The Latest (Ridiculous) Controversy At Yale Law School

'Cancel culture' gets crazier.

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Yale Law School is the nation’s number-one law school—for drama. Just a few short months after “Dinner Party-gate,” we have a fresh controversy at 127 Wall Street: “Trap House-gate.”

Aaron Sibarium broke the news yesterday in the Washington Free Beacon:

Administrators at Yale Law School spent weeks pressuring a student to apologize for a "triggering" email in which he referred to his apartment as a "trap house," a slang term for a place where people buy drugs. Part of what made the email "triggering," the administrators told the student, was his membership in a conservative organization.

The second-year law student, a member of both the Native American Law Students Association (NALSA) and the conservative Federalist Society, had invited classmates to an event cohosted by the two groups. "We will be christening our very own (soon to be) world-renowned NALSA Trap House … by throwing a Constitution Day Bash in collaboration with FedSoc," he wrote in a Sept. 15 email to the Native American listserv. In keeping with the theme, he said, the mixer would serve "American-themed snacks" like "Popeye’s chicken" and "apple pie."

Here’s the email, in all its glory, so you can judge for yourself:

As Sibarium reports:

Within minutes, the lighthearted invite had been screenshotted and shared to an online forum for all second-year law students, several of whom alleged that the term "trap house" indicated a blackface party.

"I guess celebrating whiteness wasn’t enough," the president of the Black Law Students Association wrote in the forum. "Y’all had to upgrade to cosplay/black face." She also objected to the mixer’s affiliation with the Federalist Society, which she said "has historically supported anti-Black rhetoric."

Blackface? Did I miss something?

Twelve hours after the email went out, the sender was summoned to the law school’s Office of Student Affairs, where associate dean Ellen Cosgrove and diversity director Yaseen Eldik informed the sender that they had received no fewer than nine discrimination and harassment complaints based on his email message:

At a Sept. 16 meeting, which the student recorded and shared with the Washington Free Beacon, associate dean Ellen Cosgrove and diversity director Yaseen Eldik told the student that the word "trap" connotes crack use, hip hop, and blackface. Those "triggering associations," Eldik said, were "compounded by the fried chicken reference," which "is often used to undermine arguments that structural and systemic racism has contributed to racial health disparities in the U.S."

Eldik, a former Obama White House official, went on to say that the student’s membership in the Federalist Society had "triggered" his peers.

"The email’s association with FedSoc was very triggering for students who already feel like FedSoc belongs to political affiliations that are oppressive to certain communities," Eldik said. "That of course obviously includes the LGBTQIA community and black communities and immigrant communities."

Some have expressed skepticism toward the Free Beacon, given its conservative orientation, but you don’t need to rely exclusively on its account. Since the conversation was recorded, you can listen for yourself (and I encourage you to do so).

Until this point, I have generally said little (publicly) about so-called “cancel culture”—a loaded term, which I use with reservations—and about related issues of free speech and intellectual diversity. Some complaints about cancel culture lack merit. Some come from powerful people who don’t like sharing the stage with people from historically marginalized groups. Some come from people who deserve to be held accountable for their hurtful words and deeds.

But this particular episode is causing me to stick my head out of my foxhole. First, it involves my alma mater, Yale Law School—where recent events, including not just this incident but also “Dinner Party-gate,” have made me worried about the state of intellectual freedom at the school. Second, there’s a point where things have just gone too far, gotten too absurd—and I fear we might have reached that point at YLS.

I don’t doubt that some students at Yale felt genuinely offended by the trap-house email. But with all due respect to folks who feel differently, there’s nothing about this email that rises to the level of “discrimination” or “harassment.” It might be, as Mark Joseph Stern suggests in Slate, “juvenile” and “unprofessional.” It might be—in the words of one of my YLS sources, a woman of color—“kinda dumb,” an attempt at humor that fell woefully flat. But the email is not discriminatory or harassing.

Let’s do a close reading of the “trap house” email—starting with the term “trap house,” which seems to be the gravamen of the alleged offense. Taking this term by itself, most folks these days would associate it with the popular podcast Chapo Trap House—a show hosted by three white men, whose name hasn’t been the subject of any uproar, at least as far as I know.

Placing the term in the context of a party invitation like this email, most readers would think of… beer. As Aaron Sibarium of the Free Beacon explains, “Once associated with inner city crack dens, ‘trap house’ has also become generic slang for any place where young people can score beer.”

