The Law Clerk Boycott Hits Stanford Law School

Plus sundry updates about SLS after the protest of Judge Duncan.

Stanford University (by David Madison via Getty Images).

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The fallout from the disruptive protest of Judge Kyle Duncan (5th Cir.) at Stanford Law School continues. The latest bad news for SLS: two federal appellate judges, Judges James Ho (5th Cir.) and Elizabeth Branch (11th Cir.), announced over the weekend that they are adding Stanford Law to their clerk hiring boycott. As you might recall, the two judges are already boycotting Yale Law School, which was the poster child for protest problems before Stanford nabbed the crown.

Judge Ho announced his latest move on Saturday night in a speech to the Texas Review of Law and Politics (TROLP), which describes itself as a conservative and libertarian law review that publishes “thoughtful and intellectually rigorous conservative articles—articles that traditional law reviews often fail to publish.” Judge Ho delivered his remarks at TROLP’s annual banquet, where he accepted its award as Jurist of the Year. He was introduced at the dinner by Judge Branch, his longtime friend and the one other judge to publicly join his YLS boycott.

Aaron Sibarium of the Washington Free Beacon, who broke the news of the SLS boycott, posted a transcript of Judge Ho’s remarks. The themes are ones the judge has sounded before, in his announcement of the YLS boycott last October and the interview that he and Judge Branch did with me last December. Here are highlights.

First, Judge Ho criticized the ten-page memo that Stanford Law Dean Jenny Martinez issued in the wake of the fiasco:

I know that letter has been praised by some people for standing up for free speech. I don’t share that view. I’ll agree that there are some good words in that letter. But they’re just words. How do we know if those words are sincere—and not merely strategic? Because there’s good reason to be suspicious.

Remember, this wasn’t the Dean’s first reaction to recent events. Her first reaction was to defend the administrators as “well intentioned.” So at best, this is a dramatic change of heart. Should we believe it?

Well, here’s the problem: The words in that letter are not accompanied by concrete actions. Because it imposes zero consequences on anyone. It doesn’t even say whether there will be consequences if there’s a disruption in the future.

In fairness to Dean Martinez, she did say in her memo that SLS would be issuing “a more detailed and explicit policy with clear protocols for dealing with disruptions,” which would offer “greater clarity and certainty about future enforcement of the policy, including through disciplinary sanctions as appropriate.” This sounds to me like an implied promise of discipline for future disruptors, but perhaps Judge Ho was looking for something more explicit. [UPDATE (2:29 p.m.): By the way, for fans of the Martinez Memo, you can send messages of gratitude and support to her via the New Tolerance Campaign.]

Second, Judge Ho defended his boycott of Yale Law as a source of law clerks:

I’m pleased to report that a number of Yale students and scholars have gone out of their way to inform Lisa and [me] that they support what we’re doing. In fact, some have admitted to us that they disagreed with us at first—but now that they’ve seen how the administration is reacting, they get it. And now they’re the ones urging us to keep it up—and not to pull back.

Why are folks at Yale urging us not to let up? After all, events at Yale have gone much more smoothly this year. Speakers haven’t been disrupted. Yet these students and scholars don’t want us to relent.

It’s true that Yale Law instituted several reforms after Judge Ho announced his boycott, including a beefed-up disciplinary policy and redesigned orientation program that includes “discussions of free expression and the importance of respectful engagement” (but note that these reforms were in the works before the boycott was announced—see footnote 2 in this story). And it’s true that since the boycott, there have been no major disruptions of events at YLS—including the return engagement of Kristen Waggoner of the Alliance Defending Freedom, who triggered the rowdy protest in March 2022 that caused Judges Ho and Branch to implement their boycott.

Third, Judge Ho argued that the speaker disruptions are merely the symptom of a deeper difficulty:

The real problem in the academy is not disruption—but discrimination. Rampant, blatant discrimination against disfavored viewpoints. Against students, faculty, and anyone else who dares to voice a view that may be mainstream across America—but contrary to the views of cultural elites.

Moreover, let’s just say it: The viewpoint discrimination we most often see in the academy today is discrimination against religious conservatives. Just look at which viewpoints are targeted most frequently at speaker events—and excluded most vigorously from faculty appointments.

