Doe v. Gerken: A Lawsuit Against Yale Law

And additional news: the decision on renewing Heather Gerken as dean has been postponed to early December.

Nov 16, 2021

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Sorry, Yale Law School—I just can’t quit you.

On the one hand, I’d welcome a break from all the YLS drama, and I know that some of you feel the same way. On the other hand, I’m not going to refrain from covering news about a particular subject because there has been so much of it lately. And I know—based on website traffic, email correspondence, and subscription growth—that readers who are interested in goings-on at Yale Law greatly outnumber those who aren’t.

So here’s the latest. First, Yale Law School has been sued—and I’ve read the complaint, so you don’t have to. See what you get for $5 a month?

Second, the decision on whether to renew Heather Gerken as dean has been postponed. Before the latest news—the YLS administration’s treatment of the Yale Federalist Society, and now this lawsuit—her reappointment was a foregone conclusion, with an announcement expected any day now, possibly before Thanksgiving. Now, the timing and outcome of the dean renewal process are anyone’s guess. I have reached out to Yale Law for comment on renewal decision, but I have not heard yet heard back; I’ll update the web version of this post if and when I do. [UPDATE (11:22 p.m.): An update/correction: this paragraph originally said the decision was postponed “indefinitely,” but as it turns out, it has been postponed to early December. The subtitle of this post and a reference to the postponement later on in this story have also been changed accordingly.]

Let’s start with the lawsuit. Yesterday two students, proceeding under pseudonyms (“Jane Doe” and “John Doe”), filed a lawsuit in federal court in Connecticut against Yale Law School, Dean Heather Gerken, associate dean Ellen Cosgrove, and diversity director Yaseen Eldik. The plaintiffs allege that the defendants “worked together in an attempt to blackball two students of color from job opportunities as retaliation for refusing to lie to support the University’s investigation into a professor of color.”

What investigation, and which professor? Yes, you guessed it—the Dinner Party-gate investigation against Professor Amy Chua, in which she was (falsely) accused of hosting drunken dinner parties attended by YLS students and federal judges.

In their 20-page complaint, the plaintiffs allege retaliation, tortious business interference, and defamation. These claims arise under Connecticut state law rather than federal law, but because the plaintiffs seek compensatory damages of at least $75,000 and punitive damages of at least $75,000, they can sue in federal court. They’re represented by John Balestriere and Matthew Schmidt of Balestriere Fariello, a high-profile New York litigation boutique, and Andrew Bowman of Westport, Connecticut. [UPDATE (11:22 p.m.): Corrected to fix Matt Schmidt’s last name.]

I reached out to YLS for comment on the lawsuit. Karen Peart, director of university media relations, issued this statement: “the lawsuit is legally and factually baseless, and the University will offer a vigorous defense.” As for Amy Chua, who figures prominently in the complaint, the Yale Daily News contacted her, and she said the lawsuit is “absolutely not about me. I am just trying to put this whole horrific nightmare behind me and I wish it would just go away… I don’t ever want to speak of it again.”

Now let’s go through the complaint, starting with the pseudonymous plaintiffs. Jane Doe is an African-American resident of Georgia who finished her second year at Yale Law, but is currently on a voluntary leave of absence. John Doe is an Asian-American resident of California who’s now a 3L at YLS.

Both students arrived at YLS in fall 2019. Like many students of color, they took classes with and eventually became mentees of Amy Chua (aka “Chuapets”).

In February 2021, John made a noisy withdrawal from the board of the Yale Law Journal, after complaining that he found the Journal to be “uncomfortable, unwelcoming, and unhealthy” for students of color. His resignation received significant attention beyond YLS—e.g., from Above the Law—and caused him “to face significant hostility at the school.”

Hmm… who might be a good resource for an Asian American law student facing “significant hostility”? Yes, you guessed it: La Chua, an outspoken Asian American woman who is no stranger to controversy, ever since her controversial, bestselling parenting memoir, Battle Hymn of the Tiger Mother.

