In the past week, there has been considerable controversy in the University of Wisconsin Law School community surrounding whether an organization opposed to trans-gender rights should be permitted to participate in the Wisconsin Public Interest Interview Program organized by the law school. While the organization adheres to the law school’s non-discrimination policy in its hiring, Women’s Liberation Front (WLF) embraces positions rejected by many law students, most notably its opposition to anti-discrimination protections based on gender identity.
On January 30, the law school issued a statement reiterating its opposition to discrimination based on gender identity. However, the law school argues that such disagreement does not justify excluding WLF as an employer, which would constitute viewpoint discrimination contrary to the First Amendment. Various student groups, including QLaw and the Student Bar Association, have responded in writing by characterizing WLF as a hate group and protesting the law school’s refusal to remove the organization as a prospective employer.
While it may be an unpopular minority opinion within the law school, I agree with Dean Daniel Tokaji and the law school administration's position and handling of the matter. The law school only needs to ensure that no discrimination exists in employer hiring practices. It would be inappropriate for the law school to censor the political activities of prospective employers.
The University of Wisconsin–Madison is a public institution, and since Gitlow v. New York (1925), the First Amendment to the United States Constitution has extended to the states under the 14th Amendment. Excluding an employer from the recruiting event in question, based solely on political viewpoint, would be constitutionally impermissible under the First Amendment.
The answer to speech that some may find intolerable, I argue, is more speech, not less. Accordingly, the law school and various student groups have voiced their opposition and disagreement with the positions taken by WLF. I genuinely applaud these efforts.
Hateful ideas and bigoted speech (including, in this instance, calls for government-imposed discrimination that current constitutional law forbids) are just as protected under the First Amendment as other ideas and speech, unless they constitute "fighting words," threats of illegal conduct, incitement intended to and likely to produce “imminent lawless action,” or some other narrow exception not protected by the First Amendment.
Discomfort or distaste is the price that we pay for the constitutional protections of the First Amendment. This should be especially true in law schools given that our study of the law is a time to explore the many aspects of becoming an adult and professional, including developing an independent voice and the willingness to confront authority and different perspectives with respectful debate. Central to the First Amendment is the recognition that dissent by its nature can be messy and uncomfortable. More tolerance, not less, is needed under these circumstances.
Alfred E. Tsai is a JD candidate at the University of Wisconsin-Madison Law School. Do you agree that disagreement and dissent are tenets of open discussion and free expression? Send all comments to opinion@dailycardinal.com.
