Be Quiet So You Can Hear the Free Speech at Yale

Yale Law School has seen a series of attacks on conservative speakers by leftist students. Rather than firmly address the disruptive students’ violations of school policies, time and time again Yale administrators found ways to excuse the wrongdoers and intimidate the victims. Yale certainly isn’t alone in this shameful behavior, but it has elevated to an art form, perhaps unmatched in influence, its open hostility toward conservative ideas and open support for leftist disruptions, eggshell outrage, and violence.

We should have seen this coming. Studies have demonstrated that across the country, university administrators are even more liberal than the faculty. There is no greater echo chamber today than higher education, which has felt emboldened to institutionalize management’s intolerance of conservative ideas precisely because there has been no cost to do so.

So, fourteen federal judges are not going to take it anymore and have publicly or privately announced their refusal to hire law clerks from Yale Law School due to the jurists’ shared concerns about the lack of free speech at Yale. On top of the fourteen instances documented by the press, I personally know of two more participating judges.

James Ho of the Fifth Circuit, who started the boycott, has been openly joined by Elizabeth Branch from the Eleventh Circuit, and conservative icon Edith Jones, on the Fifth Circuit with Ho, publicly expressed sympathy for Ho’s concerns.

Nobody suggests that Yale’s predicament is unique. I personally am well aware of leftist dogma in academia. For example, I filed a Freedom of Information Act lawsuit demanding records from my school for my research about the effects of race-based admissions, because the then-dean refused to give me information of the very type that I had previously received. The Left’s alleged commitment to transparency, however, takes a back seat to pursuing their intentionally opaque agenda.

But the refusal to produce public records was far from all the Left used in pursuit of their plans: two professors with whom I worked demanded that my grading procedures be examined because of my FOIA lawsuit. Don’t see a connection? Of course not, because none exists.

Did you expect anything less, though? You don’t dare investigate the sacred cow of affirmative action without repercussions. After all, it’s the biggest dirty little secret in academia, and fight-club rules apply: the first rule of affirmative action is that we don’t talk about affirmative action.

[Related: “When Questions Become Harassment”]

I had no intention of succumbing to such attacks, however. The university’s then-provost aptly dismissed the complaint. The two professors since retired sometime later for unrelated reasons—without any repercussions for their unfounded attacks, of course. And the then-dean unexpectantly resigned shortly after creating some furor by sending an email to the faculty and student body deriding the election of Trump. If only someone in academia told him that leftist, anti-democratic screeds might be looked askance outside of the academic echo chamber, as it undoubtedly was in conservative Arkansas.

However, Yale excels in whatever it does, notwithstanding that its outsized position in legal education always warrants extra attention. Just last week, likely in response to Ho’s actions, Yale Law School Dean Heather Gerken doubled down on the university’s bad behavior and announced alleged free-speech efforts at Yale that, in fact, belie her claim.

Gerken banned surreptitious recordings of public officials and announced: “we know that the best way for our students to learn is by engaging with their peers and faculty in small, iterative conversations within our community. … this work often is not visible to the wider world.”

So, her response to administrators’ bad behavior is to further restrict, eh, students’ ability to record administrators? Gerken is transparently lauding her own efforts to reduce transparency.

As a freedom of information scholar, I know Gerken’s perhaps unwitting ruse is inherently designed to protect the entrenched establishment. Indeed, one of the major controversies that put Yale in its current pickle came to light only because a student recorded and shared the oppressive intimidation tactics quietly employed by Gerken’s diversity police. So, rather than correcting the coercion, she seeks to prevent its revelation. It’s the same fight-club rule we saw regarding affirmative action. An unseen problem is like a tree falling in the forest, after all. When nobody hears it, it must not exist, right?

Indeed, the recording ban goes hand-in-hand with secret efforts to indoctrinate students at every level into the critical race theory (CRT) cult entrenched in the modern American educational system. It took a Freedom of Information Act lawsuit in Arkansas by a client of mine, for instance, to expose one local school district’s embedded CRT agenda. Of course, private schools like Yale aren’t subject to public-information laws, which only apply to government entities. So, recordings become even more salient—albeit they’re obviously beneficial in public institutions as well.

[Related: “In the Fight for Free Speech, Courage is Contagious”]

Academia is going in the wrong direction. Fair-minded individuals cannot stand by as education continues its descent into a cenobium of cancel culture. Ho’s proposal stands more apt today than it did yesterday and is just one effort among many to address our broken school system writ large.

And, to be sure, proposals to cure the cancel-culture cancer may affect students in many ways. The fortunate few law-school applicants who will be able to attend Yale will simply need to weigh the scope of their potential post-graduate opportunities in the calculus. Life is about choices, and these elite students will have theirs to make among a near-limitless list of attractive options.

Hopefully, Yale will garner the reputation that, in response to its hostility toward conservative views, its imprimatur will be unwelcome in some circles, however narrow they might be. Maybe this will help reform the leftist bastion. Maybe not. But it’s a start in the right direction.

However, many also have missed the independent benefit to conservative judges of Ho’s proposal and its broader implications. Whether or not Ho’s efforts change behavior at Yale, the judges deciding to eschew a school that models anti–free speech ideals will rationally choose to hire from schools less antagonistic to the ideas that they want their judicial clerks to employ when serving in chambers.

Indeed, we use heuristics all the time in hiring. Virtually all Supreme Court Justices have for some time only come from two schools. Eight current Justices graduated from Harvard or Yale. Indeed, only one post-WWII justice ever attended a third- or fourth-tier law school by today’s standard: John Marshall Harlan II, whose grandfather also served on the Supreme Court.

While there certainly have been tepid complaints that this heuristic has been employed excessively for Supreme Court Justices, they pale in comparison to the pushback toward Ho’s proposal. But it’s always harder to wrench away a claimed entitlement from an existing recipient than it is to simply grouse about them at Georgetown cocktail parties.

Academia is broken, and a handful of judges has responded with one small step for its own good, perhaps the greater good. That’s their rational choice, and we should be thankful for their transparency in the process.

Image: Wikimedia Commons, Public Domain


  • Robert Steinbuch

    Robert Steinbuch, a law professor at the University of Arkansas, William H. Bowen School of Law, is a Fulbright Scholar and author of the treatise on the Arkansas Freedom of Information Act. His views are not necessarily those of his employer.

5 thoughts on “Be Quiet So You Can Hear the Free Speech at Yale

  1. Harlan may have attended NY Law School, but before that his education included Princeton and Oxford (as a Rhodes Scholar). That’s still a highly elite education.

  2. The larger issue is Yale’s control of information and it’s ability to discredit it’s critics by denying them the ability to document their allegations.

    30 years ago, stuff would happen, the university would deny it, and that would be the end of it. Starting with the Blackberry 20+ years ago, victims of leftist aggression started to have the ability to document it, with the .mpeg files being indisputable evidence.

    Hence why what Yale is doing is so scary and why the ABA ought not tolerate it. There ought to be a presumption that Yale is trying to hide things that would cost it’s accreditation were they to become known.

    And imagine that a law school thay had an active Klan chapter that it permitted to harass & intimidate Black students. Wouldn’t it eventually lose it’s accreditation?

    1. I was speaking about higher ed in general — from what I saw of the Yale protest, it was downright civil compared to what I often saw at Planet UMass.

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