Is Yale Law School Turning Over A New Leaf?
Judges James Ho and Lisa Branch, leaders of the Yale Law boycott, are heading to YLS—at the invitation of Dean Heather Gerken.
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For the past year or so, I’ve been speaking all over the country about free-speech problems at American law schools. The institution that figures most prominently in my talks is Yale Law School—partly because it’s the longtime #1 law school and top producer of law professors and deans, making it a trendsetter in legal academia; partly because it’s the school I know the best, as my alma mater; and partly because it has had more high-profile controversies over free speech and cancel culture than any other school. If you look at the most popular stories in the history of Original Jurisdiction—which will celebrate its second anniversary in December, so thank you for your support—six out of the top ten posts are about Yale Law.
During the always vigorous question-and-answer sessions at my talks, I’m frequently asked: will things improve? A positive person by nature, I say yes, but this was often more wish than prediction.
Now I feel a stronger basis for optimism—and one thing giving me hope is recent news out of Yale Law. Some of this news emerged last week, when I was away on vacation, so I’ll double back to cover it. But I’ll begin with previously unreported news.
In the wake of the announcement of Judge James Ho (5th Cir.) that he would no longer hire clerks from Yale Law School, a boycott joined so far by Judge Lisa Branch (11th Cir.) and a dozen other judges who wanted to remain nameless, Dean Heather Gerken has been quietly reaching out to prominent conservative jurists. Her message: YLS is deeply committed to free speech and intellectual diversity, it has taken concrete steps to support that commitment, and as dean, she welcomes hearing from judges about what else can be done to promote and protect academic freedom at Yale Law—including Judges Ho and Branch, the progenitors of the YLS boycott.
A week ago today, on Thursday, October 13, Judges Ho and Branch responded to Dean Gerken’s outreach with a letter (which you can download via the embed above). Here’s how it begins:
Wowzers! I share the judges’ hope that the panel can take place before January 17—because I don’t know if I can wait that long for such an epic event.
Substance aside, I suspect that the reception to Judges Ho and Branch will determine whether they actually push through with their boycott (which both judges have explained doesn’t apply to current YLS students and graduates, only future students—so in a sense it hasn’t really taken effect yet). If Judges Ho and Branch receive a cool but ultimately civil reception from Yale Law’s overwhelmingly progressive student body, then I expect the judges to stand down. But if they get shouted down at YLS, as Kristen Waggoner of the ultra-conservative Alliance Defending Freedom did this past March, that will powerfully prove that Yale’s free-speech problems are profound—and might get even more judges to publicly hop on the anti-YLS bandwagon.
The rest of the judges’ four-page letter—which I urge you to read in full, along with Judge Ho’s forthcoming article in the Texas Review of Law & Politics, Agreeing to Disagree: Restoring American by Resisting Cancel Culture—is an eloquent defense of free speech, open discourse, and civil disagreement. The last two pages respond to a statement by Dean Gerken that was posted on the YLS website last Wednesday, October 12, A Message to Our Alumni on Free Speech at Yale Law School (“Alumni Message”). So I’ll walk you through that statement now, offering reporting and opinion of my own, as well as comments from the Ho/Branch letter. (The Alumni Message was previously covered by Karen Sloan and Nate Raymond of Reuters, Brad Kutner of the National Law Journal, and Debra Cassens Weiss of the ABA Journal.)
Here’s how Dean Gerken’s Alumni Message begins (all hyperlinks in the original):
Dear members of our alumni community:
Yale Law School is dedicated to building a vibrant intellectual environment where ideas flourish. To foster free speech and engagement, we emphasize the core values of professionalism, integrity, and respect. These foundational values guide everything we do.
So far, so good. Please proceed, Dean Gerken.
Over the last six months, we have taken a number of concrete steps to reaffirm our enduring commitment to the free and unfettered exchange of ideas. These actions are well known to our faculty, students, and staff, but I want to share some of them with you as well.
Last March, the Law School made unequivocally clear that attempts to disrupt events on campus are unacceptable and violate the norms of the School, the profession, and our community.
