Last month, the Supreme Court heard oral arguments in Fisher v. University of Texas at Austin—the big affirmative action case. The Supreme Court last tackled the issue nine years ago. Basically, the plaintiff in Fisher is arguing that UT should not take race into account in the admissions process because the University already has a sufficiently diverse student body due to its policy of automatically admitting any Texas student who graduated in the top 10% of his or her high school class. Pundits on both sides of the issue are now trying to predict the outcome of this case, which is, of course, important to the future of higher education.
In law school classrooms, we foster diversity even beyond race—diversity of viewpoints, that is. When I call on first-year law students, I often ask them to argue a particular side of an issue: “Defend the murderer.” Or, “explain why Bernie Madoff should not be held liable.” Being able to argue on behalf of any client is an important skill for lawyers to possess. Indeed, in certain circumstances, our model code of ethics does not allow us to refuse representation of a client unless “the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.” But the importance of diverse viewpoints goes even beyond this professional skill of, as students often call it, “arguing both ways.” In the classroom, I also look to foster students’ confidence to challenge authority. “Why is Justice Scalia wrong here?” “Is this statute just?” This takes a bit of doing because students often enter law school with significant respect for the law. Respect for the law is naturally a good thing, but it does not mean that the law, or even a Supreme Court Justice, is always right. Those students in my classroom, they are the future. They are the ones who will be shaping the law, and to effectively do so, they need to be able to see that the law can be changed and that it should be questioned. And to accomplish this they need to engage with each other so that they can see all sides of the law, or any other source of authority. In my experience, a diversity of viewpoints makes them stronger, and smarter.