NAS Statement on the Yale Law School Debacle

Peter Wood

As has been widely reported, on March 10, a group of some one hundred Yale Law School students disrupted an event at the School. The Federalist Society hosted a panel which featured a conversation on free speech. Kristen Waggoner from the Alliance Defending Freedom (ADF) was scheduled to exchange views with Monica Miller from the American Humanist Association (AHA). These are organizations that promote distinctly different philosophical stances: ADF is conservative and Christian; AHA is politically progressive. Miller herself is a liberal atheist. But both organizations support “free speech,” and they were aligned in supporting the plaintiff in the 2021 U.S. Supreme Court case, Uzuegbunam v. Preczewski. In that case, Chike Uzuegbunam, who as a student at Georgia Gwinnett College in Lawrenceville, Georgia had been prevented by campus police from speaking about his Christian beliefs outside a small and remote “speech zone,” sued the College. The Supreme Court in an 8 to 1 decision (Roberts dissenting) ruled in Uzuegbunam’s favor.

This background throws the March 10 disruption into stark relief. The Federalist Society was demonstrating within the walls of one of America’s most important and prestigious law schools that proponents of dramatically divergent views could engage in civil debate and even find common ground. That common ground involved protecting the rights of the son of Nigerian immigrants from officials at a public university who sought to restrict his speech and literally marginalize him. Chike Uzuegbunam was not physically in the lecture hall that day, but in an important sense he was indeed present. An organized group of Yale law students—among the most privileged young people in America—had decided that the people who had defended his rights should be silenced.

Of course, the Yale law students who disrupted the event weren’t thinking about Uzuegbunam or about the fundamental rights of free expression in America. They were not even thinking about the rule of law or the necessity of civil exchange. Their grievance was that Kristen Waggoner had been permitted to speak at all. As Mark Joseph Stern put it in his defense of the protesters, “Waggoner’s organization supports criminalization of homosexuality, nullification of same-sex marriages, an end to same-sex adoption, and a ban on gender-affirming health care for minors, among other anti-LGBTQ policies.”

In other words, the students judged that their disagreement with ADF’s public policy positions was sufficient reason to prevent an orderly exchange of views between two qualified speakers and to abrogate the freedom of those who came to listen to that exchange.

Student disruptions of campus speakers are, of course, nothing new. The history of such disruptions at important American colleges and universities goes back to the 1960s. And in recent years we have had some very conspicuous examples, including the successful effort to prevent Charles Murray from speaking at Middlebury College, March 2, 2017, a protest that culminated in a physical attack that left a faculty member with serious injuries. For a period, shout-downs and similar disruptions compromised both the safety and the free speech of speakers at colleges and universities across the United States. The pandemic, of course, interrupted this form of political activism. The Yale Law School disruption, however, shows that the underlying contempt among many students for academic and intellectual freedom has not dissipated. The campus world is still imperiled by students—and sometimes faculty members—who have forgotten or do not care that respect for free exchange is a basic precondition of higher learning.

This is not something that should require fresh explanation, but unfortunately it seems to require exactly that. A generation of students has reached the level of advanced professional study without having absorbed some key ideas. One of those ideas is that civil exchange is a common good. Those who, perhaps out of passionate conviction that their views are righteous, attempt to stifle the voices of those they disagree with, put their own speech in jeopardy, along with the speech of anyone who holds views similar to theirs. Without respect for the common good of free exchange, all expression is in jeopardy.

Another key idea is that the university is among those venues set apart for vibrant exchange of ideas. It is not the only venue. The courtroom is another. Though the manner in which such exchanges occur on campus and in court differs, both provide an orderly and controlled environment with the aim of ensuring a fair hearing of contending arguments. Actions intended to prevent such hearings injure the whole rationale of the academy and, indeed, the law.

And still another key idea is that the scholar and the attorney are both figures whose special standing in society is built on their self-disciplined commitment to the conventions of orderly disagreement. They must listen to those with whom they disagree, reflect on arguments and evidence, and wait their turn to express their own views. This doesn’t mean that the scholar or the attorney should lack intensity of purpose or a sense of urgency. But it means those passions have to be channeled into the agreed forms of expression.

Those agreed forms do not include shouting people down, threatening, or pounding on walls.