John and Jane Doe sought Chua’s advice—and in light of the sensitive topics up for discussion, they wanted to meet with her in person and in private. The three agreed to convene at Chua’s home and did so twice, in February 2021 and March 2021. Both meetings included only John, Jane, and Chua, and no meals were served.

These humble gatherings are what morphed into secret, boozy parties with YLS students and federal judges, aka Dinner Party-gate. How did that happen? As some of you might recall, it was thanks to a rather ridiculous document now known as the Dossier, prepared by a busybody classmate of John and Jane Doe with a strong antipathy to Amy Chua:

On its face, the Dossier… claims that Jane and John had “repeatedly lied” about their experience as students of color at the Law School, and further “repeatedly lied” about the existence of the secret dinner parties, before supposedly admitting their existence to the Dossier’s author either in person or in “self-deleting” text messages.
As evidence, the Dossier included a number of text messages, some with Jane or John, none of which consisted of them admitting to any secret dinner parties. On the contrary, in large part they seemed to consist of the Dossier’s author making his own claims in text messages—to Jane, John, and other unidentified friends—about the existence of such parties.

As noted in the complaint, the New Yorker described the Dossier as “extremely thin,” and the New York Times reported that several YLS professors who read the Dossier “were shocked at how unpersuasive it was.”

The Dossier started circulating at YLS in April 2021, eventually coming to the attention of associate dean Ellen Cosgrove, who leads Yale Law’s Office of Student Affairs (“OSA”), and Yaseen Eldik, director of diversity, equity, and inclusion at YLS. According to the complaint, Cosgrove and Eldik reached out to Jane and John Doe, pressuring them to issue a formal statement confirming the Dossier’s allegations, and also asking them to file a formal complaint of their own against Chua:

Despite Jane and John repeatedly denying the Dossier’s assertions, Cosgrove and Eldik pressured Jane and John to make such a statement, even calling them on a daily basis over the course of a week in April 2021, insisting that Jane and John had a “moral obligation” to “future generations of students” to make the false statements against Chua.

When this didn’t yield up the desired accusations against Chua, the two administrators increased the pressure, the complaint claims:

On a joint call including Cosgrove, Eldik, and Jane, Eldik told Jane that the Dossier would likely end up in “every judges’ chambers,” “following [her] even after [she] graduates,” effectively sabotaging any hopes of her securing a clerkship whether she applied now or in the future.
In a joint call including Cosgrove, Eldik, and John, Eldik and Cosgrove strongly suggested that John should not apply for a clerkship in the summer of 2021 because of the Dossier’s wide publicity. [Recall that the Dossier, besides going after Amy Chua, also attacked Jane and John Doe, calling them inveterate liars and otherwise putting them in a bad light.]
It was suggested that, for these reasons, Jane and John should cooperate by making a statement against Professor Chua.
Cosgrove also directly threatened Jane, claiming that Yale Law School was receiving complaints about her potentially serving as a Coker Fellow due to the Dossier, and further suggested that such complaints would be moot if Jane made a statement against Chua.

As explained in the complaint, a Coker Fellowship is a prestigious, paid position as a teaching assistant to a “small group” professor. It’s an excellent opportunity to strengthen a student’s relationship with a professor—and small-group professors are some of the most high-profile and well-connected members of the faculty. Because YLS has a barebones grading system, other distinctions—like Coker Fellowships and strong recommendations from professors, which can be enhanced by service as a Coker Fellow—take on outsized importance, especially during the hunt for coveted clerkships, an obsession for many Yale Law students. Students must apply to serve as Coker Fellows and the process is competitive, since only two Fellows are hired per small group.

