Yale Law School And the Federalist Society: Caught In A Bad Romance?

The ‘trap house’ email controversy is even worse than we thought.

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The Federalist Society, the nation’s leading organization of conservative and libertarian law students and lawyers, got its start at Yale Law School. Several of the most prominent figures associated with FedSoc, including Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh, are YLS alums.

One might think that this shared history would forge a certain bond between Yale Law and the Federalist Society. But as the recent “trap house” email controversy shows, there’s no love lost between YLS and FedSoc right now—and, in fact, relations are even worse than we thought.1

Trent Colbert, the 2L who sent the allegedly offensive email, wasn’t the only law student summoned to meet with YLS administrators and urged to issue an apology. The current president of the Yale Federalist Society, Zachary Austin, was also pressured to apologize—even though Austin and FedSoc were not involved in sending the email, sent by Colbert to fellow members of the Native American Law Students Association (NALSA), not the Federalist Society. (The invitation that Colbert sent to FedSoc members was much more matter-of-fact and said nothing about a “trap house.”)

Zack Austin recounted the whole sordid affair yesterday at the 2021 Federalist Society National Lawyers Convention, when he delivered customary “state of the chapter” remarks at a breakfast for YLS alumni. As a Yale Law alum myself, I happened to be in attendance, and this post is based upon Austin’s remarks (which I tried my best to take down; luckily I had my laptop with me).

Austin began by providing background on how the Constitution Day party came to be co-sponsored by FedSoc and NALSA in the first place. Originally FedSoc reached out to the American Constitution Society (ACS), FedSoc’s counterpart on the left, to see if ACS would be interested in co-sponsoring a Constitution Day celebration. Alas, for the fourth year in a row, ACS declined (a bit ironic, given the organization’s name).

Instead, ACS announced an event of its own, focused on how the Constitution is a tool of “oppression” directed against Native Americans. To prepare some counterprogramming, Austin proposed a social event for Constitution Day that FedSoc would co-sponsor with NALSA. Thanks to the advocacy of Colbert, a member of both organizations, NALSA agreed.

Trent Colbert sent his fateful email on September 15. The very next day, Colbert was summoned to meet with two YLS administrators, associate dean Ellen Cosgrove, who leads Yale Law’s Office of Student Affairs (OSA), and diversity director Yaseen Eldik. Later in the day on September 16, Cosgrove and Eldik met with Zack Austin, after sending him what Cosgrove later described as a “formal summons.”

As previously noted, FedSoc had nothing to do with Colbert’s email. So why was Austin summoned to meet with YLS administrators? According to Austin, Eldik said something to him along the following lines when they met:

I think you as a cis/het white man decided to have some fun, and convinced a man of color with a backyard to send out an email announcing a costume party where it wouldn’t be frowned upon if people came in blackface to eat some fried chicken while dancing to trap music.

As a person of color, I’m amused but also annoyed at how white people always seem to be the only people with agency in situations like this, with everyone else as either their victim or puppet. It’s quite insulting to Trent Colbert to assume that he sent the “trap house” email only because he was put up to it by a white man. If I write something offensive or outrageous in these pages, rest assured that my white husband didn’t put me up to it (since, to the contrary, he usually tones me down in editing; you should see my first drafts, which would have gotten me canceled by now).

So if you’re confused as to where on earth Eldik came up with his “a white guy made him do it” theory about Trent Colbert’s email, you’re not alone. As Austin explained yesterday:

No one who has taken a statutory interpretation class—even one at Yale Law School—could possibly believe in good faith that the email said anything remotely related to [a blackface party]. As I began to explain that to Yaseen, we were joined by Dean Cosgrove and Chloe Bush. Chloe is not a diversity and harassment resource coordinator, but rather the OSA administrator responsible for approving FedSoc’s budget. Especially because she was never in any meeting with Trent, her pressure came across as fiscal pressure on our organization to comply. Despite my repeated requests, OSA has not provided an alternative explanation for her presence.

Our heaps of documents—including Trent’s relatively unknown email prepared for the FedSoc listserv—refuted any allegations that we were planning a blackface party. Dean Cosgrove, Chloe, and Yaseen appeared to acknowledge as much. Nevertheless, they tried to pressure me into sending out a public apology that they had drafted for me. I was told that if I didn’t apologize, my reputation in the law school and in the broader legal community might never recover. I refused.

