The following is a speech delivered by Professor Kaplan this month to the Rotary Club of Madison, Wisconsin. The text is reprinted here with his permission.
On February 15 of this year, in a class in legal process at the University of Wisconsin Law School, I commented on problems encountered by Hmong people who have immigrated to Wisconsin. My comments were misreported in student e-mail correspondence which became public and was published in the local press. As a result, a distorted view of my February 15 class became international news.
I do not intend to repeat the details of this controversy today. My own account is available in a letter of March 5 to the dean of the Law School. The letter was made public with my permission and is available on the Internet. In the letter, I expressed my regret at the pain that any of my actions may have caused. However, this controversy has left important issues of principle unresolved. Today I shall attempt to address these issues through a description of the goals of my legal process course as they were reflected in my class on February 15. I devote my legal process course to the legal, cultural, and political questions that will face my students when they enter practice in a global world where the old truths are increasingly discredited and new thinking is imperative. But one cannot arrive at the new without an awareness of the history from which the new derives and by which it is shaped, even though, as I teach my students, that history may itself be contested.
My starting point is the liberal state. The modern liberal state guarantees individual rights, without itself being committed to any particular view of the common good as the object of human aspiration. When academics speak of the liberal state, they do not mean Democrats or Republicans. They do not mean Christian or Social Democrats in Germany or any other political regime. For academic purposes, each of the European and North American states is a liberal state with its own political, legal, and cultural norms.
In the United States, we claim enumerated rights held personally by each citizen, but not necessarily by everyone who lives here, since citizens may have rights that non-citizens do not. As these rights are constitutionally based, they are subject to review by the U.S. Supreme Court, and the rights analysis of many major political and social issues is, in fact, contested. The Supreme Court is currently reassessing basic questions of rights; abortion, affirmative action, stem cell research, church and state relations, habeas corpus, national security, executive power in an age of perpetual terrorist threat and even academic freedom are examples of the sensitive issues with which we are faced.
These debates raise larger questions: Is our talk about rights really meaningful or merely rhetoric? Though we pay lip service to universal rights, non-citizens in the United States may get something less. Even citizens may get less than a “right to happiness” if the state does not establish the material conditions necessary to make such a right possible.
Each of these issues inspires passionate responses. We can and will disagree about them for very cogent reasons, and that disagreement can become inflamed and unreflective. But in a law school, in which students learn to be lawyers, the issues must be addressed rationally and analytically, and learning must have primacy. It is a law school’s obligation to provide an environment in which faculty can address and teach students how to assess volatile issues. The maintenance of an appropriate environment must take precedence over the issues being discussed. If a law school fails to do this, our rights and the rule of law itself may be put at risk.
The background for my class on February 15 was a text by Schlomo Avineri that I had assigned earlier in the semester: Hegel’s Theory of the Modern State. I use the text in my course to establish some of the historical roots of the liberal state and to consider certain problems identified by the 19th century German philosopher, G.W.F. Hegel. Hegel developed a critique of what was then shaping up as the liberal state in Europe, not only in Germany, but also England, France, and the United States.
Hegel set out the conditions required for an ethical modern, mass state. He was not a utopian. He saw rather clearly that the liberal state, notably in the United States, presented only civil society and not the ethical state. Hegel's ethical state would not only recognize each person as an individual, but would also make available the material conditions necessary for each person to thrive. Hegel argued that providing rights while ignoring familial and communal bonds fails to provide the conditions necessary for individual fulfillment. Therefore, for Hegel, the principle of one person, one vote is not enough. If people lack community, the abstract right to vote and any other abstract right is ineffective. In Hegel's view, a liberal state must foster community -- through labor organizations, political organizations, fraternal organizations, and the like. It must ensure that individuals can express themselves and know that their views are taken into account in the community. This point needs to be underscored. Rotary, for example, is a group with disparate views of politics, culture and religion. But we are bound together for a series of reasons including the ideal of service and the four-way test that may sound laughable to cynics.
Hegel identified two problems that were central to the class on February 15. First, he understood that the liberal state must address the poverty that follows from a pure capitalist political economy. Here he followed the thinkers of the Scottish Enlightenment, most famously, Adam Smith. Hegel’s ethical state would have to intervene in market arrangements to help the poor, but without disabling market efficiency. This problem is still with us.
