Dean Gerken Goes Into Damage Control Mode

Heather Gerken, Dean and Sol & Lillian Goldman Professor of Law at Yale Law School.

David Lat is cautiously optimistic that the Judges’ Boycott of Yale Law graduates for clerkships has put the fear of God (or, at least, grave alarm at the loss of prestigious career opportunities translating into money and power) into the powers that be at the Yale Law School.

In the wake of the announcement of Judge James Ho (5th Cir.) that he would no longer hire clerks from Yale Law School, a boycott joined so far by Judge Lisa Branch (11th Cir.) and a dozen other judges who wanted to remain nameless, Dean Heather Gerken has been quietly reaching out to prominent conservative jurists. Her message: YLS is deeply committed to free speech and intellectual diversity, it has taken concrete steps to support that commitment, and as dean, she welcomes hearing from judges about what else can be done to promote and protect academic freedom at Yale Law—including Judges Ho and Branch, the progenitors of the YLS boycott.1

A week ago today, on Thursday, October 13, Judges Ho and Branch responded to Dean Gerken’s outreach with a letter (which you can download via the embed above). Here’s how it begins:

Wowzers! I share the judges’ hope that the panel can take place before January 17—because I don’t know if I can wait that long for such an epic event.

Substance aside, I suspect that the reception to Judges Ho and Branch will determine whether they actually push through with their boycott (which both judges have explained doesn’t apply to current YLS students and graduates, only future students—so in a sense it hasn’t really taken effect yet). If Judges Ho and Branch receive a cool but ultimately civil reception from Yale Law’s overwhelmingly progressive student body, then I expect the judges to stand down. But if they get shouted down at YLS, as Kristen Waggoner of the ultra-conservative Alliance Defending Freedom did this past March, that will powerfully prove that Yale’s free-speech problems are profound—and might get even more judges to publicly hop on the anti-YLS bandwagon.

The rest of the judges’ four-page letter—which I urge you to read in full, along with Judge Ho’s forthcoming article in the Texas Review of Law & Politics, Agreeing to Disagree: Restoring American by Resisting Cancel Culture—is an eloquent defense of free speech, open discourse, and civil disagreement. The last two pages respond to a statement by Dean Gerken that was posted on the YLS website last Wednesday, October 12, A Message to Our Alumni on Free Speech at Yale Law School (“Alumni Message”). So I’ll walk you through that statement now, offering reporting and opinion of my own, as well as comments from the Ho/Branch letter. (The Alumni Message was previously covered by Karen Sloan and Nate Raymond of Reuters, Brad Kutner of the National Law Journal, and Debra Cassens Weiss of the ABA Journal.)

Here’s how Dean Gerken’s Alumni Message begins (all hyperlinks in the original):

Dear members of our alumni community:

Yale Law School is dedicated to building a vibrant intellectual environment where ideas flourish. To foster free speech and engagement, we emphasize the core values of professionalism, integrity, and respect. These foundational values guide everything we do.

So far, so good. Please proceed, Dean Gerken.

Over the last six months, we have taken a number of concrete steps to reaffirm our enduring commitment to the free and unfettered exchange of ideas. These actions are well known to our faculty, students, and staff, but I want to share some of them with you as well.

Last March, the Law School made unequivocally clear that attempts to disrupt events on campus are unacceptable and violate the norms of the School, the profession, and our community.

I don’t view Dean Gerken’s statement on the infamous March 10 protest as making “unequivocally clear” that what transpired was unacceptable; to the contrary, I found her statement rather… equivocating. But instead of repeating myself, I’ll simply incorporate by reference my earlier exegesis of her comments. I would also refer you to page 3 of the Ho/Branch letter, in which the judges similarly criticize YLS’s handling of the March 10 protest and refute the attempt to defend that handling.

Back to the Alumni Message:

The faculty revised our disciplinary code and adopted a policy prohibiting surreptitious recordings that mirrors policies that the University of Chicago and other peer institutions have put in place to encourage the free expression of ideas.

I will spare you—and me—from a painstaking parsing of the updated disciplinary code, which runs to seven single-spaced pages. For now, here’s a concise explanation of the latest revisions that was provided to me by Professor Claire Priest, who served on the faculty committee responsible for the changes:

I am writing because it was so disappointing to hear that Judge Ho and other judges called for a hiring freeze on YLS clerks due to the disruptive protests against Alliance Defending Freedom last year. Since last January, I have served on a committee led by Professors Oona Hathaway and Tracey Meares that rewrote the rules of the law school. One of the first revisions we made clarified that “reckless” disruptions of law school events are major violations of the code.

Since the 1970s, the school has been governed by the Rights and Duties (“R&D”), which was poorly written and vague, and resulted in an environment where the Dean and administrators were effectively in charge of all discipline. After the ADF protest, Dean Heather Gerken constituted a committee to rewrite the rules to make it explicit that reckless disruption of classes, events, and the business of the law school will constitute a major violation of our rules going forward. Unfortunately, we did not feel we could publicize this until September 21, when the faculty unanimously voted for the new code. The revised code also clarifies the procedures we will use and takes much of the disciplinary work out of the hands of our student-facing administrators.

One thing I’d highlight from Professor Priest’s message: the committee that led the R&D revision was appointed last January—after the scandals known as Dinner Party-gate, Trap House-gate, and Antiracism Training-gate, but before Protest-gate, and well before the Ho-led boycott. So while Judge Ho can take credit for highlighting YLS’s free-speech problems and restarting the conversation about them after the summer break, the process of revising the R&D was underway long before that.

RTWT

Yale’s administrators are very good at wining, dining, and brown-nosing influential squeaky wheels and beyond that, this particular threat definitely impacts Dean Gerken’s own prospects of survival in office, so it may very well be that, at least to some extent, henceforward the power of campus radicals to cancel speech and appearances by public figures they do not like will (for practical reasons, not principle) wind up thrown under the Free Speech bus.