‘We are lagging behind, and it’s past time we played catchup’
Harvard Law School offers “unparalleled clinical education” for students – if they’re politically progressive.
Right-of-center students are petitioning the administration for more intellectually diverse legal clinics, calling attention to offerings from Yale and Stanford law schools in particular.
More than 80 Harvard law students signed a petition asking for legal clinics on subjects such as religious liberty, “pro-life,” Second Amendment, federalism, administrative law, “school choice” and “conservative appellate advocacy.”
The two most popular on the list across political leanings are for free speech and civil asset forfeiture, according to Eli Nachmany, a first-year student who helped develop the petition.
The formal request “bubbled up” from first-year students, who “saw gaps in advocacy and representation for various underserved communities,” he told The College Fix in an email: “There is tremendous interest on this campus for right-of-center clinical offerings – it was just a matter of someone putting pen to paper.”
The students researched clinics offered at other law schools so Harvard would feel compelled to match their offerings.
Nearly three weeks before the petition debuted, the president of Harvard Law’s Federalist Society chapter noted that Yale had recently joined Stanford in offering a religious liberty clinic.
“Why don’t we have a religious liberty clinic? Many students have been asking for one for many years,” Douglas Colby tweeted. “We are lagging behind, and it’s past time we played catchup.”
He said such a clinic would be “neutral,” in contrast to several others that “expressly exist to advance liberal legal positions and policy goals.”
The law school should start clinics for conservative and libertarian positions in order to provide “even a modicum of representation” for such students, Colby continued, proposing several that ended up on the petition.
…a 2nd Amendment clinic, a school choice clinic, and a civil asset forfeiture clinic. These are just some of many ideas that might help @Harvard_Law and @HLS_OCP better serve its conservative, moderate, and libertarian students
— Douglas Colby (@DouglasColby) October 10, 2019
When Colby posted the petition Oct. 28 and congratulated first-year students for taking the initiative, it sparked speculation that the Federalist Society chapter was behind the petition. He said it had been signed by 83 students, nearly half first-years, and presented to the administration that day.
Colby responded to Josh Blackman, a professor at the South Texas College of Law, that his organization did not sign the petition, “just individual students.” The Federalist Society president referred The Fix to first-year students who worked on the petition but declined an interview for himself.
The professors behind the new religious liberty clinic at Yale told The Fix that it would focus on religious people who may have trouble getting legal representation because of their unpopular views or status.
Harvard Law School did not respond to phone calls and emails from The Fix seeking its response to the petition.
They want more originalist professors, too
Right-of-center students presented the petition Oct. 28 when Dean John Manning held open office hours regarding the curriculum, Jacob Richards, the first-year student who wrote the first draft of the petition, told The Fix. Nachmany said the administration “seemed open to working with us.”
They weren’t the only ones at the meeting. “Dozens of other students were there to express various concerns about the curriculum,” such as “lack of mental health resources” and “overly burdensome [first-year] schedule,” Richards wrote in an email.
The others also asked for a “Reproductive Justice” clinic, “more latinx faculty members” and professors who specialize in critical race theory.
It’s not clear why Harvard has yet to launch a religious liberty clinic after years of advocacy, as Colby noted. Richards said that Manning “confirmed that efforts are still ongoing to launch” such a clinic, but the dean did not address the viability of any of the proposed clinics.
Both Richards and Nachmany told The Fix a day after the petition was presented that it had “over 80” signatures at that point, but were not more specific.
Support has “exceeded anyone’s expectations” and goes beyond conservatives and libertarians, according to Nachmany: “Many moderate students, and even some on the left, have mentioned that they are also interested in some of the clinics that we listed.”
Even though some students disagree with their proposed clinics, “it doesn’t change the calculus for us,” he continued. “Meanwhile, the conservative and libertarian students, of course, are over the moon that we are mobilizing and advocating for what we want.”
They have their sights set beyond clinics. “We are asking the administration for more full-time originalist faculty members,” given how many originalists have been seated on the federal bench in the Trump administration, Nachmany said.
Such faculty members can help students “both develop originalist scholarship and learn the nuts and bolts of making these arguments as law clerks or advocates” by leading the proposed clinics, he said.
Promotes ‘core American values shared across the ideological spectrum’
Blackman, the South Texas College of Law professor, told The Fix that the Harvard students were on to something. “Clinics exist to serve a wide range of interests in society,” he wrote in an email. “Generally, progressively-minded clinics may overlook certain types of cases that warrant attention.”
The religious liberty clinic would be particularly important at Harvard, Blackman said: “Increasingly, law firms cannot provide pro bono assistance to various religious organizations that challenge, for example, the contraceptive mandate” in the Affordable Care Act.
The Yale religious liberty clinic will target “those whose constitutional and statutory rights are threatened,” Michael Helfand, a visiting scholar from Pepperdine who is co-teaching the clinic, told The Fix in an email. “This is particularly true for vulnerable religious minorities who might not otherwise be able to secure this kind of legal assistance.”
Echoing Colby’s language, Helfand said the clinic “does not fall on any one side of the political spectrum” but rather promotes “core American values shared across the ideological spectrum.”
Prof. Kate Stith, who is leading the clinic, told The Fix that Yale is partnering with the law firm Sidney Austin to offer the clinic. Religious rights “deserve protection” alongside every other civil right.
She expects students in the clinic to write friend-of-the-court briefs in cases under appeal “on behalf of disadvantaged religious individuals and groups.” Those include “inmates seeking religious accommodations, houses of worship challenging adverse zoning decisions, and employees facing religious discrimination at work,” Stith wrote in an email.