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Thursday, July 24, 2008

Gordon Smith on BYU

Over at the excellent business law blog, Conglomerate, Gordon Smith, who just finished his first year as a professor at BYU and has taught at five other law schools, is good enough to share some thoughts on mine and Paul Horwitz's posts from yesterday on BYU and other religiously affiliated law schools.

On religious affiliation, he says in part:

"Finally, the most distinctive aspect of BYU Law School is the religious affiliation. Jason makes the obligatory disclaimer: "And no, it's not for everybody with its religious affiliation and fairly conservative faculty, administration and student body ..." Can't we say "And no, it's not for everybody ..." about every law school? Wisconsin is not for people who hate snow. Lewis & Clark is not a great place for people who hate hanging around environmentalists. Chicago is pretty uncomfortable for stupid people. So, yes, BYU is distinctive on religious grounds, but as Jason observes, most people figure that out long before they set foot in the building."

I'm glad Gordon made this point because I was confused not to hear a defense of BYU from our Yale friends yesterday, who had been defending their school in part on "different strokes for different folks" grounds. If you want moral relativism, go to Yale; if you want a little more moral certainty, go to BYU.

And in defense of religious homogeneity, he says:

"[T]he notion of "religious homogeneity" is a placeholder for a much broader accusation of lack of viewpoint diversity. While I am not going to pretend that BYU has no challenges with regard to diversity, I was impressed with the passion of my first-year law students last fall in Contracts on all sides of the issues we covered in the course. (By the way, I was using the Wisconsin materials, so we weren't ducking tough values issues!) The empirical point is hard to verify, but my impression was that religious homogeneity actually enabled or encouraged many of those discussions. Why? Because the students were required to examine the implications of their (assumed) shared beliefs. They could not pass off their disagreements on the simplistic ground that they held different values than their classmates. This was real learning, not indoctrination."

Read the whole post here.

Note also BYU 3L's comment on my prior post, making the case that being one of ten non-Mormons at BYU has its downsides.

Posted by Jason Solomon on July 24, 2008 at 08:55 AM in Life of Law Schools | Permalink


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I am not well-read in either, but my point was to distinguish between the two and to defend relativism as more than just selective or absent morality, as it is sometimes used (as an insult, for example.)

Thanks for pointing it out though.

Posted by: Benjamin Smith | Jul 30, 2008 9:23:35 PM

It's really of no particular importance, really, but it should be noted that the definition of moral relativism and moral pluralism given by Benjamin Smith are a bit idiosyncratic and certainly not the only or the majority ones considered by philosophers. (They don't fit, say, with the accounts of relativism worked out by Mackie, Harman, or Wong, for example.)

Posted by: Matt | Jul 30, 2008 8:57:48 PM

I think Sr.cotus is inaccurately discarding "moral relativism" under the "lay-person-only" insult. This may indeed be proper if the comment was intended to be an insult. However, moral relativism is a solid philosophical position that is neither pejorative nor "lay."

Moral relativism simply stands for the notion that ethics and/or morality having no connection to objective truth. Every individual has his/her own morality stemming from personal circumstances (whether environmental or otherwise.) It sometimes gets a bad name when confused with moral pluralism, that idea that there is no one morality for any one individual. Relativism anticipates precisely one morality for each person, and not one you can pick or choose (at least no further than you can pick or choose your individual circumstances that shape your morality.) Moral relativism as a school of thought among law students certainly exists, although who knows whether it is prevalent at Yale or not. I personally think it has merits, and I go to BYU.

I would not take the "moral relativism" label as an insult, though.

Posted by: Benjamin Smith | Jul 30, 2008 8:51:24 PM

I am a BYU 2L. My experience during my first year was quite different from BYU 3L's (just to make sure everyone realizes that apparently this phenomenon varies year to year.)

(1) I have never discussed family history with another person at law school ever. This is perhaps due to the fact that I am too busy reading law books to spin tails of ancestors, or perhaps our class is just overly callous toward genealogy.

(2) Until this morning, I thought that 100% of our class was Mormon! I am joking, but in all honesty I have no idea who is or is not a member.

(3) BYU 3L indicated that he received unique treatment from recruiters... I received no treatment at all from recruiters, so I think any treatment, however unique or subtle, would have been great. I don't even know who the recruiters are (please fill me in.)

(4) While BYU definitely has little diversity of religion, diversity is not a problem when it comes to meaningful legal issues. In my first year, we had a panel debate on homosexual marriage, listened to a lecture from a Jewish scholar on biblical legal roots of Jesus' teachings, heard lectures on feminism, and ate lunch while being entertained by Polynesian dancers. I am sure I am missing out on a lot of other areas of diversity, but the same can be said for any school to a greater or lesser extent.

