A Tale of Two Protests: UVA vs. Berkeley

The Jefferson Council is often critical of the free-speech environment at the University of Virginia, but we're also cognizant that things could be a lot worse. UVA could be Harvard, which has the worst possible free-speech rating from the Foundation for Individual Rights & Expression — or Berkeley, which is almost as bad.

In his Substack publication Original Jurisdiction, legal analyst David Lat contrasts the behavior of law students at UVA and Berkeley. Describing a speech at UVA by Justice Jay Mitchell of the Alabama Supreme Court, who wrote the controversial opinion in Alabama's invitro fertilization case, Lat writes:

Some UVA students decided to protest him. As I approached the room where he would be speaking, I saw several protesters standing outside and holding signs. I wondered if they would yell at me or other people going into the talk, à la the Stanford law students who shouted “shame, shame” at attendees of Judge Kyle Duncan’s March 2023 talk—and who screamed at Judge Duncan things like, “We hope your daughters get raped!”

But these were the most polite protesters I’ve ever seen. They didn’t heckle or harass Justice Mitchell, me, or anyone else who went into his talk. They stood outside the room, quietly holding signs. And once his talk got underway, they left to attend a counter-event—“a lunch to raise funds for SisterSong, a reproductive-justice coalition led by women of color.” That counter-event was accompanied by a flyer that criticized Justice Mitchell’s LePage opinion, replete with footnotes and case citations.

"That’s how protest should work," Lat says. "Upon learning that Justice Mitchell was coming to campus, protesters prepared a written critique of his opinion, circulated it within the law school, and invited people to attend a competing event. They responded to reasoned argument with reasoned argument. They didn’t prevent those of us who wanted to listen to Justice Mitchell from doing so. They didn’t disrupt."

By contrast, at a recent incident in Berkeley, law students disrupted a private dinner held by law Dean Erwin Chemerinsky. As the dean later wrote:

About 60 students came to our home for the dinner. All had registered in advance. All came into our backyard and were seated at tables for dinner. While guests were eating, a woman [later identified as Berkeley Law student Malak Afaneh] stood up with a microphone, stood on the top step in the yard, and began a speech, including about the plight of the Palestinians. My wife and I immediately approached her and asked her to stop and leave. The woman continued. When she continued, there was an attempt to take away her microphone. Repeatedly, we said to her that you are a guest in our home, please stop and leave. About 10 students were clearly with her and ultimately left as a group.

UVA Law is truly an elite institution — tied for 4th in the nation by U.S. News & World-Report. A distinguishing trait of the school compared to its elite peers is a culture relatively tolerant of free speech. Admittedly, this is a very low bar. Even at UVA, the fair and impartial enforcement of free speech warrants continual monitoring and pushback against double standards in combating "hate speech." But we want to acknowledge UVA's strengths as well as its flaws, so we thought Lat's piece worthy of readers' attention.

Sometimes we hear from alumni who believe UVA has gone so far down the rabbit hole of wokeness that it's a lost cause. Not only have they stopped donating to the University, but they think it's a waste of time even contributing to The Jefferson Council. UVA is not a lost cause. If it were, we wouldn't be wasting our time with it.

To the contrary, we believe that if UVA Law could rectify its philosophical or ideological imbalance and if it manages to maintain a climate conducive to the civil exchange of ideas, it could one day become the No. 1-rated law school in the country.

We will fight to make that happen.