Now, could someone write an erudite, historically informed analysis arguing for why “trap house” should be considered offensive? Sure—and Yaseen Eldik, in his lecture to the sender of the email, has provided a helpful outline. But if you have to write a mini-dissertation on why something should be seen as offensive—or deliver a twenty-minute speech, as Eldik did—then it’s… probably not offensive.1

Turning to the rest of the email, sometimes Popeye’s chicken—note that the email refers to “Popeye’s chicken,” not “fried chicken”—is just Popeye’s chicken. The sender was simply describing the food that would be available at the gathering. Can we no longer serve Popeye’s chicken at events, for fear that mentioning this (delicious) food in the invitation might be “triggering”?

Yes, I’m aware of the fraught history of fried chicken in racist stereotyping of Black Americans. But remember: the event at issue had nothing to do with Black students, and the invitation, while open to them, was not targeted at them. The event was a Constitution Day mixer, co-sponsored by the Native American Law Students Association and Federalist Society, where they happened to be serving Popeye’s. The last time I checked, there’s no stereotype associating Native Americans and conservatives with Popeye’s (as opposed to, say, Chick-fil-A).

Regarding the use of the b-word in the email, it can’t fairly be construed, in context, as misogynist. It was a self-deprecating description of the fairly pedestrian—i.e, “basic b***h”—food on offer. Was using this phrase impolitic and ill-advised? Sure. Would I have used it? No. But that doesn’t make it discriminatory or harassing.

Finally, let’s talk about the passing mention in the email of the Federalist Society, as co-sponsor of this mixer, which some students allegedly found “triggering.” You might not share the conservative or libertarian views associated with the Federalist Society, but mere mention of the organization—the leading organization of conservative and libertarian law students and lawyers, with tens of thousands of members, including multiple Supreme Court justices—is not “triggering.” For better or worse, FedSoc isn’t going away anytime soon; you don’t have to like it, but you might as well get used to it.2

But let’s say some minority students at Yale felt offended—and speaking for myself, I don’t doubt the sincerity of their sentiments (i.e., I don’t think it’s posturing). What should these students have done? The most appropriate and mature thing to do would have been to reach out to the sender—a fellow person of color, a Native American law student of Cherokee ancestry—and explain why they found the email offensive. Instead of calling him out, they should have called him in. And they definitely shouldn’t have gotten the administration involved.3

When I was at YLS, we had something called “The Wall”—an actual, physical wall, where people could post messages to each other (it later went virtual and became a listserv). If you had a problem with someone, you’d write it up and stick it on The Wall, and that person could respond in turn. Sometimes discussions got heated, but we’d work things out, and we wound up better for it in the end.

Here, instead of talking things out with the sender of the email, the offended students got the administration involved. And even if you despise the Federalist Society, invoking the administration is not only unhelpful, but harmful to the anti-FedSoc cause. As Mark Joseph Stern, one of the Society’s harshest critics, wrote on Slate:

Even the slightest appearance of retaliation against conservative students for protected speech only bolsters the victimhood mentality that the Federalist Society cultivates in its members. It provides grist for the grievance-industrial complex that drives the conservative legal movement. And it allows the right to depict institutions of learning as indoctrination factories that instill students with woke groupthink….

Law schools should not get involved over student disputes over protected speech. Doing so does not help the speaker, or their critics, or the school itself.

After I weighed in on Twitter along similar lines, saying that administrators should never have gotten involved and students should have hashed this out amongst themselves, I received a statement from Yale Law School that clarified YLS’s involvement:

Yale University and Yale Law School have strong free speech protections, and no student is investigated or sanctioned for protected speech. When the Law School receives complaints about offensive communications, the Dean of Students routinely tries to help students talk to one another and resolve their disagreements within the community. At no time was any disciplinary investigation launched or disciplinary action taken in this matter. While any person may report concerns about a lawyers’ character and fitness to the Bar, the Law School has a longstanding policy of reporting only formal disciplinary action to the Bar Association. Any media reporting to the contrary is false.

Yes, it’s true that no official investigation was initiated or disciplinary action taken—despite calls from some offended students for such steps. Yes, it’s true that Eldik and Cosgrove (eventually) told the sender that none of this would be reported to the bar.

But again, listen for yourself, to the entire recording. Pay attention to the tone, the implications, and the insinuations. Eldik and Cosgrove speak carefully, in a way that gives them plausible deniability (and makes YLS’s artfully worded statement literally true). The overall effect a listener is left with, however, is that the email sender is in trouble with the administration, his misdeeds could have career consequences for him—and if he knows what’s best for him, he’ll apologize.

The sender never did apologize—good for him, since he had nothing to apologize for. Instead, he offered to speak individually with anyone who was offended by his email—to talk things out, like the intelligent adults that Yale Law students presumably are. Alas, nobody took him up on that offer.

