On March 10, 2022, a protest at Yale Law School—just ranked (again) this week as the #1 law school in the U.S.—got horrendously out of hand.
The background: Yale’s Federalist Society had invited two lawyers of antithetical ideologies to speak about Uzuegbunam v. Preczewski, a legal case about civil liberties that their respective organizations had been aligned on and won 8-1 at the Supreme Court.
Monica Miller is the legal director of the progressive American Humanist Society, and Kristen Waggoner is General Counsel at the Alliance Defending Freedom, a conservative faith-based non-profit that describes itself as “committed to protecting religious freedom, free speech, marriage and family, and the sanctity of life” both in America around the world. ADF has been designated a hate group by the Southern Poverty Law Center. (ADF disputes that designation.)
It is unsurprising that a lawyer from the group might not be welcomed by the majority of the students at Yale, a leading progressive influence in the country’s culture wars.
But what happened both inside and outside the classroom after Miller and Waggoner arrived on campus on March 10 and tried to have a discussion about civil liberties—moderated by Professor Kate Stith (who told the students to “grow up”)—went far beyond the boundaries of a peaceful protest.
One hundred and twenty student protesters were sufficiently physically menacing that the police were called, and Miller and Waggoner were escorted hastily from the premises in a police car.
From left: Yale Law School Professor Kate Stith with panelists Kristen Waggoner and Monica Miller
Accounts of what happened both during the session and after have varied, with Yale spokesperson Debra Kroszner initially brushing off the disruption by protesters as happening only at the outset at the hourlong session. “At the very start of the March 10 event, when students began to make noise, the moderator read the University’s free speech policy for the first time,” Kroszner said in a statement. “At that point, the students exited the event, and it went forward. When students made noise in the hallways, administrators and staff instructed students to stop. During this time, Yale Law School staff spoke to [Yale Police Department] officers who were already on hand about whether assistance might be needed in the event the students did not follow those instructions. Fortunately, that assistance was not needed and the event went forward until its conclusion.”
But, according to Waggoner (from whom you will hear below) and other eye-witnesses whose accounts I will share in subsequent newsletters, that is just plain wrong.
Grotesque behavior—including thumping on the walls, chanting, threats such as “Fight me, bitch,” and the giving of the middle finger—went on for over an hour. The floor shook, and other meetings and classes in the building were stopped. Remarkably the Dean of Students, Ellen Cosgrove, was apparently present in the classroom and did nothing.
It then took two weeks for the Dean of Yale Law School, Heather Gerken, to say publicly that what had happened was “unacceptable” in a statement that has been criticized by many for not going nearly far enough, including influential legal analyst (and Yale Law School alum) David Lat and Waggoner herself.
Yale and its law school have become infamous for campus protests that extend into more generalized culture wars across America. In recent years, there has been Halloween-gate; Dinner Party-gate, Trap House-gate, a fight over whether white male poets ought to be replaced on the English literature curriculum, a sit-in over the Kavanaugh hearings, and so on.
But while the debates on each topic are arguably essential, sources (who include current students, faculty, and alumni) tell me they have been greatly troubled by the increasing intolerance, intimidation, and bullying by the protestors—and by the seeming ineptitude of the faculty to exercise authority and genuinely encourage a culture of free speech on campus. One alum tells me he’s so fed up, he’s cut Yale out of his will. And in my next newsletter, I will publish a startling interview with a current Law School student about his thoughts on the events of March 10.
“I didn’t think it could get worse than when I was there, but apparently it has,” says Aaron Haviland, a former Federalist society member, who wrote in 2019 that he felt so unsafe on Yale’s campus, he was counting the days to graduation.
To date, there’s been precious little push back about the manner of the protests on campus from anyone who is supposed to be in charge. “I think they are frightened,” a former YLS graduate told me, saying that ten years ago the environment was much different.
But, this time, there was push back from outside—from a sphere which has the power to issue a direct hit to Yale Law School. Federal judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit decided he’d had enough after Yale Law students demand their members sign a petition protesting that the calling of the police had been “unsafe” for the students. In an email to his fellow federal judges, Silberman wrote:
The latest events at Yale Law School, in which students attempted to shout down speakers participating in a panel discussion on free speech, prompt me to suggest that students who are identified as those willing to disrupt any such panel discussion should be noted. All federal judges—and all federal judges are presumably committed to free speech—should carefully consider whether any student so identified should be disqualified from potential clerkships.
