The Yale Law School Scandals: Dean Heather Gerken Speaks

Dean Gerken has taken lots of flak for her school-wide email—but I believe it's not as bad as some people think.

Dean Heather Gerken, delivering the Sibley Lecture at the University of Georgia School of Law (screenshot via YouTube).

Welcome to 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 subscribe by clicking on the button below.

Observers of all the controversies and scandals that have plagued Yale Law School this year, from Dinner Party-gate to Trap House-gate to Antiracism Training-gate, have been wondering: what will Dean Heather Gerken say?

Yesterday, we received our answer, in the form of an email that Dean Gerken sent to the YLS community. Aaron Sibarium of the Washington Free Beacon broke the story—as he has broken almost all the stories on this subject—and described her missive as a “muted mea culpa.”

The tone of her email is certainly understated; Dean Gerken is keeping calm and carrying on. Her message does not reflect the state of crisis at YLS—which might explain why it has garnered harsh criticism from certain online commentators:

• Josh Blackman: “Yale Law School is a failed academic institution. Dean Heather Gerken should have resigned, Associate Dean Ellen Cosgrove should be on administrative leave, and Diversity Director Yaseen Eldik should be unemployed…. [Gerken’s email reads like,] ‘We would have gotten away with it if it wasn't for you meddling FedSoc kids.’”

• Scott Greenfield: “Gerken Takes ‘Full Responsibility,’ Meaning Absolutely Nothing.”

• David Bernstein: “This is shameful victim blaming…. It's sad for me to say this as YLS '91, but at this point if my kid were admitted to Yale and Harvard law schools, I would tell him or her to go to Harvard.”

And some of my own sources have privately criticized the email to me:

• “Heather’s statement is a disgrace. I’m so sad.”

• “Gerken is the queen of distract, divert, and delay. This email is vintage Gerken: she says things that sound apologetic but really aren’t, then ducks, dodges, and delegates (to a committee).”

• "To me her email reads like, ‘I’m sorry… I got caught.’”

Here at Original Jurisdiction, I will always tell you what I really think (as I did during my time at Above the Law, before leaving that site entirely back in 2019). Some of what I’m about to say will not be popular with readers who have appreciated my recent coverage of YLS. But these are my honestly held views—and, as always, I welcome your respectful disagreement, in the comments to this post.

Here’s my bottom-line assessment of Dean Gerken’s email:

• It has several significant problems, discussed in detail below, and it could have been so much stronger and better; it represents a huge missed opportunity.

• But the email is actually better and more apologetic than Aaron Sibarium’s article suggests¹ or than many commentators think (at least those commentators who have been troubled by goings-on at YLS in 2021).

• This might be a sad reflection on the state of YLS and legal academia more generally in the year 2021, but the Gerken email actually isn’t that far off from what we could have reasonably expected from someone in Dean Gerken’s (unenviable) position.

• And we—those of us on the pro-free-speech side of these debates—need to be eminently, unimpeachably reasonable. One of the hallmarks of the folks on the other side is their sheer unreasonableness, their inability to ever be satisfied, their refusal to compromise, and their responding to one concession by demanding five more. That’s why they’re now facing backlash—as reflected in things like the YLS controversies, the Virginia gubernatorial election, and similar developments. Let’s not make the same mistake on our side of the aisle and alienate people who would otherwise be our allies.

• If we want to win over the silent majority in the middle, we need to be supremely reasonable—even if that sometimes means taking half a loaf and saying, “Thank you, this stale baguette tastes delicious.” We need to make clear that we’re the sane people, the cooler heads, the grown-ups, and the people of good faith who are open to compromise—because, well, we are.

Okay. I’ll now go through the Gerken email, line by line, to explain why I come out where I do. Here’s how it begins:

To the Members of the Community:

Recent events at the Law School have been the subject of controversy both on campus and in the national media. While the past several weeks have been difficult, they present an important opportunity for us to reflect on our values and renew the commitments necessary to maintain a vibrant intellectual environment.

“Recent events”—you know, sort of like the “late unpleasantness.”