An apology from FedSoc—for what, exactly? Existing? I’d love to see what exactly the draft “apology” said, given the organization’s manifest lack of involvement with the email.

Yes, I realize that many of you do not like or otherwise have problems with FedSoc (and so do I). If a private university like Yale wants to ban FedSoc, that’s its prerogative. But as long as YLS allows FedSoc to exist, deeming it to be an appropriate part of the Yale Law community, then the school has a duty to treat the organization fairly.

Alas, it appears that the YLS administration wasn’t done treating FedSoc unfairly. According to Zack Austin, this happened two weeks later:

On October 1st, FedSoc departed campus for our annual retreat. OSA had formally approved this event back in August as satisfying all of YLS’s Covid protocols. The morning of October 1st, Chloe and Dean Cosgrove retroactively deauthorized our retreat, once it had already begun, by asserting that they had never approved it, and that I must have been ‘confused.’ I produced several emails between FedSoc and OSA showing we went above and beyond with all Covid planning, but Dean Cosgrove did not relent until I proved she personally signed our ‘Retreat Approval Form’ on August 31st.

After Aaron Sibarium’s original article in the Washington Free Beacon about Trap House-gate came out, things only got worse:

The day after [the article], our chapter hosted Kannon Shanmugam at a speaker event on Supreme Court advocacy. He tweeted the day before about his support for our chapter. As in years past, a well-publicized student protest movement then began to form on the Wall [the YLS list-serv]. OSA confirmed to me afterwards that their policy is to send staff to all events that have a high risk of protest. However, unlike in years past, no one from OSA was present inside the room, even though there were 70 vocal protesters.

In a subsequent October 18th meeting witnessed by a member of the Yale faculty, I presented Dean Cosgrove with email evidence from each of my semesters in law school alleging differential treatment of FedSoc at OSA’s hands—incidents many of our recent alumni are all too familiar with. Most strikingly, OSA admitted to improperly following up on a complaint that a FedSoc member submitted in October 2019, when a ‘Dean’s Advisor’ (an upperclassman student paid and trained by OSA to orient 1Ls) equated FedSoc to the Ku Klux Klan during an official orientation event. Dean Cosgrove said that this incident was not properly handled due to ‘incompetence.’

Now, as I’ve said before, I’m not a fan of students complaining to administrators about speech by other students (although here the fact that the offending statement was made during official orientation might be a distinguishing factor). But setting that aside, if the YLS administration is going to follow up on student complaints of offensive speech, as it did immediately after receiving complaints about Colbert’s email, then it should do so evenhandedly.

The saga—and gaslighting—continued. Per Austin:

On October 19th, I discovered that the names of our board members were stripped from our YLS FedSoc webpage. The website’s logs revealed that Chloe Bush had deleted the page on October 19th.

On October 20th, I emailed OSA asking if they knew anything about this. Both Dean Cosgrove and Chloe denied knowing anything at all about this incident. They suggested one of our board members may have gone rogue. But after I presented the logs to the faculty witness, Chloe emailed me, stating that she ‘forgot’ that she deleted our site at the same time as NALSA’s and BLSA’s after those groups requested OSA take down their sites to avoid media scrutiny. That was also false—NALSA’s site went down the day before ours, and BLSA’s website never did.

Let me be clear: without our consent, without notifying us, and of their own accord, OSA took down our board website to make it harder for the media to contact us. Then they lied about this, twice, all over email. Subsequently, Cosgrove wrote me an ‘apology’ email, saying OSA’s deletion of our website page was justified to protect us from the media.

That’s not all the YLS administration should apologize for. Speaking for myself, I believe that the administration should apologize to Trent Colbert, Zack Austin, and the Yale Federalist Society, for its egregious mishandling of this incident—which, if handled properly, never would have generated copious, critical coverage in some of the nation’s leading media outlets.2

As I’ve mentioned before, I was an officer of Yale Federalist Society in the late 1990s. Over the intervening two decades, I have drifted leftward. I’m no longer a conservative (at least in terms of the normal American political spectrum, not the YLS political spectrum); I’m no longer a Republican; and I’m no longer a member of the Federalist Society (which I’m not afraid to criticize). But even if you discount my views because of my YLS Fed Soc role back in the day, I’m not alone in my views.

