Intolerance of Tolerance at George Mason University

Supreme Court Justice Antonin Scalia
The Left complains about naming a law school after a Supreme Court justice

We are enormously fortunate to teach at George Mason University School of Law, a thoroughly collegial institution that has risen to intellectual prominence in a few short decades despite the absence of financial resources or an attachment to a brand-name university. How did we do it? By playing moneyball with the resources we had. In a market that undervalues law-and-economics scholars, conservatives, and libertarians, we made quality hires of scholars who had been overlooked and rejected by those higher up the food chain.

Then, some six weeks ago, our dean announced a great coup. He had procured two gifts that amounted to the largest gifts in the history of George Mason University (and many times larger than any gift previously garnered by our underfunded law school): $10 million from the Charles Koch Foundation for student scholarships, and $20 million from an anonymous donor. The latter donation will also be used for scholarships and is contingent on our renaming the law school in honor of the recently deceased Justice Antonin Scalia. We will now have sufficient cash to attract more and better students and make additional hires; the faculty of the law school is overjoyed.

We had thought that our combined 50-plus years as law professors had jaded us to the point where we could be surprised no more by the antics of academics, yet we were still unprepared for what came next: efforts by faculty in other departments of the university to derail the gifts and the renaming — all, ironically, raised in the name of “academic freedom.” Faculty from unaffiliated departments, such as art history, “cultural studies,” and others (notably excluding economics, mathematics, and the physical sciences), began a campaign in the Faculty Senate to pass a resolution urging the university administration and the State Council of Higher Education for Virginia to delay acceptance of the gifts. Why? The opponents have fired a scattergun of claims, but the truth is that this is a thinly veiled political assault on the law school because of a perception that the political center of the law school is not in keeping with the radical agenda taken as gospel by much of the faculty in the softer disciplines and allied offices in the university.

As for the name change, such a rechristening is entirely appropriate: Justice Scalia was a jurist of immense importance and formidable intellect. We say this even though we and our colleagues at the law school often disagreed with him; it could hardly be otherwise, since we are lawyers and he is a justice. In naming our school after a Supreme Court justice, we are following a long and honored tradition. Other universities have named their law schools after influential — and at times controversial — justices, including Thurgood Marshall, Sandra Day O’Connor, Benjamin Cardozo, and Louis Brandeis. Others are named after the donors who provided the generous gifts. We will have the privilege of bearing the name of a giant in the law.

The heart of the case against Justice Scalia is the bald assertion that he made “numerous public offensive comments about various groups — including people of color, women, and LGBT individuals.” One would have thought that such a bold accusation would be supported by several examples — or maybe even one. No such example was offered. Scalia sat for a third of a century on the bench, yet the authors of the resolution apparently could not find a quote for the Faculty Senate to make its case but merely repeated unsupported calumnies in the hope that repetition of the charge might cause the smears to stick.

In the name of academic discourse, the resolution’s authors seek to expunge from the university the name of a distinguished jurist whose legal opinions they disapprove of.

And with unintentional irony, the dishonest, hate-filled resolution goes on to condemn “the memorializing of a Supreme Court Justice who was a significant contributor to the polarized climate in this country that runs counter to the values of a university that celebrates civil discourse.” This despite the well-known fact that his closest friend on the Court was liberal lioness Ruth Bader Ginsburg, who stated of the decision to name the law school after Scalia: “It is a tribute altogether fitting that George Mason University’s law school will bear his name. May the funds for scholarships, faculty growth, and curricular development aid the Antonin Scalia School of Law to achieve the excellence characteristic of Justice Scalia, grand master in life and law.”

Despite this utter lack of evidence, the Faculty Senate swiftly moved forward with a non-binding resolution condemning the renaming on the grounds that it would fail to create “a comfortable home for individuals with a variety of viewpoints.” This resolution could hardly be more ironic. In the name of academic discourse, the resolution’s authors seek to expunge from the university the name of a distinguished jurist whose legal opinions they disapprove of. The truth is that what motivates them is not high-minded principle but an illiberal demand for ideological conformity. In an act of particularly brazen arrogance, the Faculty Senate ignored the statement made by one of us as the official law-school representative to that body and voted to condemn the gift by a 2-to-1 margin. (In response, the law faculty has passed its own resolution condemning the Faculty Senate’s statement with no dissenting votes.)

Although the university faculty has been abhorrent in this matter, one individual stands out for particular praise: George Mason’s president, Angel Cabrera, who has been unstinting in his support for academic freedom and the autonomy of the law school in this matter. In a world of feckless university leadership, Cabrera has distinguished himself, responding to the Faculty Senate with a letter that states in part: “We must ensure that George Mason University remains an example of diversity of thought, a place where multiple perspectives can be dissected, confronted, and debated for the benefit and progress of society at large. Rejecting a major naming gift in honor of a U.S. Supreme Court Justice on the basis that some of us disagree with some of his opinions would be inconsistent with our values of diversity and freedom of thought.”

So there you have it. What should be a cause for congratulation and celebration has been twisted into an assault on the self-chosen academic mission of George Mason University School of Law by the hard ideological Left of the academy. When we finally win this fight, it will be appropriate to lift a glass of wine to celebrate: Justice Scalia, here’s to you.

— Lloyd Cohen is a professor of law at the George Mason University School of Law, where Todd Zywicki is the George Mason University Foundation Professor of Law and the executive director of the Law & Economics Center.

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