Interestingly enough, Dean Gerken doesn’t attempt to summarize “recent events”—just as well, since the vast majority of her readers are intimately familiar with every twist and turn. As I’ve said before, Yale is the nation’s #1 law school—for drama.²

Let me start with first principles. Free speech is the touchstone of every academic community. It is essential that we can all speak on—and disagree about—the most challenging issues of the day. The long-standing “Report of the Committee on Freedom of Expression at Yale” emphasizes “the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.” A thriving learning community depends on wide-ranging conversation that includes people with very different points of view and from all parts of our society.

I’m glad that Dean Gerken began her email with the importance of free speech, including a reference to the famed Vann Woodward report, a ringing defense of academic freedom. She could have started off by emphasizing “civility,” “community,” or “diversity,” but she put first things first—and rightly so.

Notwithstanding her words, I think it’s clear to any objective observer that Yale Law School in 2021 is no longer a place where people can “discuss the unmentionable,” or anything even close to unmentionable. And it’s far from the only institution in higher education suffering from a chilling effect that could give Princess Elsa frostbite.³ But I appreciate the sentiment; Dean Gerken is saying what she should be saying.

Conversations in such a diverse community should take place in an environment where everyone is treated with respect and where we hold ourselves accountable to one another. That is why “The Rights and Duties of Members of the Yale Law School” require a “scrupulous respect for the equal rights of others.” Moreover, Title VI of the Civil Rights Act of 1964 and University policy oblige the Law School to ensure a learning environment free of discrimination on the basis of race, color, or national origin.

Here I wondered why she didn’t also mention Title IX and sex discrimination. Maybe it was because sex and gender didn’t really figure into the recent controversies (although some folks were offended by the reference to “basic b***h” American foods in the Trap House email). But usually administrators like Dean Gerken strain to mention how they’re opposed to every form of discrimination under the sun, so the omission was notable to me.

[Deputy Dean Ian Ayres, who just investigated and wrote a report about Trap House-gate,] found the following:

(1) Several students raised concerns with the Law School and alleged that the email invitation in question constituted racial discrimination. Students who raised those concerns were told by administrators that the University’s free speech policy precluded disciplinary action of any sort.

(2) The boards of the Federalist Society and NALSA—both groups whose presence on campus we value—were entirely unaware of the email invitation before it was sent.

(3) The administrators involved, acting in their roles as the Law School’s designated “Discrimination and Harassment Resource Coordinators,” were attempting to carry out their obligations under University policy whenever discrimination complaints are filed. While protected speech will never be the subject of discipline, staff are asked to help facilitate informal resolution where possible.

There are some things I like here, and some things I don’t.

I appreciate Dean Gerken’s statement that FedSoc is a “group[] whose presence on campus we value.” I previously expressed the hope that Gerken would “reaffirm that FedSoc and its members are a valued part of the YLS community,” and she has done so explicitly here.⁴ Good on her.

I’m also glad that Gerken reiterated that the offended students in Trap House-gate “were told by administrators that the University’s free speech policy precluded disciplinary action of any sort.” That should go without saying, but I’m glad she said it.

But I do think part of this statement is… disingenuous, to put it mildly. Yes, the offended students were told that no disciplinary action would be forthcoming—but what about Trent Colbert? As we all know from the recorded conversations and correspondence, associate dean Ellen Cosgrove and diversity director Yaseen Eldik heavily hinted in their initial conversations with Colbert that the controversy might have implications for his application to the bar someday. Colbert wasn’t told until weeks later that no discipline would be forthcoming, after it was clear that he wouldn’t be giving them the apology they tried to squeeze out from him.

And wait, it gets worse. The most problematic part of this paragraph is item (3), in which Gerken claims that Cosgrove and Eldik were simply “attempting to carry out their obligations under University policy whenever discrimination complaints are filed.” Such doublespeak would make a totalitarian regime proud.⁵ Anyone with an ounce of familiarity with Trap House-gate knows that their conduct was, in the words of Professor Akhil Amar, “dishonest, duplicitous, and downright deplorable.”

Much of the remaining information Dean Ayres shared with me concerned personnel matters, which I will not discuss in a community-wide email.