I don’t view Dean Gerken’s statement on the infamous March 10 protest as making “unequivocally clear” that what transpired was unacceptable; to the contrary, I found her statement rather… equivocating. But instead of repeating myself, I’ll simply incorporate by reference my earlier exegesis of her comments. I would also refer you to page 3 of the Ho/Branch letter, in which the judges similarly criticize YLS’s handling of the March 10 protest and refute the attempt to defend that handling.
Back to the Alumni Message:
I will spare you—and me—from a painstaking parsing of the updated disciplinary code, which runs to seven single-spaced pages. For now, here’s a concise explanation of the latest revisions that was provided to me by Professor Claire Priest, who served on the faculty committee responsible for the changes:
I am writing because it was so disappointing to hear that Judge Ho and other judges called for a hiring freeze on YLS clerks due to the disruptive protests against Alliance Defending Freedom last year. Since last January, I have served on a committee led by Professors Oona Hathaway and Tracey Meares that rewrote the rules of the law school. One of the first revisions we made clarified that “reckless” disruptions of law school events are major violations of the code.
Since the 1970s, the school has been governed by the Rights and Duties (“R&D”), which was poorly written and vague, and resulted in an environment where the Dean and administrators were effectively in charge of all discipline. After the ADF protest, Dean Heather Gerken constituted a committee to rewrite the rules to make it explicit that reckless disruption of classes, events, and the business of the law school will constitute a major violation of our rules going forward. Unfortunately, we did not feel we could publicize this until September 21, when the faculty unanimously voted for the new code. The revised code also clarifies the procedures we will use and takes much of the disciplinary work out of the hands of our student-facing administrators.
One thing I’d highlight from Professor Priest’s message: the committee that led the R&D revision was appointed last January—after the scandals known as Dinner Party-gate, Trap House-gate, and Antiracism Training-gate, but before Protest-gate, and well before the Ho-led boycott. So while Judge Ho can take credit for highlighting YLS’s free-speech problems and restarting the conversation about them after the summer break, the process of revising the R&D was underway long before that.
Now let’s turn to YLS’s adoption of a policy prohibiting surreptitious recordings, which the Alumni Message claims “mirrors policies that the University of Chicago and other peer institutions have put in place to encourage the free expression of ideas.” Judges Ho and Branch question both the policy and Dean Gerken’s defense of it in their letter:
Congratulations, Dean Gerken! You just got Judge Jim Ho and Professor David Bernstein to agree with Joe Patrice—no small feat. Both Professor Bernstein, writing at the Volokh Conspiracy, and Joe Patrice, writing at Above the Law,
think this is a load of BS share Judge Ho’s skepticism of the recording ban and the purported justification for it. See also this take that a current YLS student shared with me:
It is a stretch to say that this policy was implemented “to encourage the free expression of ideas.” Rather, this is clearly a response to Trent [Colbert]'s recording of his meetings with OSA [Office of Student Affairs] during Trap House-gate. The purpose of those recordings was to hold the administration accountable for their egregious actions taken behind closed doors. Dean Gerken floated the idea of adding this recording restriction as early as November 17, 2021, in her statement to the Law School responding to Trap House-gate. To now try to frame this policy as a triumph for speech—rather than recognizing it as a way to decrease transparency and accountability for the administration—is rather disingenuous.
Still with me? Okay, back to the Alumni Message:
We developed an online resource outlining our free speech policies and redesigned Orientation to center around discussions of free expression and the importance of respectful engagement. Virtually every member of the faculty spoke to their students about these values on the first day of class.
Excellent. As I have said on multiple occasions, if orientation is going to include training on diversity, equity, and inclusion—and sometimes very bad training on DEI—it should also include training on “free expression and the importance of respectful engagement,” which are essential to YLS’s academic mission.
We replaced our digital listserv with what alumni fondly remember as “the Wall” to encourage students to take time to reflect and resolve their differences face-to-face.