According to the complaint, this is when Dean Gerken jumped into the situation:

Gerken’s direct involvement began when Jane, who was a student in Gerken’s academic clinic and was then writing a lengthy paper under Gerken’s direct and personal supervision, sought Gerken’s advice in dealing with the Dossier.
While it later became apparent that Gerken was fully aware of the Dossier, Gerken advised Jane to “be candid” with Cosgrove and Eldik and faculty members who may hear of the Dossier. Jane in response explained to Gerken that the allegations in the Dossier were false and questioned why her own candor was at issue.

“Be candid.” As you might recall, these are the same words Dean Gerken supposedly said to Amy Chua in the now-infamous Zoom call in which Gerken accused Chua of hosting forbidden dinner parties.

The complaint then states that a few days later, Gerken and Cosgrove personally approached a prominent law professor who was in the process of hiring Coker Fellows and urged him not to hire Jane or John.

It further alleges that the two administrators tried to “convince him that Jane and John were lying about their interactions with Chua, making them untrustworthy and unsuited for employment, despite the professor already employing both Jane and John as his research assistants.” To strengthen her presentation, Ellen Cosgrove supposedly brought along a copy of the Dossier that she had annotated, flagging places where she thought Jane and John Doe were lying.

The complaint alleges that these actions of the defendants constituted improper retaliation and caused “significant harm” to Jane and John. Neither was hired as a Coker Fellow. Neither applied for clerkships. Jane took a leave of absence from YLS because of the harassment she experienced in connection with these events. The plaintiffs also allege that “their ability to form and maintain relationships with their peers has also been irreparably and permanently stunted” as a result of the defendants’ conduct, and they have suffered “insomnia, anxiety, nausea, and loss of appetite.”

The allegations of the complaint—and remember that at this point they’re nothing more than allegations—remind me of what went down in the “trap house” email controversy, at least according to Trent Colbert, the sender of the allegedly offensive email, and Zack Austin, the Yale Federalist Society president who got dragged into the mess (despite having nothing to do with the email). Consider the similarities:

Ellen Cosgrove and Yaseen Eldik come up with their own view of a situation and cling to it doggedly, despite ample evidence to the contrary.
Cosgrove and Eldik use their power as administrators to try and extract something from students—in Dinner Party-gate, accusations against Chua, and in Trap House-gate, public apologies.
They even resort to threatening the students—in Dinner Party-gate, with lost job opportunities, and in Trap House-gate, with bar admission problems.
The students stand their ground—and in the ensuing uproar, Cosgrove and Eldik end up looking very bad.

The main difference between the two situations relates to the allegations against Dean Gerken. She doesn’t play much of a role in Trap House-gate, but in Dinner Party-gate, the complaint claims that she personally retaliated against Jane and John Doe.

The timing of the Does’ lawsuit isn’t great for Dean Gerken. It comes right as Dean Gerken should be taking a victory lap for a significant accomplishment: the launch of the Tsai Leadership Program, dedicated to turning YLS students into future leaders through curriculum enhancements, training opportunities, and the forging of stronger student/alumni connections. This presumably isn’t the kind of press for Yale Law that donors like Joseph Tsai—a member of the YLS class of 1990 who’s now worth $9.8 billion, thanks to co-founding the Alibaba Group—were hoping for.

And it comes right in the middle of the review of Gerken’s deanship, to which we now turn. I previously predicted that she would be renewed, but recent events have apparently complicated matters: the decision on whether to renew Gerken as Dean has been postponed to early December.

The faculty, which makes a consensus recommendation to Yale’s president (who usually rubber-stamps it), has a big meeting tomorrow—which sounds like it will be legal academia’s answer to the Red Wedding. The meeting was originally supposed to be about renewing Gerken as dean, but it will now focus on Professor Ian Ayres’s report on their committee's investigation into Trap House-gate. (Gerken appointed Ayres to look into the matter last month.) [UPDATE (12:23 p.m.): Edited to use Professor Ayres’s preferred possessive pronoun, “their.”]

