I am a Georgetown University Law Center grad, as well as a former administrator there. I also know and have personal relationships with several members of the faculty. None of this especially informs my ethical analysis of the community argument there that arose from a rather innocuous official expression of respect and mourning in the wake of Justice Scalia’s death, but if anyone wonders why I’m posting about this rather than many other ethics issues nipping at my heels, that’s part of the reason. The other reason is that this academic dust-up raises interesting ethics issues, and has received national publicity.

Observations on the tale as it has unfolded:

1.  Georgetown Law Center issued a press release mourning the death of Antonin Scalia, including a statement from Dean William M. Treanor that read:

““Scalia was a giant in the history of the law, a brilliant jurist whose opinions and scholarship profoundly transformed the law. Like countless academics, I learned a great deal from his opinions and his scholarship. In the history of the Court, few Justices have had such influence on the way in which the law is understood. On a personal level, I am deeply grateful for his remarkably generous involvement with our community, including his frequent appearances in classes and his memorable lecture to our first year students this past November. The justice offered first-year students his insights and guidance, and he stayed with the students long after the lecture was over. He cared passionately about the profession, about the law and about the future, and the students who were fortunate enough to hear him will never forget the experience. We will all miss him.”

[Note: In the original post, I missed the first line, and kept missing it. Don’t ask me why. The text has been finally, after a couple botched attempts, been revised to include it.]

Is there anything inappropriate about the dean’s statement? Not in my view. This is nothing but a traditional expression of professional respect on behalf a prominent institutional member of the legal community. There is nothing in the statement, save for the last sentence, that anyone could argue is untrue. Countless academics, as well as Scalia’s more liberal colleagues, did learn “a great deal from his opinions and his scholarship.” He was an influential and significant figure on the Court. Scalia was generous with his time and passion as a teacher, and by all accounts he was a good one.

The opening statement,  “Scalia was a giant in the history of the law, a brilliant jurist whose opinions and scholarship profoundly transformed the law,”  seems to be what rankled Scalia critics. It shouldn’t have. At worst it is standard memorial puffery. But calling Scalia a giant “ in the history of the law” seems fair whether you agree with his jurisprudence or not: he is certainly among the 20 or so most quoted, most debated, and most provocative justices. The rest shouldn’t be troubling to anyone who isn’t suffering from Scalia-phobia. A Justice can be brilliant and transformational while being wrong.

None of the reports of the controversy ignited by this standard issue sentiment mention it, but Georgetown Law Center isn’t on the Georgetown campus. It has its own campus that is a 15 minute walk from the Supreme Court. Law students regularly attend oral arguments; I did: it was one of the great advantages of studying law there. More than any law school, the Law Center has good reason to feel a special affinity to the Court and all its justices.

2.  What about the last sentence? Is it appropriate for Treaner to speak for the law school community and say that “We will all miss him”? He was reasonable and fair to assume that.  Unfortunately, in today’s vicious partisan divide where opinions and sincere positions reached after thought and research are too often treated as proof of consort with Satan, and ion which even lawyers, who are trained not to take legal arguments personally, are frequently unable to respect a colleague for a well-reasoned argument that they may still think is completely wrong, it was not a safe assumption. Pillory the dean, then, for giving all members of his community the benefit of the doubt, and assuming they are capable of grace, compassion, fairness, professional respect and civility.

It’s still not unethical to assume one’s colleagues have some class.

3. They all don’t, unfortunately. Law Center professors Gary Peller and Mike Seidman (I know Mike, never met Gary) then used the Campus Broadcast system, usually used for event announcements, invitations and policy changes, to send a message  to all members of the student body titled, “Responses to Dean Treanor’s Press Release Regarding Justice Scalia.”  Peller’s statement reads,

Like Mike Seidman, I also was put-off by the invocation of the “Georgetown Community” in the press release that Dean Treanor issued Saturday. I imagine many other faculty, students and staff, particularly people of color, women and sexual minorities, cringed at headline and at the unmitigated praise with which the press release described a jurist that many of us believe was a defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic….That ‘community’ would never have claimed that our entire community mourns the loss of J. Scalia, nor contributed to his mystification without regard for the harm and hurt he inflicted.”

