In Defense Of Yale Law Dean Heather Gerken

Here's why NOT to drop the dean.

I nominate Sarah Paulson (left) to portray Dean Heather Gerken (right) in The Dean, a new series based on all the drama at Yale Law School.

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Ask and you shall receive. Ahead of the big faculty meeting tomorrow to discuss giving Heather Gerken another five-year term as dean of Yale Law School, I made a request of my readers: I asked to hear from defenders of Dean Gerken and the YLS administration more generally. And I definitely did hear from them.¹

Thanks to everyone who responded to my request. I will now share what I learned, in an effort to balance out the critical coverage in these pages. I’ll start off by sharing the new facts that I learned, and then I’ll turn to the opinions.

1. Fundamental changes are coming to the Office of Student Affairs.

None of the people who contacted me offered a full-throated defense of how the Yale Law School administration has handled the various controversies that erupted in 2021, including Dinner Party-gate, Trap House-gate, Antiracism Training-gate, and FedSoc-gate. And that’s not surprising; as Dean Gerken herself has acknowledged, mistakes were made. But her supporters argue that she has learned from these mistakes—and that positive changes will be made if she is reappointed.

More specifically, Dean Gerken will be implementing major reforms at the Office of Student Affairs (“OSA”), which has been involved in all four of the scandals mentioned above. The changes will circumscribe the powers of OSA and cabin its jurisdiction, to prevent abuses like the ones we saw in Trap House-gate, and they will aim to treat all student groups fairly and to place them on equal footing, to avoid a repeat of FedSoc-gate.

I didn’t get much in terms of the details, many of which are still being worked out. One possible change I heard about is adding some type of training focused on free speech and civil discourse, to complement the extensive offerings on Diversity, Equity, and Inclusion (“DEI”) that are already part of orientation. And yes, expect to see changes made to the roles and responsibilities of associate dean Ellen Cosgrove and DEI director Yaseen Eldik, the two figures at the center of many of the controversies.²

That’s the big picture. And it’s a response to folks who fear that reappointing Dean Gerken will lead to more of what we’ve seen this year from OSA.

2. The complaint about leaking in Dean Gerken’s school-wide email was not aimed at Trent Colbert.

Turning to a more minor matter, Dean Gerken received criticism, in these pages and elsewhere, for the following language from the community-wide email she sent out last month:

I expect the committee [appointed to investigate recent events] will address steps we can take as a community to create an environment in which people can disagree as well as our norms surrounding secretly recorded conversations and the sharing of private correspondence without permission.

This language was widely understood as a criticism of Trent Colbert, the 2L who sent the “trap house” email and then surreptitiously recorded conversations when administrators met with him about it. And one can understand why it was read this way, since Colbert is the actor in this drama who first springs to mind when you mention secretly recorded conversations.

But it appears that Colbert isn’t who Dean Gerken had in mind. Instead, according to multiple sources, her comment was aimed at faculty who have been leaking information about confidential, internal deliberations to the press.

In June, Sarah Lyall and Stephanie Saul of the New York Times wrote an article about Dinner Party-gate that described an April 21 faculty meeting in impressive detail. How were Lyall and Saul able to produce this kind of reporting? Because, as they note in their article, “at least one [professor] secretly recorded the meeting”—and apparently shared that recording with the Times reporters.

One of my sources said that Gerken’s ire over such leaks is justified. Faculty members have different obligations than students when it comes to respecting the confidentiality of internal meetings—and this is for understandable reasons, to promote candid discussion of sensitive issues. If faculty members fear that they’re being recorded at meetings, they will be less likely to speak honestly—or at all—and the quality of deliberations will be harmed. Indeed, even some of Gerken’s critics have complained about the secret recording of faculty meetings.

With the benefit of hindsight, this language from Gerken’s email should have been written so it sounded less like a call-out of Trent Colbert. But viewing it in this new light, it does become somewhat less objectionable.

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Now, on to the opinions. Here’s what one alum who is personally close to Gerken (but hasn’t spoken to her about these events) had to say:

My sense is that Traphouse-gate, at least, stems not from any dislike of FedSoc on Heather’s or the administration's part, but rather from a desire to avoid conflict with the extremely vocal activist left. I think (again, all of this is surmise) that the Kavanaugh confirmation was a searing experience for Heather and the administration, and they emerged from it thinking that they had to work harder to ensure that they were sensitive to the concerns of progressives on campus.

That doesn't justify the overreaction to Trent's e-mail. But I think it's (much!) more accurate to think of Heather as trying to steer the ship between Scylla and Charybdis than looking for excuses to target conservatives. All of the conservatives I know were originally excited about having Heather as dean; she was very friendly to FedSoc while a law professor. I just think the world of YLS post-2018 makes it genuinely very difficult to accommodate everyone.