As an alum from the days of the physical Wall, I supported this shift away from a listserv. Sure, we had controversies on the physical Wall, but nothing remotely resembling the flame wars you see on law school listservs today. Having to handwrite or type out your thoughts and then affix them to a physical wall, like Martin Luther and his 95 Theses, inherently slowed down communication, promoting a salutary cooling of tempers and preventing instantaneous pile-ons like Trap House-gate.
Alas, not surprisingly, enterprising law students have already found a way around the physical Wall, as a current student explained to me:
Almost immediately after “the Wall” was disabled, students used the mailman.yale.edu listserv to create a replacement, “the Window.” While the Window is not officially sanctioned by the Law School and requires people to opt-in, it is open to all members of the Law School Community and has basically just replaced the Wall under a new name. Almost no one uses the physical Wall for posting. I think that it would have been great if the physical Wall took off, but the Window has rendered it obsolete.
This is, by the way, exactly what one former YLS administrator predicted to me would happen when the idea of returning to a physical Wall was first mentioned back in July. Per this ex-administrator’s admittedly cynical (but not necessarily wrong) assessment, the current YLS administration simply wanted less to monitor, which was the main advantage of a (not very active) physical Wall. Because the Window is not officially hosted by YLS, no one from the administration has any responsibility for it.
Continuing with the Alumni Message:
We welcomed a new Dean of Students who is focused on ensuring students learn to resolve disagreements among themselves whenever possible rather than reflexively looking to the institution to serve as a referee.
As I previously mentioned on Twitter, Dean Jennifer Cerny, who joins YLS from the University of Connecticut School of Law, will serve as dean of students on an interim basis, for the 2022-2023 academic year.
Reading between the lines of this bullet point: rejoice, alumni, because the two administrators behind most of the scandals, former dean of students Ellen Cosgrove and former DEI director Yaseen Eldik, are no longer at the Office of Student Affairs. Cosgrove retired over the summer, and Eldik, while still employed at YLS, is no longer in a student-facing role. (I don’t have his exact title, but my understanding is that he’s focused on DEI issues in the law-teaching world.)
And here’s the final paragraph of the October 12 Alumni Message:
This important and ongoing work takes place against the backdrop of long-standing efforts to encourage the robust exchange of ideas that is essential to any academic community. In all of these efforts, our core model remains the same—we know that the best way for our students to learn is by engaging with their peers and faculty in small, iterative conversations within our community. While this work often is not visible to the wider world, the Law School is moving forward on its central commitments and we are focused on educating the next generation of lawyers and instilling them with the values so many of us hold dear. I’m grateful for your unfailing support and love of the School.
Heather K. Gerken
And that’s all she wrote. Was it perfect? No; nothing is (with the possible exceptions of All About Eve and Clueless). But was it good, even very good? Yes. Coupled with the underlying policy changes and Dean Gerken’s outreach to conservatives—going so far as to invite to campus the two judges leading the YLS boycott—it’s an auspicious beginning to the first academic year of her second term as dean.
My friends at the Foundation for Individual Rights and Expression (“FIRE”),who have also not been afraid to criticize Dean Gerken and YLS in the past, similarly described themselves as "(very) cautiously optimistic" about what lies ahead at Yale Law. Alex Morey, FIRE’s Director of Campus Rights Advocacy, characterized the Alumni Message as “a strong (albeit imperfect) statement,” as well as “a promising first step for Yale’s law school, at least, toward meeting these critical obligations. FIRE remains hopeful the broader university’s dark, censorious days may soon be history.”
There are other reasons for optimism about the way things are going at YLS. I have heard from current students and recent alumni that things are settling down—partly because some of the most acrimonious activists graduated last year, and partly because the new 1Ls seem to be a serious group of students who are interested in learning the law rather than deconstructing it.
We’re several weeks into the new school year, and we have not yet had another Trap House-gate or Protest-gate. Noted Supreme Court advocate Kannon Shanmugam came to YLS to offer his traditional SCOTUS Term Preview to the Yale Federalist Society, and he was not protested—unlike last year, when he was protested because his law firm, Paul Weiss, represents ExxonMobil.
