Free Speech At Yale Law School: One Progressive's Perspective

You don't need to be conservative to be troubled by goings-on at YLS.

The Yale Law School (photo by David Lat).

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After my open letter to Dean Heather Gerken about the latest free-speech controversy at Yale Law School (“YLS”), a highly disruptive protest by progressive students of a Yale Federalist Society event on March 10, I received supportive (private) feedback from YLS faculty and alumni. But one of my sources at 127 Wall Street expressed pessimism about the situation improving, claiming that the administration is far more strongly aligned with the protesters—and far more indifferent to free speech—than I realize.

As evidence, this source cited the “critical race theory & yale law school” t-shirts that the Office of Student Affairs is giving out right now.¹ The YLS administration is not neutral in the culture wars, said this source, which explains why it approaches speech issues with a thumb on the scale.

I also heard from current Yale law students, and I’d like to share one letter that provides insight into the state of affairs at YLS right now. My correspondent was one of the 400+ law students who signed an open letter expressing support for the March 10 protest, which the letter describes as “peaceful,” no fewer than five times. This student wanted to explain why they signed the open letter—and why they’re troubled by the current intellectual climate at Yale Law.

I’ve engaged in light editing, mainly to preserve the anonymity of the writer—who wants to remain anonymous, for reasons that will become obvious. Here it is (with my commentary in the footnotes):

When I signed the letter, I did so with an understanding that the police were called on the protesters after they had left the room; my signature reflected a belief that the school could have pursued intermediate avenues of intervention to deal with its own students. Your reporting has clarified that police were involved from the outset in accordance with university policy, although I’ve since heard conflicting reports from my peers as to whether uniformed officers were present throughout the event, with some of my peers indicating that plainclothes officers were present initially and that uniformed officers arrived later.²

My signature was not an endorsement of the protesters’ behavior, and it merely reflected a view on the appropriate path of escalation that the administration should take when faced with situations like these. While that means that I didn’t endorse the entirety of the language used in the letter, I signed with an understanding that advocacy is coalitional and that many in the near supermajority of the school that signed the letter did so for reasons like my own. The administrative policy governing police involvement with campus events was unknown to me when I signed, and I've spoken with no one who had knowledge of the policy prior to the administration's response to the letter.³

So I signed to condemn what I thought the administrative response had been and not to endorse the shouting down of an event—and I feel compelled to emphatically denounce such behavior. I have heard that the original plan was to silently walk out at the beginning of the event, and I do think there’s room to discuss how a few extreme actors co-opted the protest.⁴

More leadership from the administration might have ensured a peaceful protest, although I’m not sure. Nevertheless, what happened is not how those hoping to fight for the rights and dignity of others should do so or can do so effectively.

In general, what happened at this protest seems symptomatic of a feature of the student culture here that goes beyond student or administrator attitudes toward freedom of speech and beyond liberal/conservative political differences. Students here seem unwilling to have their beliefs and actions challenged. Many of my peers see the expectation of rigor and precision in classroom discussions and in community deliberation alike as somehow distracting from the normative urgency of their ends (many of which I share).

I’ve heard students deride decidedly liberal professors Dan Kahan and [former YLS dean] Tony Kronman as conservative or bigoted for clearly articulating challenges to student intuitions for pedagogical purposes in classroom discussions. In some cases, student commentary has become absurd in its near-purposeful missing of the point. For example, several classmates accused Kahan of hating women, even as he took pains in the classroom to demonstrate where the law incorporates misogynistic norms.⁵

Even as a progressive, I’ve felt uncomfortable sharing even friendly amendments to certain student views in the classroom. I have a lot of folk explanations for why the intellectual climate is like this (students are increasingly coming back to law school after spending time away from challenging academic environments, the teaching at YLS has never been exactly renowned for its excellence, etc.), but it’s nevertheless frustrating to see truth be treated as unimportant here.

As a progressive, I’m grateful to the conservative academic mentors I’ve had throughout my career for challenging me and for sharpening my thinking. Beyond the epistemic benefits at issue here, though, are the practical realities of advocacy, and my peers are harming their own efforts. To take Traphouse-gate as an example: even though I think Trent should have apologized, I thought it was strategically foolish to use the incident to prosecute a larger grievance against the Federalist Society.

