Taking a Stand

May 2, 2012

Individual faculty members regularly weigh in on public debates. They write op-eds. They speak out at forums. Typically they do so as individuals, and many professors go out of their way to say that they aren't speaking for their institutions. The issue is much more complicated when faculty members voice their opinions as a group, or pass a resolution collectively on a matter of public importance.

That is exactly what happened at the William Mitchell College of Law last month, when faculty members at the stand-alone law school in Minnesota voted 24-7 for a resolution opposing a proposed amendment to the state’s constitution later this year to ban gay marriage.

The day faculty voted for the resolution in April, Eric S. Janus, the dean and president of the college, sent out a letter to faculty and staff members in order to provide some context. “The faculty resolution expresses the sentiment that adoption of the constitutional amendment might hinder the school’s ability to maintain our culture with respect to LGBT employees and students,” he said. “The faculty’s vote does not establish or express an official position of the college on marriage, and every single one of our employees and students remains free to adopt and express her or his own views on the subject of marriage.” Of course much of the debate was about taking a stand on gay marriage, not about recruiting employees.

Daniel Kleinberger, a professor and co-author of the resolution, explained that the issue has a direct impact on the college’s ability to do what it wants to do. “We are trying to make an important point, and we thought carefully about whether it is our business.” He pointed out that about a fifth of the college’s full-time faculty members call themselves LGBT.

The faculty at the William Mitchell has gone down this path before, and passed a resolution in 2006 to oppose a similar proposed amendment that eventually did not make it to the ballot. Eileen Roberts, a professor at William Mitchell who voted against the resolution this year, said that even though she supports gay marriage, she is against bringing social and political issues to the workplace. “I talked to friends who work in other companies and law firms and this is not acceptable behavior in those work places. And this is a work place,” she said. Her other objection: Taking stands on social or political issues silences people, especially students, who might disagree.

Law professors elsewhere joined the debate after Concurring Opinions, a blog devoted to legal issues, posted an item about the resolution last week. Sarah Waldeck, a law professor at Seton Hall University who wrote the blog post, said the discussion has revolved around whether faculty as a group have a responsibility to speak up and if there is a “limiting principle” to this responsibility.

"[A] law faculty is a member of wider community with a unique role: a purported expertise in law. How can it be a contributing member of the community if it is silent with regard to issues that fundamentally affect law?" asked Mark Edwards, an associate professor at William Mitchell.

Orin Kerr, a law professor at George Washington University, disagreed.  "[I]f a law faculty must take a position to contribute, then does that mean it must take positions on the all of the thousands of legal issues that are vitally important in our society? If not, how does it choose which ones to take positions on?" he said.

William Baude, a fellow at the Constitutional Law Center at Stanford Law School, who also responded to the blog post, pointed to a 1967 report on the “university’s role in political and social action” by Harry Kalven, a noted jurist from the University of Chicago’s Law School, and some other colleagues, who said that the “instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic."

This posting, of course, brought forth more questions and led to a spirited debate. Baude said that faculty members as a group should stay away from passing resolutions most of the time. “This is unless it has something to do with the institution itself ... things that would implicate the faculty and the institution itself,” he said. “I also thought that the defenders of the resolution were very persuasive, but not entirely.”

The debate about the William Mitchell resolution has largely been about the contextual meaning of the decision, and whether the issue at hand has a direct bearing on life at the university. Cary Nelson, president of the American Association of University Professors and a professor of English at the University of Illinois at Urbana-Champaign, feels that it does. “It could affect their ability to hire; it could be a deal-breaker. There is also a good argument that could be made that the university wants to encourage a better life for its people and hire more broadly,” he said.

Another question revolves around the role of law faculties when it comes to constitutional decisions. “Do they potentially have a social responsibility on constitutional issues?” Nelson asked. Advising the public could be seen as an underlying duty, he said, though no one is compelled to speak out. On the flip side, there are faculty members who believe that passing such resolutions or taking an explicitly public stance might politicize a university. “But if they fantasize that a university is above politics, they are living in a different world,” he said.

According to Nelson, fear and cowardice rule too much of the academy. “In the long run, a university has to be a beacon for the truth or you pay a price for it," he said.

Similar debates have erupted before in the academic world. Members of the American Historical Association had animated debates about how to oppose the Iraq war. Another discussion involved the Association of American Universities in the 1980s and whether it should take a stand on South Africa’s apartheid policy, said Robert M. O’Neil, an emeritus professor of law at the University of Virginia’s School of Law and a former president of the university. "The AAU presidents devoted several hours to the question whether we should ever take stands on issues of public policy – others would use the term ‘political’ – no matter how clear or compelling,” O’Neil said. In the end, the majority opposed taking such a position. “Other AAU members were, of course, free to pursue their views, as a minority did,” he said.

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