This was partisan grandstanding of the worst kind. The professors, of course, have a right to proclaim their opinions to the student body any time they want to, but their complaint here was petty and mean-spirited. It also models behavior that is poisonous both to the legal profession and the culture as a whole. The are saying, in essence, “We don’t mourn him, we won’t miss him, and we’re glad to be rid of him, because his legal theories aren’t our legal theories, and we are on the side of the angels while he was an uncaring villain.” Such a message accomplishes nothing positive, and much that is destructive. The professors engaged in demonizing, when their profession and their duty is not to denigrate but reason. If they really think they can prove that Scalia was a defender of privilege, oppression and bigotry, they can make that case in a scholarly paper: I doubt that they can. Scalia often defended the rights to engage in conduct that he did not personally support, as well as some he did: the sloppy rhetoric of Seidman and Peller echoes the legally ignorant who accuse criminal defense attorneys of defending robbery and murder.

4.  Professors Randy Barnett and Nick Rosenkranz responded with a rebuke to their colleagues, saying in part..

…The problem is that the center of gravity of legal academia is so far to the left edge of the political spectrum that some have lost the ability to tell the difference.  Only on a faculty with just two identifiably right-of-center professors out of 125, could a professor harbor such vitriol for a conservative Justice that even Justice Ginsburg adored.  Only on a faculty this unbalanced could a professor willfully or knowingly choose to “hurt … those with affection for J. Scalia,” including countless students, just days after the Justice’s death.  If more of us were here, the impropriety of this act would have been far more obvious, but also less threatening to our students.

To suggest the appropriate response, each of us independently offered the following analogy:  What would be the reaction if either of us had sent a similarly-worded email to the entire student body, in violation of Georgetown email policy, upon the death of Justice Thurgood Marshall — saying that he was a bigot, and his “intellectual positions were not brilliant but simplistic”?  Is there any doubt that the Georgetown reaction would justly be swift, dramatic, and severe?

…Although this email was upsetting to us, we could only imagine what it was like for these students. Some of them are twenty-two year-old 1Ls, less than six months into their legal education. But we did not have to wait long to find out. Leaders of the Federalist Society chapter and of the student Republicans reached out to us to tell us how traumatized, hurt, shaken, and angry, were their fellow students. Of particular concern to them were the students who are in Professor Peller’s class who must now attend class knowing of his contempt for Justice Scalia and his admirers, including them. How are they now to participate freely in class? What reasoning would be deemed acceptable on their exams?”

Well, the last paragraph is nauseating. I would not expect conservative professors to sink to the level of the trigger-warning purveyors and the “hate speech isn’t free speech” crowd, but that’s what they did. Heaven forfend that someone force a strongly worded dissent into a delicate conservative law student’s ears! Justice Scalia, whose scorn often shredded prominent lawyers who presented weak reasoning in oral argument and sent them home wondering if they were in the wrong profession, would have mocked the idea that a hostile opinion of a dead Justice left them “traumatized, hurt, shaken, and angry.” You are lawyers, not children, he would have said. This is about ideas, not feelings. Emotions aren’t facts. And if you are traumatized by mere opinions, get over it.

And this…

“Of particular concern to them were the students who are in Professor Peller’s class who must now attend class knowing of his contempt for Justice Scalia and his admirers, including them. How are they now to participate freely in class? What reasoning would be deemed acceptable on their exams?”

Those students are in the wrong field then.  “How are they now to participate freely in class?” How are they going to function in court before a judge whose past cases indicate that she is hostile to the lawyer’s client and arguments?

That conservatives like Barnett and Rosenkranz would use student trauma as an argument against their colleagues’ complaint shows how cultures rot. Will GULC now hold a special sob-story meeting of all the wounded right-wing students, like Rutgers, disgracing itself, just held for students shaken by the words a politically incorrect speaker?

5. Pouncing on this botched and hypocritical response, Georgetown’s black students organization. BLSA, sent a response of its own.The response was badly reasoned, and inept.

• Quoting the paragraph above in the Barnett and Rosenkranz e-mail, BLSA wrote,

“This paragraph could be edited slightly, inserting black students for conservative and libertarian students, and the effect would be the same. In fact, this description is nearly identical to the lived and voiced experiences of many students of color at our institution.”

Yup, and it would be just as wrong as the original paragraph is. There is no right, especially at law school, to be shielded from contrary opinions, and if a student can’t handle that inevitability of the profession, they don’t belong in the law whatever their color or political views are.

• Then this…

“Many Black students were also “traumatized, hurt, shaken, and angry” as “22-year-old 1Ls” when the law school declined to make unprompted timely statements last school year regarding the uptick in racialized policing, law enforcement, and the lack of indictments of violent police officers.”

