On Official Statements and Public Letters

As dean, I am often confronted with the question of whether to issue, on behalf of the Law School, an “official statement” or to join a group letter in response to public events. My general policy in both situations is to decline. My reasons are both philosophical and practical.

The Role of the Academy

My broader, philosophical rationale is grounded in my view of the academy. Colleges and universities are the ultimate “safe space” for the exploration, debate, and analysis of complex issues. All ideas are welcome. This requires the institution to be neutral and nonpartisan, even as its members rightly express their own views on issues of the day. (Of course, academic freedom is not a basis to engage in conduct, such as sexual harassment or threats of actual violence, that infringes on others’ rights. But that is a high threshold, as it must be.)

My role, as dean, is to run the school by facilitating the exchange of ideas by others, especially faculty and students, through our curriculum, journals, events, and other aspects of law school life. It is their voices, not mine, that are important. As a teacher at heart, I believe it is important to make spaces available to have tough discussions around current issues. When I have prejudged the outcome, however, I make it difficult for those tough conversations to occur. And that’s a bad thing. We need greater, not fewer, opportunities for debate and analysis. Our society is increasingly fractured with its echo chambers of all kinds. Higher education can stand against that trend, but not if the institution itself (through its dean) has taken an official position. Therefore, I approach this whole issue with a great deal of caution while recognizing that there are, in fact, times to speak out, which I describe below.

Regarding the role of the law school dean, I am reminded of something that was said by Jacob Rees-Mogg, a member of the U.K. Parliament, about John Bercow, the then-Speaker of the House of Commons. He said, of the Speaker (at 4:42):

The key virtue of the right honorable gentleman is that he is impartial in this house, but he is a partisan for the House of Commons. So in here we are all equal and judged by him equally and fairly, but outside he defends our rights, our traditions, and our liberties. And that is how it should be.

(emphasis mine). I have a similar view of the role of dean: to speak out when it is in the best interests of all students to do so but otherwise remain neutral on matters of policy debate. When I became dean of my Law School, it was with a singular goal: student success. This means ensuring that students learn the law, pass the bar exam, get a job, and become successful lawyers. I have not hesitated, therefore, to use my “bully pulpit” to speak out about things like the bar exam and other issues related to legal education. And I will continue to do so, as I explain below in my “organizing principle” about official statements. But speaking externally in favor of the school or its students is a different matter from speaking officially on matters of current events.

Practical Realities of Time, Precedent, and Facts

Much of my hesitation around public statements is grounded in the practical challenges of issuing well-written statements. Even the most tepid of statements may inadvertently offend some constituent, so great care must be taken to choose every word carefully (the fact that it may offend is not the problem – it’s that my words may not be worded artfully and accidentally cause offense). Frankly, writing a good statement takes a lot of time—time that I could be spending helping run the institution and advancing student success, which is, after all, my job. There is a lot of injustice in this world, and I could spend a lot of my day issuing statements and arguing for public change. That, however, is not my role as dean. What I describe above is what publicly-engaged faculty can and should do: to use their scholarship (written and otherwise) to contribute to public dialogue in their fields of expertise. As dean, my role is to make the institution run effectively and to help faculty and students have voices internally and externally in public education and debate. Anything that distracts from that mission is a bad thing. (This is, incidentally, why I don’t think it’s a good idea for a dean to teach a heavy courseload or to lock oneself away in an office writing law review articles. Blog posts are ok though!)

There is a related issue concerning precedent. Once I start making statements, I have an obligation to continue making them when similarly situated events occur. Otherwise, I run the risk that my silence will be misconstrued as disinterest or, worse, acceptance of the latter injustices. Again, there is a practical problem here. Commenting on public events can become a full-time job in and of itself. I am a dean, not an op-ed writer. Although I also carry a faculty title, my principal role is that of dean. And it’s not like I have a huge public relations staff to write drafts for me.

I certainly have my own views about world events, but I am also humble to know that I may not have all of the facts. Incomplete knowledge is an issue in many situations where deans and others are called on to make statements on ongoing, evolving events (e.g., police-involved shootings). As lawyers, we are trained to follow the facts and evidence and not jump to conclusions. In many situations where I have been asked to issue official statements, however, the situation is evolving and there may be more than meets the eye. Do I make judgments based on what I have seen in the news or do I recognize that I may not have all of the facts? One could argue that the lawyerly response in many situations—in other words, the point that those of us who are law-trained are particularly suited to contribute to public dialogue—is to say that a wrong may very well have been committed but that the process must be allowed to play out. The rule of law, after all, is grounded in respect for due process rather than mob rule. This cuts all ways. But that’s not what people want to hear. In our fast-moving world of social media, it is the definitive point that gets the headline. No one wants to wait for an investigation. (Incidentally, this trend of decanal “statements” is, I think, of relatively recent origin due to social media. This was not an issue ten or fifteen years ago.)

January 6, 2021: To Speak or Not to Speak

In the last few days, many law school deans have issued official, public statements related to the events at the U.S. Capitol on January 6. I was very tempted to do so as well, because I was horrified about what I saw on Capitol Hill. I could say, for instance, that what we witnessed was a direct, violent attack against the democratic process and that I condemned the challenge to the rule of law. I have certainly said as much in recent days as an individual citizen, and I strongly considered making an official statement, on behalf of the Law School, to that effect.

However, beyond that short sentence, there would be choices that could be perceived as wading into issues of public debate or the merits of individual, criminal prosecutions that are now pending. Even word-level decisions can be problematic. Were the individuals involved “protestors,” “domestic terrorists,” “rioters,” “insurrectionists,” or some other word? Were all individuals equally culpable (i.e., should I make distinctions between those who marched on the Capitol peacefully versus those who went inside versus those who engaged in violence)? Do I parse the President’s speech and analyze whether he incited or encouraged those involved? Do I comment on the police response (or lack thereof) and whether it was inconsistent with those of protests over the Summer? What, if anything, do I say about election-related lawsuits that were filed by the President’s lawyers or the challenges by Representatives and Senators to the Electoral College results? Anything beyond the most tepid statement of support for rule of law is sure to cause controversy by addressing matters over which there is room for debate.