I interviewed Waggoner to get the tick-tock of precisely what it felt like to be inside that classroom at Yale Law School on March 10.
I ask you: Is what you are about to read a description of the kind of behavior anyone wants at the top law school in this country?
The following has been edited and condensed for clarity.
WARD: I wondered if you could take me through, step-by-step, what happened at Yale Law School. I ask because I've listened to some of the audio, but it's hard to get a sense of what happened in that room. Is there a big picture of it somewhere?
[NOTE: The full audio was released on March 29.]
WAGGONER: I don't think so. I mean, there's the video, which was taken right at the beginning and some have suggested that, once that commotion took place, that the students left the room and there were no further disruptions. And that's just not true. I mean, I think you can imagine if they spoke to their professor like that, you know, what the rest of the event was like. I do think that the audio clips are much more accurate and kind of identify what the rest of the event was like.
WARD: Well, the audio clips that I've listened to... I mean, it's the rantings of a mob.
WAGGONER: Yes, pretty much so. And it's very accurate. It went on through the entire event. I think the event started about 12 noon and it went to 1:15pm. As I recall, nearly the entire time, there was something happening, whether it was that chanting and yelling and pounding on the walls—right outside the exits, on the walls of the classroom—or them coming in and exiting and trying to demonstrate through the whole thing.
WARD: So can you just take me back? Forgive me, because I know some of this has already been out there, but I want to just hear the story from you. You were invited exactly by whom?
WAGGONER: The Federalist Society student chapter at Yale.
WARD: Did you know who would be debating against you when they issued that invitation?
WAGGONER: I did, but I would say this just to make sure we are accurate: It wasn't even supposed to be a debate. We were two female litigators who are very different ideologically, who were there to demonstrate common ground in a free speech case that was an uncontroversial 8-1 victory [before the Supreme Court] and to talk about legal remedies and why remedies are important in a civil rights context.
WARD: And did you know Monica Miller before?
WAGGONER: I did not personally know her. She filed a “Friend of the Court” brief in the case we were there to discuss. I argued that case. But another one of my attorneys at ADF had spoken to her and knew her and worked with her during that process of the brief. But I wouldn't say they were friends. And this was the first time I met her.
WARD: When you received the invitation, you knew you would be discussing civil discourse with her?
WARD: So then what happens? Who does the organizing with you—someone at the Federalist Society at Yale or [Professor] Kate Stith?
WAGGONER: The student chapters of the Federalist Societies do it. One of the unique aspects of the Federalist Society is that they try to bring diverse perspectives. So it's not just those who would say that they were originalists or conservative. They try their best to bring in those who represent both the left and the right, the conservative and the liberal position, in one room to talk about things. Then you'll see that modeled around the country.
ADF is frequently invited to different law schools on behalf of Federalist Societies, to essentially articulate views that are originalist views. And usually there will be a counter-presenter, to present a different perspective. But this event was actually unique because, while we had different ideological views, we had joined together in a case. And so it was designed to show how, in some cases, we need to protect civil rights even if it helps someone we might be ideologically opposed to.
WARD: Had you worked out in advance how you were going to talk about it, given that there were two of you in the room?
WAGGONER: No, we actually hadn't. Oftentimes you will do that, but I had just been extremely busy, and I know Monica had, too. And so we were just told, “You're going to give a brief introduction of your views,” which is pretty typical. You'll speak for 15 [or] 20 minutes each, sharing your perspective. And then [you’ll] open up the room to questions for the rest of the time, or the moderator will moderate a discussion between us based on where opening comments were. And that was how we were supposed to proceed. When we showed up that day, Kate Stith, who was the professor at Yale, explained how we were going to do it and set the plan for us.
WARD: And she was the moderator?
WARD: And were you told how many people to expect?
WAGGONER: No. I mean, they frequently won't know how many people to expect. Sometimes there's a topic where students vehemently disagree or it's a particularly popular topic [and] you can guess at how many will be there. But what I understood is that the classroom seated about 150 people, and it certainly was full.
WARD: And did Kate Stith say anything to you in advance that suggested that she was worried that students at Yale Law School would have a problem with you or ADF?