There are things the Law School administration should have done differently, and for that I take full responsibility. I am immediately taking the following actions:

First, I will ensure that my administration has the right team in place with the proper support and training to navigate challenging conflicts that arise within our community.

Intriguing. What should we make of Gerken’s reference to “personnel matters,” as well as the need for her administration to have “the right team in place with the proper support and training to navigate challenging conflicts”? Is it possible that she will fire or find new roles for Ellen Cosgrove, Yaseen Eldik, or both, as I recently suggested might be in the offing? Stay tuned. (It’s possible that Gerken is mentioning this to make some observers think that firings are imminent, but after the furor dies down, she leaves everyone in place and takes no action—so watch this space.)

Second, when a complaint regarding protected speech is filed, we will ensure that all parties involved are informed with absolute clarity that the University’s free speech policy precludes disciplinary action.

Third, while we will offer students assistance in resolving disagreements consistent with the University’s process, we will be clear that students must make their own decisions regarding their level of engagement. A forced conversation cannot achieve the goals the University’s process sets out.

On this point of administrators “offer[ing] students assistance in resolving disagreements,” my view is that less is more. As I previously suggested, students should be required to try and hash out their disagreements on their own before the administration steps in to offer any “assistance.”

Fourth, I have spent every year of my deanship trying to foster an inclusive community and create an environment where students feel called into the community rather than called out. The email message from administrators to members of the 2L class did not strike the appropriate balance between those two goals. I take responsibility for that failure, and I am sorry for it. Our future communications will better conform to our values.

“An environment where students feel called into the community rather than called out.” This mirrors what I wrote in my first post about Trap House-gate: “Instead of calling [Trent] out, [the offended students] should have called him in.”⁶

“I take responsibility for that failure, and I am sorry for it.” Gerken admits that the email condemnation of Trent Colbert’s party invitation was a mistake, then apologizes for it.

Is saying that the Cosgrove/Eldik email failed to “strike the appropriate balance” a ridiculous understatement? Yes. Would I have preferred something more explicit and full-throated? Absolutely. I have called for Dean Gerken to issue a formal retraction of that email, followed by heartfelt, profound, and targeted apologies to Trent Colbert, Zack Austin, and the Yale Federalist Society.

But as I recently noted, perhaps somewhat euphemistically, Dean Gerken “doesn’t relish admitting mistakes.” Or as one of my sources said, commenting on the difficulty Gerken has when it comes to acknowledging error, “Heather doesn’t have a reverse gear.”

By the standards of Heather Gerken, this modest and muted apology is the equivalent of beating her breast while reciting the Penitential Act: “through my fault, through my fault, through my most grievous fault.” It’s substantial.

Fifth, we will be sure that all students and student groups are treated professionally, fairly, and impartially. No student or student group should ever have reason to believe that administrators are acting in a biased or unfair manner, and I deeply regret that this impression was given in this instance.

In a recent post, I made the prediction—or expressed the hope—”that the YLS administration will be more careful and considerate in dealing with the Yale Federalist Society.” This sounds to me like Dean Gerken pledging to move in that direction. If FedSoc folks are ever harassed by administrators again, they can point to these words as a broken promise.

Finally, I have asked a small group of faculty members to think about how to maintain our cherished intellectual environment and warm community. I am grateful to Professors Justin Driver, Oona Hathaway, Tracey Meares, Nick Parrillo, and Claire Priest for leading this effort. Their work will help identify institutional practices that support a robust intellectual environment. As part of this work, I expect the committee 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.

Come now—did you really think we were getting out of this crisis without formation of another committee? Ryu : Shoryuken :: Heather Gerken : Form a Committee.

Committees often amount to just kicking the proverbial can down the road, to a point in time when people are calmer—and paying less attention. See, e.g., President Biden’s Supreme Court Commission. But on the bright side, the members of this committee are an excellent group—thoughtful, diverse, fair-minded—so I’m giving them the benefit of the doubt for now.