While I take seriously the contentions of BYU 3L and others, I see at least part of it as typical of any extreme minority surrounded by what is perceived as a dominating external influence.

P.S., I was in Gordon Smith's Contracts class, and aside from having all of the Non-Mormons raise their hands the first day, I didn't see much in the way of religious identification... :)

Posted by: Benjamin Smith | Jul 30, 2008 7:51:46 PM

I don't get it. Utah is an island-nation of mormons. if you're mormon, you're home. if you're not mormon, you're a foreigner. in terms of a minority people within a larger majority nation, how is their behavior any different than the way the jews have operated for millennia?

Posted by: colin | Jul 28, 2008 7:06:04 PM


I appreciate the kinds words. By now people may be wondering why we don't just get together in Provo and talk rather than working this all out in public. You are certainly welcome to drop by my office. But for the benefit of those who may still be reading, I will venture some responses here.

Re my comments on mentoring Mormon students, which you find "troubling," it's worth distinguishing two of your claims: (1) that people at BYU (professors, students, recruiters) treat non-Mormon students differently than Mormon students; and (2) that professors at BYU sometimes decide whether to aid students in their careers based on religion. The first point is obvious and trivial, and I don't think you intended to make much of that, except to the extent that it sometimes leads to the effect described in your second point. In my response to your earlier comments, I argued that the second point is not a pervasive problem, and as far as I know, it would be quite exceptional.

As for myself, I do not decide whether to aid students in their careers based on their religion, but I do interact differently with Mormons and non-Mormons. I also interact differently with students from Wisconsin, students who follow the Tour de France or college football, and students who know all the words to Bohemian Rhapsody (though it's hard to ferret out this information). I just don't see anything nefarious in saying that I get special satisfaction out of mentoring students who share many of my deepest values and commitments, and saying that certainly doesn't imply that other students receive less than my best efforts. References provided upon request.

Re the distinction between first-year classes and upper-level classes, I don't follow this: "By the time 2L and 3L years roll around, everyone pretty much knows everyone's 'status' (for lack of a better word), faculty and administration included." The point of my comment was that I didn't know and still don't know which of my students are non-Mormons, so the claim is facially false. Moreover, it won't be true of me even after I have been at BYU for awhile. Though I know the "status" of one of my first-year Contracts students -- I spend time with all of my first-year students in small clusters, and she told me she was not LDS during one of our lunches -- I have no idea about any of the students who were not in my Contracts class. And this year, I am not teaching first-year students, so I suspect that I won't know much of anything about any of this year's entering students when they show up in my classes next year, especially whether a particular student is a non-Mormon.

Finally, you wrote: "I would also be surprised to hear that Professor Smith does not know where his closest mentees served their missions, or which 'Ward' they attend ... or even their family history as it relates to the Mormon church."

Surprise! In fairness, we have probably talked about some of these things (though I couldn't care less about which ward my students attend), but I have a terrible memory for these sorts of details, unless they have a special personal connection. For example, I know one of my students from last year served a mission in Wisconsin because we talked about people and places. But I had a similar conversation with the non-Mormon student mentioned above, because I had taught in her home city. Anyway, this goes back to the first point above: people at BYU treat non-Mormon students differently than Mormon students because those groups of students have different experiences. I know what it feels like to be an outsider at BYU, but at this level of interaction, it's no different than being an outsider in any environment. Only when those differences are elevated in the way that you mention in claim #2 above do I become concerned, and I am still not convinced that this happens frequently.

Posted by: Gordon Smith | Jul 25, 2008 10:34:23 AM

Please ignore the above typos. I wrote that at 3:12am.

Posted by: BYU 3L | Jul 25, 2008 3:16:44 AM

Regarding Katie's post. I think she makes an excellent point in that the BYU law experience has been beneficial for me in one very significant way. Perspective. Though in all honesty, I still have very little perspective in the grand scheme of things. And I would never be so arrogant as to assume that three years as a religious minority allows me to understand those in the minority who have undergone far more pervasive and damning prejudice in their lives.
Nevertheless, I enter the last year of my BYU Law experience as a changed person in many aspects. Central among them, is the fact that I now have at least a very minor idea of what it feels like to be on the outside, constantly looking in. True compassion and understanding for those with whom you cannot properly empathize is rare. So at the very least, my time at BYU Law has greatly increased my ability to do those things.

Now to Professor Smith's comment.

