2017. It is a new year, a time of new snow, and a time for new ideas. I suggest one counter-cultural notion for all of our consideration that is more often expected from a right-wing thinker than a soft leftie like me: what if legal classrooms are not meant to be safe spaces? What if they need to be raw with articulated disagreement and debate in order for learning, and democracy, to take place?
The echo chambers of the 2016 U.S. election have insight to offer us about legal education. My resolution for 2017 follows from this. I want to encourage disagreement to take place within my classrooms when I teach. My resolution for 2017 is to do as Desmond Tutu says, “If you want peace, don’t talk to your friends, talk to your enemies.”
The creation of “echo chambers” via social media with the proliferation of biased, or false, or simply a certain genre, of news, has been demonstrably shown to have materially contributed to the result of the U.S. Presidential election. It is abundantly evident that Americans are not talking to each other. The left dismissed the right as “deplorable” and the right derided the left criminal (“lock her up”). Each side was rendered invisible to the other in no small part through the creation of echo chambers, with the possible assistance of Russian propaganda.
Social media echo chambers are not just a U.S. phenomenon. Facebook is partly responsible by using algorithms to serve up to its users news stories they are expected to “like”. In so doing, it prevents people from seeing news and views with which they might disagree. Twitter, this November, suspended the accounts of several alt-right commentators. As my colleague Richard Jochelson argued in a recent post, we need to hear the voices that “do not make [us] feel warm and fuzzy…. The academic left does not like to hear from its enemies.”
With the popular ascendancy of growing concern about what is “triggering” and ever-expanding codes of conduct for classroom conversations, I worry we are creating similar, but real life, echo chambers in legal education. The questions of the extent to which legal classrooms currently are, and the extent to which they should be, echo chambers, are relevant of course to the Charter challenges to the attempt of Trinity Western University to open a law school, the progress of which is discussed in this recent CBA National blog post.
TWU is, in effect, trying to create a “safe space” for faith based discussion of law. Whether TWU is legally permitted to open its own Christian-based law school that includes a community covenant that prohibits same-sex contact even between married spouses (not recognizing same sex marriage) is a question before the courts. I am less interested in whether it is legally permissible for this to go forward than in a related question: Whether the protection and fostering of homogenous ideological communities should happen within legal education. I think it should not.
Echo chambers are built along all points of the ideological spectrum. I am not persuaded that TWU’s exclusionary covenant is all that different from attempts by purportedly feminist advocates at Bishop’s University to exclude Marie Heinen from speaking. As CBA President Rene Basque recently stated publicly, it is good for Marie Heinen, and other controversial figures, to speak at academic institutions. As he said, “we need our educational institutions, at all levels, to do more to promote public understanding of the law.” The Dean of the University of Chicago and outgoing President Barack Obama made a similar point last summer: “It is dangerous to shut folks out if we disagree with them,” Obama said.
My purpose here is not to resolve or settle the question of whether TWU should be constitutionally permitted to create an echo chamber, or whether, looked at another way, those who oppose TWU’s expressed views on same-sex relationships are entitled to frame the legal profession as an echo chamber where homophobic views are unspeakable.
A Charter challenge does not afford a space to question the wisdom of a position but a blog post is subject to no such limitation. I want to encourage everyone to think differently about why TWU wants its own law school and consider the possibility that there is something legitimate in that view. What would it be like to identify as an orthodox member of any religion, including an Evangelical Christian in an existing mainstream law school classroom? Further, are members of LGBT communities accepted and included in the law schools that already exist? Is there space for us to explore and discuss the processes of silencing to which minorities of many varieties are already subject?
So I return to my suggestion. What if classrooms where legal education takes place should not be “safe spaces” or affirming communities of the like-minded? What if they need to be places where all is in question and all can be subject to reasoned debate, including things like the Charter and things like what constitutes a necessary and fundamental foundational element of a religious ideology? Trump’s ascendancy makes clear that academics and professionals cannot afford to dismiss or ignore those with whom we disagree.
In this season of resolutions, the world of legal education might want to borrow from the fitspiration movement: “if it doesn’t challenge me, it doesn’t change me”.
So I challenge myself to engage with the ideas that challenge mine and with those who disagree with me in 2017. I resolve to do more to open up spaces in my law school classrooms for the opinions with which mine most vehemently diverge.
And at the risk, or perhaps in the hope, of enraging everybody on a divisive issue, I am dropping my gloves in the snow. In professional development sessions, in undergraduate legal education, in graduate schools, and in law schools, let’s break the fun-house mirrors of our echo chambers.
Rebecca Bromwich is the author of Looking for Ashley: Re-Reading What the Smith Case Reveals about the Governance of Girls, Mothers and Families in Canada. The author's views are her own.
Law school classrooms should not be "safe spaces" where controversial and challenging ideas are banned. "Safe" classrooms would be poor preparation for the realities of dispute resolution in the courtroom, the arbitration hearing and even the mediation chamber. They should be "safe" from hostility and insult masquerading as argument and from emotion supplanting reasoned discourse. Profound disagreement and vigorous challenge can and must coexist with respect and decent manners.