Subject: An Open Letter to the Georgetown Law Community
From: Campus Broadcast <[email-masked]>
To: Campus Broadcast <[email-masked]>
Date: Thu, 18 Feb 2016 03:56:46 +0000

An Open Letter to the Georgetown Law Community from Professors Randy Barnett and Nick Rosenkranz

[Note in response to the email sent to the entire Georgetown Law community, in violation of the stated policies governing such emails (here<http://www.law.georgetown.edu/campus-services/ist/communications/lawcenteremaillists.cfm> and here<http://security.georgetown.edu/technology-policies/transmission-of-messages>), we sought and received permission to post this response in an attempt to remedy the harm caused by the initial breach of our norms.]

From Professor Nick Rosenkranz:

The news of Justice Scalia’s death was a terrible blow to me.  He was a hero of mine ever since law school.  When I interviewed to clerk for him, I was too nervous to get the job.  But in the following years, I had the honor of getting to know him.  We had lunch together at his favorite pizza place, AV Ristorante.  He spent an hour with me discussing the thesis of my first article.  We sat next to each other at a lunch in New York, a lunch in London, and a dinner at the National Archives.  I once argued before him at the Court. He cited my amicus brief in his concurrence in Bond v. United States.    We once sang a song together, believe it or not:  Oh, Danny Boy.
These may sound like small moments, and they were.  But I remember each of them vividly, because Justice Scalia was a hero of mine.  These were some of the greatest highlights and proudest moments and happiest memories of my legal career.  It is devastating to lose a loved one, but, in a way, it is just as devastating to lose a hero.  I was in shock and mourning on Saturday.  I suppose I still am.

From Professor Randy Barnett:

           I first met Justice Scalia when I left the Cook County States Attorney’s Office to become a research fellow at the University of Chicago Law School. There I was privileged to join the faculty “round table” for lunches, where then-Professor Scalia was one of the most engaging of discussants. Because my research was on contract law theory and I aspired to be a contracts professor, he graciously allowed me to sit in on his class the day he taught the Peevyhouse case.
           Although I argued the medical marijuana case of Gonzales v. Raich before the court in 2004 – and was deeply disappointed when he voted with the more progressive justices against my clients – it was not until joining the Georgetown faculty in 2006 that I got to know him much better in a variety of venues. These include his visiting my seminar of 22 students to discuss his new book, along with three public appearances at the Law Center where I introduced him. Although I respected and admired him greatly, I perhaps did not appreciate the depth of my affection for him until I heard of his death.
            Like Nick, I was in shock and mourning, but thanks to the insensitive acts of a member of our faculty, neither we nor our students have been allowed to grieve in any type of peace.

From Professors Rosenkranz and Barnett:

            The afternoon of the Justice’s death, Georgetown Law issued a statement on its home page: “Georgetown Law Mourns the Loss of U.S. Supreme Court Justice Antonin Scalia<https://www.law.georgetown.edu/news/web-stories/georgetown-law-mourns-the-loss-supreme-court-justice-antonin-scalia.cfm>.”  The statement was short, and anodyne, with just a few nice personal recollections by the Dean.  This is a standard procedure: Georgetown generally issues such a statement upon the death of any Justice, and several top law schools issued similar statements upon the death of Justice Scalia.  We read it and thought nothing of it.
            At 10:00pm that evening, Professor Mike Seidman sent the following email to the entire faculty on our private email list: “Our norms of civility preclude criticizing public figures immediately after their death.  For now, then, all I’ll say is that I disagree with these sentiments and that expressions attributed to the ‘Georgetown Community’ in the press release issued this evening do not reflect the views of the entire community.”  To this, no member of the faculty voiced any response or objection, either on our list or to either of us privately.
            Then, two days later, Professor Gary Peller wrote to echo and amplify Mike’s point:

Dean Treanor and Colleagues:

Like Mike Seidman, I also was put-off by the invocation of the "Georgetown Community" in the press release that Dean Treanor issued Saturday. I imagine many other faculty, students and staff, particularly people of color, women and sexual minorities, cringed at headline and at the unmitigated praise with which the press release described a jurist that many of us believe was a defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic.

