An Open Letter To Yale Law Dean Heather Gerken
As dean, it's better to be feared than loved—and it's time to strike fear into the hearts of free-speech opponents.
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Dear Dean Gerken,
Greetings. I hope this message finds you well as we move into spring, and I look forward to seeing you at the YLSA Executive Committee meeting next month.
Congratulations on your reappointment as dean, which is happy if unsurprising news. I was a huge cheerleader for you when you were first being considered for dean back in 2017, and I admire many of your accomplishments in your first term: diversifying the student body, diversifying the faculty, strengthening ties with alumni, launching a new leadership program, and fundraising. I’m confident your second term will be even better, with the enhanced financial aid program serving as an auspicious start.
In the spring of 2017, not long after you were named dean, you kindly invited me to meet up for coffee when you were visiting New York. When we got together at Grace Street Cafe, you asked me to always give you my candid thoughts on what you could do as dean to make YLS an even better, stronger, more vibrant community for learning.
I’m afraid I didn’t have many insights for you back then—our coffee was just a nice opportunity to get to know each other—but I do now. I hope you’ll forgive me if my honesty and directness come across as impolite or insufficiently deferential; as you know, I have great respect for both you and your office.
I’d like to share my serious concerns about the state of free speech at YLS. It’s a theme that runs through several recent controversies at the law school—Dinner Party-gate, Trap House-gate, Antiracism Training-gate, FedSoc-gate—and it’s front and center in the latest dispute, arising from a loud and rowdy protest of a March 10 event sponsored by the Yale Federalist Society (“FedSoc”).
The protest, which began in Room 127 and later moved out into the main hallway of the Sterling Law Building, was far more disruptive to the YLS community than I originally reported (which is why I updated my story and posted a Twitter thread to that effect). I was particularly concerned to hear that you were just across the hall from Room 127, attending the job talk of Professor Claudia Flores—which was disrupted by the noise of the protest, and eventually had to be moved online—but you didn’t come out to confront the protesters and tell them to quiet down.
I realize that other members of the YLS administration and faculty, such as Dean Ellen Cosgrove, Professor Kate Stith, and DEI Director Yaseen Eldik, were on the scene. But with my apologies if this is too blunt, this was your job. There’s a reason why other attendees at Professor Flores’s job talk were looking at you expectantly, waiting for you to do something. You are the Dean of the Yale Law School, and when a crisis arises at YLS, you must take the wheel.
[UPDATE (3/28/22, 7:14 p.m.): Contrary to my earlier reporting, Dean Gerken did not remain in the faculty meeting during the March 10 protest. Instead, she left the meeting and went to her office, where she assembled a group of administrators and a representative of the Yale University Police Department, who was already on hand, to discuss the best course of action for de-escalating the situation. According to one member of the faculty, Dean Gerken was "the definition of grace under pressure—I admired how she conducted herself in the eye of the storm, and I admired how she held things together and acted decisively during this crisis."]
As someone who knows and cares a lot about leadership—it’s no coincidence that the Tsai Leadership Program was launched during your deanship—you understand that part of being a leader is taking heat. So you shouldn’t have left others to take the heat for you. Instead, you should have strutted out into that hallway, wearing your fabulous signature boots, and told the protesters: “Enough. You are all in flagrant violation of Yale’s free speech policies. If you do not quiet down immediately, you will be disciplined.”1
Not confronting the protesters on March 10 was, I submit, a failure of leadership—but it might have been understandable, in the heat of the moment and the chaos of the situation. A less understandable failure of leadership is not sending out a school-wide email after things calmed down, like the one that Dean David Faigman sent out after a similar event at UC Hastings Law, offering a ringing affirmation of free speech and explaining how the protesters violated university free-speech policies. It’s now more than a week after the event—by the time YLS students return from spring break, more than two weeks after the event—and you have not said anything publicly, despite ample opportunity to do so.
We don’t know each other super-well, so I apologize if this next part is overly familiar, but I think we share something in common: we both want to be liked. This is a common trait, and it’s not always a problem, but it can be when one is a leader or manager. (This is why I’m much happier as a one-man band here at Original Jurisdiction, instead of running Above the Law; I don’t enjoy managing, and my desire to be liked prevents me from doing it as well as I should.)
As the Dean of Yale Law School, you can’t be liked by all people, all of the time. You can be liked by most people, most of the time—and you are—but sometimes you have to anger people, if that’s the price of doing the right thing. And right now, the right thing to do is to make clear to the entire YLS community, liberals and conservatives alike, that they must comply with Yale’s free-speech policies—whether they like it or not.2
There’s been a problem with the intellectual climate at Yale Law School for several years now. Some of it flows from the fact that progressive students (“Progressives”) view those who disagree with them—definitely conservatives, and even some moderates—as bad people (“Bad People”).
Progressives are free to think that their opponents are Bad People. They can exclude them from social gatherings. They can make Bad People feel unwelcome in affinity groups (already happening at YLS, with members of certain affinity groups being forced to choose between affinity-group and FedSoc membership). They can make fun of Bad People with satirical fliers.3
But it’s your job, as the Dean of Yale Law School, to tell Progressives that in an academic community based on free expression, there are limits to how much they can act on the view that their opponents are Bad People.4 Progressives can’t shut down duly organized events because they disagree with the speakers. They can’t weaponize anti-discrimination policies to punish the protected speech of their opponents. They can’t make up and spread lies about professors with unpopular views (or the students who dare to associate with those professors). It’s your job, as the Dean of Yale Law School, to remind Progressives of all this—even if they complain, call you “complicit,” or say you’re a Bad Person too.