Well, time to brush up on basic legal reasoning and analogies, students! Professional expressions of respect at the death of a member of that profession are nothing at all like a narrow political statement,or unprofessional criticism of law enforcement from a distance. The law school would have been ethically wrong to take a position on these issues, and if students are upset when schools don’t publicly adopt their politics, they aren’t learning fast enough.

• Now completely off the rails…

“Many Black students were also “traumatized, hurt, shaken, and angry,” when fact patterns on a practice exam directly referenced the facts of the Trayvon Martin tragedy.”

I already wrote about this nonsense, when a UCLA Law School exam question based on the Ferguson case was attacked for “traumatizing” law students. In that case, the pusillanimous professor and the dean apologized, with the latter saying that the question was “ill-timed.” Oh for the luvva…. I wrote:

1. It was not ill-timed. It was perfectly timed.

2. Will all students now have to be pre-screened for questions that might have emotional impact? No robbery questions for those whose families have suffered from theft, no real estate questions when a student’s parents lost their homes through foreclosure?

3. Any student who makes such a complaint is on-track to be a poor lawyer. The law school should be training such students not to be crippled by their emotions, not encouraging and validating unprofessional conduct.

4. Law professor Eugene Volokh states what is at stake here precisely, though he shirks his duty of pronouncing his fellow professor a craven, politically correct  weenie:

“To be sure, some people might be deeply emotionally invested in an issue, and have a hard time viewing it from both sides. But a key part of a law school education is to learn how to do this, even when you are emotionally invested. If you want to work for, say, the NAACP (or the NRA), you will do your clients no favors by being so zealous in your opinions that you fail to grasp the best arguments on the other side. And that is also true when the matter is still raw in your mind. Often you have to make arguments just days after some traumatic event (here the exam was two weeks after). Indeed, often you have to make arguments just days after a traumatic event that involves you much more directly than the Ferguson incident involved UCLA students — for instance, what you see as a racist verdict that will send your innocent client to prison, or an appellate decision that you think unjustly rejects an argument that you’ve spent years developing. As a lawyer, you need to master your emotions enough to deal with such situations. As a student, you have to learn how to do that….Instead, it seems to me, students — especially (though not only) in constitutional law classes — should be expected to deal with such questions, both in class and on exams. Indeed, if professors studiously avoid any such questions on their exams, that itself will make the exams weaker at evaluating students’ knowledge and skills. And any policy of accepting demands to remove or avoid some such questions will lead to demands to remove or avoid still more. Indeed, it may lead people to be more upset when they see some such questions, because they have been taught that they are entitled not to be confronted with such questions.”

That’s correct: you have to learn to do that. The professor and the school, to the contrary, are apologizing for making it clear that this is true. That’s educational malpractice.

• “Many Black students are currently “shaken and angry” that Professors Rosenkranz and Barnett, two of our most respected professors, would make a callous, ill-formed analogy to the legacy of Justice Thurgood Marshall in their email response.”

It was, of course, a perfect analogy for the point the professors wanted to make. They found the characterization of a conservative icon they admired to be unfair and factually wrong, and, trying to evoke the spark of the Golden Rule, asked how their liberal colleagues would feel about similar slander against a liberal icon, such as Justice Marshall.

They still teach analogies in laws school, right? Judges use them a lot.

• The BLSA letter then echoed the anti-Scalia slur that I deconstructed here. The claim that Scalia’s provocative question in oral argument referencing the claims of some researchers that affirmative action results in some blacks students being admitted to schools that are too difficult for their abilities and training when they could excel at less highly regarded schools was racist is race-baiting, unfair and ignorant. And, as I wrote in the post, I know from personal observation that the unintended affirmative action consequences Scalia alluded to occur, because they occurred at Georgetown Law Center while I worked there, and almost certainly still do.

• At Above the Law, Ellie Mystal actually applauded this  disturbing letter, disturbing because it shows how their own racial and political  biases cripple black law students’ ability to think like lawyers.  The title of Mystal’s post: “Georgetown BLSA Exposes The #WhitePeopleProblems Of Scalia Mourners.” This tells us all we need to know about Ellie.

6. After Peller, who really does seem to be a jerk, wrote another e-mail accusing his conservative colleagues of lying, another member of the faculty  sent an e-mail that said, simply,

“Please, please, PLEASE stop. At the very least, please omit me from further communications.”

Bingo.