduct regulations, I strongly support their right to exist as an organization.

Dean DiBiase then consulted the policies outlined in the Student Bar Association's (SBA) Constitution and Bylaws and properly referred the issue to the SBA and its Judicial Board, the groups with enumerated responsibilities involving official student organizations. The SBA and Judicial Board reviewed their governing documents and confirmed that there was no mechanism for decertifying a student organization for any reason other than failure to timely submit its annual recertification documents. Since this incident, the SBA published a notice to the student body in March 2021 of its intent to pass legislation with the intent of clarifying that the process for certification of official student groups is objective and content-neutral.

At no time during these events has the Federalist Society ever been subject to, or in danger of, removal as a certified student organization on the Seattle U campus; nor has that group or any other ever been pressured or required by the SBA or the Seattle U Law administration to adopt any particular stance or viewpoint. Our approach to this conflict was to provide a learning opportunity for our law students as they worked through how to navigate differences of viewpoint. The SBA leadership resolved this matter appropriately and in a timely manner, but had they not, the administration was prepared to step in.

As to the two demand letters from FIRE, we were under no more obligation to respond to the demands from an outside organization than our Federalist Society chapter was under an obligation to respond to student demands that they denounce Senator Hawley. I recognize that university campuses regularly face challenges on how to maintain bedrock commitments to freedom of student inquiry/speech/association during these contentious times. I firmly believe we have done so here.

Sincerely,

Dean Annette Clark

Dean, Seattle University, School of Law

Strossen replies to Clark

by Nadine Strossen

I was glad to read Dean Clark’s response to Afton Gregson’s piece, insofar as it stressed her and SULS’s stated support for freedom of speech and association. That said, I had mixed feelings about the following statement in Dean Clark’s letter: "The SBA and Judicial Board reviewed their governing documents and confirmed that there was no mechanism for decertifying a student organization for any reason other than failure to timely submit its annual recertification documents. Since this incident, the SBA published a notice to the student body in March 2021 of its intent to pass legislation with the intent of clarifying that the process for certification of official student groups is objective and content-neutral.”

If indeed there was "no mechanism for decertifying a student organization” beyond timelines, then why would there be any need for “confirming” or “clarifying” that process? As FIRE recently wrote about this situation: “[Associate Dean] DiBiase could have explained” to the students who were seeking the Federalist Society’s decertification that “the law school could not grant the students’ requests,” instead of “deferring[ing] the decision to the SBA.” Either the speech-protective policy was already clear, in which case the matter should not have been referred to the SBA, or it was not yet clear, in which case Afton and other students were understandably concerned that they might be penalized for their views.

Dean Clark also wrote that “The SBA leadership resolved this matter appropriately and in a timely manner, but had they not, the administration was prepared to step in.” Again, if the administration knew at the outset what the appropriate outcome should be, why did SULS “abdicate its authority” to the SBA, as FIRE put it?

I applaud Dean Clark’s desire “to provide a learning opportunity for our law students as they worked through how to navigate differences of viewpoint.” However, as Afton’s piece makes clear, the “learning opportunity” came at the expense of students with minority viewpoints, who had received no assurance that the administration would protect their speech and association rights, but rather understood that those rights were in the hands of a student government association responsive to majoritarian pressures. As FIRE’s first letter to Associate Dean DiBiase stated: “In deferring [this] matter to the SBA, your email implies that “SU law has delegated to the SBA the authority to grant or deny an organization recognition based on the speech — or silence — of its members.”

2020-2021 SCOTUS term: Free expression & related cases

Cases decided 

  • Mckesson v. Doe (per curium, 7-1 with Thomas, J., dissenting) (judgment vacated and remanded to 5th Cir.)
  • Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case — decided on statutory grounds)

Cases argued

Cert. granted

Pending petitions

Cert. denied

First Amendment-related 

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