In a recent interview for the Yale Federalist Society, Visiting Professor Steven Calabresi—himself an alum of Yale Law, where he co-founded the Federalist Society—summarized several positive developments (parentheticals correspond to where the relevant material appears in the YouTube video):
Dean Cosgrove retired (34:55), while Yaseen Eldik has been “assigned to other duties that don't involve interaction with law students” (35:07);
Dean Gerken has hired a new dean of students who respects free speech (35:24);
prominent conservative law professor Saikrishna Prakash is visiting at Yale this fall (36:36); and
Dean Gerken expressed support to Professor Calabresi for tenuring Professor Prakash (36:48).
If Professor Prakash can be wooed away from UVA Law, and if Dean Gerken can add a few more prominent conservatives who teach public law, that will go a long way toward changing the intellectual climate at YLS. It’s the strategy that then-Dean Elena Kagan pursued at Harvard Law School, which explains a lot about the difference in the intellectual environments at YLS and HLS these days.
So over the past few months—at 1L orientation, in the August 18 email from Dean Gerken to the student body, and in the October 12 message to alumni—Yale Law School has been saying the right things about free speech, intellectual diversity, and civil discourse. And it has been adopting improved policies about all of these subjects.
But as lawyers well know, there’s a huge difference between what rules are on the books and how those rules get enforced. As Judges Ho and Branch write in their letter, “As members of the legal profession, it’s in our DNA to ask whether such statements reflect reality or are nothing more than parchment promises.” We’ll have a better idea of that on or before January 17, 2023, when the two jurists make their fateful journey to the Elm City to see if YLS has turned over a new leaf.
Until then, we shouldn’t hesitate to shine the limelight back on Yale if another free-speech debacle transpires. As Justice Brandeis famously quipped, “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”
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Since my original story about Judge Ho’s YLS boycott, other judges have weighed in, both in favor of and against the boycott. Per Karen Sloan and Nate Raymond of Reuters, Avalon Zoppo of the National Law Journal, and Madison Alder of Bloomberg Law, Judges Ralph Erickson (8th Cir.), Theodore McKee (3d Cir.), Diarmuid O’Scannlain (9th Cir.), Jerry Smith (5th Cir.), J. Harvie Wilkinson (4th Cir.), and Diane Wood (7th Cir.) have either criticized the boycott or announced they would not be joining it. Meanwhile, Judge Edith Jones (5th Cir.) didn’t join the boycott, but echoed Judge Ho’s cancel-culture concerns.
Similarly, law professors have come out on both sides of the boycott. Over at the Volokh Conspiracy, Josh Blackman lauded it, while Eugene Volokh criticized it. Unlike some critics, though, Professor Volokh didn’t question Judge Ho’s motives, acknowledging that Judge Ho “is seriously concerned about free speech for everyone, left or right”—a concern reflected in pro-free-speech rulings from Judge Ho that favor both liberals and conservatives. Instead, Professor Volokh argued that “we shouldn't threaten innocent neutrals”—here, law students seeking clerkships—”as a means of influencing the culpable.”
It might be more plausible to argue that Judge Ho’s boycott played a role in the public posting of the Alumni Message—but I doubt that, for two reasons. First, the policy changes set forth in the Alumni Message were all in the works before Judge Ho announced his boycott on September 29 (and had to be, given all the steps involved, such as committee deliberations and a faculty vote). Second, the Alumni Message overlapped significantly in its themes with an email that Dean Gerken sent to the YLS student body back on August 18, in which she emphasized the importance of free speech and civility.
I ran my thinking by YLS Associate Dean and Chief of Staff Debra Kroszner (who still wears the media-relations hat at the law school). She confirmed that the Alumni Message was in the works well before Judge Ho announced his boycott—i.e., Judge Ho’s boycott triggered neither the Alumni Message nor its public posting. It also makes sense that the Alumni Message was posted on October 12 because it gave alumni a week to read and digest the message ahead of YLS Alumni Weekend, which is this coming weekend (October 21-23).