I should first say that I am impressed and thankful he took the time to respond. In my experience, this type of dialog with those who can actually change things is woefully rare. Second, I should also say that I respect Professor Smith a great deal. I do not have first hand experience with him in or out of class, as he has only been teaching at BYU Law for one year. Nonetheless, I hear great things from my fellow students. And my impression (again, second-hand) is that he is one of "good ones"; i.e., the members of the faculty/administration who do not consciously care about a student's faith.

Nevertheless, in one of his earlier posts on his blog, The Conglomerate, (which, I should add, I read regularly and think is fantastic) Professor Smith wrote something that troubled me. I appreciate his honesty, but I think it is a good example of the likely subconscious viewpoint of many Professors at BYU Law. The text is as follows: "On the other hand, our common religious values allow me to interact with the law students outside of class in a manner that is often more direct and meaningful than was possible with students of a different religious heritage. While I love my students at Wisconsin, Vandy, Lewis & Clark, etc., the unique opportunities for mentoring that I have at BYU are among the most important reasons that I am here rather than at another law school right now."
I have no doubt that there is nothing sinister in those words. I also acknowledge that, at this point, I've probably become a bit hypersensitive (when your skin is perpetually being rubbed, it eventually becomes a bit raw). However, that statement seems to express the underlying idea that it is a better "mentoring" opportunity for the Professors at BYU Law if the student is Mormon. While I understand the appeal of mentoring those who have similar viewpoints or values, I still get the feeling (at BYU Law generally, not from Professor Smith specifically) that there is an unwritten rule that one of the primary goals of the school is to help get Mormon lawyers a "leg-up" over their non-Mormon colleagues. This is understandable, but it does leave the small number of us who are not Mormon being shunted aside.

As for his argument regarding "double tuition", he is correct. BYU is a bargain. And the reasoning behind the tuition policy is clear and completely understandable, and I accept it. However (WARNING: emotionally based argument ahead) I'm not sure how to describe it other than to say that it doesn't feel right. In the same way that it doesn't feel right not to get a job or an apartment (or to be forced to pay double for said apartment) because of your religious affiliation (I acknowledge that apartments and jobs are different than religious institutions, but still...) In short, it doesn't seem to pass my "smell test". However, I recognize that my "smell test" is not, thank God, one of the standards that decides propriety.

Next, I have no doubt that Professor Smith could not have picked the non-Mormons out of his two Winter semester courses. And he is correct when he says it isn't a topic that traditionally comes up in class. Particularly when both of those classes are for 2L and 3L students only. However, I would be interested to hear if the same thing can be said about his 1L Contracts class from Fall Semester.
1L year is when the non-Mormon/Mormon conversations occur at BYU Law (particularly first semester). By the time 2L and 3L years roll around, everyone pretty much knows everyone's "status" (for lack of a better word), faculty and administration included. Still, I have no doubt that a person's faith likely did not come up in Contracts class. What I do doubt, is that Professor Smith did not here about certain non-Mormon students in other ways. Perhaps through individual conversations with the students themselves, their classmates, or even faculty colleagues.

I would also be surprised to hear that Professor Smith does not know where his closest mentees served their missions, or which "Ward" they attend (Mormon communities are divided into "Wards"), or even their family history as it relates to the Mormon church. I say that because those seem to always be go-to conversation topics and ice-breakers between BYU Law professors and nervous students. I am not saying that is wrong. It is understandable. For those of us who cannot discuss such things without feeling somewhat awkward however, ice-breaking becomes quite difficult.

I hope Professor Smith takes the time to respond again. His comments are insightful, and to be honest, this is the most meaningful discourse on this topic that I have ever had with a member of the faculty or administration.


Posted by: BYU 3L | Jul 25, 2008 3:12:58 AM

I feel like Prof. Smith's point alludes to something I don't think has been touched on in this discussion, which is that religious schools might very well serve one function for students who have, prior to law school, been the religious minority and who for the first time feel free to express their beliefs and to develop them intellectually without fear of discrimination. It might serve a very different function for students who have always attended religious schools, always been predominantly surrounded by people of their faith community and who are looking - consciously or unconsciously - for a way to avoid engaging with people of other views in the way those who are in the minority have no choice but to do.

In other words, my suspicion is that it probably benefits most people to be in both positions at some point in their life (one reason I'm glad I studied abroad for a year as an undergraduate).

Posted by: Katie | Jul 24, 2008 8:10:41 PM

This discussion is ranging over so many posts and blogs that I am having a hard time figuring out the best place to post a comment. But this seems like a fine thread because I want to express my agreement with Rick Garnett, whom I respect immensely, about viewpoint diversity at religious schools. People who have never attended or taught at a religious school have very vivid imaginations with regard to the horrors, but my experience at BYU is quite to the contrary, and based on what I know of Notre Dame -- a fair amount, actually, though mostly second hand -- I would say the same for that school.