WAGGONER: No, not at all. I think, to be fair, I was a little bit concerned about what would happen, not because the topic was controversial but [because], in 2019, I was supposed to speak at Yale, and it was on a more controversial topic involving free speech, as I recall (I can't remember exactly what the topic was), [and] the student group had invited me during a period when a lot of bullying was going on online. It turned out the day I was supposed to come, I was in Arizona and my flight was canceled due to weather. So one of my colleagues went to my place, and it ended up being fine. The dissenting students held an alternative event in a different classroom to suggest their disapproval for some of the cases that we have won at the Supreme court. But that's, as I understand, all it was.
We had no indication, or at least I had no indication, at this event that that would happen again. But because of what happened in 2019, I did ask one of my ADF colleagues to come with me so that I wasn't going alone on this trip. He was not armed. He was just casually dressed and just came with me to the event. He sat in the back of the room.
WARD: So can you walk me through what happens when you get to Yale?
WAGGONER: I got there the night before because the event was in the morning. The event was the 10th, and I got there the night before on the 9th. I flew in. There was a snowstorm, and I just got there and went to my hotel room and then met a leader from the student group that morning on the 10th. And we walked over to the Law School together.
WARD: And so then what happened?
WAGGONER: We went inside the classroom, set our things down, waited for a while, talked to a number of students [who] were there [who] were friendly and wanted to talk. Professor Stith came in shortly before it began. We chatted. Monica and I met and just talked to each other about life and our families and things like that.
And then just shortly before the event, the students that essentially created the mob all sort of came in together. I don't know if they were meeting outside and then walking in together or whatever, but they were saying things when they came in—obscenities—[and] they had big signs and some of them had things on their shirts, and they were just kind of creating a commotion. And then they were saying things to the students from the Federalist Society who were there seated on the far left side and the other students [who] were taking up the rest of [the] room.
WARD: So approximately how many were they? Reports say over 100.
WAGGONER: I've read that there were a hundred, about 120. I know there w[ere] more than a hundred. I'm confident of that.
WARD: And how many [members of the] Federalist Society?
WAGGONER: About 30.
WARD: So the protesters come in making a noise?
WAGGONER: Right. And they're even making comments over to the Federalist Society members, too. Like they're making snarky comments and sort of engaging with them as well. I could sort of tell right away this was going to be a volatile situation because they were immediately [directing] rude and disruptive and hostile and aggressive things to anybody who wasn't with their group.
WARD: Against the sort of backdrop of chatter, I'm assuming Kate Stith tries to start things going, right? What happened?
WAGGONER: And so we went up to the table and we were sitting down at this table, the three of us, and it was Monica, me and then Professor Stith and the students were even yelling some things at Monica that seemed to me to startle her as well.
WARD: But what were they getting at her for?
WAGGONER: They were issuing warnings. They were saying things like, “We told you not to come, we warned you not to come. You're legitimizing Kristen Waggoner. You're legitimizing ADF. You're complicit in their fascism. You're complicit in hate.” They were bringing her into it. So [Monica Miller] said, “I agree with you guys ideologically. That's not what we're here for, you know?” And she was trying to emphasize that we’re here because we're demonstrating common ground. We can have differences and still be civil.
So that was the chatter going on before the event with her. And then Professor Stith started the event.
WARD: And what happened? She stands up and tries to introduce the two of you, I'm assuming.
WAGGONER: I don't recall. I don't think she stood up actually.
We were seated at the table instead of standing at a podium. We chose to sit, and Professor Stith opened the event by stating the purpose of the case, giving a little bit of background, as I recall, maybe 30 seconds, and then giving our bios. And she started to give my bio and that's the video that you see where they start engaging in trying to shout down and say things. And then all of a sudden, she just like stands up, and it was jarring in the moment.
I was like, “whoa.”
She just stands up. You can hear on the video basically. She was saying like, “Look, we've got a free speech policy. You better get it under control. This is ridiculous.” And I really appreciated her doing that. I just so respected that. I could tell at that time she was doing her best to make this right and to allow the event to proceed.