I agree with this assessment. I don’t think that Gerken has any personal antipathy toward FedSoc—and, in fact, she has even been supportive of the organization (e.g., by attending events, such as a reception for the chapter held at the home of its faculty adviser). I think it’s more that, as discussed in my last post, she is excessively deferential to certain student groups on the left—and when those groups or their leaders clash with FedSoc, she and her administration have, at least in the recent past, invariably sided with the anti-FedSoc groups.

Here’s the take of another alum, who has a similar view:

I consider myself #TeamGerken. Heather is smart, energetic, and inspiring to the people who work with her. She genuinely wants to do the right thing. It’s hard to ask for much more in a dean, and I support her reappointment.

However, I’m not uncritical. I think she made a common mistake among leaders: she didn’t make the transition from campaigning to governing.

During the dean selection process, Heather campaigned as the “diversity dean.” She had the background for this, having co-chaired a committee that prepared a widely admired report on diversity issues, and she promised to focus on improving diversity at YLS if selected. This campaign theme had the advantage of subtly playing up the history that would be made by choosing her as the first female dean, without explicitly playing the “woman card.” [Ed. note: Gerken’s main rival for the deanship was Professor John Witt—another acclaimed scholar, but a cis straight white male.]

After becoming dean, with strong support from minority communities, Heather adopted a “dance with the one that brought you” mindset and continued to see herself as “diversity dean,” i.e., a dean for minority students and affinity groups. She failed to transition into a dean for ALL of YLS.

This is a common mistake of leaders and something that’s definitely fixable. If anything good has come out of recent events, it’s that Heather now knows there are squeaky wheels on BOTH sides, not just the left. Just that knowledge alone will make her a better dean. So I would give her the benefit of the doubt, give her the chance to course-correct, and vote for reappointment.

Finally, here are some miscellaneous points that pro-Gerken sources made to me:

1. Any assessment of her deanship must begin her many accomplishments. Some of the ones I’ve mentioned before include diversifying the student body, diversifying the faculty, strengthening ties with alumni, launching a new leadership program, and prolific fundraising. But there are others, such as strengthening YLS’s clinical programs—she founded and continues to run one of them, the San Francisco Affirmative Litigation Project (SFALP), juggling it with the duties of the deanship—and seeing Yale Law through the challenges of the pandemic, which is no small feat.

2. The controversies have been greatly overblown. For example, take Trap House-gate: the administrators behaved terribly, but at the end of the day, nobody was actually disciplined. Many other episodes in the “Woke Revolution” are so much worse than anything that has happened at YLS, and comparisons to Maoism are simply ridiculous.

3. Dean Gerken’s missteps are not as major as the media coverage would make you think. It’s just that because YLS is the number-one law school in the country, it’s placed in the spotlight, and things that happen there become national news. So yes, Gerken has made mistakes—but they’re not nearly as large as the headlines would suggest.

4. If one’s major concerns with Dean Gerken relate to issues of free speech and ideological diversity, is there any plausible replacement who would be significantly better on these matters? Nobody readily springs to mind.

What comes next? The faculty will meet tomorrow to discuss renewing Dean Gerken, but the timing of an actual vote is unclear; it might happen tomorrow, or it might happen at a later meeting. After the faculty vote, then Yale President Peter Salovey must approve the recommendation—typically a formality, but perhaps a more searching and substantive review this time. [UPDATE (10:27 a.m.): There is actually no formal vote of the faculty. Instead, the Dean Review Advisory Committee makes a recommendation, which they then discuss with the faculty at meetings like the one tomorrow—but there is no formal, up-or-down, roll-call vote.]

So we might not know the outcome for a while. If we don’t hear anything immediately, it doesn’t mean Gerken’s reappointment is in jeopardy; as I’ve previously predicted, I expect her to be renewed.

Looking ahead, things will presumably settle down at Yale Law School at some point. But YLS isn’t the only law school grappling with these issues; we have seen controversies elsewhere. If you’re aware of threats to free speech at any other law school, whether those threats come from the right or the left, please reach out to me.³

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1. I also asked for casting suggestions for The Dean, the series I’d like to write based on recent drama at YLS. I originally thought of Naomi Watts to portray Heather Gerken, but a reader made an even better suggestion: Sarah Paulson (especially if casting her can convince Ryan Murphy to produce and direct).

2. Some observers have wondered why action hasn’t been taken against Cosgrove and Eldik already. It appears that Dean Gerken and the YLS administration have been proceeding cautiously regarding Cosgrove and Eldik out of an understandable concern for their well-being right now. Ever since Trap House-gate became public in October, the two administrators have received all sorts of abusive and harassing messages—including death threats—from people outside the YLS community. There are many (justified) criticisms that can be leveled at the two administrators regarding their handling of recent events, but obviously they should not be subjected to abuse and harassment.

3. For example, I have received reports about a controversy where a lateral hire might have been denied tenure, despite support from the law school’s faculty and dean, because someone on the Board of Trustees objected to ideological aspects of this academic’s scholarship, which the trustee saw as too liberal. If you know what I’m referring to and have information to share, please let me know; I’m concerned about threats to academic freedom regardless of where they come from on the ideological spectrum.