The second problem is pluralism. We all talk about pluralism. The concept has invoked a huge literature. The existence of such a large literature suggests that there is no great clarity concerning the concept. Yet pluralism is a central problem for the liberal state. (I would argue that it is also an essential problem for a neo-liberal, market-driven, world economy.) Hegel understood the need in mass societies for people of diverse languages, religions, ethnicities, and today we would add gender identifications, to get along politically.
That is not an easy task. Carl Schmitt, a leading theorist for the Nazis and an apologist for Hitler’s democratic seizure of power, claimed that liberalism is impossible because it requires a commitment to a heterogeneous population. Schmitt insisted that pluralism, in any event, is not a worthy value. He argued that to be vital, a political community must be homogeneous. For Schmitt, liberalism stands only for marketplace and profit, not for the vitality of a unified sovereign purpose beyond individual greed. In accord with Schmitt, Hitler sought to create a homogeneous population of Aryans. The example of Schmitt, Hitler and Weimar Germany underscores the importance of the problem of pluralism.
Hegel spotted the issue. He did not solve it. And neither have we. To commit to pluralism is to commit to living with people whose practices are very different from our own, so long as their behavior is not criminal. But the line between what is normative and what is criminal is very often difficult to draw, and it is always negotiated. For example, if many believe that abortion is a transgression against divine law, it is hard to find a pluralistic compromise on this issue.
On February 15, I had assigned a reading from Neil Duxbury, Patterns of American Jurisprudence, to illustrate the interplay between legal formalism and the problems of the liberal state. In the 1890s, legal thought in the United States was dominated by two tendencies of what Duxbury calls formalism, each deriving from different historical sources. Duxbury identifies one formalist tendency with Christopher Columbus Langdell, a famous dean of Harvard Law School. Langdell created the case method for teaching law at Harvard. He believed that he could present a taxonomy of cases and that the great number of cases in each area of law would reduce to a few from which he could abstract even fewer fundamental principles. He thought that once students learned these principles, they would be able to apply them and reach the correct outcome in specific cases.
The other formalist tendency was the adoption by American courts of the ideology of the marketplace. American courts assumed, for example, that every party to a contract had the capacity and the autonomy necessary to enter an agreement. Courts considered the relative knowledge and strength of the parties irrelevant. In several famous cases, the U.S. Supreme Court ruled that attempts by state legislatures to protect the economically powerless were unconstitutional. The ideology of freedom of contract, not economic reality, was paramount.
Formalism in law tends to assume that legal rules can be identified and applied scientifically to the facts in controversy in order to yield a reasonable outcome. But the mechanical application of a rule of law to difficult cases can lead to injustice. For example, Robert Cover, in his book, Justice Accused, points out how abolitionist judges in the North and Midwest felt that they had to give full faith and credit to the U.S. Supreme Court’s ruling that fugitive slaves were property and therefore had to be given back to the bounty hunters who captured them. Cover argues that this kind of injustice put the law into disrepute and also caused great distress to the judges themselves.
To highlight the problem of unjust formalism, in my class of February 15 I brought up the difficulties that liberal states have with absorbing and integrating newly immigrant cultures, not always successfully. I talked about Muslims in Amsterdam, Pakistanis and others in London, Algerians in Paris, Turks in Germany and Somalis in Lewiston, Maine. I also talked about the Hmong experience in Wisconsin.
There is an established legal literature on the problems the Hmong have faced in the American legal system. These problems are not simple and commentators do not always agree. One good example is a comment by Choua Ly in the Wisconsin Law Review in 2001 titled "The Conflict Between Law and Culture: The Case of the Hmong in America," Ly’s article discusses the use of evidence of Hmong cultural practices, including marriage arrangements, as an affirmative defense in criminal cases. Another example is an article by Jennifer Ann Yang, “Marriage by Capture in the Hmong Culture: The Legal Issue of Cultural Rights Versus Women’s Rights” in Law and Society Review at UCSB (2004), which argues against legal recognition of the cultural practice of “marriage by capture”, preferring gender equality for Hmong women.
