This fall Minnesota voters will decide whether to amend their state constitution by adding a ban on same-sex marriage. The William Mitchell faculty recently adopted a resolution against the amendment and then released the resolution along with details of the faculty vote (24 – 7) to the press. The resolution first notes that the proposed amendment conflicts with William Mitchell’s anti-discrimination policy and “could substantially impair William Mitchell’s ability to recruit and retain the best qualified students, staff and faculty.” The resolution then goes on to list legal and moral objections to the amendment and states, “As a Faculty of Law, we believe that limitations on civil rights should not be enshrined in our state constitution.” Finally, the resolution encourages Minnesota’s three other law schools to adopt similar resolutions of their own.
William Mitchell’s action has left me thinking about several broad questions. First, when—if ever—do law faculties have a responsibility to take public positions on matters facing the electorate? Of course individual faculty members routinely comment on such issues, either in their own writings or when responding to press inquiries. But when an issue involves fundamental rights or constitutional amendments, are law professors obligated to weigh in “as a faculty?” For example, did law professors in the South have the responsibility to speak collectively about segregation? Or should law faculties on the West Coast have passed resolutions against Japanese internment? On one hand, law faculties reasonably can be expected to have opinions on such matters. If faculties do nothing, their silence could be construed as tacit approval or at least as evidence that the issue is not important enough to warrant public comment. On the other hand, public resolutions do not mean that all faculty members agree. At William Mitchell, for example, about one-fifth of voting professors are now publicly affiliated with a resolution that they were against.
This leads to my next question. If a faculty can’t speak with unanimity or at least near-unanimity, is there value in the faculty speaking at all? William Mitchell’s resolution specifically states, “Many people of good faith support [the proposed amendment], including some co-workers, students, and alumni, and they have every right to do so.” One can easily imagine the kinds of concerns and compromises that would lead to the inclusion of this language, as well as the decision to make public the 24 – 7 vote. But is the public likely to see that vote tally and just conclude that the William Mitchell faculty—like the state of Minnesota—is split on the merits of the proposed amendment? Assuming that law faculties are generally perceived as left-leaning, could the vote tally even have the unintended consequence of suggesting that there is something meritorious about the proposed amendment because 7 out of 31 law professors did not want the faculty to speak out against it?
Finally, if you conclude that law faculties are sometimes obligated to speak collectively and that doing so is effective, is the obligation limited to the faculties located in the areas where the problematic behavior is occurring? For example, did law faculties on the East Coast as well as the West Coast have a responsibility to weigh in on Japanese internment? Law faculties have a special interest in what happens in their own communities, so perhaps we would expect that if any faculty spoke against internment, it would be one on the West Coast. But if the relevant issue involves fundamental rights, are law faculties obligated to speak up about more than just what is happening in their backyards?
I’ve raised questions here without offering answers, but I’m hoping readers will take a stab at that in the comments.
Hat Tip: Mark Edwards