This spring, I spoke at Yale Law School. The atmosphere in the gothic classroom was tense from the beginning. The students slouching in their seats look bedraggled. Things went fine enough, and the room started to relax. Then a conservative student launched into a tirade because he had seen me hug the associate dean of students earlier in the afternoon. I’d known her since I was a first-year law student at Harvard more than 15 years ago. Though I was the president of the Harvard Federalist Society and she was a well-documented liberal, she had helped me innumerable times on campus. She supported me when the faculty and administrators selected me as class day speaker at graduation. A few years later, we stood together at the White House when our former dean, Elena Kagan, was confirmed as an associate justice to the Supreme Court. When I hugged her at Yale this spring, she had just congratulated me on having a baby at the height of the pandemic.
The law student didn’t know any of this, but was offended by this display of non-ideological human interaction and accused me of “buddying up” with his enemy.
How did we get here?
In the last year, Yale Law School became the epicenter of the debate over on-campus free speech culture. Administrators were recorded bullying a conservative student because of an email he sent inviting classmates over to his “trap house” for a party last October. Some law students believed the term was racially loaded and sent complaints to the administration describing the invitation as harassment and discrimination. The head of the Black Law Students Association said the term amounted to “cosplay/black face.” Others noted that the term was also in the name of one of the most popular progressive podcasts in the country — Chapo Trap House — hosted by three white guys, and hadn’t seemed to engender any backlash.
Within hours, the student was called in to speak to the school’s diversity director and associate dean. During the course of the conversation, the administrators can be heard telling the student that his affiliation with the Federalist Society — a conservative student group that hosts debates on campus — was “very triggering” to students and that the student would have been under additional scrutiny if he were “a white person.” (The student is of Native American descent.) They told him that if he did not agree to apologize, he may be prevented from becoming a licensed lawyer. When the student refused to send the apology the administrators had drafted for him — saying he preferred to talk to any offended students — the administrators sent out their own email to “condemn … in the strongest possible terms” the student’s use of “pejorative and racist language.”
Less than a month later, two other students filed a lawsuit against the school claiming the same administrators had “blackball[ed] two students of color from job opportunities as retaliation for refusing to lie to support the University’s investigation” into Professor Amy Chua. Chua, who had spoken in support of Brett Kavanaugh’s nomination to the Supreme Court, was under investigation for allegedly violating her agreement not to socialize with students off campus. But some conservatives took the investigation as retaliation against Chua for her support of Kavanaugh and her mentorship of conservative students, in addition to others. Last month, a judge found “sufficient evidence that the law school’s actions may have affected the plaintiffs’ ability to obtain a clerkship.”
In the spring, liberal law students shut down a free speech event on campus. Monica Miller of the progressive American Humanist Association and Kristen Waggoner of the conservative Alliance Defending Freedom (ADF) had taken the same side in a 2021 First Amendment Supreme Court case and came to speak about finding common ground across ideological divides.
Thanks to video footage, we know that the 100 or so student protesters disrupted the event because of the positions ADF has taken in cases involving LGBT issues. While preventing either speaker from talking, these students claimed they were exercising their own right to free speech. After a professor told them they should “grow up” and either be quiet or leave, the protesters moved to the hallway where they continued to make enough noise that audience members couldn’t hear the speakers and even nearby classes and a faculty meeting were disbanded.
Students who attended the event to listen, not to protest, reported being “threatened and jostled” as they tried to leave. Plain clothed officers present at the event called for backup from uniformed officers to help the speakers safely exit the building. At the time, the law school’s policies prohibited disrupting a university event, interfering with attendees ability to attend, listen and hear, and blocking access to building space. No students were disciplined as a result of the protest. A week later, the school sent out an email letting students know they could “swing by” the office to grab a “Critical Race Theory T-Shirt!”
All of these events last year paint a troubling picture of a premier American university dedicated to teaching the next generation of legal advocates how to argue and persuade. A lawyer in court can’t shout down a witness whose opinion they find triggering. As legal journalist and Yale Law School graduate David Lat noted in his open letter to the dean:
“Progressives can’t shut down duly organized events because they disagree with the speakers. They can’t weaponize anti-discrimination policies to punish the protected speech of their opponents. They can’t make up and spread lies about professors with unpopular views (or the students who dare to associate with those professors).”