No scholar and no attorney is unfamiliar with appeal of breaking loose from the rules and gleefully displaying contempt for the other side. Riots, mob rule, and displays of flamboyant contempt for the foe are known throughout history, and modern revolutionary movements dating at least since the French Revolution have licensed efforts to defy public order. We are familiar too with protesters who imagine every act of petty vandalism or crowd-pleasing rudeness is a blow against the unjust “system.” The logic of such trivial acts is juvenile, but the consequences may not be.

In the case of the March 10 protest, DC Circuit Court Judge Laurence Silberman called for his fellow Article III judges to consider denying clerkships to those who participated in the protest. Given the importance of Yale Law School as a feeder to these positions, Silberman’s response is weighty.

The March 10 protest has still further reverberations. Yale officials have attempted to minimize its significance and others who are sympathetic to the protesters’ cause have likewise attempted to play down what happened. Those attempts are bound to be frustrated, however, because of the ready availability of video and audio recordings and the testimony of eye-witnesses. The protesters were repeatedly warned that they were in violation of the Law School’s policies on free expression, and even after they exited the room, they continue to pound on the walls and make sufficient noise to disrupt not only the Federalist Society event but also other classes in the building.

Partly this matters because the protesters are aiming to have careers in the law. Commencing those careers with acts of lawlessness and mob rule is a poor foundation for becoming stewards of the law.

But as Stanley Kurtz has pointed out, these students face a more immediate difficulty. Their behavior that day puts them conspicuously in violation of the Law School’s own regulations and in jeopardy of disciplinary proceedings that can be initiated by fellow students. Their shout-down may echo in the halls of Yale for some time and leave at least some of the protesters with trouble they failed to anticipate.

Yale University during the tenure of President Salovey is not a place where students engaged in disruptive protest have had much to worry about. Perhaps that will prove true in this instance as well. The blind eye of the Yale administration is the disruptive protester’s greatest asset. And Yale presumably believes it can ride out every Christakis-style mobbing, and every climate-activist-delay-of-game. The Yale Office of Admissions even posts a statement from a senior admissions officials titled “In Support of Student Protests.” The counsel includes, “Will Yale look unfavorably upon discipline resulting from peaceful demonstrations? The answer is simple: Of course not.”

That’s not exactly what Yale’s own rules say. Among the most famous free speech documents in American history is the 1972 Woodward Report, or more accurately, the Report of the Committee on Freedom of Expression at Yale. The report speaks for itself, but in its concluding section it speaks plangently for the importance of the administration taking firm action when disruptions occur:

The administration can make clear in advance that serious sanctions will be imposed upon those who transgress the limits of legitimate protest and engage in disruption. It is plain, however, that if sanctions are to work as a deterrent to subsequent disruption, they must be imposed whenever disruption occurs. They must be imposed and not suspended. They must stick.

One hopes that Yale can muster the determination to live up to its own principles. Few will be surprised if it does not. If so, the erosion of Yale’s reputational capital will continue. That slippage is no doubt part of a larger cultural shift in America in which respect for governing institutions and the principles they are supposed to embody continue to decline.

The best we outsiders can do in these circumstances is to call on the conscience of those who hold responsibility. In this case, that includes the students of Yale Law School who were present at the Federalist Society event and who are, unexpectedly, in a position to hold their fellow students to account.

I say this is the best we outsiders can do, but perhaps that is too pessimistic.  The group of scholars and others who signed the fee speech declaration, the Philadelphia Statement, in 2020 (I was one of the drafters) has been circulating a public letter to Yale Law Dean Heather Gerken, which is open to all who wish to sign it.  I have.  It concludes by calling on the dean to take four actions, all of which I commend: 

  1. Commit to your own students and others that Yale Law School administrators will use their best efforts to protect and cultivate a culture of free speech on campus.
  2. Commit to ensuring that speakers with diverse views are welcome at Yale.
  3. Condemn the behavior of students who violated other people’s rights on March 10 and take appropriate disciplinary actions in keeping with Yale’s free speech policies.
  4. Retract and/or issue corrections to Yale Law School’s initial statement concerning the events of March 10.

Item number three in my judgment is the most important. Failure to hold the student disrupters responsible according to the law School’s own avowed principles would make any other concessions by Dean Gerken hollow.  It would serve a good public purpose, however, to have it on record whether the dean of one of America’s top law schools has the fortitude to uphold the rule of law within her own domain.  I have my doubts but I would be glad to be proven wrong.

Image: Step, Wikimedia Commons, Public Domain

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