A historic test of free speech at the University of Chicago Law School

 At my 50th  reunion of my University of Chicago law school this past weekend, the new dean gave a state of the law school speech in which he kvelled – correctly in my view–  about the Chicago Principles developed under the leadership my friend Professor Geof Stone, requiring the law school to allow free speech even when the speech is hateful or deeply unpopular.  But this made me curious to follow up on a story I had heard long ago about how the law school’s commitment to free speech was sorely tested back in the early 1970's.  The tale related to our law school classmate, the late Staughton Lynd, and how he had come very close to being denied admission because of his political activism.  Luckily, over the course of the weekend I was able to talk ro someone who had had a front row seat for these events, who confirmed the following story.

Staughton was, of course, a highly principled leftie, who had taught history first at Spelman College and then at Yale University, where his activism in Students for a Democratic Society, and his travel to North Vietnam with Tom Hayden and Herbert Aptheker, led to denial of tenure.  He then moved to Chicago, initially to teach at Roosevelt University; he became active in various radical projects, including support for radical unionists, as well as some support for students who conducted a two-week student occupation of campus buildings by undergraduates at the University of Chicago.  His suspected fomenting of the latter controversy eventually threatened his chances for admission at the University of Chicago Law School when he decided that becoming a lawyer would, as he said to me, add another arrow to his quiver in helping radical workers.  

When his application was received, his extraordinary intellectual ability and unusual background made his application stand out, but although applications were mostly reviewed by the Dean of Admissions, Richard Badger, there was a faculty admissions committee that had the ability to review potentially controversial candidates; Staughton’s application fell into this category.  Eventually, the application was discussed at a full faculty meeting, where a very conservative constitutional law professor, Phil Kurland, announced that he felt so strongly that Staughton should not be allowed to attend the law school that he was going to resign his position and go teach elsewhere if Staughton were admitted.  Apparently, one of his lines of attack was to contend that, because of Staughton’s past radicalism, it was uncertain whether he would be admitted to the Bar.

That stance provoked a different professor, Harry Kalven, well known both for his work on tort law and for his work on the First Amendment (the Kalven Report prepared under his leadership was in some ways a predecessor of the Chicago Principles) that if Staughton’s admission was rejected for these political reasons, then HE would resign from the faculty.   It was Kalven’s position that carried the day.  The faculty decided that the question whether Staughton would be admitted to the Bar was not relevant to the admissions decision.  Of course Staughton did come to the law school and was graduated in 1976.  He practiced first in Cleveland with a union-side law firm, and later in Youngstown with Northeast Ohio Legal Services, for about forty years.

And, nobody resigned from the faculty.  I took classes from both Kurland (Constitutional Law III, Equal Protection) and from Kalven (first year torts).  But my source added one detail on which I had not previously focused as being connected to this controversy.  Phil Kurland had been teaching constitutional law to undergraduates, and it was apparently reaction to this controversy that Kurland closed his office at the law school and moved to an office on the main campus.

The following year, my 1L year, was Harry Kalven’s last at Chicago– he died the following summer.  I was lucky to have had Kalven even for a year, and to have formed a lifelong friendship with Staughton, who died in 2022.  Staughton was, indeed, a huge influence in my life.  As I explained at his memorial service, it was Staughton who helped me get my summer 1L public interest job, and Staughton who persuaded me that rank-and-file struggles were politically significant.  That is how I came to Public Citizen Litigation Group, where I have spent almost the entirety of my career.  Hence I owe my career as a public interest lawyer to him