If Dean Gerken wants to be renewed, I think she might have to fire some folks—specifically, Ellen Cosgrove and Yaseen Eldik. This isn’t something Gerken would do willingly; she doesn’t relish admitting mistakes, and rumor has it that Cosgrove is the Littlefinger of the YLS kingdom, a canny operator with all sorts of dirt to spill. But I find it hard to imagine that some heads won’t roll over all this—and if Gerken doesn’t want it to be her head, she’ll have to offer up some others.

If Gerken isn’t renewed, who might be the next dean of Yale Law School? When Gerken was selected in 2017, her main rivals were Professors John Witt and Daniel Markovits, but rumor has it that they’re no longer interested (and I can’t blame them). Professor Tracey Meares might be, but it’s not clear that she has sufficient faculty support. Other names in the mix include Professors Doug NeJaime, Justin Driver, Oona Hathaway, and Kate Stith. (The only name that surprised me a little was Professor Stith, who’s a bit older than the others—but as a respected elder stateswoman, she could be a good transitional figure who could serve a single term, stabilize YLS, and hand over the reins to someone else.)

I reached out to Jane and John Doe’s lawyer—John Balestriere, a YLS alum himself (we overlapped in law school)—and asked him about the timing of the filing. Was it timed in order to affect the chances of Dean Gerken’s renewal?

“I’m not sure how often a dean is renewed, but any timing that may not work for the law school administration is on the law school administration,” he said. “The misconduct took place this spring, we were hired this summer, and we tried for weeks to resolve this before filing.” (He declined to discuss confidential settlement negotiations but claimed that his clients wanted to avoid litigation and were very open to settlement, while Yale was not.)

Yes, the complaints in the lawsuit are high-end complaints—and Balestriere acknowledged as much, noting the privilege of his clients specifically and of YLS more generally.

“On the one hand, these are some of the most blessed, privileged kids in the world, and they should thank God for their blessings,” he said. “On the other hand, they are young people, and a lot of young people feel intimidated by the institution of Yale Law School.”

“Say what you will about her, but Amy Chua went out of her way to help students like my clients, students who might have been intimidated by YLS,” Balestriere continued. “For the administration to try and use these students against her seems like a terrible irony.”

He also pointed out how insular and narcissistic elite institutions like Yale Law can be.

“When I got into Yale, my grandma asked me, ‘Is it like Brooklyn Law School?’ And I said yes—because it is. But in the Yale view of the world, it is not. Institutions like Yale think that they’re at the center of the universe.”

“Don’t get me wrong—I love Yale Law School,” Balestriere said. “I feel blessed that they let me in. I had great teachers, and I made friends that I have to this day. But my clients had claims that could not be resolved by way of settlement.”

“It’s very, very unfortunate.”

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Under normal circumstances, there’s no problem with professors hosting dinner parties with students. But as followers of this story will recall, Chua wasn’t supposed to be having parties because it would (a) violate Yale’s Covid-19 protocols and (b) break a commitment that Chua made to YLS in 2019 “not to invite students to my home or out to drinks for the foreseeable future,” as part of a resolution of allegations that Chua engaged in “excessive drinking” with students and made inappropriate comments. (Chua and Gerken disagreed over the meaning of “the foreseeable future,” which shows the importance of drafting clear contracts.)

As for why someone would have such a vendetta against Amy Chua—other than her two daughters, whom she famously tormented as the original Tiger Mother—it’s a long story that has to do with a whole host of broader social and political issues. See generally All About Amy (Chua), The Law Professor We Can't Stop Talking About, and the sources cited therein. (For the record, the aside about Chua’s daughters was a joke; Sophia and Lulu Chua-Rubenfeld love their mother very much, have spoken out against her critics, and have even expressed gratitude for her extreme parenting style.)

It’s not particularly relevant to the story, but in case you’re curious about the professor who was urged not to hire Jane and John Doe, the Yale Daily News reports it was Paul Kahn, citing multiple sources. (One of my sources, who might or might not be the one the YDN’s sources, also claims it was Kahn.)