I have a suggestion for law school deans. In situations like this one, involving an allegedly offensive communication, law schools should have a “meet and confer” requirement, like courts do when it comes to discovery disputes. Before the administration gets involved, the complaining students should be required to try and talk things out with the offending party.4

I’d like to close by sharing part of an email that I sent yesterday to Yale Law Dean Heather Gerken and the Dean Review Advisory Committee that is reviewing her tenure as dean. I realize that it might be a waste of time to speak up in favor of free speech, in legal academia, in 2021. But I did so anyway (and I urge like-minded YLS alumni to reach out to the school as well; if a silent majority stays silent, nobody knows it’s there):

[A]s a Yale Law alum, I would like to put in a supportive word for freedom of speech and intellectual diversity at the Law School. I have followed the so-called "Dinner Party-gate" controversy involving Professor Amy Chua, and I also read this recent account of a situation involving a second-year law student who reportedly received criticism for an email that some of his classmates viewed as offensive. I realize I might not be receiving a full or accurate account of these matters from outside news sources, but assuming that at least some of the reporting is true, certain aspects of these incidents make me worry about the intellectual environment at YLS.

While I am very supportive of DEI efforts, I would not want them to come at the expense of maintaining a vibrant intellectual community at YLS that includes viewpoint diversity as well. As a former officer of the Yale Federalist Society, I would hope that its work in promoting discussion and debate can be supported by the administration. I would also hope that law students and faculty of a wide range of political perspectives can feel comfortable and welcome at Yale Law School. 

I have written critically myself about the Federalist Society. I am in no way blind to its faults. And I can understand why some students might be upset with FedSoc and what it stands for (or what they perceive it as standing for). But I also believe that there should still be room for the Society, as well as for students and professors of conservative or libertarian views, at a place like YLS. 

My own views have drifted leftward over the years, so I'm not sure I would still consider myself a conservative or a libertarian. But I do not view these schools of thought as illegitimate or oppressive, and I believe that they can—and must—be part of a robust intellectual community.

Finally, I think that when students disagree with each other or take offense at certain statements made by other students, the students should be allowed to work out those differences on their own, without involvement by the administration (except in the most extreme circumstances). I recognize that the viewpoint I'm about to articulate is seen in some circles as naive or outdated, but I still believe that the proper response to misguided or offensive speech is more informed and appropriate speech (again, excluding situations of harassment, threats, and the like, which I realize can occur).

Please don't hesitate to reach out to me with any questions or if I can be of any assistance. Thank you for your time and kind consideration.

Time and kind consideration—yes, it’s a formulaic sign-off, but it’s a fitting coda to this post. That’s what we owe each other—in a law school class, on Twitter, or around the Thanksgiving table. Time, and kind consideration.

UPDATE (8:31 p.m.): This article, by Aaron Terr of the Foundation for Individual Rights in Education (FIRE), is a must-read. Terr interviews the student—a 2L named Trent Colbert, who agreed to be named in the piece—and as Terr’s reporting makes clear, the situation at YLS is worse than many of us realized.

UPDATE (11:58 p.m.): I have decided to stand up and be counted as someone who’s concerned about cancel culture and threats to free speech. See this Twitter thread.

UPDATE (10/15/21, 3:58 p.m.): There’s now a movement going to get the student, Trent Colbert, removed from his position as a student representative. The students who want him ousted as a student rep are circulating this form letter for signatures.

Thanks for reading Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at davidlat@substack.com, and you can share this post or subscribe to Original Jurisdiction using the buttons below.

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1

Again, simply listen to the long-winded attempt of YLS diversity director Yaseen Eldik to explain to the sender why the email offended some students. Eldik’s reasoning is… strained, to put it charitably. Or as I said on Twitter, “What I don't like about the audio is, well, how perfectly it reflects where we are in 2021. At times it sounds like a parody of political correctness.”

2

In a nutshell, people shouldn’t get offended so easily. As Justice Stephen Breyer recently quipped, “It's far from the worst thing in the world, to have people say mean things.” And law students specifically—who as lawyers will have to deal with tough judges, angry clients, and opposing counsel—need to develop thick skins.

But at the same time, people shouldn’t deliberately provoke or troll the other side. Yes, FedSoc chapters, this (often) means you. We need to have more tolerance and good faith on both sides of the aisle.

3

Just as there was no need for an officer of the Stanford Federalist Society to have gotten the Stanford Law School administration involved after Nicholas Wallace, an about-to-graduate 3L, made fun of the chapter earlier this year.

4

Of course, students shouldn’t have to satisfy this requirement in more serious situations, like ones involving physical or sexual assault. And yes, I know that law students—future lawyers—will argue over whether the requirement applies to a particular case. But just like having a meet-and-confer requirement in the discovery context, simply having such a requirement for law school disputes will cause at least some conflicts to go away on their own. And the requirement also sends an important message: the default option should be working things out, student to student.