Judge Ho is correct to state that the views of religious conservatives are disfavored in law schools (and law firms too). The folks doing the disfavoring would argue that the academy also “disfavors” views like “the earth is flat” and “evolution is not a thing,” but that’s a bit of a straw person. The views of religious conservatives that are disfavored these days are, at least in my opinion, more open to debate—e.g., “Dobbs was rightly decided,” or “transgender athletes shouldn’t be allowed to participate in girls’ sports.”

Fourth and finally, Judge Ho unveiled his Stanford Law boycott:

So what do we do about [the viewpoint discrimination]? Well, ask yourself this: What do elite law schools do when they conclude that institutions are failing them? Yale recently called for a boycott of the U.S. News and World Report. And numerous schools have followed suit.

Well, imagine that every judge who says they’re opposed to discrimination at Yale and Stanford takes the same path. Imagine they decide that, until the discrimination stops, they will no longer hire from those schools in the future. How quickly do we think those schools would stop discriminating then?

So [Judge] Lisa [Branch] and I have made a decision. We will not hire any student who chooses to attend Stanford Law School in the future.

Note the important prepositional phrase at the end—“in the future.” As I explained in reporting on Judge Ho’s Yale Law boycott, he and Judge Branch are “applying this policy prospectively, i.e., only on a going-forward basis, starting with students who decide to matriculate at YLS after today.” So students who are currently at Stanford Law, as well as alumni of SLS, are not subject to the boycott; they chose to attend Stanford before the events that led Judge Ho to impose the boycott.

What are my thoughts? On the merits of the boycott itself, I actually don’t have a strong view (although I feel like I’m the only one). In writing about the YLS boycott, I acknowledged both the arguments in favor and the arguments against a boycott. I believe the case against disruptive protests at law schools is clear, but reasonable minds can disagree on the best way to address both the disruptions and the underlying problem of a lack of intellectual and ideological diversity. If forced to choose, I’m probably narrowly opposed to the boycott, but I’m willing to let this play out and see what happens. (Maybe I’ll turn these boycotts into the subject of a Notice and Comment post, so you can discuss amongst yourselves.)

I might feel differently if more judges were participating in the boycott. As of now, the boycotting judges are Judges Ho and Branch, plus another dozen or so judges who have not identified themselves—so at the current time, YLS and SLS students still have plenty of judges they can clerk for. If you look at my latest Supreme Court clerk hiring report, none of the judges who fed YLS and SLS students to the Court are in on the boycott, at least publicly. And it’s also not clear how many YLS and SLS students would have been hired by Judges Ho and Branch anyway, i.e., without a boycott.

[UPDATE (2:38 p.m.): I’m advised that Judge Ho has hired a total of at least five clerks from Yale and Stanford since his appointment in 2018. There are only two schools he hires more clerks from, Chicago and Harvard—neither of which has had any SLS- or YLS-style problems in recent years.]

Here are two thoughts. First, if you’re a federal judge who is boycotting Yale Law, then you should a fortiori boycott Stanford Law (as I argued in a Twitter thread last month). The SLS incident involved a fellow federal judge, not just a lawyer; it featured a member of the law school administration, Dean Tirien Steinbach, who arguably came in on the side of the protestors (“I look out and I say, ‘I'm glad this is going on here.’”); it was disrupted to a greater degree, ending more than half an hour early (compared to the YLS event, which managed to limp to a conclusion); and it was followed by a second protest of Dean Martinez, after she had the gall to apologize to Judge Duncan.

Second, I do think it would be a good thing if Judges Ho and Branch provided specific benchmarks that YLS and SLS can work toward, which would cause the judges to end the boycott if the benchmarks are reached. In my first story about the YLS boycott, I identified three steps YLS could take to improve its intellectual climate:

1. Get rid of the administrators involved in the Trap House-gate scandal.

2. Add an orientation module about free speech and civil discourse.

3. Invite back Kristen Waggoner—and have her event go off without a hitch.

As of now, all of these measures have been implemented:

1. Former dean of students Ellen Cosgrove retired, and former DEI director Yaseen Eldik, after initially being moved to a non-student-facing position, has reportedly left the university. [UPDATE (4/19/2023, 3:57 p.m.): Actually, it appears that Eldik is still at YLS; this Yale directory entry lists him as Associate Director, LAWGRA Graduate Programs Office. My understanding is that this is the non-student-facing position I mentioned earlier.]