Over the past few months, I’ve spoken to several YLS faculty members who feel the same way I do about these issues. With just a few exceptions, they have not been willing to publicly voice their views, in large part because they don’t want to be attacked by the Progressives. Nobody wants to be called a Bad Person.
It’s one thing for faculty members to take this attitude—but as Dean, you have a different role. It’s your job to tell tough truths, lay down the law, and enforce policies, even if it makes you unpopular, at least for a time. If you can’t be both feared and loved—and as the Dean of YLS at this fraught moment in its history, sorry, you can’t—then it’s better to be feared. So make the opponents of free speech fear you.
It won’t be fun in the short term, but over the long term, standing up to the Progressives is in both their interest and your interest. It’s in their interest because if and when they become lawyers, they will have to deal with difficult situations and differences of opinion. By sheltering them from difficult situations and differences of opinion in law school, you’re doing them no favors when it comes to their legal education and professional development. In the short term, they might dislike or even hate you for it—but over the long term, they will (or at least should) be grateful.
Standing up to the Progressives is in your interest as well. I’m guessing that you, like many law school deans, aspire to serve as a university president someday. A good university president is like the proverbial iron fist in a velvet glove: charming and likable on the outside, strong and firm on the inside. No one, even your critics, questions your ability to be the velvet glove—and a presidential search committee won’t either. But you have not (yet) displayed your ability to be the iron fist. Now’s your chance.
One of the major challenges facing university presidents today is how to balance academic freedom and free speech, on the one hand, and diversity, equity, and inclusion (“DEI”), on the other. Based on your track record, nobody—and no presidential search committee—can question your commitment to DEI. But your commitment to academic freedom and free speech is not quite as robust.
The good news is that, given all the media attention that’s being paid to speech issues at YLS right now, you have a golden opportunity to turn yourself into a national champion for free speech. You should issue a statement that, unlike your last major statement, unambiguously supports free speech—and strongly condemns all who would threaten it. You should bring disciplinary proceedings against any and all members of the YLS community who violate its free-speech policies. You should establish a zero-tolerance policy for anything that comes close to infringing on free speech and academic freedom. Be the iron fist—in defense of free speech.
As the dean of a top law school in the year 2022, you have a difficult job. You’re dealing with students who feel they have a “right” to be protected from “harm”—which they define as not just, well, harm, but as hurt feelings and psychological pain. And, to be honest, you’ve made your job more difficult by letting them get away with so much for so long.
But you know what? Even if you’ve let them get away with so much, these students can’t claim a “reliance interest” in your permissiveness. You can start a new chapter in the history of Yale Law School at any time—and that time is now.
Yale Law School ‘99
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For those of you who want chapter and verse on Yale’s free speech policies, they provide that (1) “a university event, activity, or its regular or essential operations may not be disrupted”; (2) protesters “may not interfere with a speaker’s ability to speak or attendees’ ability to attend, listen and hear”; and (3) “[s]itting in or otherwise occupying a building in a way that blocks access or otherwise interferes with university events or operations” is not permitted.
The March 10 protesters broke all of these rules. They disrupted not just the FedSoc talk, “a university event,” but also the “regular operations” of YLS, including multiple classes and a faculty meeting. They interfered with both “a speaker’s ability to speak,” before they left Room 127, and the “attendees’ ability to listen and hear,” after they repaired to the hallway. Finally, they blocked the main hallway of the Sterling Law Building. There is ample evidence, including audio recordings, video recordings, and eyewitness testimony, to support all of this.
As this (superb) Times staff editorial persuasively argues, America has a free speech problem. And in many parts of the country, the right poses more of a threat to free speech than the left.
In elite educational institutions like Yale Law School, however, the left tends to cause more of the trouble (notwithstanding incidents like the Stanford Federalist Society/Nicholas Wallace brouhaha). As a writer who covers elite educational institutions like Yale Law, I will inevitably talk more about how the left threatens free speech. But I’m troubled by any and all threats to free speech, across the ideological spectrum.
Yale Law would be a much better place if students didn’t shun each other because of their political views—which was the case when I was a YLS student, more than two decades ago. But students are certainly within their rights to act in this way.
Let’s not forget this: Progressives voluntarily enrolled at Yale University. By enrolling at Yale—from which they have received, and will continue to receive, a plethora of benefits—they agreed to abide by Yale’s values. One of those values, enshrined in the landmark Woodward Report, is the “fullest degree of intellectual freedom,” including the “right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.” If these students want to avail themselves of Yale’s benefits—including a Yale law degree, an elite (and extremely valuable) educational credential—they need to abide by Yale’s rules, at least while they are enrolled and on campus.
This is why many comparisons of YLS students to other activists, such as ACT-UP members staging events at churches, hospitals, or the NIH in the 1980s and 1990s, are inapposite. Unlike students enrolled at a university, ACT-UP members had no relationships with, and owed no special duties to, the places where they protested.
Yes, the ACT-UP activists sometimes violated trespassing laws—and they accepted the legal consequences, recognizing that they were engaged in civil disobedience. I wonder how the YLS protesters would feel if they were brought up on disciplinary charges for violating Yale’s free-speech policies.