I am not suggesting that J. Scalia should have been criticized on the day of his death, nor that the "community" should not be thankful for his willingness to meet with our students. But he was not a legal figure to be lionized or emulated by our students. He bullied lawyers, trafficked in personal humiliation of advocates, and openly sided with the party of intolerance in the "culture wars" he often invoked. In my mind, he was not a "giant" in any good sense.
. . .
[T]he "Georgetown Community" that I feel a part of … would never have claimed that our entire community mourns the loss of J. Scalia, nor contributed to his mystification without regard for the harm and hurt he inflicted. That community teaches critique, not deference, and empowerment, not obseqiuosness. [sic]
. . .
Sincerely,
Gary

Both Prof. Seidman and Prof. Peller put the phrase “Georgetown Community” in quotation marks, but it actually appears nowhere in the press release.  The only sentiment in the press release that is plausibly attributed to the Georgetown community, as opposed to the Dean, appears in the title: “Georgetown Law Mourns the Loss of U.S. Supreme Court Justice Antonin Scalia.”  Professors Seidman and Peller thus thought it important to let their colleagues know, immediately, that they do not.  Within minutes, Randy then replied to the list:

Gary writes:

But there is also a lived community that we inhabit, within the interstices of the formal and contractually defined roles, a community that exists in our relations with each other and with our co-workers and our students, a community that is constituted in our hallways and class rooms and lunch rooms, and in our affection for and commitment to one another, and, for many of us, a vision of how we could all be together in the law school, disagreeing often but always trying to be sensitive and empathic to all members of our community.

Given that I, for one, respected and admired Justice Scalia even where I disagreed with him strongly (and believe he was none of the things that Gary listed in his email although he had his personal faults like everyone else), and given that I mourned his loss on Saturday to the extent that I turned down an appearance on the CBS Evening News because I could not gather my emotions and collect my thoughts in time, I believe that, by his message, Gary has violated his own professed standard of sensitivity and empathy. Whatever offense the Dean's press release may have caused him and others is nothing compared to hurt his message has caused me this afternoon.

Perhaps Nick and I are the only ones who felt this way about Justice Scalia on Saturday. That's perfectly OK. But were Georgetown Law a genuinely diverse intellectual institution, I doubt any faculty member could have been so callous on this occasion.

I am now going to try to go back to what I was working on.

Minutes later, Professor Peller emailed Randy privately:

Randy,

 I am so sorry to have caused you hurt, Randy. I did consider such a possible effect on those with affection for J. Scalia, and thought that waiting until today would be appropriate. Please accept my apology, as I have great affection and respect for you as a colleague.

