Yale Law Dean Heather Gerken Speaks Out About The March 10 Protest

Dean Gerken won't be disciplining the protesters, but at least she condemns their conduct as 'unacceptable.'

The March 10 protest at Yale Law School (screencap from video footage).

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Congratulations to Yale Law School on retaining the #1 spot in the latest U.S. News law school rankings. Yale has been the top law school since the inception of the rankings in 1987, and it looks like recent events at YLS haven’t knocked it from its lofty perch. (Meanwhile, Yale’s archrival to the north, Harvard Law School, slipped to #4, eclipsed by an ascendant U. Chicago.)

But being #1 does not mean Yale is perfect. As readers of Original Jurisdiction well know, YLS has been rocked by a number of controversies and scandals over the past year. The most recent was a rowdy protest that attempted to shut down a March 10 event of the Yale Federalist Society, and while the protesters didn’t succeed in ending the talk entirely, they disrupted it significantly—along with other events taking place at YLS that day, including multiple classes and a faculty meeting.

In my recent open letter to Dean Heather Gerken of Yale Law School,¹ I called upon her to issue a statement reaffirming YLS’s commitment to free speech in the wake of the March 10 protest, and yesterday she did exactly that. In addition, the law school posted the message publicly on its website, which I see as a good sign—an indicator that YLS understands that it has a public-relations problem right now when it comes to free expression, and it wants the world to know that it’s doing something.

As was the case with prior communications from Dean Gerken, her letter has some things I like, and some things I don’t like. Here’s the opening:

Dear Members of the Community:

As we return from spring recess, I write to reflect on the protest that occurred earlier this month at the Law School. Shortly before break, a group of students protested the Federalist Society’s decision to bring a speaker from Alliance Defending Freedom to campus because of the organization’s position on LGBTQ rights, including same-sex marriage and the treatment of transgender people. Under the University’s free expression policy, student groups have every right to invite speakers to campus, and others have every right to voice opposition. Our commitment to free speech is clear and unwavering. Because unfettered debate is essential to our mission, we allow people to speak even when their speech is flatly inconsistent with our core values.

I appreciate Dean Gerken’s acknowledgment that YLS “allow[s] people to speak even when their speech is flatly inconsistent with our core values.” But note that the FedSoc event in question had nothing to do with ADF’s stances on LGBTQ rights, which came up only when protesters raised them during the Q&A period.

Instead, the event was about Uzuegbunam v. Preczewski, a Supreme Court case addressing damages and standing in the free-speech context. It featured two speakers at opposite ends of the ideological spectrum, Monica Miller of the American Humanist Association and Kristen Waggoner of the ADF, who came together to work on Uzuegbunam—and won an 8-1 victory at SCOTUS. So the speech engaged in by the panelists that day, far from being “flatly inconsistent with [YLS’s] core values,” was supportive of those values, insofar as one of those values is free speech.

Back to the letter:

In accordance with the University’s free expression policy, which includes a three-warning protocol, those protesting exited the room after the first warning, and the event went forward. Had the protestors shut down the event, our course of action would have been straightforward—the offending students without question would have been subject to discipline. Although the students complied with University policies inside the event, several students engaged in rude and insulting behavior as the event began; a number made excessive noise in our hallways that interfered with several events taking place; and some refused to listen to our staff.

A few points. First, I’m curious about where one can find the three-warning protocol, since I can’t find it in the free-expression policy posted on the Yale University website or anywhere on the YLS website. (If anyone reading this happens to have a link to where this protocol can be found online, please email me or post in the comments.)

Second, while I appreciate Dean Gerken’s statement that a successful shutdown of the event (like what happened at UC Hastings) would have triggered discipline, Yale’s free-speech policy doesn’t require an event to be shut down entirely in order for a violation to occur. To the extent that Dean Gerken has created such a requirement, she has revised Yale University policy—and made it much easier for protesters to trample on free speech.

Here’s what the policy—which Dean Gerken never quotes from in her message, oddly enough—actually provides: (1) “a university event, activity, or its regular or essential operations may not be disrupted”; (2) protesters “may not interfere with a speaker’s ability to speak or attendees’ ability to attend, listen and hear”; and (3) “[s]itting in or otherwise occupying a building in a way that blocks access or otherwise interferes with university events or operations” is not permitted.

The March 10 protesters broke all three of these rules. The protesters disrupted not just the FedSoc talk, “a university event,” but also the “regular operations” of YLS, including multiple classes and a faculty meeting (which actually was “shut down,” since it had to be moved to Zoom). The protesters interfered with both “a speaker’s ability to speak,” before they left Room 127, and the “attendees’ ability to listen and hear,” after they repaired to the hallway. Finally, the protesters blocked the main hallway of the Sterling Law Building. There is ample evidence, including audio recordings, video recordings, and eyewitness testimony, to support all of this.