My class discussion on February 15 was intended to be sympathetic to the Hmong people. I intended to illustrate the inadequacy of legal formalism. My examples of cultural practice were directed against the legal system, not against any immigrant group. My examples were intended to show the disorientation that new immigrant groups can feel when confronting a formalist legal system. My point was that if our formalist legal system treats everyone as if they are the same, new immigrant groups from very different cultures could suffer a form of injustice. The resulting controversy lost this point entirely.
There are important principles at risk here. We have an obligation to our students. We best meet that obligation by showing legal principles at work in difficult and controversial settings. We are all harmed if professors avoid controversial material in deference to some accepted or imposed correctness or an apprehension that a topic may offend sensitivities. The law inevitably must resolve questions that many find offensive. If law professors avoid these questions, they no longer teach law. Most of us want security and to be left alone. Learning to question assumptions and values can be painful. But if professors avoid certain issues because they might offend someone’s sensitivities, we will cease to be a university in all but name.
A politics of personal identity, based on ethnicity, religion, race, or gender, may employ the discourse of rights within the liberal state, and properly so. But, like the formalism discussed in my class of February 15, identity politics can also mask or distort more complex issues. Any claim of right that censures or restricts examination of unpleasant realities is at risk of becoming adverse to the very idea of a law school or university. A misdirected politics of personal identity may in this way advance self interest at the expense of the common good and foreclose any authentic pluralism.
I also think that professors are losing authority, in part by failing to raise these difficult issues. Academic literature has been cautioning about what has been called the twilight of authority. Law students are in danger of becoming mere consumers and not students, law professors of becoming entertainers and not teachers. From what I can tell, legal scholarship is less connected with the practicing bar and courts than it was a generation ago. The judiciary, too, has become politicized. Richard Posner, an eminent federal appeals judge and legal scholar, writes that the public does not have to worry about judicial politics because the appointment process creates a pluralism in the judiciary, and ideological commitments of individual judges are thereby balanced out. Both the fact that he brings up the issue and his justification are disconcerting. They suggest the loss of a neutral judiciary and a loss of trust in our court system, reflected, for example, in the fact that Congress and many state legislatures have tried to take discretion away from the judiciary in criminal sentencing.
I want my students to have the tools necessary to address the kinds of questions that lawyers must confront. I have had a good career, and friends and colleagues who have always, or almost always, offered support and encouragement. So I offer my remarks here in the Rotarian spirit of doing no harm, or as little harm as possible, but recognizing that truth, like learning, may sometimes be painful. Immanuel Kant said about the Enlightenment that it augured a time when our species was capable of mature reflection. We have not progressed beyond Kant on this, and we have not answered Hegel’s challenge on poverty or pluralism.
We have community leaders in this room. We must all take responsibility for our community, including the university, as an environment in which pluralism and authentic respect for others are nurtured. Every generation has to renew its own basic commitments. No one will do this for us but we ourselves. Our institutions are not self-preserving. We are the people in them. We can talk about rights and the rule of law, but rights and laws are not self-executing. We ourselves must fashion institutions that support and preserve these commitments. My experience should give us all pause and force reflection.
Jews use the word “shalom” to greet each other and to say goodbye. It means peace. Arabs use a variation. I thank you and wish you shalom -- peace.
Leonard V. Kaplan
Leonard V. Kaplan is a professor of law at the University of Wisconsin at Madison.
(This essay has been updated to reflect an amended version of the referenced court case at the University of Florida.)
As is always the case in important Supreme Court decisions, the framework chosen determines the result, and Christian Legal Society v. Martinez falls squarely within that tradition. Justice Ginsburg’s majority opinion cites Healy v. James (1972), Widmar v. Vincent (1981); and Rosenberger v. Rector and Visitors of Univ. of Va. (1995), cases that have restrained public colleges from discriminating against their student organizations due to the groups’ viewpoints. Reflecting their times, these three cases involved groups that perceived themselves as outliers: Healy involved the radical 1960s group Students for a Democratic Society, while Widmar and Rosenberger involved Christian student organizations, stealing a march on the earlier progressive student litigation.