And if it is a short, tepid statement to which everyone agrees, what is the virtue of bothering with it in the first place?

Those I have talked to about this quandary have raised important arguments against my position. Law school deans, by the nature of their positions, have bully pulpits and can use them to advance what they see as core values of the legal profession. We are known in our legal communities and will be listened to if we speak. There are some positions, they say, that are incontrovertible and can be affirmed without dragging the institution into legitimate public debate. I do not disagree that there are some values that we should all be able to agree on as lawyers—abhorring violence, for instance, is one. But in today’s fractured climate, arguments are often couched in terms of incontrovertibility. “No one can disagree that …” is a tautological way to advance an argument without offering rationales. Who decides what is and is not an issue over which reasonable minds are allowed to differ publicly? This is a slippery slope problem, to be sure. It is one that warrants caution before using the bully pulpit too frequently, which is why I have carefully thought through four categories (described below) where I will make official statements.

Turning back to the events of January 6, 2021, there are certainly things that I think we can all agree on: the acts of violence, property destruction, intimidation, and trespass were all wrong. But if we can all agree on those things, if they are so self-evident, why does it need to be said by a law school dean in some sort of official pronouncement through e-mail and social media? I suppose one answer is symbolic, reaffirming the rule of law. Another is practical: the more voices that decry what happened, the less likely that those who supported the violence will try it again. Ultimately, though, if everyone agrees on something, there is little that my voice can add to the public discourse. But I might make things worse through unartful wording or by drifting into areas of complexity and legitimate disagreement, thereby alienating constituents of good will. I also question, as a factual matter, how much weight the voice of an individual law school dean or group of deans actually carries in the public.

It is for similar reasons that I generally do not sign onto joint letters, statements, or amicus briefs. These, in my view, are more problematic because, to gain widespread acceptance, the ideas must be of such a general nature as to be meaningless. This is not say I don’t write or join public letters—I do—but I do so when it benefits the institution and its students.

Exceptions – When I Speak Out

With all of that said, there are situations where I have spoken out and will continue to do so because they do relate to my role in leading the school. I see those situations as falling into four broad categories. The first, as I mentioned above, is advocacy for the institution or our students in matters of legal education. The second is when external events directly affect the Law School, its constituents, or the Charleston community. The third is to offer condolences on the loss of life or other tragedies. Finally, since our Law School was founded on the principle of pro bono populi, I would speak publicly on issues affecting the legal profession, public service, and access to justice. Law schools have all sorts of different missions. A dean at a religiously affiliated school, for example, would want to speak out on matters relating to that specific mission, and I support that.

Although I have only been dean a short while, I have issued public-ish statements (to our Law School’s e-mail listservs and social media platforms) in four situations. I’ll leave it to others to decide whether I have been consistent with my four guideposts, but I have tried to abide by my principles.

One statement was concerning the bar exam and critiques from a local newspaper of a petition that some of our graduates had signed onto. This met the first guidepost. Another was after the death of Justice Ruth Bader Ginsburg, which falls into the category of offering condolences for a prominent member of the legal profession. I would have also done so if I had been dean when Justice Scalia had passed away. I did not, however, weigh in on when the vacancy on the Court created by Justice Ginsburg’s death should have been filled. Many remember that, in 2015, a white supremacist committed a mass shooting at the Mother Emanuel Church here in Charleston. It occurred blocks from the Law School, directly affecting every student and employee. Had that occurred while I was in office, I would have issued a statement and been a vocal voice in the community.

Two of my four statements fell into the second category and involved police shootings. They were more complicated and challenging to write. While I was dean-designate, the then-dean and I issued a statement after the death of George Floyd. The other was an internal statement I made after the death of Jacob Blake. In both instances, the events had greatly impacted groups within the Law School community, and I believed it was important to offer my public support to them. There was also a local component to what was going on after the death of George Floyd. Riots in downtown Charleston required us to issue a Clery Act notification (indeed, some of the Law School’s property was damaged), so issues of criminal justice reform, the rights of protestors and property owners, and police use of force were very real and tangible for students. Both events also offered opportunities for dialogue around issues of racial justice and policing, and I wanted to make clear that we would provide spaces for those conversations to occur without prejudging the outcome of the individual cases. Our Fall Professionalism Series focused on issues of civil rights, for instance. However, I tried not to prejudge the cases against the police officers. That said, some constituents wrote to me, arguing that I failed in my neutrality. Others (on the opposite end of the spectrum) thought I should have gone farther and condemned the police officers even though I had not seen the full evidence. No good deed truly goes unpunished.

A Distinction Between Official Statements and Individual Writings

In this post, I have been primarily talking about official statements purporting to take a position on behalf of the Law School. Deans remain private citizens and do not forfeit their ability to write and speak as individuals. I have a few writing projects in the works, and I do not plan to put them on hold just because of the office I hold. I am also happy to offer commentary in my areas of expertise (criminal law) to media outlets. Still, because the official/private distinction may be murky in some situations, I try to avoid speaking on controversial topics even as a private citizen or scholar.

Going Forward

As a dean, I consider myself fairly decisive. This is an area, however, where I have struggled to come up with an “organizing principle” to define when and when not to speak on behalf of the institution. It also may be an area where my thoughts evolve over time. I will, therefore, be revisiting the ideas raised in this post from time-to-time.

Back to more pressing issues: the bar exam, the start of the new semester, and getting jobs for students.