Last year, soon after the Supreme Court banned racial preferences in higher-education admissions, a video surfaced of University of California, Berkeley School of Law dean Erwin Chemerinsky telling students how he had evaded the state’s long-standing ban on racial preferences in hiring. “I’ll give you an example from our law school, but if ever I’m deposed, I’m going to deny I said this to you,” he said. The key was, “Don’t ever articulate that that’s what you are doing.” Keep it secret.

Chemerinsky’s disdain for the rule of law is sadly representative of today’s law-school pedagogy, especially at elite schools. Two years ago, conservative legal commentator Ilya Shapiro was shouted down at an event at University of California, Hastings College of Law (now UC Law SF). Throughout the incident, a UC professor who had agreed to participate in the program appeared to smugly support the disruption. Last year, federal judge Kyle Duncan met a similar fate at a Federalist Society event at Stanford Law School. A group of activists offended by Judge Duncan’s prior positions as a lawyer and as a judge originally demanded that the speech be canceled or moved to Zoom. After those entreaties were rejected, the aggrieved students disrupted his speech, yelling vile comments and refusing to let him speak. A dean of diversity, equity, and inclusion showed up for Duncan’s speech and, rather than reprimand the students who shouted Duncan down, claimed that Duncan’s views “harmed” members of the Stanford community. (That dean was later placed on administrative leave and eventually left the school.) Such incidents are not unique to the West Coast. This spring, 54 Columbia Law School professors signed a letter to the university president criticizing her decision to ask New York City police to remove a pro-Hamas encampment that violated campus rules. Ironically, the professors’ letter cited concerns that it was the president, of all people, who had violated the rule of law by asking police to remove the squatters.

Law schools are the training ground of the next generation of lawyers, judges, and public officials, and for many decades, beginning with the emergence of critical legal studies at Harvard in the 1980s, they have promoted ideas that are fundamentally hostile to the rule of law. For most of that time, this radical thinking remained on the periphery. In recent years, however, “woke law” has taken over the schools. The George Floyd murder and its aftermath, in particular, accelerated the trend. Understanding this anti-rule-of-law philosophy helps to explain the alarming intensification of lawfare tactics against Donald Trump and his supporters today.

The nostrums of woke law reject the rule of law precisely because it attempts to apply fair, neutral principles to everyone (even if it does so imperfectly in practice). The traditional focus on fair processes and procedures should now be subordinated, the thinking goes, to equity in results. Under this worldview, the gauge of an institution’s fairness or justice is not rigorous adherence to formal rules but certain outcomes, such as elimination of racial disparities. Equal formal treatment of all individuals through consistent application of principles of procedural justice violates the concept of equity. The ongoing attack on the criminal-justice system as “systemically racist” and illegitimate illustrates this mind-set. The system is no longer judged according to the traditional notion of a fair trial, which relies on unbiased jurors’ applying the law neutrally to the facts of the case. What matters instead is that the system deliver specific results thought to correct historical injustices. The ideal of impartiality is thus replaced with transparent activism.

The attack on free speech is similar. Implicitly following the postmodern logic of Herbert Marcuse’s famous essay “Repressive Tolerance,” today’s legal thinkers reject content-neutral norms of free speech because, they say, the norms reinforce the unjust power structures of society. The priority should instead be liberation and equity, which would empower “marginalized” voices to challenge those structures, whose true purpose is to keep oppressed people down. Under this ideological framework, speech that defends private property, the criminal-justice system, voter-integrity laws, or Donald Trump’s innocence of alleged crimes is all seen as rationalizing violence and oppression. By cloaking the legal system with institutional legitimacy, it is argued, supporters of the status quo are simply laundering their violence. So it’s only fair to resist by using violence and intimidation, such as shouting down speakers, blackballing lawyers who advised President Trump, and launching personal attacks on conservative Supreme Court justices.

The hegemony of woke-law thinking took decades to crystallize. Reasserting the rule of law likewise will require determined strategic efforts. What, if anything, can be done to reform law schools and pull them back from this abyss? Several practical steps might help rescue the rule of law.

First, law schools should ensure that their students graduate with a proper understanding of the centrality of the rule of law to the Western tradition of freedom and capitalism. Today the study of jurisprudence — i.e., the philosophy of law — has been relegated to a specialized corner of the legal academy, as an upper-level elective often taught by leftist philosopher-lawyers who have minimal understanding of the importance of the rule of law to the maintenance of a free society, and even less understanding of its relationship to capitalism. Professors who teach traditional common-law classes focused on private ordering, most significantly contracts and property law, should explore with their students the importance of the rule of law.

Second, legal-education accrediting bodies such as the American Bar Association (ABA) and the Association of American Law Schools should promote the study of the rule of law as part of their standards. These standards today are based, to an obsessive degree, on diversity, equity, and inclusion concepts. Schools must provide, for instance, ongoing instruction about “bias, cross-cultural competency, and racism,” and such ideas must be threaded through the curricula, even in traditional doctrinal classes. By contrast, there are no formal requirements for instruction in the importance or history of the rule of law. Making a welcome improvement, the ABA in February amended its accreditation standards to require that law schools adopt policies that protect freedom of speech, but the DEI programming mandate remains.

Third, authority figures in the legal profession can use their influence to pressure law schools from the outside if they are unwilling to reform on their own. For example, following the Judge Duncan incident at Stanford and a similar earlier one at Yale Law School, federal judges James Ho and Lisa Branch led other federal judges in refusing to hire as clerks students from those law schools, on the grounds that they had received poor instruction on the importance of free speech. Encouragingly, Yale and Stanford responded by installing new policies to protect freedom of speech on campus. Efforts similar to those of Ho and Branch might further prod schools that are failing to teach respect for the rule of law.

As for Dean Chemerinsky? Well, despite his admission that he had been violating state law for years, he remains at Berkeley (a state school), earning more than half a million dollars per year. But this spring, he reaped what he had sown when a group of student activists — one of whom was the president of Berkeley Law Students for Justice in Palestine — disrupted a small dinner he was hosting in his backyard. A protester seized a microphone and began lecturing the guests about Ramadan and “the blood of Palestinians.” Chemerinsky, who is Jewish, asked the group to leave, explaining that they were violating property rights and had no First Amendment privilege to disrupt the private dinner party. Unsurprisingly, the admonition fell on deaf ears, and the students refused to disperse peacefully. They had learned their lessons too well.