Legal Commentary

The posts below by Howard and  Rick both add interesting observations to the discussion about l'affaire Schlafly.  Let me add a couple of observations of my own. 

1) Rick hastens to assume that the objection to Schlafly is based on the view that her opinions are beyond the pale.  Maybe so; I conclude below that there is some evidence to support this.  But note Howard's addition to the conversation in the comments section of his post, which suggests that at least some of the objections stemmed from the view, not that Schlafly's politics are wrong, but that she is a demagogue and an anti-intellectual, and that she is careless in her public arguments.  That seems to me a sound reason to object to a university's choice of speaker.

2) Some of the commenters to Howard's post do make substantive rather than qualitative judgments about Schlafly, and argue that universities do stand positively for particular values, including cosmopolitanism and non-discrimination.  I would rather say that some universities stand for particular values; that in some cases those values are clearly and strongly substantive in nature; that those values may include non-discrimination and cosmopolitanism and like values, but that they may also include more particular viewpoints, including religious viewpoints -- say, being anti-abortion; that many universities at least purport not to stand for particular substantive values other than that of truth-seeking, and rest rather on a largely proceduralist sense of academic values, although that procedural view can certainly fold in, or be made to fold in, a number of substantive values, such as non-discrimination, on the grounds that they conduce to truth-seeking; and that, in a diverse and pluralistic society, and at least provided that some minimal criteria for what constitutes a "university" are met, there is a good deal of room for a diversity of approaches to the academic mission.  That means that if Wash U, or some other school, wants to say that its substantive values as a university preclude -- or, conversely, demand -- inviting Schlafly as a guest, it is free to do so.  I don't think Wash U itself does take either of those positions, although some of its faculty clearly want it to adopt the former view.

3) There is a cost associated, however, with taking a particular view of one's institution's academic mission, and that is the cost of living consistently with that mission.  So if a university opposes (or supports) Schlafly on substantive grounds and believes that universities ought to take particular substantive views (whether liberal or conservative, secular or religious, and so on), then it must try to live by those values, think through their implications, accept criticism when it fails to do so, accept criticism precisely because it is living by its perceived values, and so on.  Similarly, if one takes a purely proceduralist view of the university mission, one must live by that model too.

I doubt that everyone involved in the Wash U controversy has thought through these issues especially clearly or thoroughly, although surely some have.  My own suspicion is that while some of the faculty there do take a thorough-going view that Schlafly violates the "substantive" values of the university, many would adopt a broader view of the university as a neutral truth-seeking organization, in which case it becomes harder to justify excluding Schlafly.

But it is consistent to believe that universities should not generally honor hacks and lousy thinkers and writers by inviting them to deliver a keynote address on a special occasion.  And I think there is at least a reasonable basis for concluding that Schlafly fits that bill.  Those in doubt may consult Schlafly's recent piece, "The Morality of First Amendment Jurisprudence," which is available here and was published in the JLPP.  I remember wanting to blog about it when it first came out because every sentence was so sententious, every argument so poor, that it seemed to me to fit Mary McCarthy's famous put-down of Lillian Hellman -- that every word she wrote was a lie, including "a" and "the."  I would gladly disqualify Schlafly from addressing a university on a major occasion simply by virtue of the utter intellectual poverty of this piece alone.  (Her recent piece in Northwestern, by contrast, is unobjectionable, although also unexceptional in just about every way.)

So there is room for even someone who doesn't think universities ought to champion particular substantive values to exclude Schlafly by virtue of her just being a lousy thinker and writer, regardless of what one thinks about her substantive views.  I personally think universities would benefit from a no-hacks-at-graduation rule; for all I know, Rick agrees with me on this.  The problem, of course, is that universities, administration and students alike, often delight in inviting hacks and lousy thinkers to speak at graduations -- because they are famous, or funny, or powerful, or rich, or what have you. Which leaves the question Rick and Howard were getting at: do people object to Schlafly because she's a hack, in which case we should police the university gates against hacks more rigorously regardless of the ideology of the hack in question?  Or are the objections to Schlafly, although sometimes camouflaged as objections based on her being a lousy thinker, really substantive objections to her politics, in which case the use of the no-hack argument in her particular case can be accused of being disingenuous?