The problem isn’t that a majority of the students at Yale Law School are liberal, though it is safe to say they are very, very liberal. That is nothing new to campus life, after all. A recent study of elite liberal arts undergraduate programs found that 30 percent of students (and academic staff) identified as the furthest left point on a 7-point ideological spectrum. At Smith College, for example, only 1 percent of students identified as conservative. Students of color at these schools were three times more likely to identify as liberal than Americans of color in general.
The problem is that these students believe tolerating — or even being exposed to — opposing viewpoints is an injustice to be stopped. When students believe that they have a right to be protected from harmful thoughts and painful feelings, little dialogue can persist. A downward spiral of virtue signaling commences in which championing the ever-shifting most sensitive position ends the discussion. Many YLS faculty members, according to several professors and students there I’ve spoken with, fear for their institution. But they are afraid to speak out lest they be targeted by this mob of students who believe the entire mission of the law school — to test ideas and challenge premises through reason and logic — is flawed.
Any legal advocate will tell you that the only way to succeed in such a career is to understand your opponents arguments as well as your own. But how can these students be expected to argue persuasively in favor of affirmative action or voting rights when they reject the very premise of persuasion in our legal system — that we are best equipped to arrive at truth when both sides engage with the strongest arguments of their opponents?
This isn’t just a problem among liberals. While the progressive student majority may be able to set the tone for the campus (and most campuses) thanks to sheer numbers, what is happening among conservative law students is also disturbing. Within their ranks, a sizable group of YLS conservatives now advocate for the abandonment of conservative methodologies like originalism and textualism in favor of an ends-justify-the-means theory of constitutional interpretation in which their side always wins and free speech is equally cabined by the righteous.
And my own interaction with a conservative student shows how much today’s students — across the ideological spectrum — are incapable of separating the personal from the political, how they view the opposing side as enemies unworthy of being listened to.
The result is intellectual close mindedness on both sides: Neither side needs to engage with the other because there is nothing left to debate in their view.
In the past, leaders in the legal community, whether deans or law firm partners, might have rolled their eyes at how ill-prepared these students would be for the practice of law. They might have tried to mold these students into lawyers rather than buckle to them. Instead, it is the law schools and law firms that have had to radically change to accommodate incoming classes of mostly liberal students and associates who bring their anti-speech experiences with them. The repercussions are being felt throughout the legal community, and some judges are taking matters into their own hands.
In September, conservative Fifth Circuit Judge James Ho announced that he would no longer accept clerkship applications from future Yale Law students.
Why? Yale has been the number one ranked law school in the country for decades. The ranking is based on many factors, but one is how many of YLS students go on to clerk for federal judges. Since half or so of federal judges are appointed by Republican presidents — and 6 of the current Supreme Court justices are conservative — the handful of YLS conservative students are in high demand, and more likely than liberal students to get prestigious clerkships. This year, YLS will get to report that 8 of their students are clerking at the Supreme Court — 7 work for conservative justices. Ho saw himself as being complicit in a cycle in which Yale discriminated against its conservative students while they were on campus but then relied on their clerkships to buoy its national rankings.
“Customers can boycott entities that practice cancel culture,” Ho wrote in the Texas Review of Law and Politics. “But all too often, that seems utterly futile. … Boycotting is often tantamount to just de-platforming yourself. But I wonder how a law school would feel if my fellow federal judges and I stopped being its customers. Instead of millions of customers, there are only 179 authorized federal circuit judgeships and 677 authorized federal district judgeships.”
In the days that followed Ho’s announcement, several conservative judges came forward with their own thoughts. Eleventh Circuit Judge Lisa Branch joined Ho in his boycott. Several other judges reportedly have done so — but have perplexingly chosen to stay anonymous. On the other hand, Yale graduate and Fifth Circuit Judge Jerry Smith, whom Ho himself clerked for, announced that the boycott was “regrettable” and hoped as a result “to receive even more Yale applications from qualified men and women.” Third Circuit Judge Ted McKee, appointed by President Clitnon, called it “nasty” and “ugly.”