Now for the worst part of this paragraph: the reference to “our norms surrounding secretly recorded conversations and the sharing of private correspondence without permission.” Jeez. Was this really necessary, Dean Gerken? It reads discordantly with the rest of the message, which focuses on big-picture themes like intellectual freedom and the importance of community, and it comes across as petty and thin-skinned. Cf. her email announcing the Ayres Commission, complaining about “partial facts reported out in a charged media environment.”⁷

It’s gratuitous—nothing more than a passive-aggressive complaint about leaking from an administrator, i.e., someone who hates leaks. As Justice Brandeis famously wrote, “Sunlight is said to be the best of disinfectants”—and this reads like Gerken trying to pull down the blackout shades. It would have been so much better for her to have written something like this: “I expect the committee will address steps we can take as a community to create an environment in which people can disagree, even vehemently, while still treating each other with the utmost respect and dignity.”

And also, let’s be honest: thank God Trent Colbert recorded his conversations with Yaseen Eldik.⁸ I agree with David Bernstein: “The student who recorded these conversations not only protected himself, he did a public service by revealing the bullying and attempts at intimidation by YLS administrators. But she's suggesting, in effect, that the whistle blower is blameworthy!”

If Colbert had not taped the conversations, his version of events would have been seriously questioned, and his story would not have gotten the traction that it did. And we wouldn’t be where we are today—which is, after significant unpleasantness, hopefully the start of a new chapter at Yale Law School.

Here’s the final paragraph of Dean Gerken’s email:

In the face of challenging times, the grace, empathy, and intelligence of this community has always been a source of strength as we push forward our critical mission of teaching, scholarship, and service. Those values center me, and they also give me confidence in our ability to move ahead and advance the vital work of this school.

Sincerely,

Heather K. Gerken
Dean and Sol & Lillian Goldman Professor of Law
Yale Law School

And that’s all she wrote.

I have made painstakingly clear my many criticisms of the Gerken email. But to take a positive view—those of you know me personally know that I’m a relentlessly positive person (almost dying from Covid-19 will do that to you)—let’s look at all the good things in the message.

Dean Gerken reaffirmed the importance of free speech. She acknowledged the email condemnation of Trent Colbert was a mistake. She expressed regret and said she was sorry. And she announced remedial steps. In sum, this is why I think her email, while falling far short of what many of us hoped for, is in the ballpark of what we could have realistically expected.

Unlike our friends on the other side of the free-speech debate, we need to be exceedingly reasonable, realistic, and restrained. We need to recognize that we’re not the only people in this debate. The people on the other side feel strongly about these issues too—and because of their countervailing force, we won’t always get everything we want.

Remember that we’re dealing with Yale Law School, in the year 2021—which might very well be the peak (I hope) of the Great Awokening. Remember that Dean Gerken must answer not just to those of us who care about free speech, but to all the wokesters and social-justice warriors who dominate student discourse at YLS and similarly elite law schools. A stronger and more targeted apology to Trent Colbert and FedSoc would have elicited howls from some quarters; there was only so much she could realistically say.⁹

So that’s the normative discussion; let’s now turn to the predictive. Has Dean Gerken managed to save her embattled deanship? Possibly.

The Gerken email was far from perfect—and in some places, quite problematic. But it was definitely helpful to her and her prospects for being renewed as dean, as well as what many believe to be her long-term goal: a university presidency, ideally at a top-tier school like Yale or her alma mater, Princeton. There are many people in the middle—the people whose hearts and minds we’re trying to win, who haven’t necessarily followed all these scandals and controversies as closely as we have, who don’t know how outrageous all of this is—who will read her message and think, “This sounds reasonable to me.” ¹⁰ To condemn the Gerken email too vociferously makes us look like the unreasonable ones.

All this said, let’s also remember: these are just words, and words must be paired with action. Yale Law School faculty members deciding on whether to support Dean Gerken’s reappointment need to see not just what she says, but what she does. While I have a more positive view of the Gerken email than many others, even I don’t see it as the end of the road. Dean Gerken must follow through with concrete actions that are consistent with the commitments she has made in this email.

