Following up on my previous posts (links below): Andrew Koppelman (Northwestern), What Yale Law School Teaches — Inadvertently — About the Appropriate Role of Diversity Officials:
Yale Law School’s disastrous mishandling of a discrimination complaint actually shows that diversity officials can do valuable work — if we consider what they should have done.
As the bitter controversy continues over Yale Law School’s disastrous mishandling of a discrimination complaint, some have wondered whether there ought to be diversity officials at all. The mutual incomprehension among students that led to this situation actually shows that they can do valuable work — if they get it right.
In some ways, opposition to racism is baked into the modern university. Law schools like Yale, where I was a student, or Northwestern, where I teach, admit the best students they can find, regardless of race, sex, social class, or other ascribed statuses. But that egalitarian ethic has not always existed. The old hierarchies leave their mark, and members of previously excluded groups often feel that they don’t belong. If that affects their academic performance, the university’s educational mission is impaired.
Faculty should care about this experience of isolation because teaching is an exercise in rhetoric, and rhetoric has a moral dimension. It forces you to learn about your audience, to get outside your own head and into the heads of other people. Universities need to know what alienates students. Otherwise we can’t do our jobs as effectively as we could. The alienation of minority students is a problem that needs to be addressed.
But addressing it can’t involve the embrace of any substantive orthodoxy. As the 1967 Kalven Report noted, a university “cannot insist that all of its members favor a given view of social policy,” because that means “censuring any minority who do not agree with the view adopted.” Rather, what the university can contribute to social policy is clarity, the dispelling of ignorance and confusion. That has implications for the role of diversity officers.
My point will be clearer if we consider the specifics of what happened at Yale. ...
When conflicts like this happen, it is useful to simply get the parties to listen to each other. That is not adjudication or arbitration. It is what mediators do. Mediators are expected to have no commitment to any particular outcome, and no power to compel one. Mutual understanding is a tough enough ask. Had Yale’s administrators made clear at the outset that they were not considering any punitive sanction, that would have eliminated the sense of danger that poisoned their interactions. The aim of mediation is to help the parties understand each other’s narratives about what happened and why. That might produce some kind of agreement, but there are no guarantees.
At Yale, evidently, hard feelings persist on all sides. Sometimes that can’t be helped. Colbert is right that ritualized solutions are a recipe for hypocrisy. Misinterpretations of words and actions happen and are more likely in a diverse society. It is good to promote clarity. The Kalven Report declared: “A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community.” That means that disagreement is inevitable. Coercive attempts to make it disappear — to impose a single resolution and demand everyone’s allegiance to it — imposes an orthodoxy antithetical both to the inevitable variety of viewpoints in a free society and to the mission of the university.
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 (Original Jurisdiction; J.D. 1999, Yale), 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 (Original Jurisdiction; J.D. 1999, Yale), The Newest Insanity Out Of Yale Law School (Nov. 4, 2021)
- Simon Lazarus (J.D. 1967, Yale), Where Yale Law School Has Gone Off The Rails, And What Is Needed To Get Back On Track (Nov. 13, 2021)
- 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 (Original Jurisdiction; J.D. 1999, Yale) & Eugene Volokh (UCLA), More On The Two Yale Law School Controversies (Nov. 17, 2021)
- Washington Free Beacon, 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)
- Andrew Koppelman (Northwestern), More On The Yale And UIC Law School Controversies (Nov. 29, 2021)
- Simon Lazarus (J.D. 1967, Yale), A Second Open Letter: 'A Take On Where Things Stand' (Dec. 2, 2021)
- David Lat (Original Jurisdiction; J.D. 1999, Yale), Yale Law Faculty Meets Amidst Multiple Scandals And Controversies (Dec. 4, 2021)
- David Lat (Original Jurisdiction; J.D. 1999, Yale), Yale Law Faculty Meets Today With Dean Review Advisory Committee To Discuss Reappointment Of Heather Gerken (Dec. 8, 2021)
- David Lat (Original Jurisdiction; J.D. 1999, Yale), Will Heather Gerken Be Reappointed As Dean of Yale Law School? (Dec. 17, 2021)
- Peter Salovey (President, Yale), Heather Gerken Reappointed Dean Of Yale Law School For Another 5-Year Term (Jan. 19, 2022)