Some have claimed that Ho’s boycott is just its own form of cancel culture, punishing a private institution for political beliefs that he doesn’t like. Ho says his hope is to encourage law school applicants to think twice about going to a school that has prestige but doesn’t value fundamental freedoms. “If they want the closed and intolerant environment that Yale embraces today, that’s their call,” he writes, “But I want nothing to do with it.”
But he says what he is doing “is the exact opposite of what Yale is doing.” Cancel culture is about excluding people,” Ho writes, “I want institutions of higher learning to include people.”
It’s not fair to say that students, and younger generations of legal scholars, are the only problem here. This same kind of anti-free speech culture we see at law schools actually permeates the legal world. The Supreme Court this term could decide several cases with First Amendment implications. Liberals want the court to say that a website designer can’t decide what speech to promote if it means discriminating against gay couples; conservatives don’t want social media companies to be able to choose what content to remove from their websites. But both feel strongly that the other side should lose.
The purpose of the Socratic method used in first year legal classrooms is to test the consistency of a student’s beliefs in other applications. But can we really blame law students when lawyers across the ideological spectrum seem ready to embrace the “free speech for me, but not for thee” way of thinking? Who will be left to advocate for free speech as a virtue unto itself?
This was never about a single law school. A recent NBC poll just found that “some 80% of Democrats and Republicans believe the political opposition poses a threat that, if not stopped, will destroy America as we know it.” What is happening at Yale is happening across the country and across the ideological spectrum. As Americans are able to protect themselves from opposing viewpoints online, they are increasingly unwilling to tolerate them offline. At a time when each side of the political spectrum seems to have a lot to say, they seem less interested than ever in talking to each other.
Since the boycott was announced, there have been a few developments at YLS.
First, Dean Heather Gerken announced that the school has revised the student disciplinary code to make clear that “reckless disruptions of law school events will be considered a violation of the code” — and to bar surreptitious recordings. But this has raised as many questions as answers. If the previous code was so brazenly violated without consequence, what difference will the revised code make? Why prohibit surreptitious recordings when the only recording in question was a law student who felt the need to document his conversation with administrators who arguably threatened his ability to practice law because they didn’t like his speech?
Second, the dean invited Judges Ho and Branch to campus for a panel on free speech and intellectual discourse and they have both accepted while questioning whether the dean’s commitment to change Yale’s culture “reflect reality or are nothing more than parchment promises.” The event is set to take place in January. Will Yale law students listen and respectfully engage? If they do, will Ho and Branch stand down their boycott before it takes effect for next year’s incoming class?
Third, Dean Gerken announced that Yale would no longer provide information to the US News and World Report for their law school rankings. Gerken argued that the rankings criteria “disincentivize programs that support public interest careers, champion need-based aid, and welcome working-class students into the profession.” And while most legal scholars and pundits — including me — agree that the rankings drive law school behavior in often unhelpful ways, several prominent writers also noted that the timing of the announcement perhaps betrayed another motivation.
Yale has been the number one ranked law school since the rankings started in 1990, but that ranking was at risk this year. A quarter of the ranking is based on assessments from peer institutions and another 15 percent comes from lawyers and judges. Last year, YLS’s peer assessment score dropped from 4.8 to 4.6. That was before the disrupted event, the national attention and the boycott. It’s not hard to imagine that Yale was about to take a substantial hit in both of those categories this year.
Students fear that this is a signal that the school has no intention of fixing its free speech problems. One current student told me that the decision to pull out of the rankings has “the effect of removing the primary tool of accountability that offered some constraint on the Yale Law School Administration’s bad behavior last year.” Rather than address the rot, has YLS decided to cover up the smell?
Our freedom to speak may be more protected by the courts than it has ever been in our country’s history. Our ability to speak to one another — across states and oceans — has never been more easily attainable. Yet our desire to listen to those who have a different view has never been weaker. As religious commitment has decreased, politics has become the new faith. And faith does not bend to reason. It is not up for argument. Faith does not tolerate heretics.
But the law must do all of these things. At Yale, in Judge Ho’s chambers, and at the Supreme Court.