Jewish World Review May 6, 2002 /24 Iyar, 5762
Few Americans, including law students, ever get to see a Supreme Court Justice in person; they can't watch how they conduct oral arguments before deciding a case because the justices refuse to allow television cameras within their sacred precincts.
So why would any law professors, of any color, give up a chance to join their students in direct exchanges with one of the nine Americans who make decisions that affect millions of us for many years to come?
Marilyn Yarbrough, one of the boycotting professors, told Tony Mauro, the very resourceful Supreme Court reporter for "Legal Times:" "We just questioned whether breaking bread with a justice was the appropriate thing for us to do."
After all, she continued, the only black justice on the Court has "lent cover" to his conservative colleagues by joining their "anti-progressive" decisions. "Since we are all black," said Yarbrough, "we did not want to lend cover to him. We have welcomed justices we disagree with, such as Antonin Scalia and Sandra Day O'Connor." However, joining Thomas, she explained, would have been seen as an endorsement, or at least a tacit approval, of his views.
In their righteous self-approval, these law professors clearly had no idea they were failing their students. Here they were, in fundamental disagreement with Justice Thomas on a number of crucial constitutional issues and in front of their students, they could have challenged him directly. Talk about being role models -- to all their students -- as professors with the intellectual equipment to confront such a powerful figure in the law! Professor Yarbrough came up with a lame excuse as a footnote. For some -- not all -- of the sessions, questions had to be submitted in writing beforehand. "That's not debate," Professor Yarbrough harrumphed. "He does not engage in the same way that you would expect at a university."
I have participated in many debates at college campuses, and at some of them, the questions were indeed submitted in writing beforehand. But that did not prevent a questioner from asking follow-up points, nor did it prevent other members of the audience from chiming in on the same issue when their turn came. Would these five black law professors have stayed to debate Justice Thomas if he knew none of the questions in advance? How could they, and not abandon the purity of their boycott?
What surprised me was the attitude of the dean of the law school, Gene Nichol. He told Tony Mauro that the boycotting professors were "very thoughtful" in their explanation for staying away from the exchanges. He saw nothing unprofessional in their refusal to engage the visiting justice. "Having a regime of free speech and academic inquiry," said the dean, "means you have a right to protest."
Of course, they have a right to protest, but how free is academic inquiry at his law school when these professors refuse to fully instruct their students about Clarence Thomas' "anti-progressive" decisions by not showing up to debate him right then and there?
The irony of this abdication of professional responsibility to students is Justice Thomas' record at the Supreme Court as one of the strongest voices for free speech. From the bench, he has said (as the lone justice who wanted to review an egregious repression of free speech in Avis Rent a Car System v. Aguilar):
"A theory deeply etched in our law is that a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others before-hand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable."
While some students joined the five professors in boycotting Justice Thomas' appearance, about 700 students revealed greater respect for free speech by participating in various question-and-answer sessions during the day.
Professors who judge Clarence Thomas in rigid ideological terms are not engaging in scholarship. I disagree with a lot of his opinions, but I would be foolish to miss a chance to tell him why, and maybe learn something in the process. And if I were a teacher, I'd be embarrassed before my students to have fled the scene.