Later in the day at this year’s FedSoc conference, Yale law professor Akhil Reed Amar, one of the nation’s most-cited legal scholars—as well as a longtime Democrat, who has never been a member of FedSoc—lambasted the YLS administration for its handling of the Trap House-gate controversy. He condemned it as “dishonest, duplicitous, and downright deplorable,” adding that the administration should apologize—which, he noted, it has not yet done.

Professor Amar is not the only Democrat and person from the left side of the aisle who believes that the YLS administration should apologize to Colbert for how he was treated. Simon Lazarus—Yale Law class of 1967 and an alum of the Carter Administration, where he served as associate director of the White House Domestic Policy Staff—also wrote an excellent, detailed analysis of Trap House-gate. (An excerpt is posted over at Brian Leiter’s Law School Reports, but I urge you to read Lazarus’s piece in full.)

Lazarus’s piece was emailed around the YLS faculty yesterday by Professor Bruce Ackerman—who is, along with Akhil Amar, one of Yale Law’s leading scholars of constitutional law, as well as no one’s idea of a conservative. Not many faculty members have spoken publicly about recent events at YLS, but those who have raised concerns about the overall intellectual environment—including Ackerman, Amar, Amy Chua, and Roberta Romano—are some of the school’s most well-known and well-respected professors.3 [UPDATE (8:46 p.m.): The preceding sentence was edited to reflect the fact that not all of these professors have spoken out about Trap House-gate specifically, as opposed to broader issues about the climate at YLS.]

Simon Lazarus isn’t alone among YLS alumni in criticizing the administration. Judge Stephanos Bibas (3d Cir.), a 1994 graduate of Yale Law, spoke at the YLS alumni breakfast before Zack Austin took the podium. Judge Bibas expressed his disappointment in how administrators handled this incident, focusing on their attempt to extort an apology out of Colbert—which he labeled a “corruption of apology,” which is normally a laudable thing and a noble instinct. In the words of Judge Bibas, version 1.0 of apology—which is one-on-on, personal, sincere, and voluntary—”is being superseded by apology 2.0,” a public performance that is regularly “demanded by Twitter mobs” these days.

Where does Yale Law School go from here? I’ll make a few predictions (although, like many commentators, I have a long track record of being wrong).

First, I think—or at least hope—that the YLS administration will be more careful and considerate in dealing with the Yale Federalist Society. As Justice Brandeis famously wrote, “Sunlight is said to be the best of disinfectants.” And there’s no doubt that in recent weeks, YLS has been bathed in the limelight, for better or worse.

Second, I predict that Yaseen Eldik and Ellen Cosgrove will be removed from their current roles (as I know several faculty members and alumni have urged). I’m guessing they will have soft landings, though, and will be given new jobs somewhere within Yale University’s vast and growing bureaucracy.

Third, I believe that Heather Gerken, whose tenure as dean is now under review, will be renewed for another term—which is something that I personally support. Although I have not spared her administration from criticism in these pages, Dean Gerken’s other accomplishments as dean—including diversifying the student body, diversifying the faculty, strengthening ties with alumni (especially diverse alums), launching a new leadership program, and fundraising, oh the fundraising—outweigh her errors, at least in my opinion.

After she is renewed as dean, which politically will give her more leeway and leverage—right now she’s walking on eggshells, trying to keep everyone happy during her deanship review period—I hope that Dean Gerken will retract her administration’s condemnation of Trent Colbert’s email and issue an overdue apology to Colbert, Zack Austin, and the Yale Federalist Society. I hope that she will reaffirm that FedSoc and its members are a valued part of the YLS community. And I hope that she, and all the other administrators and professors at Yale Law School, will stand up for free thought and free speech, in the finest traditions of Yale University.4 [UPDATE (8:46 p.m.): A reader asked me: why shouldn’t Dean Gerken act immediately? I would be pleased to see Dean Gerken take any of these actions before her deanship is renewed but don’t see that as likely, since they could anger the critics of Colbert and FedSoc. And the renewal should happen any day now, so it won’t be long anyway.]

As a private institution, Yale is free to remake itself as Social Justice University or PCU—imagine an archenemy to Bari Weiss’s new University of Austin—and then ban the Federalist Society. But that’s not what Yale claims to be about, at least not yet.

