Jurisprudence

Yale Law School’s Free Speech Blunder Bolsters the Federalist Society’s Victim Mentality

The Yale Law School courtyard.
The Yale Law School courtyard. stepnout/Flickr

The debate over free speech on campus erupted again on Wednesday with the publication of a Washington Free Beacon article alleging that Yale Law School retaliated against a conservative student’s speech. The school pressured the student, a Federalist Society member, into apologizing for an email deemed racist by multiple classmates, according to the Free Beacon’s Aaron Sibarium. The story drew widespread scorn from the right: Sen. Tom Cotton described Yale’s alleged conduct as “insanity,” a sentiment shared by fellow critics of contemporary higher education in the U.S.

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That response, by itself, should illustrate the folly of Yale’s actions in this case. Even the slightest appearance of retaliation against conservative students for protected speech only bolsters the victimhood mentality that the Federalist Society cultivates in its members. It provides grist for the grievance-industrial complex that drives the conservative legal movement. And it allows the right to depict institutions of learning as indoctrination factories that instill students with woke groupthink. What happened here is wrong on its own terms. But it’s especially imprudent in the context of our campus culture wars, in which every perceived slight against a Federalist Society member may be seized upon as proof of a vast conspiracy to suppress conservative viewpoints.

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The YLS controversy began when a second-year student invited his classmates to a “Constitution Day Bash.” This student, whose name was withheld by the Free Beacon, belongs to both the Native American Law Students Association and the Federalist Society. His email explained that the party, co-hosted by the Federalist Society, would be held at the “NALSA Trap House.” It would feature “American-themed snacks,” including, among other things, “Popeye’s chicken.”

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This email prompted as many as nine students to file complaints with the Office of Student Affairs. Associate dean Ellen Cosgrove and diversity director Yaseen Eldik then called the student into their office to discuss the matter. These administrators said the email’s language had racist undertones and advised him to apologize; they also asserted that the “email’s association with FedSoc was very triggering.” (The student recorded these conversations, and the Free Beacon has posted the audio.) During their conversations with the student, Cosgrove and Eldik arguably implied that the student would face professional consequences if he did not apologize. For instance, Eldick told the student: “The university has changed in its approach to a lot of these issues. And you’re a law student, and there’s a bar [exam] you have to take, and we think it’s important to really give you a 360 view.”

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Sibarium interpreted this language as a veiled threat, since prospective lawyers must undergo a character and fitness investigation in order to join the bar. According to Sibarium, Eldick implied that YLS might tell the bar that the student lacks the character to become a lawyer unless he apologized. There is another possible interpretation, though: Anyone can bring complaints during the character and fitness investigation, so Eldick might have been warning the student that a disgruntled classmate might try to derail his career by flagging this incident. Whatever Eldick meant at the time, he clarified one month later that “we would never get on our letterhead and write anything to the bar about you.”

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Social media has flattened this story into a simple narrative: Liberal bureaucrats punish conservative wrongthink to appease woke leftists. The truth is more complicated. No single aspect of the student’s email is overtly racist, but taken together, the references to a “trap house” and “Popeye’s chicken” are, at a minimum, fraught. The email was juvenile and unprofessional. Moreover, the school’s response was not overtly censorious. In a statement on Wednesday, YLS spokeswoman Debra Kroszner wrote that “at no time was any disciplinary investigation launched or disciplinary action taken in this matter,” and nothing in the audio contradicts that statement.

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Nonetheless, Cosgrove and Eldik’s intervention was misguided. Calling a student into the associate dean’s office over an email looks like retaliation against free expression; so does floating the possibility—intentionally or not—that the email could prevent future admission to the bar. Facing the ire of school administrators may fall short of true punishment, but it’s  certainly a rebuke designed to send a disapproving message.  As a private school, YLS is not bound by the First Amendment; even if it were, these actions may not qualify as unconstitutional retaliation against protected speech. Still, they are serious enough to trigger concerns that the school would admonish a conservative student for expression disfavored by his progressive classmates.

So Yale’s move here was unwise through the lens of free speech; even if we assume the school’s intentions were pure—which is open to debate—its response was wrong, full stop. But it is particularly troubling in light of the Federalist Society’s long-running claims, integral to the organization’s self-image, that their members are a persecuted minority. The Federalist Society was founded on the principle that law schools are dominated by liberal ideologues who seek to snuff out opposing conservative views. It inculcates its members with what George F. Will, a prominent Federalist Society booster, once called the “coveted status” of victimhood. And it routinely holds events alleging that conservative campus speech is in peril.

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This sense of discrimination is objectively ridiculous: The society is one of the most powerful private associations in the country today. Six sitting justices were Federalist Society members, as are a huge number of lower court judges; about 90 percent of Trump’s appellate nominees are affiliated with the organization.  Still, the illusion of victimization remains powerful, and provides the glue that binds the Federalist Society together. Its members lift each other up into positions of power, forming a tight-knit network that now dominates the federal judiciary. The Free Beacon’s article will only bolster this us-vs.-them mentality, providing fodder for the conservative lawyers who insist that liberals are trying to “silence” them, in Justice Clarence Thomas’ words.

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In May, Stanford opened an investigation and placed a hold on a progressive law student’s diploma after Federalist Society members complained that he made fun of them. That punishment exceeds anything YLS did here, but a basic principle can be gleaned from the two cases: Law schools should not get involved over student disputes over protected speech. Doing so does not help the speaker, or their critics, or the school itself. Whether the temptation to jump in is benign or malign, formal intervention only makes matters worse for all parties. Law students are adults. When their schools treat them like children, they are inviting nothing but pain.

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