The Yale free-speech policy also offers seven examples of prohibited conduct. The protesters engaged in at least six of them:

• “Holding up signs in a manner that obstructs the view of those attempting to watch an event or speaker, regardless of the message expressed.”

• “[S]houting… in a manner that interferes with speakers’ ability to be heard and of community members to listen, or disrupts or interferes with classes or other university activities.”

• “Standing up in an assembly in a way that obstructs the view of those attempting to watch an event or speaker and/or blocking the aisles or routes of egress.”

• “Sitting in or otherwise occupying a building in a way that blocks access or otherwise interferes with university events or operations.”

• “Acting in ways that compromise the safety or bodily integrity of oneself or others.”

• “Engaging in activities that are illegal or are prohibited in School or College regulations or policies.”

The fact that some of the prohibited conduct lasted for only a limited period of time is no defense; a violation occurs after the prohibited act has been committed. And again, there’s evidence to support all of this—now including a Daily Mail op-ed co-authored by the two speakers from the event, Kristen Waggoner and Monica Miller, in which they describe the scene they faced on March 10. According to Waggoner and Miller, the protest included students who “chanted, pounded the walls, and yelled obscenities,” as well as engaged in “harassment and physical threats,” which is why “the police had to escort us out of the building into a patrol car for our safety.”

Back to Dean Gerken’s message:

This behavior was unacceptable; at a minimum it violated the norms of this Law School. This is an institution of higher learning, not a town square, and no one should interfere with others’ efforts to carry on activities on campus. YLS is a professional school, and this is not how lawyers interact. We are also a community that respects our faculty and staff who have devoted their lives to helping students. Professor Kate Stith, Dean Mike Thompson, and other members of the staff should not have been treated as they were. I expect far more from our students, and I want to state unequivocally that this cannot happen again. My administration will be in serious discussion with our students about our policies and norms for the rest of the semester.

Here’s what I like in this paragraph from Dean Gerken:

• declaring the protesters’ actions “unacceptable”;

• acknowledging that YLS is “an institution of higher learning, not a town square” (see also my original story about the protest, explaining why a classroom is not a campus sidewalk, which is why the “shouting is free speech too” argument fails in this context);

• tying the misconduct to legal education by noting that “this is not how lawyers interact”;

• condemning the rude treatment of Professor Stith and Dean Thompson;

• “stat[ing] unequivocally that this cannot happen again”; and

• noting that there will be discussions with students about free-speech policies and acceptable forms of protest going forward.

The message should have ended here. Unfortunately, as she did with her school-wide email from last November, Dean Gerken couldn’t resist criticizing some of her critics:

As Dean, I am deeply committed to our free speech policies and the values they safeguard. I will protect free speech without fear or favor. But I have waited to write you because it is our conversations as a community that matter most. In our statement-hungry culture, university leaders are constantly asked to be referees, encouraging our students to appeal to a higher authority rather than to engage with one another and tempting outsiders to enlist academic institutions in their own political agendas. Statements are expected instantly from institutions whose core values include deliberation and due process—values that are essential where, as here, the reporting has been so contradictory. And pundits parse any statement to see which side they favor when the role of a university is not to take sides but to articulate its mission with clarity. Most importantly, statements are poor teaching tools. Learning involves speaking and listening, through iterative conversations in smaller settings with mentors and peers. That has always been our teaching model, and that is the only way that our norms can be understood and internalized. Although these conversations are not visible to outsiders, they are taking place here now, and the institution will be the better for it.

I can understand Dean Gerken’s desire to explain why she didn’t issue a statement immediately after the March 10 protest—which is what Dean David Faigman did at UC Hastings, and which is what I and others have said Dean Gerken should have done here. But complaining about “our statement-hungry culture” and “pundits [who] parse any statement to see which side they favor” reads as defensive and thin-skinned.

Here’s how the letter concludes:

The deeper issues embedded in this event are not unique to Yale Law School— they plague our democracy and institutions across the country. Nonetheless, we will overcome these challenges because we must. Together, we will figure out how to nurture a thriving intellectual environment while maintaining a community of equality and mutual respect. It is harder than ever to find common ground; the stakes are high, and the rights of cherished members of our own community are under attack. But it is essential that we keep this community together despite the many forces seeking to divide us. I am heartened that as we push forward, we build on an intellectual tradition that stretches back centuries, with a faculty wholly committed to the School’s academic mission and students of every political stripe imbued with idealism and intelligence. As Dean, I am and will always remain unalterably committed to keeping that tradition vibrant and alive.