Yale’s motto is still “Lux et Veritas,” Latin for “light and truth,” and it still claims to be a university committed to academic freedom and robust inquiry. As Dean Gerken recently stated in responding to one alumnus who expressed concern about free speech at Yale, the Law School has "long abided by a vigorous free speech policy that dates back much earlier in its history [than the Chicago Principles adopted by the University of Chicago a few years ago]—the famed Vann Woodward report,” one of the greatest defenses of academic freedom ever.5

Yale Law School and the Yale Federalist Society will never be lovers, or even friends. But if they can peacefully coexist in an environment of mutual toleration and respect, and if certain YLS administrators can at least put on a poker face when dealing with FedSoc, that’s something I will shower with applause.

[UPDATE (11/15/2021, 5:30 p.m.): Zachary Austin goes by “Zack” rather than “Zach,” so this post has been edited throughout to reflect that. Since my husband’s name is also Zachary (he goes by “Zach”), I am very familiar with the Zach/Zack divide.]

[UPDATE (11/15/2021, 11:32 p.m.): Some readers have asked what the Yale Law administration had to say about all this. I did reach out, but YLS declined to comment (which is not unusual in situations like this, given concerns about student privacy and laws like FERPA).]


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

This post assumes familiarity with the scandal now known as Trap House-gate. If you haven’t been following it, please feel free to read my introduction to the controversy; my interview of Trent Colbert, the second-year law student who sent the allegedly offensive email; and a related post about an antiracism training at YLS that gives you an idea of the intellectual environment in which Trap House-gate arose.

Trap House-gate should in turn be understood against the backdrop of Dinner Party-gate, another disturbing controversy at Yale Law with free-speech implications. In Dinner Party-gate, Amy Chua, one of the YLS faculty’s more outspoken and controversial members, was accused of hosting drunken dinner parties with law students and federal judges during the coronavirus pandemic—which multiple media reports have made clear she did not do.

2

See, e.g., the Washington Post (by Ruth Marcus and again by Kathleen Parker); The Atlantic (by Conor Friedersdorf); CNN (by Michael Smerconish); The Chronicle of Higher Education and The Hill (by Andrew Koppelman); Slate (by Mark Joseph Stern); Real Clear Politics (by Peter Berkowitz); and Advisory Opinions (by Sarah Isgur and David French).

3

The one faculty member I’m aware of who has spoken up on the other side, Professor Monica Bell—who just won tenure this week, so congratulations to her—has a personal tie to these events. As she has commendably disclosed, Yaseen Eldik, the administrator at the center of this kerfuffle, is her best friend.

In addition to Professor Bell, some students have weighed in on the side of the YLS administration, or at least weighed in against Colbert and FedSoc. See, e.g., second-year students Emma Perez (on behalf of the Dred Scott Society) and Saja Spearman-Weaver, as well as Jack McCordick, a senior at Yale College. I encourage you to read their thoughtful commentaries, even though I respectfully disagree with them, and see where you come out on these matters after you do.

4

The YLS faculty, which has no conservative or libertarian scholar of public law, sorely needs greater intellectual diversity. I have been speaking and writing in favor of demographic diversity for years, but I believe that viewpoint diversity is critically important as well. As Professor Amar said in his remarks at the Fed Soc conference yesterday (around 56:00), in an academic setting, “ideological diversity is at least as important as mere demographic diversity. People of different points of view can sharpen each others' ideas and produce and disseminate more light and truth.”

5

As noted by the Foundation for Individual Rights in Education (FIRE), whether Yale continues to adhere to the Woodward report has been cast into doubt. But I’m hopeful that a ringing defense of free speech will be forthcoming from Dean Gerken, Professor Ian Ayres (who has been tasked with investigating recent events at YLS), or both.

By the way, I realize that I write extensively, perhaps excessively, about Yale. This is partly because it’s my alma mater, and partly because we have such clear evidence of what happened (in the form of the audio recordings made by Trent Colbert and published by the Free Beacon). But I’m happy to cover similar controversies at other law schools; if you know of one, please email me. Unfortunately I can’t respond to the many emails I receive, but please know that I do read and appreciate all your correspondence.

Finally, as I mentioned earlier this week, I have created sections here at Original Jurisdiction. If you don’t want to read the Yale stuff or get it in your inbox, simply go into “My Account” on the Substack website and unselect “General News,” the category where I file free-speech and other law-and-politics stories. Conversely, if you like the culture-wars stuff and don’t like the law-firm news, unselect “Legal Industry News.” Just like Burger King, I want you to “have it your way” when it comes to this fine publication!