Where Yale Law School Has Gone Off The Rails, And What Is Needed To Get Back On Track

Update: 

• David Lat, Yale Law School And The Federalist Society: Caught In A Bad Romance? (Nov. 15, 2021)
• Washington Free Beacon, Yale's Akhil Amar Calls Law School Administration's Handling Of 'Trap House' Email Controversy 'Dishonest, Duplicitous, And Downright Deplorable' (Nov. 16, 2021)
• David Lat & Eugene Volokh (UCLA), More On The Two Yale Law School Controversies (Nov. 17, 2021)
• Washington Free Beacon & Josh Blackman (South Texas),  Yale Law School Dean Heather Gerken Admits Error, Stops Short Of Apologizing To Targeted Students; Law Prof Calls For Conservative Yale 1Ls To Transfer (Nov. 18, 2021)

Following up on my coverage of the email controversy at Yale Law School (links below): 

Brian Leiter shared a 5-page memo, Where YLS Has Gone Off The Rails, And What Is Needed To Get Back On Track, by Simon Lazarus (J.D. 1967, Yale; Former Associate Director, President Jimmy Carter’s White House Domestic Policy Staff):

Like many other Yale Law School alumni, I have been profoundly saddened by the controversy surrounding the Trap House Affair. In particular, I’ve become increasingly disappointed by the YLS administration’s persistent mishandling of the matter — which is largely responsible for escalating a small, apparently manageable misunderstanding between elements of the student body, into a focus for withering national and international criticism of YLS, by prominent journalists and academics. At this point, it seems worthwhile to step back, identify what the issues are, and what they are not, and suggest what it will take, short-term and long-term, tor the administration to right its ship.

What now is most baffling is the YLS administration’s defiant, defensive crouch response to the widening public criticism — batting away the smoking-gun-studded factual record, as “partial facts” in a “charged media environment,” and attempting to deflect criticism by announcing an “assessment” by Deputy Dean Ian Ayres, “to help us move forward.” Refusing to address publicly available facts, and trivializing, as media hype, outrage from a Pulitzer Prize winning Washington Post columnist, a Post Deputy Editorial Page Editor, and distinguished academics — will not stem this tide. Nor will Dean Gerken’s passing the buck to a subordinate.

To change course, Dean Gerken and her staff must (be persuaded to) acknowledge what’s gone wrong, and credibly redirect YLS to restore its stature as a bastion of basic rule of law and Bill of Rights-compatible principles. Cosgrove’s and Eldik’s actions did not, as Dean Gerken seemed to suggest in her most recent public statement, reflect an attempt to resolve tension between competing of principles, i.e., free expression versus civility. On the contrary, their conduct constituted a flagrant abuse of power, pure and simple. In a nutshell, as The Atlantic’s Fridersdorf cogently put it, "Irrespective of whether the invitation was racially offensive, the behavior of Yale Law's diversity bureaucrats was unethical, discreditable, and clearly incompatible with key values that the elite law school purports to uphold." That is what Dean Gerken needs to acknowledge, and rectify. Specifically, that means:

1st, Dean Gerken must disavow the mass email condemning the student Trent Colbert. The dean must acknowledge that it was a grave error, substantively inaccurate and procedurally unfair, for Associate Dean Cosgrove and Diversity Director Eldik, to send their September 16 email to the entire YLS student body, “condemn[ing] in the strongest possible terms,” Colbert’s party invitation, for “containing pejorative and racist language,” and asserting further that they were “addressing this.” Cosgrove and Eldik sent this blast email, because, after meeting earlier that day with them, Colbert had not agreed to sign a mea culpa apology letter outlined, indeed, drafted for him by Eldik. In fact, the student’s allegedly inculpatory party invitation was, as the administrators acknowledged in their meeting with him, neither intended to be pejorative or racially suggestive, nor did the sender have any reason to expect that its language would be so construed. It does not matter whether the complainants had reason for offense, from their vantage point, nor which side’s account of their mutual interactions was more truthful. Sending out any such letter “condemning” one party to a dispute among students, with no notice to that student or fair opportunity to defend, belied the administration’s claim to be a neutral or fair mediator. ...

“Inflection point” is an overused cliché, but in my opinion it applies to this situation. If YLS does not disavow the practices revealed by this incident, and either reaffirm or thoughtfully adjust the Vann Woodward Report’s robustly free-expression-centered regime, it will become a radically different institution from the one that gave me my finest educational experience, in moral as well as professional terms, and wholly deserved stature among America’s, and the world’s, law schools.

Prior TaxProf Blog coverage:

• Ruth Marcus (Washington Post), At Yale Law School, a Party Invitation Ignites a Firestorm (Oct. 15, 2021)
• Kathleen Parker (Washington Post), Yale Law School Triggers Me (Oct. 16, 2021)
• David Lat, Yale Law Student Who Sent 'Trap House' Email Faces Removal As 2L Rep (Oct. 18, 2021)
• Andrew Koppelman (Northwestern), Yale Law School’s Bullying, Coercive Diversity Leaders (Oct. 19, 2021)
• Yale Daily News, Racism, Conservatism And Free Speech At Yale Law School (Oct. 20, 2021)
• Eugene Volokh (UCLA), Lawyers, Law Students, Law School Administrators, And Language (Oct. 22, 2021)
• The Atlantic, A Worrisome Peek Inside Yale Law’s Diversity Bureaucracy (Oct. 23, 2021)
• Washington Free Beacon, Backlash Against Media Coverage Of The Yale Law School 'Trap House' Email (Oct. 25, 2021)
• Trent Colbert (Yale 2L), Why I Didn’t Apologize For That Yale Law School Email: 'We Must End The Culture Of Performative Repentance' (Oct. 26, 2021)
• Peter Berkowitz (J.D. 1990, Yale; Senior Fellow, Hoover Institution), An Open Letter To Yale Law School Dean Heather Gerken (Nov. 1, 2021)
• David Lat, The Newest Insanity Out Of Yale Law School (Nov. 4, 2021)