The majority held that the exact issue was whether or not CLS could exclude members who did not conform to the group’s core beliefs: “In the view of petitioner Christian Legal Society (CLS), an accept-all-comers policy impairs its First Amendment rights to free speech, expressive association, and free exercise of religion by prompting it, on pain of relinquishing the advantages of recognition, to accept members who do not share the organization’s core beliefs about religion and sexual orientation. From the perspective of respondent Hastings College of the Law, CLS seeks special dispensation from an across the-board open-access requirement designed to further the reasonable educational purposes underpinning the school’s student-organization program. In accord with the District Court and the Court of Appeals, we reject CLS’s First Amendment challenge. Compliance with Hastings’ all-comers policy, we conclude, is a reasonable, viewpoint-neutral condition on access to the student-organization forum. In requiring CLS -- in common with all other student organizations -- to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations. CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings’ policy. The First Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.”
Framing the issue this way, the majority held that the central question was: “May a public law school condition its official recognition of a student group -- and the attendant use of school funds and facilities -- on the organization’s agreement to open eligibility for membership and leadership to all students?” They answered “Yes.”
In the dissent, Justice Alito instead relies upon Boy Scouts of America v. Dale, the Court’s 2000 decision that allowed the Boy Scouts to exclude gays from its leadership ranks. He then parses the complex and incomplete record to find that Hastings engaged in discrimination when it denied full recognition to CLS due to the group’s bylaws, which require members and officers to sign a “Statement of Faith” and to conduct their lives in accord with prescribed principles; these include the belief that sexual activity should not occur outside of marriage between a man and a woman. The national CLS interprets its bylaws to exclude from affiliation anyone who engages in “unrepentant homosexual conduct” or any students who hold religious convictions different from those in the Statement of Faith. Their “Statement of Faith” provides: “Trusting in Jesus Christ as my Savior, I believe in: One God, eternally existent in three persons, Father, Son and Holy Spirit; God the Father Almighty, Maker of heaven and earth; The Deity of our Lord, Jesus Christ, God’s only Son conceived of the Holy Spirit, born of the virgin Mary; His vicarious death for our sins through which we receive eternal life; His bodily resurrection and personal return; The presence and power of the Holy Spirit in the work of regeneration. The Bible as the inspired Word of God.”
Justice Alito suggests that student groups with political, ethnic, or other viewpoints would not be allowed to discriminate in their membership choices, but that religious student organization should be allowed to do so, citing Dale: “It bears emphasis that permitting religious groups to limit membership to those who share the groups’ beliefs would not have the effect of allowing other groups to discriminate on the basis of religion. It would not mean, for example, that fraternities or sororities could exclude students on that basis. As our cases have recognized, the right of expressive association permits a group to exclude an applicant for membership only if the admission of that person would ‘affec[t] in a significant way the group’s ability to advocate public or private viewpoints.’ Groups that do not engage in expressive association have no such right. Similarly, groups that are dedicated to expressing a viewpoint on a secular topic (for example, a political or ideological viewpoint) would have no basis for limiting membership based on religion because the presence of members with diverse religious beliefs would have no effect on the group’s ability to express its views. But for religious groups, the situation is very different.”
It surely is a very different situation. And the Religious Right has systematically sought for many years, including their efforts in Widmar and Rosenberger, to seek full public funding and special pleading with regard to student organizations, no longer accepting that they should render unto Caesar. They have appropriated earlier iconic liberal decisions to advance their interests. While not all religious organizations advance the same interests or adhere to the same litigation tactics, it is clear that there is a deliberate strategy employing careful, incremental, deliberate choices of which cases to bring to the court, by way of geographic and other political choices.
CLS is one example, following on a 2005 Seventh Circuit case, CLS v. Walker, in which the organization prevailed on its free expression and free association rights claims. Another such case is Beta Upsilon Chi Upsilon [BYX] Chapter v. Machen, a student organization recognition case in federal court, before the Northern District of Florida and then the U.S. Court of Appeals for the 11th Circuit. In this case, the University of Florida, which had over 750 Registered Student Organizations (RSO), including 60 religious groups, of which 48 were Christian, denied recognition to BYX, a national Christian fraternity, under Florida’s non-discriminatory regulations, which bar groups from bias on the basis of race, creed, color, religion, age, disability, sex, sexual orientation, marital status, national origin, political opinions or affiliations, or veteran status.