Gary

Soon after, a few professors posted messages to the faculty defending the Dean’s message to varying degrees, and several more expressed their sympathies off list. But a third professor chimed in to agree with Professors Seidman and Peller.
Now, as a right-leaning professors in legal academia, we have developed quite thick skin.  We had to.  We would have thought that we were inured to this sort of thing.  Yet we admit that we found these emails deeply upsetting.  They caught us in a moment of particular weakness and vulnerability.
For one’s colleagues to write, within hours of the death of someone one knows, likes, and admires, that he was a “defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic,” is startlingly callous and insulting, not only to his memory but to those of us who admired him. To hear from one’s colleagues, within hours of the death of a hero, mentor, and friend, that they resent any implication that they might mourn his death -- that, in effect, they are glad he is dead – is simply cruel beyond words. But, though the insult and cruelty of our colleagues was grievous, at least only two of us had to bear it.
Unfortunately, the next day, recognizing full well that he would “cause … hurt [to] those with affection for J. Scalia,” and in violation of Georgetown email policy, Prof. Peller forwarded his email and Prof. Seidman’s to the entire student body at Georgetown Law, some 2000 students.  Of those, at least a few hundred are conservative or libertarian.  These students received an email yesterday, from a Georgetown Law professor, just three days after the death of Justice Scalia, which said, in effect, your hero was a stupid bigot and we are not sad that he is dead.
Although this email was upsetting to us, we could only imagine what it was like for these students.  Some of them are twenty-two year-old 1Ls, less than six months into their legal education.  But we did not have to wait long to find out. Leaders of the Federalist Society chapter and of the student Republicans reached out to us to tell us how traumatized, hurt, shaken, and angry, were their fellow students. Of particular concern to them were the students who are in Professor Peller’s class who must now attend class knowing of his contempt for Justice Scalia and his admirers, including them. How are they now to participate freely in class? What reasoning would be deemed acceptable on their exams?
We note that Prof. Peller’s email to the student body was posted at 3:05pm. Within 90 minutes, sometime before 4:37pm (when the first comment was posted), Peller’s email was published by Tikkun Daily, a website for which he writes, under his bi-line, accompanied by a 600 word “Editor’s Note” by Michael Lerner, under the title “Powerful Illusions: A Critical Look at the Legacy of Supreme Court Justice Antonin Scalia<http://www.tikkun.org/tikkundaily/2016/02/16/powerful-illusions-a-critical-look-at-the-legacy-of-supreme-court-justice-antonin-scalia/#comments>.” Clearly, Professor Peller’s intent was to generate a public controversy, with him at its center. The “hurt [to] those with affection for J. Scalia” – including hundreds of Georgetown students – was either intended by him or was acceptable collateral damage.
We waited to publish any response until Dean Treanor could have a chance to react. We appreciated the fact that he was in a delicate position.  And we spoke to him at length in separate phone conversations about what we thought an appropriate response from the administration should be.
To help him think the question through, Nick first tried to put the issue in context, reiterating that this incident is symptomatic of a larger problem in academia: the utter lack of intellectual diversity among faculty, and the deep intolerance for views that dissent from the liberal orthodoxy.  This incident can only be understood against that backdrop. There are some people on earth who should not be mourned when they die.  Adolf Hitler was such a person.  Justice Scalia was not.  (See, for example, the moving tributes by Harvard law professor Cass Sunstein<http://www.bloombergview.com/articles/2016-02-14/the-scalia-i-knew-will-be-greatly-missed> and Justice Ruth Bader Ginsburg<http://www.supremecourt.gov/publicinfo/press/pr_02-14-16.pdf>.)
The problem is that the center of gravity of legal academia is so far to the left edge of the political spectrum that some have lost the ability to tell the difference.  Only on a faculty with just two identifiably right-of-center professors out of 125, could a professor harbor such vitriol for a conservative Justice that even Justice Ginsburg adored.  Only on a faculty this unbalanced could a professor willfully or knowingly choose to “hurt … those with affection for J. Scalia,” including countless students, just days after the Justice’s death.  If more of us were here, the impropriety of this act would have been far more obvious, but also less threatening to our students.
To suggest the appropriate response, each of us independently offered the following analogy:  What would be the reaction if either of us had sent a similarly-worded email to the entire student body, in violation of Georgetown email policy, upon the death of Justice Thurgood Marshall -- saying that he was a bigot, and his “intellectual positions were not brilliant but simplistic”?  Is there any doubt that the Georgetown reaction would justly be swift, dramatic, and severe?
Nick also reminded the Dean about the recent controversy at Yale, which began with an email as well.   In that case, a faculty member sent an email to the student body that some subset perceived as a “micro-aggression”: perhaps adults can be trusted to choose their own Halloween costumes.  In our case, a faculty member sent out an email to the student body — in violation of Georgetown policy — which was clearly the most grievous imaginable macro-aggression against all conservative students and faculty: in effect, your hero was a stupid bigot, and we are not sad that he is dead.
In the Yale case, students protested and demanded substantial change, and the President of Yale took several dramatic actions to remedy what he perceived to be a climate of intolerance on campus, issuing this extraordinary statement<http://news.yale.edu/2015/11/17/statement-president-salovey-toward-better-yale>. Nick argued that this incident calls for remedies at least as substantial, and an equally powerful statement.
The Dean has issued no such statement.  In his email today, he has reiterated his personal feelings of loss, which we appreciate.  But now he quite pointedly and understandably declines to speak on behalf of the “Georgetown community.” Nor does he acknowledge that this incident is symptomatic of a deeper problem. He says only that “it is a time for mourning.”  But he makes no mention of Prof. Peller’s callous behavior, in violation of Georgetown policy. He offers neither apology nor reassurance to the hundreds of students who were deeply hurt by this incident.  Perhaps, after this incident, the Dean is now wary of speaking on behalf of Georgetown Law. Perhaps, this too is what Prof. Peller desired to achieve, in which case he has again succeeded.
Sadly, as just two professors on a faculty of 125, we are in no position to offer much reassurance to our students, beyond reporting that we have heard on the faculty email list, and privately, from a few of our Georgetown colleagues who objected to these messages. All we can do, really, is convey our solidarity with our wonderful students. We share your pain.  We share your anger. We stand with you. You are not alone. Be strong as Justice Scalia was strong. Remember, he heard far worse about himself than we have, and yet never wavered in both his convictions and his joy for life.
But make no mistake: Civil discourse at Georgetown has suffered a grievous blow.  It is a time for mourning indeed.