What personnel changes, if any, will Dean Gerken make at the infamous Office of Student Affairs (OSA)? Going forward, how will she and her administration treat the Yale Federalist Society and other student groups with unpopular views? And how will she handle the next scandal or controversy that comes her way?

Because there will definitely be more scandals and controversies. This is the Yale Law School, dahling….

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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.

1. Throughout his excellent reporting on the YLS controversies, Sibarium has posted original documents and audio, so readers can make up their own minds about the events in question—and he has done so again here, posting Dean Gerken’s email in full.

2. I also assume readers’ familiarity with the various YLS scandals and controversies. If you need to catch up, read the posts that are linked in the first paragraph of this post.

3. Some people—including my husband and hapless editor, Zach—have asked me, “Why should we care so much about all this nonsense, happening at just one law school?”

Scott Greenfield puts it well: “this may be about YLS on its surface, but [it] reflects the nature of what’s boiling up from below the surface of the legal academy. And in case the significance of this is still unclear, this is not only the lesson being taught to the future lawyers of America, but to the future holders of high office who will be positioned to make decisions that will affect a nation and its citizens.”

4. Sadly, saying that FedSoc’s presence is “value[d],” which should be obvious and anodyne, is not without political risk for Dean Gerken. She has probably already received angry emails from members of the Dred Scott Society, who definitely do not welcome the presence of FedSoc at YLS.

5. Actually, scratch that sentence. I don’t want someone to complain that I’m making light of the plight of the victims of totalitarian regimes, a common rhetorical move these days.

Here’s a different comparison that I hope won’t cause offense. Gerken’s description of Cosgrove and Eldik’s egregious mishandling of Trap House-gate would be like my four-year-old son telling me, “No, Papa, I’m not having a temper tantrum, crying and screaming and pounding the floor with my fists, because you won’t let me eat ice cream for breakfast. I’m simply expressing my respectful disagreement with your culinary selections this morning.”

6. I commend to you this great New York Times article about the work of Professor Loretta J. Ross of Smith College, who wants to call people in rather than call people out. She argues—persuasively, in my view—that “there are better ways of doing social justice work” than going around calling people out and canceling them.

7. Also, if we want to talk about “secretly recorded conversations and the sharing of private correspondence without permission,” let’s talk about all the other actors in these dramas besides Trent Colbert who took such actions.

In Dinner Party-gate, the busybody student who was out to get Professor Amy Chua admitted to recording phone conversations with one of the two students who went to Chua’s house. This is, as Professor Eric Rasmusen noted on Twitter, a class D felony under Connecticut law. (Trent Colbert recorded only in-person conversations, which is legal under Connecticut law; he did not record phone calls, which is illegal.)

And in Trap House-gate, the whole drama started when one of the members of the Native American Law Students Association (NALSA) shared Trent Colbert’s controversial party invitation outside of NALSA. At YLS, NALSA is a relatively small and intimate group, meaning that Colbert’s invitation could have been considered private correspondence. If a member of NALSA was offended by Colbert’s email, this person should have raised it with him privately, instead of leaking it so that Colbert could be publicly called out as a racist, over a messaging app used by the entire 2L class.

8. If you’re a YLS student called to meet with Yaseen Eldik and Ellen Cosgrove in the future (assuming they’re not fired), demand to meet in-person—phone conversations can’t be legally taped in Connecticut, but in-person meetings can—and bring multiple recording devices. May the Force be with you.

9. Incredibly enough, when the Free Beacon posted Trent Colbert’s recorded conversations with Yaseen Eldik, some of the offended students were angry at Eldik for the gentler parts of his talk with Colbert, e.g., “I know you’re not a bad person,” “I know you didn’t intend harm,” etc. The offended students wanted Eldik to do nothing but yell at Colbert for his racism for half an hour. And while such extreme students are a minority, even at Yale Law School, they’re a very vocal minority, with the ability to label those who disagree with them as racists—a rhetorical weapon whose power should not be underestimated.

10. Speaking of being reasonable, it’s also not reasonable to expect Dean Gerken to resign (as some, such as Josh Blackman, have called for). People have an instinct toward self-preservation—and yes, law school administrators are people too.