Because BYX had a membership requirement that could not qualify under the university’s guidelines, it was not deemed to be eligible for RSO status. The Court found: “BYX is a national fraternity founded in 1985. It has twenty-two chapters in nine states. According to its constitution, it ‘exists for the purpose of establishing brotherhood and unity among college men based on the common bond of Jesus Christ.’ BYX espouses a strict approach to the Christian faith, and membership in the fraternity is contingent upon what the fraternity deems ‘a credible profession of faith in Jesus Christ.’ This requires agreement not only with the traditional core Christian beliefs and values contained in such ancient expressions as the Nicene Creed, but adherence to a demanding view of the faith. In its doctrinal statement, BYX explains that members must ‘believe that the Bible is God's written revelation to man, that it is inspired, authoritative, and without error in the original manuscripts.’ Accordingly, “BYX considers Mormons and Seventh Day Adventists non-Christians.” BYX also demands moral and ‘sexual purity.’ According to its code of conduct, BYX believes that “sex is a gift of God to be enjoyed inside the covenant of marriage between a man and a woman. Therefore, we will not condone such activity as homosexuality, fornication, or adultery.”
The university, rather than risk protracted litigation, capitulated after the appeals court’s oral arguments had been heard, and modified its policy to allow a religious exception: “A student organization whose primary purpose is religious will not be denied registration as a Registered Student Organization on the ground that it limits membership or leadership positions to students who share the religious beliefs of the organization. The University has determined that this accommodation of religious belief does not violate its nondiscrimination policy.” By the new policy, agreed to in wake of the litigation, BYX was allowed all the benefits it had sought, and was treated as all the university’s RSOs.
But the fraternity was not mollified by its victory, contending that the University of Florida, a state institution, had done the right thing, but for the wrong reasons. The appeals court noted: “BYX is not satisfied with this result, however, and urges us to reach the merits of its constitutional claims. It ardently presses us to retain jurisdiction over this case because the University has failed to change the regulation from which the CSAI Handbook nondiscrimination policy derived: UF Regulation 6C1-1.006(1) (the “Regulation”). Furthermore, BYX is troubled by UF's timing. It contends that ‘the timing of [UF's] motion to dismiss [this appeal] indicates that it is motivated not by a genuine change of heart but rather by a desire to avoid liability.’ We are not concerned with UF's motivation for changing its registration policy, but only with whether a justiciable controversy exists. Finding that BYX has received the relief sought in its complaint, we reject its request that we reach its constitutional claims and dismiss this case, as we no longer possess jurisdiction.”
Thurgood Marshall may well have wished that the University of Texas in 1950 had behaved better and that the LDF had not been required to spend precious resources bringing Sweatt v. Painterto have its client admitted into the real University of Texas Law School, not the inferior makeshift version that the State had offered in the alternative. But once he won the case and Heman Sweatt was admitted, he did not go back to the courts to ensure that UT do so with a better attitude or “genuine change of heart.” This extraordinary line of reasoning, even when religious groups had prevailed on the merits of the case in federal court, shows the extent to which they are on a jihad and will settle for no less than winning hearts and minds, but only according to their own, narrow terms. The LDF would never have litigated that Homer Plessy was not fully Black and therefore on this basis was entitled to sit in New Orleans public transportation’s Whites-Only sections, nor would it have reasoned that Colin Powell was not African American for affirmative action purposes, because his people were from the Caribbean rather than from Africa. It surely will come as a shock to members of the Church of Jesus Christ of Latter Day Saints or others who consider themselves to be Christian that a “Christian” fraternity has expelled them from Eden and deemed them ineligible for CLS or BYX membership. And it begs the troubling question of who is entitled to trademark Christianity or to dictate who is a Christian or “morally pure.”
On the remand of the case to the Ninth Circuit, the Court seeks to determine whether UC-Hastings had actually followed its own rules in enforcing the “all-comers” policy. In this remand, I hope that the lower court will review the complex and confusing record and find that Hastings acted consistently and in good faith. I also hope all the feckless colleges that capitulated earlier will go back and restore the full anti-discrimination provisions they silently set aside. I had bet a dinner that the Supreme Court would “DIG” the case, dismissing it as improvidently granted for consideration. I also bet a different dinner that the Court would decide for the law school on a 5-4 basis. This is one meal I expect to relish.
Michael A. Olivas
Michael A. Olivas is William B. Bates Distinguished Chair in Law at the University of Houston, and the author of the forthcoming Suing Alma Mater: Higher Education and the Courts.