Faculty susceptibility to administrative sanction is at the center of the highly politicized culture wars playing out across universities in the last five years or so. Law schools are no exception. In the last year, Northwestern Law’s Andrew Koppelman has emerged as a sort of monitor of what he sees as flagrant instances of administrative overreach. “Many administrators,” he told me, “are cowards who are pre-disposed to grovel before student demands. The way to make cowards behave appropriately is to give them fears in the other direction.” I spoke with Koppelman about recent events at the University of Illinois at Chicago’s School of Law and at Yale Law School. Here’s some of that conversation.

You’ve written two pieces for the Review in relatively short order, the first about the Trent Colbert affairat Yale Law, and the second about Jason Kilborn at UIC. Both cases involve members of the law school, students or faculty, getting in trouble for putatively racist speech — speech which elicited great distress among other students. I’m reminded of a somewhat different but not unrelated dilemma, what Jeannie Suk Gersen at The New Yorker has described as new challenges around teaching rape law because of student sensitivity. What’s happening?

There are two different sets of sensitivities. There are the sensitivities of students, and there are the sensitivities of administrators. It’s important to keep them apart. There are always going to be some students who take offense at things. A teacher always needs to keep that in mind. Part of a teacher’s job is not to lose the room. So teaching is an exercise in rhetoric; rhetoric has a moral dimension. It forces you to learn about your audience, to get outside your own head and into the heads of other people. This is the morally attractive aspect of rhetoric.

It seems that one of the things that’s happened recently is that faculty members who are in less-perfect command of rhetoric, or who don’t perceive some of the new rules of etiquette around kinds of rhetoric that previously had a place in the classroom, for instance a certain sort of confrontational bombast, get into more trouble.

The practice of rhetoric is tough; it is easy to make mistakes. There has been a tendency, and Yale is a good example of this, for people who think about diversity issues to have a sort of pre-set protocol: If this happens, then you do this. It’s like the protocols that auto mechanics follow: If you get a code 57, that means change the spark plugs. You cannot do this with human beings. Human beings are too various. What I thought happened at Yale was that the administrators were so rigidly attached to a particular narrative that they misunderstood the situation and they made horrible mistakes. The impression I get is of quite possibly well-intentioned people who made really bad judgments.

What you are are seeing at UIC is much worse. It’s positively malevolent — there’s just no excuse for it.

Tell me about the updates in that case, the Jason Kilborn case. The most recent development is that the administration reneged on an earlier agreement not to mandate diversity training?

They reneged on an earlier agreement: Now they’re saying you’ve got to get diversity training. One of the lessons of what happened at Yale is that the occasions for offense are too various for any diversity training to possibly prevent them.

A friend of mine said, “Somebody really needs to get a new lawyer, and it is not Kilborn.” I don’t understand what the general counsel is thinking. We are going into punitive damages territory here, where you have outrageous intentional infliction of emotional distress. There’s no excuse for it — it’s just insane.

Civil-rights law is an area of interest for you.

I was woke before anyone else was woke — or rather, before wokeness became trendy. My dissertation, which became a book called Antidiscrimination Law and Social Equality, argued that one of the ambitions of antidiscrimination law has to be to change the ideas in people’s heads, and to eradicate deeply rooted ideas like racism, because if racism is sufficiently pervasive, the state cannot do even its libertarian minimum of protecting everyone’s person and property. For instance, there’s a very large history, down to the present day, of police taking violence against Black people less seriously than violence against white people. The ultimate aim is to have a liberal society, and one of the things that you need to have a liberal society is people with liberal ideas in their heads.

Money, Money, Money

Last month, Dennis Hogan took to the Chronicle Review to explore an apparently contradictory pair of facts: At many universities, endowments have grown — sometimes enormously — since the pandemic, yet layoffs and other forms of belt-tightening continue apace. Recently, Hogan discussed his essay on the North Carolina public-radio show Tested. The whole conversation is worth listening to, but I was especially struck by Hogan’s characterization of the myopia one can develop within academic institutions: “There’s a tendency to look just one rung above you on the ladder, and identify the person one rung up from you as the person who’s responsible. Graduate students will look at tenure-track faculty, tenure-track faculty will look at their dean … I think the reality is that the blame has to fall on boards of governors and the highest level administrators who often work in lockstep with boards of governors but who are not necessarily just rubber stamps for what boards of governors want.”

Write to me, at len.gutkin@chronicle.com.

Len Gutkin

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