Sunday, May 18, 2008

Politics . . . In the (Law School) Classroom?!: General Reflections, Personal Experiences from Con-Law

This post is long overdue, in a way. In another way, it's just plain long. We’ve approached this issue tangentially before, but never directly. After looking at the course evaluations for Con Law and talking with some classmates, it’s time to weigh on the age old question of what, if any, role should the prof’s political leanings have in his/her teaching of the class.

Of course, the question is sort of a misleading one. To begin with, it’s colossally incorrect to suggest that any instructor or scholar can ever be a truly objective in the sense that he is able to keep his politics divorced from instruction altogether. Pedagogy is about making choices of what cover and how to cover it, and even if a Prof. is trying to be even handed, his own inclinations will unconsciously influence his choices. For example, in teaching a course – let’s say Con Law (I’ll choose this because it’s the one where political inclinations are likely to be the most apparent) – the instructor is forced to choose from both a virtually infinite selection of topics and an infinite selection of materials within those topics. Even in discussing something like the political question doctrine, the professor may be unconsciously injecting his own opinions . A conservative, for example, may choose cases with relatively consistent reasoning in dismissing challenges to Vietnam/Iraq following other decisions in foreign policy areas as non-justiciable political questions; a liberal might choose to show students the jurisprudential train wreck that was Bush v. Gore as an indication of how malleable the doctrine is. Sure, you can show both sides – but that ultimately means less time in class spent on something else. And how is one to choose what gets cut?

The better question, then, is how should professors relate their political views – which are likely to be in some sense ultimately indistinguishable from their views about the law – into the teaching of the class? Assuming we don’t want law schools to indoctrinate people, but rather encourage independent and free thinking, we can imagine a couple different approaches on this, but it ultimately divides into two radically different methods.

The first method is to simply say, “Listen, kids, I’ll let you in on a little secret, or not so much of a secret if you have bothered to google me. I am a huge leftie; I think the only bad thing about the federal government is the military and the fact that it’s not as a big as it could be; the only difficult choice I have ever had in an election was whether to vote for Nader or Gore . . . and that definitely affects my analysis of the law. But that said, I will endeavor to present both sides of each argument, and entertain the ideas of people who disagree with me thoughtfully and respectfully.” (Or similar statements that a conservative might make).

The second method is the opposite line: say nothing about your politics and just go about teaching. Of course, even the purist approach to this method doesn’t result in one actually “hiding” anything; any student who cares can easily google or lexis the Prof and figure out in about five minutes on which side of spectrum he or she falls.

We disclaim now that we’re more in favor of the first method, even in courses where politics don’t seem to be as much of an obvious issue (Crim, Ks, CivPro, etc.). But in theory the second method can work too - it’s just a matter of the students taking the initiative if they care enough about bias, and doing a little fact finding on their own. Law students are smart enough to do this.

Nothing we’ve said so far even seems to be that controversial. The real problem comes when a professor doesn’t do either one of those things but organizes the class in such way that more or less obviously reflects his or her inclinations.

And this is where the disagreement comes in. Some people, like us (“Camp 1”), think this is fine. We’re all intelligent law students, we can all think critically. If Prof-Con-Law says that the Rehnquist revolution that revived the limits on Congress’s legislation power under the Commerce Clause is a legal house of cards or at least a sharp break from precedent, we’re smart enough to rehabilitate People v. Lopez and United States v. Morrison by using our own critical reasoning. If anything, the professor injecting his or her own political beliefs in this, albeit somewhat coy, way means that students are challenged to think critically and be on their guard. And that’s a good thing. Moreover, since it’s graduate students we’re talking about here, we don’t think that there’s any danger of anyone being indoctrinated. Quite the contrary, a professor who uses his or her own opinions to teach law will challenge the people who disagree with her to conjure the legal evidence and reasoning to prove their point.

“Camp 2” sharply disagrees with this. The main argument – talking to people who think this – is that when a prof. acts like this it makes a mockery of the whole education process. At times, students are legitimately unable to tell when the prof is injecting her opinion of the jurisprudence or if she’s just trying to convey settled points of law that students need to know. Moreover, an unavoidable result is that Prof’s spend to much time trying to convince students of their point of view, and not enough time focusing on the legal reasoning itself that led to the decision, especially when doing so is necessary for students both to understand the law as it stands and to learn to “think like a lawyer.” Finally, some would argue, opinionated Prof’s can inject their inclinations into the class discussion, sullying the purpose of the Socratic method. The idea is that the Prof would steer discussion toward those who agreed with him/her, and away from those who didn’t, which is bad for obvious reasons.

