Is our talk about rights really meaningful or merely rhetoric? Though we pay lip service to universal rights, non-citizens in the United States may get something less. Even citizens may get less than a “right to happiness” if the state does not establish the material conditions necessary to make such a right possible....It got disoriented. Ironically.
My class discussion on February 15 was intended to be sympathetic to the Hmong people. I intended to illustrate the inadequacy of legal formalism. My examples of cultural practice were directed against the legal system, not against any immigrant group. My examples were intended to show the disorientation that new immigrant groups can feel when confronting a formalist legal system. My point was that if our formalist legal system treats everyone as if they are the same, new immigrant groups from very different cultures could suffer a form of injustice. The resulting controversy lost this point entirely.
Kaplan said some things about the Hmong that he intended "to illustrate the inadequacy of legal formalism," but the Hmong students (it seems) were taken aback because the characterization of the Hmong felt insulting. (Kaplan said something — we don't have an exact text — about problems Hmong people have fitting into American culture.) Yet the students have been given reason to think that they should enjoy a welcoming and comfortable "climate" at the university. Kaplan's critique — which includes making students uncomfortable — belongs to the ideological left, but so does the message that students from diverse backgrounds should feel good about their experience at the university. It's a fascinating clash of two left-wing themes.
Much as I support academic freedom for the teacher (and hate to see any punitive action toward Kaplan), I feel sympathetic toward young people who go to law school for the purpose of acquiring the tools to use toward the ends they select and who then encounter a complicated critique of the law. I think law students expect us law professors to give them things they can use. They may feel outraged if we tear apart the system they are devoting themselves to learning how to work within. We need to respect their autonomy, even as we challenge them.
There is insight to be gained at the intersection of two left-wing ideologies (diversity and critique). So don't be too quick to choose sides. The best answers my lie beyond thinking in terms of two sides in this controversy.