Paul L. Caron

Tuesday, March 22, 2022

The Right And Left Agree: It Is Time For Yale Law School To Stand Up To Progressive Opponents Of Free Speech


Following up on Friday's post, Is Free Speech In American Law Schools A Lost Cause?:

Yale Law Logo (2020)Wall Street Journal editorial, Yale Law Students for Censorship:

Some readers may think these students should be forgiven the excesses of youth. But these are adults, not college sophomores. They are law students who will soon be responsible for protecting the rule of law. The right to free speech is a bedrock principle of the U.S. Constitution. If these students are so blinkered by ideology that they can’t tolerate a debate over civil liberties on campus, the future of the American legal system is in jeopardy.

Individual judges choose their clerks, and no doubt some will figure they can educate these progressive protesters. But Judge Silberman’s letter should, if nothing else, warn these students that there may be consequences for becoming campus censors.

David Lat (Original Jurisdiction), An Open Letter To Yale Law Dean Heather Gerken:

As dean, it's better to be feared than loved—and it's time to strike fear into the hearts of free-speech opponents.

You are the Dean of the Yale Law School, and when a crisis arises at YLS, you must take the wheel.

As someone who knows and cares a lot about leadership—it’s no coincidence that the Tsai Leadership Program was launched during your deanship—you understand that part of being a leader is taking heat. So you shouldn’t have left others to take the heat for you. Instead, you should have strutted out into that hallway, wearing your fabulous signature boots, and told the protesters: “Enough. You are all in flagrant violation of Yale’s free speech policies. If you do not quiet down immediately, you will be disciplined.”

Not confronting the protesters on March 10 was, I submit, a failure of leadership—but it might have been understandable, in the heat of the moment and the chaos of the situation. A less understandable failure of leadership is not sending out a school-wide email after things calmed down, like the one that Dean David Faigman sent out after a similar event at UC Hastings Law, offering a ringing affirmation of free speech and explaining how the protesters violated university free-speech policies. It’s now more than a week after the event—by the time YLS students return from spring break, more than two weeks after the event—and you have not said anything publicly, despite ample opportunity to do so. ...

As the Dean of Yale Law School, you can’t be liked by all people, all of the time. You can be liked by most people, most of the time—and you are—but sometimes you have to anger people, if that’s the price of doing the right thing. And right now, the right thing to do is to make clear to the entire YLS community, liberals and conservatives alike, that they must comply with Yale’s free-speech policies—whether they like it or not.

There’s been a problem with the intellectual climate at Yale Law School for several years now. Some of it flows from the fact that progressive students (“Progressives”) view those who disagree with them—definitely conservatives, and even some moderates—as bad people (“Bad People”).

Progressives are free to think that their opponents are Bad People. They can exclude them from social gatherings. They can make Bad People feel unwelcome in affinity groups (already happening at YLS, with members of certain affinity groups being forced to choose between affinity-group and FedSoc membership). They can make fun of Bad People with satirical fliers.

But it’s your job, as the Dean of Yale Law School, to tell Progressives that in an academic community based on free expression, there are limits to how much they can act on the view that their opponents are Bad People. 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). It’s your job, as the Dean of Yale Law School, to remind Progressives of all this—even if they complain, call you “complicit,” or say you’re a Bad Person too. ...

It won’t be fun in the short term, but over the long term, standing up to the Progressives is in both their interest and your interest. It’s in their interest because if and when they become lawyers, they will have to deal with difficult situations and differences of opinion. By sheltering them from difficult situations and differences of opinion in law school, you’re doing them no favors when it comes to their legal education and professional development. In the short term, they might dislike or even hate you for it—but over the long term, they will (or at least should) be grateful.

Standing up to the Progressives is in your interest as well. I’m guessing that you, like many law school deans, aspire to serve as a university president someday. A good university president is like the proverbial iron fist in a velvet glove: charming and likable on the outside, strong and firm on the inside. No one, even your critics, questions your ability to be the velvet glove—and a presidential search committee won’t either. But you have not (yet) displayed your ability to be the iron fist. Now’s your chance. ...

As the dean of a top law school in the year 2022, you have a difficult job. You’re dealing with students who feel they have a “right” to be protected from “harm”—which they define as not just, well, harm, but as hurt feelings and psychological pain. And, to be honest, you’ve made your job more difficult by letting them get away with so much for so long.

But you know what? Even if you’ve let them get away with so much, these students can’t claim a “reliance interest” in your permissiveness. You can start a new chapter in the history of Yale Law School at any time—and that time is now.

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