I think the Federalist Society has caused real harm to the country, and that’s exactly why students should take care to ensure that they aren’t helping the organization build sympathy for itself through grievance politics. Even if the outcry had brought meaningful change to YLS (it didn’t), YLS is such a small, elite place, and students should consider the tradeoffs between molding YLS in their own vision and having an impact on the real world.⁶

Moreover, Traphouse-gate made it hard to ask whether having a DEI dean actually advances campus inclusion in a meaningful way (nope) by sorting students into pro- or anti-FedSoc camps. In the present case, this takes the form of sanctimonious Wall emails reminding us that Dr. King was unpopular and so we shouldn’t pay attention to pushback, and there’s no real room to remind peers that Dr. King and the Movement generally were responsive to public opinion and that there’s good social science on which protest methods effectively promote agenda-seeding.

All of this is to say that I often share my peers’ politics, but I think we need to adopt a collective ethic of responsibility for the tactics we use in pursuit of those politics because the stakes really are often high. Here, the ADF's advocacy against LGBT+ rights is abhorrent, but students should understand that we can't just cancel everyone with abhorrent beliefs (most people in some capacity). Students should recognize how attempting to do so at an event unconnected to those beliefs only empowers groups like ADF.⁷

Obviously, I don't think FedSoc is picking the speakers best positioned to articulate a view rigorously and in a way that will be productively received on campus. That's frustrating from a group that claims to be a truth-seeking debate society. But that doesn't justify a counterproductive reaction.

I know I’ve said too much, but I just want to affirm that even from my own progressive perspective, something is amiss with the civic and intellectual culture on campus. That background context makes it especially difficult to figure out what actually happened in situations like these and to make nuanced contributions to the campus conversation around them (such as by bifurcating the question of administrative response from that of whether the protest tactics were legitimate).

I apologize if this has been a bit ranty, but this incident has really highlighted features of the YLS student experience that I find unproductive. And maybe my views are horribly defective in some way. If so, I wish the intellectual and social climate at YLS would empower me to have the probing conversations needed to see them as such, and I lament that I don't feel like I can have those kinds of honest, searching conversations now.

I thank the writer of this letter for taking the time to put together such a detailed and thoughtful analysis of the intellectual environment at Yale Law School today. As someone who had a wonderful educational experience at YLS, where I was able to debate the most contentious issues of the day with classmates from across the ideological spectrum, I’m saddened by the current state of my alma mater.

And I don’t think I’m viewing my time at Yale Law through rose-colored glasses; it was a remarkable intellectual environment for decades before I arrived. Here’s what Peter Kalis, former chairman of K&L Gates and a member of the YLS class of 1978, wrote in a recent comment in these pages:

In 1972, as a 22-year-old fresh out of West Virginia University, I surveyed the Yale Law School dining hall and saw Bill Clinton, Hillary Rodham, Sam Alito, Rob Reich, Clarence Thomas, Dick Blumenthal, and other eventual stars in the legal firmament. I was struck with how confident they were in their often opposing views and yet how respectful they were to each other. They were abundantly talented young adults preparing to play major roles in American life.

And on the faculty I saw Eugene Rostow, Lou Pollak, Clyde Summers, Ralph Winter, Harry Wellington, Abe Goldstein, Alexander Bickel, Ellen Peters, Guido Calabresi, and other extraordinary scholars and public intellectuals. Again, they were entirely respectful (as best as I could tell) to each other, even though their views on legal issues often collided. Gene Rostow and Lou Pollak, whose views of constitutional law were less than fully aligned, co-taught my Constitutional Law II course!

My experience at Yale Law School transformed my life, not least because it taught me to listen and think, and I’m thus terribly saddened to watch it as it exists today. I’m not close enough to say who is to blame, as there would appear to be a deeply rooted intolerance in much of the American academy, but the Dean’s leadership has been less than inspiring. I am close enough to conclude, however, that Yale Law School is unlikely to be part of any solution. Those days are over.

I’m not ready to give up on my alma mater, but I know some grads who have. As one wrote to me, “David, this is a wonderful letter. I am strangely moved by your obvious affection and concern for YLS as an institution. I know this doesn’t speak well of me, but I'd be happy to see it burn.”

P.S. In other YLS news, the plaintiffs just filed their opposition to the motion to dismiss in Stubbs v. Gerken, the lawsuit filed by two Yale law students against the law school and three administrators, including Dean Gerken, arising out of the earlier scandal known as Dinner Party-gate. You can read the plaintiffs’ opposition, filed by John Balestriere, Matthew Schmidt, and Andrew Bowman, by clicking below. My quick take: I find it persuasive on a number of points, especially the defamation and defamation-adjacent claims, and I stand by my prior prediction that at least some of the claims will make it past the motion-to-dismiss stage.