Similarly, there is the fear of the effect that all this could have on grading exams. Simply put, some think that disagreeing with a professor’s point of view in an exam answer could be detrimental to one’s grade. We have no comment on this except to reiterate our steadfast opposition to a system of exams in which there is absolutely no oversight whatsoever. It is our hunch, however, that no law professor worth his/her salt would do anything but look at the legal reasoning employed in exam answer as objectively and divorced from his/her own politics as possible.

So here are some samples from course evaluations of Prof-Con-Law. (available on LawWeb). Disclaimer: We’re big fans of PCL. Not only was a great class that taught us a lot, but we think the claims of bias, etc, below are significantly overblown. It seems like both camps were represented in the evaluations; and, of course, hearsay is hearsay, so without actually being in the class for four months, it’s tough to draw any meaningful conclusions about PCL specifically; the idea is more to underscore the two different outlooks . . .we’re not using real names to prevent google-bombing, etc, but if you know, you know):

I liked the Rehnquist bashing, but in general, her views were a bit thinly veiled for my liking.

* * *
[PCL] understands a lot of the material well, but definitely has her own biases when introducing it. I would appreciate a little more of a disclaimer, a "this is my opinion" box for her to stand in.
I also felt that she taught this course much more like a political science course and much less like a law course than she could have. . . .

* * *
It's a conlaw class, naturally some people will feel the need to talk at length. I'm not sure how a professor should go about knocking people off their sopaboxes, but [PCL] could stand to give students a little less room to hold forth on matters only tangentially relevant to what we are discussing.

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In regard to liberal bias: I think it's there and I don't think it matters. People who disagree with a professor can learn as much or more by disagreement than they could by being spoon-fed things that they like.

That said, of course [PCL] isn't entirely fair and balanced.

The quality of the class is also largely determined by the quality of the students, since so much of classtime is discussion-driven. Make of that statement what you will.

* * *
One strength and weakness of [PCL] is that she wears her opinions and political leanings on her sleeve. In the end, I appreciated this, even though I often disagree, because she was honest about it and was still open to letting everyone get a voice in. Early on in the semester, however, before we had a feel for the class, I think that some people were less comfortable with it.

* * *
To be honest, I was quite disappointed with [PCL’s} teaching. You come to expect that many law professors will personally have liberal persuasions, but the degree to which [PCL] uses class as a platform for expounding liberal positions and thoroughly disparaging conservative positions goes too far. Again, the problem is not having a liberal viewpoint, but particularly during the first half of the course, [PCL] was downright sophomoric in her tone in discussing opinions by conservative justices and cases she's fixated with, such as Bush v. Gore. I was never made to feel comfortable in her class. To be honest, I just don't feel she'd be a good fit here to represent Virginia Law. She just seems to lack respect for opposing viewpoints and fails to foster a balanced classroom discussion. Though coming in to this class, Con Law was a favorite subject of mine, I just really didn't enjoy this class and the style and tone that [PCL] led it with.

* * *
I appreciated the perspective that her political science background brought to studying the structure of the Constitution and the separation of powers.

* * *
Overall [PCL] as an excellent teacher, she kept the class engaged in the subject. I feel I learned a lot about ConLaw. Some people are probably complaining about the prof's alleged left-wing bias, but those claims are unmerited (she shot down the leftist students arguments just the same as the rightist ones).

* * *
The cases we read were interesting, and the class discussion often was interesting. However, [PCL] did allow a few students to monopolize class discussion. It would not be uncommon for her to call on the same students 7 to 8 times (!!!) in a single class period. Overall, she was very congenial. On some occasions, she would inject her politics into the class, such as when she asked, "If George Bush can arbitrarily detain someone as an enemy combatant, then what is the difference between him and Saddam Hussein?"
It's not that I mind a professor who has strong opinions; the problem is that [PCL] seems to be oblivious to the fact that not everyone shares her opinions. It tended to stifle discussion.

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[PCL] is the worst prof Ive had here. she is extremely smug re her views and research. the course was basically bring up a case, mention the holding on powerpoint and then open up for discussion which was all politicla opinion. there was hardly any close analysis of the cases.
[PCL] is clearly pretty liberal and thinks it is obvious that we should agree with enlightened opinion on the subject at hand.

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On a related note, I think [PCL] could have tried to tone down her own political commentary as well. I do give her credit for being transparent about her personal leanings, and she certainly has been welcoming of all political viewpoints in class, but I think it was at times so overt that it became a little distracting.

Alright, nobody is still reading . . but there you have it. We would love to hear your opinions in the comment section, especially if you took [PCL]'s class.


Steve Ballmer said...

good rant

Rule 12 (f) said...

ty, i was trying to avoid it being too much of a "rant" . . . just reporting the buzz on the street.