Barton Leach was a professor of law at the Harvard Law School. He joined the faculty in 1929. He died suddenly at the age of 71 in 1971. Until late in the 1960s, Leach had a common pedagogical practice. Women were instructed to sit in one row. And on one day only, “Ladies Day,” they were permitted to ask questions.
If you find that story to be outrageous, then you are woke. I don’t mean that you believe in everything that has been described as “woke.” No one does, or should, or can, consistently, have such a belief. Instead, I mean something simpler: If you find that story to be outrageous, your outrage is driven by the same sense of justice that stands behind so-called “wokeness,” and that is unavoidable in any diverse educational environment.
Because the essence of the claim of any woman who was subjected to Leach’s outrageous practice is just this: You admitted us to the Harvard Law School; you should allow us to do our work here without being forced to justify — implicitly or explicitly — our entitlement to be here, and without you treating us in ways that question that entitlement to be here. No doubt, at the time Leach did what he did, there were many who thought it outrageous that women would become lawyers. Erwin Griswold, the Dean of the Harvard Law School, held an annual dinner with the women from each entering class and would routinely ask them why they were taking the place of a man. A woman’s place, these men thought, was in the home. And faced with that thought, an appropriate woke reply doesn’t say, “That idea should be banished.” Instead, an appropriate woke reply could be this:
“That’s interesting that you think that. But we’re going to put that idea off the table just now. You can think as you wish, and discuss what you think at a different time and in a different place. We’re just not going to discuss it here or now.”
This is “topic-zoning.” It’s justification is not hard to see. We don’t need to engage or debate or entertain every idea at every moment. And the implicit social contract of any educational environment must be that everyone included should have the freedom to do their work without being forced to justify, explain, defend, or have questioned their right to be there. Put differently, once they are admitted, every student should be free to do their work as a student equally. None should be made to feel less than anyone else. None should be led to feel any more or less entitled than anyone else.
This doesn’t mean that the job of education is to make people feel comfortable or safe. To the contrary: The whole point of legal education, in particular, is to develop the capacity to defend one’s ideas or legal position. That skill takes practice. That practice is often painful. But the pain from defending an under-considered opinion is different from the pain in defending one’s status as a woman or any other status challenged as “woke.” One is what education is about; the other is a distraction.
This principle seems clear enough to us today with women at law school or in higher education generally. But the principle does not stop with women. As a university chooses to include a wider diversity of students, inevitably, there will be a wider range of proscriptions on what professors or other students should do. Inevitably, more will have to be put off the table to ensure that everyone in that environment feels equally entitled to be there.
This principle extends — critically—beyond identity. Or beyond one’s unchosen identity. It includes politics. It is a significant educational failing if a conservative or liberal student feels uncomfortable or unable to participate equally in a class because of their politics — just as much a failing as it was for women in Leach’s class. If a law school wants to ensure a diversity of views, the quid pro quo has got to be an environment in which one does not feel indignity because of one’s political views.
That doesn’t mean that one has the right to be liked. Freedom of speech is not freedom from consequences. Declare yourself a fan of Mantovani’s music only, and you will pay. But a teacher gives space to alternative views and encourages them so that every member of any class feels entitled and encouraged to participate. That feeling is essential to education.
As a law professor, I don’t find this principle difficult to grok. At every moment, one should ask oneself whether the argument you are making unnecessarily forces the participant to defend their right to be there — either expressly or not — in order to engage that argument. One could have strong views about how Muslim societies treat women. And there could well be contexts in which those issues could — or should — be debated. But no Muslim student should have to face the constant need to defend themselves or their culture — or, alternatively, to deny or denounce their culture — simply to participate in a tax class. Those issues are properly off the table in the vast majority of educational contexts.
There are, of course, contexts in which it is difficult to draw this line clearly. There are also contexts in which it can’t be drawn at all. I teach constitutional law. Every year, we discuss affirmative action. To discuss affirmative action means to read Supreme Court cases about affirmative action. Justice Thomas and Justice Scalia are outspoken opponents of affirmative action. To discuss their opinions inevitably involves evaluating the strength of the claims they make. Those claims include claims about the psychological effect that affirmative action has on people of color in higher education. It is inherently difficult — and unfair—for people of color to be forced to engage in that debate — just as it would have been difficult and unfair for women in Leach’s class to engage in a debate about whether women are likely to be as good as men when they become lawyers. Yet, that unfairness is unavoidable. We can’t study the subject without raising and entertaining those views. And at most, the appropriate response is simply not to force anyone to defend or participate in that part of the conversation. This is, I find, a simple accommodation.
No doubt, people take “wokeness” too far. No doubt, some punish unproductively — if equality were really the purpose. No doubt, many press the idea beyond helpful limits. A physics professor does not need to “tolerate” flat earthers, and every slip does not need a public scolding.
Yet the advocates of many causes take their advocacy too far: Think about gun rights advocates or the sports fanatic. Extremism is common everywhere.
The important question, however, is this: If you’re sensitive to when wokeness is taken too far, are you equally sensitive to when it is not taken far enough? In other words, is your criticism of wokeness symmetrical? Sure, maybe it makes sense to save humanity from the “mind virus of wokeness.” But does that also include saving humanity from the viciousness of obliviousness?
Justice Scalia once wrote, in his most famous defense of originalism (and yes, this should be freely available but isn’t),
If one is hiring a reference-room librarian, and has two applicants, between whom the only substantial difference is that the one’s normal conversational tone tends to be too loud and the other’s too soft, it is pretty clear which of the imperfections should be preferred.
So, too, should I think with the choice between woke and oblivious — unless you yourself are oblivious to the extraordinary good that diversity brings everywhere, and especially to the understanding of law.
Woke is right and good. And sure, there can be too much of a good thing; it is fine to criticize excess. But so too can there be too little of a good thing. And if you’re fighting “too much” without fighting “too little,” there may be something suspect about your fight.
