Paul L. Caron

Thursday, March 24, 2022

Lat: Free Speech At Yale Law School — One Progressive's Perspective


Following up on yesterday's post, Law School As A 'Panopticon'; Yale's Kate Stith: 'Law Schools Are In Crisis':

Yale Law Logo (2020)David Lat (Original Jurisdiction), Free Speech At Yale Law School: One Progressive's Perspective:

You don't need to be conservative to be troubled by goings-on at YLS.

After my open letter to Dean Heather Gerken about the latest free-speech controversy at Yale Law School (“YLS”), a highly disruptive protest by progressive students of a Yale Federalist Society event on March 10, I received supportive (private) feedback from YLS faculty and alumni. But one of my sources at 127 Wall Street expressed pessimism about the situation improving, claiming that the administration is far more strongly aligned with the protesters—and far more indifferent to free speech—than I realize.

As evidence, this source cited the “critical race theory & yale law school” t-shirts that the Office of Student Affairs is giving out right now.1 The YLS administration is not neutral in the culture wars, said this source, which explains why it approaches speech issues with a thumb on the scale.

I also heard from current Yale law students, and I’d like to share one letter that provides insight into the state of affairs at YLS right now. My correspondent was one of the 400+ law students who signed an open letter expressing support for the March 10 protest, which the letter describes as “peaceful,” no fewer than five times. This student wanted to explain why they signed the open letter—and why they’re troubled by the current intellectual climate at Yale Law. ...

I’m not ready to give up on my alma mater, but I know some grads who have. As one wrote to me, “David, this is a wonderful letter. I am strangely moved by your obvious affection and concern for YLS as an institution. I know this doesn’t speak well of me, but I'd be happy to see it burn.”

Inside Higher Ed, Law Students Shout Down Controversial Speakers at UC-Hastings and Yale:

Two protests, two law schools, two controversial speakers. The difference? One event went ahead, despite repeated disruptions, at Yale Law School. The other, at the University of California Hastings College of the Law, descended into chaos: the speaker was unable to eke out more than a few words before students shut him down, chanting, clapping and banging on desks in protest.

Both events were put on by the Federalist Society, a conservative group with chapters on college campuses. One event featured a poster with the Federalist Society logo and the motto “Debate. Discuss. Decide.” But on both campuses, student protesters had already decided on their stance, leaving little room for debate or discussion.

At UC Hastings, Ilya Shapiro—who is currently on leave from Georgetown Law School over a controversial tweet—was supposed to take part in a March 1 discussion on the Supreme Court replacement for retiring justice Stephen Breyer. At Yale, Kristen Waggoner, general counsel for Alliance Defending Freedom, a conservative advocacy group, took part in a March 10 discussion on civil liberties that ultimately continued despite student interruptions.

Now the fallout from both incidents has some in the legal world decrying the state of free speech at U.S. law schools and even warning against hiring the disruptive protesters. ...

As news of the protests has spread, so too has the outrage in certain legal circles.

Days after the event, U.S. Circuit Judge Laurence Silberman sent an email to a judicial Listserv urging his peers to think carefully before hiring any of the protesters at Yale as law clerks. “All federal judges—and all federal judges are presumably committed to free speech—should carefully consider whether any student so identified should be disqualified for potential clerkships,” Silberman wrote.

But to some observers, such statements are simply bluster.

“The kind of students protesting at Yale would never get hired by Justice Silberman, anyway. Let’s be real. Many circuit judges seek to hire law clerks who think like them—this is not a secret,” said Josh Blackman, a law professor at South Texas College of Law. “I don’t think there’s much relevance to that email. I think he simply articulates the old-guard way of thinking about it.”

Of greater concern, academics say, are the larger implications for the future of academic freedom and freedom of speech when law school students are shutting down speakers invited to take part in campus conversations.

“I think what’s happening on a sociological level is that there’s a huge clash of values between people of the generation being educated now and potentially the generation that is educating,” said Erica Goldberg, a law professor at the University of Dayton School of Law.

Goldberg added that this conflict extends beyond law schools, all the way down to undergraduates.

“I think that there is an increasing set of values that just says the only solution to certain social problems is to shut down all discourse about them, to shame all people who pose what some people believe is an existential threat to their identity,” she said. “And the prevailing view before that, I think, was largely ‘let people speak, let’s engage with them and potentially, we’ll learn from each other.’”

That’s a view that Blackman—who was protested at CUNY Law School in 2018—seconds.

“It’s jarring to think that if they actually talked to Ilya for a few minutes, they might think differently of him,” Blackman said. “But because they’ve never stopped screaming at him, they never got the chance, they just assume from one or two bad tweets that this is a person who deserves to be excommunicated from society and has no redeeming grace. That’s why I think the right to speak is important. Listen to what he has to say—maybe he’ll surprise you. But simply rejecting his presence on campus eliminates the possibility that you’re able to learn from someone.”

Both Blackman and Goldberg suggest that professors often self-censor lest they offend students. With that in mind, they believe that bringing in speakers to challenge students’ views can offer valuable perspectives they might not otherwise get in the classroom, even from tenured faculty.

Prior TaxProf Blog coverage:

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