2. As Yale Law Dean Heather Gerken announced to YLS alumni, the school “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,” with “[v]irtually every member of the faculty sp[eaking] to their students about these values on the first day of class.”

3. The Queen of Darkness returned to YLS, and instead of disrupting her, students opposed to her views hosted a counter-event, a panel about the rise in right-wing violence against trans and queer people. And Judges Ho and Branch recently spoke at Yale Law, also without incident.

One can certainly debate the wisdom of these measures or add to them. For example, to address the ideological imbalance on the YLS and SLS faculties, Judges Ho and Branch could ask the schools to hire at least one conservative professor who focuses on public law (since right now Yale has zero, and Stanford has just one—Professor Michael McConnell). But as a matter of due process, I think the law schools should be given some goals or benchmarks to achieve.

So those are my thoughts on the Stanford Law boycott announced by Judges Ho and Branch. Here are miscellaneous updates and additional items you can read or listen to about L’Affaire Duncan at SLS (since the appetite for reporting and commentary on this controversy seems insatiable):

1. House Republicans called upon the American Bar Association (ABA) to investigate Stanford Law over the incident, with Representatives Virginia Foxx (R-N.C.) and Burgess Owens (R-Utah) sending a four-page letter to Joseph K. West, the current chair of the ABA’s Section of Legal Education and Admissions to the Bar, in which they argued that SLS is out of compliance with Standard 405(b), which concerns academic freedom.

2. Senator Ted Cruz (R-Tex.) sent his own letter to Stanford’s president and law school dean, complaining that the protestors’ “disgraceful behavior is antithetical to the principles of free speech and open discourse that are essential to the mission of any credible academic institution, let alone a top-tier law school.”

3. John Banzhaf, professor emeritus of law at GW Law, announced that he will be filing a character-and-fitness complaint against the student protestors with the California State Bar.

4. Stanford President Marc Tessier-Lavigne issued a “welcome to spring quarter” message to the entire university community, emphasizing Stanford’s “commitment to academic freedom and to the expression of diverse viewpoints” and lamenting “recent deeply disappointing events at the law school in which an invited speaker’s talk was disrupted.” (Gavel bang: Ed Whelan.)

5. The Foundation for Individual Rights and Expression (FIRE) prepared a transcript of the entire event with Judge Duncan (based on my original audio, supplemented by additional video footage sent to FIRE by event attendees).

6. In addition, if you’re free at 4 p.m. (EDT), FIRE President and CEO Greg Lukianoff and Director of Campus Rights Advocacy Alex Morey will be speaking on a webinar about “the breakdown of free speech culture at law schools in light of the recent shout-downs and censorship at Stanford, Yale, Georgetown, and more.” I’m planning to tune in.

7. Two current law students—Teddy Ray, a 2L at YLS, and Tess Winston, a 3L at SLS—wrote thoughtful pieces about the SLS imbroglio for, respectively, The Dispatch (“The New Stanford Prison Experiment”) and the Washington Post (“With some of my fellow Stanford Law students, there’s no room for argument”).

8. As I mentioned over the weekend in Judicial Notice, there has been lots of additional analysis of the controversy by folks outside SLS. See, e.g., pieces in the Sacramento Bee by Erwin Chemerinsky, the New York Times by Pamela Paul, the Washington Post by Ruth Marcus, the Pittsburgh Post-Gazette by Peter Kalis (former chair of K&L Gates), and Law360 by Professor Nancy Rapoport. (Gavel bangs for several of these: Howard Bashman/How Appealing.)

9. I appeared on two podcasts to discuss the subject, The Long Game with Jon Ward and Summarily with Robert Scavone Jr.

10. I’ve been taking one of my occasional hiatuses from Twitter—I figured that after the news of Donald Trump’s indictment broke, it would be even more unpleasant than usual—but I have seen some discussion of the boycott on Twitter. Given Twitter’s left-leaning tilt, most of the commentary has been critical, not surprisingly. See, e.g., this thread by former Northwestern Law dean Dan Rodriguez and this thread by Lawprofblawg. (But be sure to look at the replies, in which some folks, like Professor Jonathan Adler, raise counterpoints.)

And that’s the latest and greatest in all news Stanford Law. As always, and in the spirit of hearing out diverse viewpoints, I welcome your thoughts by email and in the comments to this post. Thanks!

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