Jeannie Suk Gersen on the Importance of Due Process
Mounk: Have you felt a change during your time teaching in law school, in terms of how ready students are to volunteer their opinions on sensitive issues?
Suk Gersen: Unquestionably, that is the case. I began teaching in 2007. In the 14 or 15 years that I’ve been at it, there’s been an enormous change in the willingness of students [to speak on sensitive issues] and I’m not talking about conservative students who have, I think, always felt slightly like they are in the minority. I’m talking about really liberal students, liberal Democrats, who fear that their classmates may essentially turn on them if they express viewpoints that might be liberal, but also maybe not quite conforming enough to a certain kind of sensibility or ideology.
I hear this behind closed doors all the time, that students don’t feel this is the kind of environment where that kind of discussion can happen. I do think that it’s something that many teachers understand very well. But it’s also now an environment where even to say, Oh, yes, there’s been a chilling effect even that is considered edgy or controversial, or the kind of thing you’d be scared to say. And so it’s often said sotto voce and behind closed doors. I think it’s unquestionable that the chill has occurred, it is continuing, and we have to see the ways we can deal with it.
As educators, I think it’s one of our very important goals to get ourselves out of this position where people aren’t saying things that would lead to exploration and learning. And I’m not talking about the right to say things that are racially or sexually discriminatory. That is not what we’re talking about. These students aren’t saying, Oh, I really want to say something that’s discriminatory. There is such a thing as discriminatory speech. There is such a thing as harassing speech. Those are things that fall outside of what is considered acceptable on a university campus. But I’m talking about the realm of academic freedom that doesn’t go into discriminatory or harassing conduct basically an area that should be full of free exploration.
I will say that, in the defense of the institution where I teach, I actually think Harvard Law School is one of the best places for academic freedom at the moment. I am engaged often in representation of academics and students who are being investigated or disciplined for misconduct of this kind. And what I see is that schools are very scared themselves; there’s just a climate of fear. And when that fear sets in, the institutional response often can be to say, oh, let’s put this person on probation, or let’s suspend them while we investigate. That, in itself, while technically not being punishment, is of course a kind of measure that will have a chilling effect on speech and exploration.
I bet there is more free speech at Harvard Law than there is at most places. As you slide down the food chain my impression is that you get less and less free speech. And it’s not like Harvard is any free speech nirvana either. I have one colleague who takes a naive free speech or die attitude. He’s been hauled before the Dean one or twice because of student complaints, but he just manned it out, so to speak. I am not that brave and just avoid certain controversial topics, which is easy in Corporations. I have one dialogue inside my head and then the editor/translator who has to review in real time what I am about to say, to eliminate the actionable violations of political correctness, or whatever they’re calling it these days. I still get tagged as a rabid conservative, but in fact they have no idea of what I’m thinking, which would be far worse. Tom Woods refers to the “3×5 card of allowable opinion.” That’s a quaint phrase. Now it’s more like a matchbook cover — another retro reference for my boomer audience. Some teachers of criminal law, for example, no longer teach rape. Defendants in rape cases have certain rights in the courtroom, but not in the classroom.