Turning to BYU 3L's comments, I can imagine the sorts of discrimination BYU 3L describes, though I think it would be a grave mistake for readers to assume that all or even most BYU Law Professors routinely favor Mormons over Non-Mormons. Again, I will speak from my personal experience, since that is what I know best. Last semester I taught Securities Regulation and Law & Entrepreneurship, with 100 students between them. If you asked me who were the non-Mormons in my classes, I would not have the faintest idea. As I write this comment, you could tell me I had any number of non-Mormons in my classes, and I would have to take it on faith, because I simply don't know.

Likewise, I have hired research assistants, agreed to supervise papers, and been asked by students to assist with clerkships, and I could not tell you in any instance whether those students were Mormons, unless the topic arose in subsequent conversation. It is simply not a relevant factor for me in deciding whether to aid a student, and I know many of my colleagues feel the same way. I don't doubt that BYU 3L has had the experiences related, and I am sad to hear about that, but it would be a mistake for readers to assume this problem is pervasive at BYU Law School.

Re tuition, BYU 3L didn't mention that the "double tuition" for non-Mormons is still only $18,480 for the coming year. (For Mormons, the tuition is $9,240.) Why the difference? The Law School is heavily subsidized by tithing dollars of Church members. Just as state law schools give better tuition deals to taxpayers than non-taxpayers, BYU gives a better tuition deal to members of the Church.

This comment is already too long, but let me add two more quick observations. First, while I wish that BYU 3L had received a more positive experience at BYU, I think his experience is fairly typical of anyone who is a member of a small minority group when interacting with members of the majority group. Having spent most of my adult life as a religious minority, I could tell you lots more stories than those shared by BYU 3L about discrimination against me because of my faith. In most instances, being on the receiving end of such treatment feels pretty horrible, but discrimination is not unique to BYU or Mormons. (I wish it were uniquely absent among us, but it isn't.)

Second, just in case you think me callous and insensitive to BYU 3L's experiences -- maybe you think I have no idea what BYU 3L feels like? -- I should disclose that I attended BYU undergrad as a non-Mormon. Yes, I paid the higher tuition and I was sometimes subject to the subtle (or not) slights described by BYU 3L. So while our experiences are not perfectly symmetrical, I feel confident in expressing some kinship of experience.

Posted by: Gordon Smith | Jul 24, 2008 7:32:54 PM

Regarding Sr.cotus' comment. I didn't mean the beginning to be a puff-piece. But I see your point. As for the difficulty, you are correct that I have no first-hand experience at others schools, and so those statements should be taken with a grain of salt.

However, I base my "tough" statement on speaking with several of my friends attending law school around the country. One thing that does stand out at BYU Law is how competitive it can get at times. Much like the "non-Mormon" issue, the competition is not overt, but it is certainly there. And everyone does NOTHING but law school for the most part. Due to the culture, social opportunities are somewhat limited, which leads to large numbers of students from all three years in the library until very late at night.

Posted by: BYU 3L | Jul 24, 2008 12:01:00 PM

Just a little joke re: moral relativity/certainty, but sorry to be overly glib -- and thanks for pointing that out.

Posted by: Jason Solomon | Jul 24, 2008 10:26:50 AM

“Moral relativism” is one of those “lay people only” insults. It would be impossible to accurately designate someone a “moral relativist” because one would need to know, for sure, whether their morals were static.

BYU 3L’s comments were particularly damning of BYU. While the top of his post seems like a puff-piece (because he has no way to compare the toughness of BYU to other schools) he paints a rather sick picture of discrimination.

Posted by: Sr.cotus | Jul 24, 2008 10:16:32 AM

For what it's worth, in my own experience at Notre Dame, it is not the case -- or, at least, it need not be the case -- that a distinctive religious mission and character constrains the existence and expression of viewpoint diversity. If anything, it seems to me that the opposite is true. Also, it is not clear to me that what a distinctively religious law school delivers is more "moral certainty", but rather a different way of wrestling with (inescapable) moral challenges and complexities.

Posted by: Rick Garnett | Jul 24, 2008 9:45:54 AM

I suppose that there are _some_ "moral relativists" at Yale, but do you think it's a common view there? I very sincerely doubt it. If "moral relativism" means anything more than "we should be tolerant of views we disagree with and should be slow to judge things we don't understand" than very, very few people hold that view. Mostly the term is just a stupid insult and as such should be avoided unless you mean something quite specific, a position that I expect is quite rare on the Yale Law School (and any law school) faculty.

Posted by: matt | Jul 24, 2008 9:15:37 AM

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