Stubbs v. Gerken: Plaintiffs' Opposition to Defendants' Motion to Dismiss

238KB ∙ PDF file

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The plaintiffs' memorandum of law in opposition to the defendants' motion to dismiss.

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1. The CRT t-shirts were first reported on by Aaron Sibarium, who normally writes for the Washington Free Beacon but just wrote a long essay for Bari Weiss’s Substack, The Takeover of America’s Legal System. It’s an excellent deep dive into how “wokeness” is taking over not just American law schools but the legal profession more broadly, which is why these seemingly silly controversies matter: they spread beyond the legal academy and into the world of practice, with significant consequences for our system of justice.

2. This is consistent with what I’ve heard. Because one of the speakers at the March 10 event, Kristen Waggoner of the Alliance Defending Freedom (“ADF”), had her own private security detail, the Yale University Police Department sent its own team as well—plainclothes officers at first, uniformed officers later. But my understanding is that, contrary to some earlier reports, the uniformed officers were not summoned by Dean Gerken or the YLS administration; instead, it appears they were called by their plainclothes colleagues, who presumably felt that a larger and more visible presence was needed in light of the size and rowdiness of the crowd.

3. In hindsight, the YLS administration should have sent out an email before the event that restated the university’s policies on free expression, acceptable forms of protest, and the circumstances under which police will be present at a protest. If the administration had done this, perhaps some of the problems could have been avoided.

4. A silent walk-out, a popular and powerful form of protest, would have been perfectly appropriate. On Twitter, I suggested several forms of protest that would have been better than an attempted shout down, and a silent walk-out was one of them. And given that the protesters vastly outnumbered the earnest attendees, a walk-out would have left a nearly empty Room 127, making clear that the opposition to the ADF, the conservative nonprofit that was the object of the protesters’ ire, vastly outweighed any possible support.

5. If professors can’t play “devil’s advocate” without being tagged as bigoted, how are law students expected to develop the skills of analysis and argument that will be required of them as lawyers? In an adversarial system of justice, successful lawyers need to understand both sides of an argument, even if they think one side is offensive, oppressive, or wrong.

6. To echo my correspondent, I think that some of the progressive YLS students are not playing the long game. They could learn a lesson from Judge Ketanji Brown Jackson, who will most likely soon become Justice Ketanji Brown Jackson.

When she was an undergraduate at Harvard, someone hung a Confederate flag from a dormitory window, angering members of the Black Students Association (“BSA”). So they protested, they marched—but Jackson urged her fellow BSA members not to overdo it, not to focus so much on activism to the point that they neglected their studies. Progressive students at YLS should learn from her and spend less time protesting and more time studying, so they can succeed in law school, rise to positions of power in the legal profession, and bring about progressive change on a much larger scale.

Speaking of Judge Jackson, her confirmation hearings are unfolding as expected, she’s doing an excellent job in the witness chair, and I don’t have much to add to my prior post. But if you do want more of my views, please see my Twitter feed or this Slate piece by Mark Joseph Stern, with which I largely agree. He notes that Judge Jackson is sounding surprisingly originalist—and it’s a shrewd move on her part.

You can also tune in on Friday afternoon to a Twitter Spaces conversation that will review the hearings. Neysun Mahboubi will moderate a discussion featuring Michael Dorf, Dahlia Lithwick, Cristina Rodriguez, Kate Shaw, and me.

7. As the letter writer reminds us, the March 10 event had nothing to do with ADF’s controversial stands on LGBTQ+ issues. Rather, it was a discussion of Uzuegbunam v. Preczewski, a Supreme Court decision about remedies for free-speech violations that was decided 8-1, and the event featured two speakers from opposite sides of the ideological spectrum: Kristen Waggoner of the conservative ADF, and Monica Miller of the progressive American Humanist Association (AHA).

On the subject of empowering ADF, it’s already fundraising off the YLS debacle. So the protesters, in addition to disrupting a student event, multiple classes, and a faculty meeting at Yale Law, may have generated money for ADF and bad publicity for themselves (like this Washington Post column by Megan McArdle and this Wall Street Journal editorial).