Heather K. Gerken

Dean and Sol & Lillian Goldman Professor of Law

On this point, Dean Gerken and I agree: “the deeper issues embedded in this event are not unique to Yale Law School.”

And this is why the YLS story has resonated for so many of my readers, most of whom have no connection to Yale Law. First, what happens at YLS doesn’t stay at YLS; because Yale is a top-ranked law school that produces almost 20 percent of law professors these days, its culture spreads to other law schools, then trickles out into the legal profession as a whole. Second, the drama at YLS is a microcosm of a broader struggle for free speech—now under attack from the right and from the left, across the country and around the world.²

I reached out to Zack Austin, president of Yale’s FedSoc chapter, for comment on Dean Gerken’s letter. Here’s what he had to say (in his personal capacity, since other FedSoc members might feel differently, and the organization doesn’t purport to speak for all of its members):

This response seriously misrepresents both the facts of the incident and the administration’s subsequent response to it. It’s the same balancing act of Free Speech against DEI that we saw in Dean Gerken’s first email response to Trap House-gate. The Woodward Report is clear that there is no balancing test; this statement is far more ambiguous.

I share some of Austin’s disappointment. Compare Dean Gerken’s letter to the recent Washington Post op-ed by Erwin Chemerinsky and Howard Gillman, which does a better job of explaining why the Yale protest was so problematic and why free speech is so important, especially at a law school. Dean Chemerinsky shares Dean Gerken’s progressive politics, but his defense of free expression is more robust.

Looking to the future, if YLS won’t be disciplining the March 10 protesters, what’s to prevent a repeat of these unfortunate events? That’s what the progressive student whose letter I recently published is wondering:

I’m still processing Dean Gerken's response, but her letter notably lacks any indication of proactive measures the administration can take to prevent a repeat of what happened. I appreciate, though, Dean Gerken for being clear that the behavior was unacceptable and for standing up for Professor Stith, Dean Thompson, and the staff. That said, her description of the behavior itself emphasizes its content (mean and rude, etc.) and dwells less on the stifling effect of the behavior. There’s a good pedagogical opportunity here to confront the justifications for the protest methods head-on. That doesn't happen in this letter, but I hope the school can facilitate conversations that scrutinize the arguments this incident has generated.

I look forward to having the “iterative conversations in smaller settings with mentors and peers” that Gerken describes, but I worry that this language suggests that the school culture as a whole might be neglected. Moreover, the assortative nature of class selection, mentor-mentee relationships, and student groups makes it possible for the small environments that Gerken references to be fairly homogeneous, which could undermine the probing reflection needed on campus.

Again, this is my first pass at reflecting upon Gerken's response, so take it with a grain of salt. My take sounds mostly critical, so I should credit Gerken for centering the intellectual and civic purpose of the school in her response. But ensuring that the school climate conforms to those values is going to take some work.

I’d like to close by giving Dean Gerken credit as well. I’m glad that she issued a public statement about the March 10 protest. I’m glad that she declared it “unacceptable.” And I’m glad that she has placed herself in a position where it will be hard for her not to discipline YLS students who engage in similar misconduct in the future. But I also agree that when it comes to creating a robust intellectual environment that’s worthy of the nation’s #1 law school, she and her YLS colleagues have a lot of work ahead of them.

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1. For those of you read my open letter to Dean Gerken last week but haven’t looked at it more recently, please note the correction I have appended to it. Contrary to what my earlier reporting might have suggested, Dean Gerken did not remain in the faculty meeting across the hall during the March 10 protest. Instead, she left the meeting and went to her office, where she assembled a group of administrators and a representative of the Yale Police Department, who was already on hand, to discuss the best course of action for de-escalating the situation. Although she did not confront the protesters herself, the course of action that I suggested in my open letter, it was not accurate to suggest that she remained in the faculty meeting and did nothing.

2. As I mentioned in my open letter to Dean Gerken (also in footnote 2), my beat as a journalist is Yale Law School and similar institutions. In these environments, the left tends to pose more of a threat to free speech than the right (with some exceptions), which is why I tend to write more about the left than the right.

But I condemn threats to free expression across the ideological spectrum. If you’re interested in reading about efforts by conservatives to squelch free speech and “cancel” their opponents, check out chapter 1 of my former Above the Law colleague Elie Mystal’s new book, Allow Me to Retort: A Black Guy’s Guide to the Constitution—now in its second week on the New York Times bestseller list. (Yes, I disagree vehemently with many of Elie’s views on constitutional law—but just because we disagree doesn’t mean we can’t be friends, and it saddens me when people say they can’t be friends with people on the other side of the aisle, which is all too common these days.)