Then the students continued to banter and do those things for a little bit. And then it's little bit fuzzy for me on as to when they actually walked out after she did that. It wasn't immediate. Like we started to talk—and that's where I think Yale's subsequent statement is just a lie. There are a number of things about Yale statement that are just a lie because they tried to suggest as soon as Professor Stith got done talking, all the students just peacefully excited the room and there were no more disruptions.
What actually happened was we got into our statements. Monica and I said some things about the case. I went first, as I recall. The chronology is a little bit fuzzy to me about when Monica did this, but pretty quickly she again addressed the whole group and said, “You know, ideologically, I support all the things that you support. I'm with you a hundred percent. I don't agree with Kristen on a lot of things. But that's not what we're here for. We’re here for civil discourse, yada yada yada.” And it became quickly clear to Monica that the students were coming after her as well. That that was not settling them down, that they were going to be very hostile to her.
And then they, at some point, walked out and, as they were walking out, they were saying things to her [and] saying many more things to me that were very obscene. If you saw the picture, ADF has a pretty clear one [of] a girl sitting there with the middle finger up, and many were using the F word—you know, all kinds of things. And then while they walked out, they were saying th[ose] same things like “murderer,” “fascist.” They threw down their signs right on my notes as they were walking out and saying those things. And then for like just a couple minutes, it was quiet. And we continued. And then, all of a sudden, the things you hear on the audio started, and that went through the rest of the event till the very end.
WARD: So they were doing that [banging on the walls and floors] from outside?
WAGGONER: Yes. The room is a bit like a theater. And so we're sitting at the bottom of the theater, and the seats go up. And the exits are behind us. There are just two exits, and [the protestors] are right outside the exits. I have been told they were even blocking them. I don't know why they were blocking them, but they were literally pounding on the walls of the classroom [and] the doors and yelling—those kinds of things to interrupt. And then students would come in and out in between those things. So when the doors would open, it would be even worse. But if you can tell in the audio, it was very difficult even with the door shut to even have anyone hear us very well.
WARD: Did you have microphones?
WAGGONER: The microphones did not work.
WARD: Oh God.
WAGGONER: Which is also curious to me.
WARD: Wow. So for the next hour and fifteen minutes, you had all this noise?
WAGGONER: I would say for the next hour. Because the event was supposed to start at 12:10 and run until 1:15. I would say the first five minutes were Professor Stith warning them that they needed to stop it and, at some point, them exiting. So it was a good hour that was going on with the pounding and yelling things.
WARD: Could the people in the room hear you and Monica Miller?
WAGGONER: I don't know. It was very difficult to think, let alone speak. I heard a little bit of audio, and I can hear myself saying “um” and I don't usually say “um,” which means I know that I was just having trouble getting the words out and concentrating with all of that going on. And sometimes people in the room would say that they couldn't hear. So there were moments where we were able to communicate and hear, but for the vast majority, it was very, very difficult.
WARD: What happens then? When are the police called? What then unfolds?
WAGGONER: I appreciate that you're going into detail. I'm going give you a little more detail than we have given anyone in response to Yale’s statement.
So you may have seen that Yale said that since I brought security, that that was the only reason that they had security. [“When visitors to the Yale campus bring their own security, as in this case, University policy requires the Law School to inform Yale Police. We then work with the police to determine the appropriate level of support for the particular visitor and/or event,” YLS spokesman Debra Kroszner said in a statement, per David Lat.]
But, again, I brought an ADF employee who was dressed like any other person who sat in the back of the room and was unarmed [and] was just attending with me. He was there to help me and provide security. I know that the day before, he met with Professor Stith and I think another official of Yale and the security at Yale, and they talked through what Yale would be doing if there was a significant disruption. I wasn’t with him for that.
The plan was that, [after the event], we would walk to lunch [and] have lunch with the student group members that invited us—Monica as well. We were all going as a group. When we got to the event and the disruption started, I wasn't obviously aware of everything that was happening, but I was seeing there were some plain-clothes police officers who were there, and at least one plain-clothes officer introduced himself to me before the event started. And we did not request that at all. We didn't request anything. I didn't know that it was needed. And then mid-way through the event, I started seeing the officers go in and out of the room.
It was like tense and very volatile. You could tell something was happening out in the hallway and that it was getting serious. And the police were entering and exiting the [room]. Then, at the end of the event, some of the students who were part of the Federalist Society came up and were talking to me. And suddenly I was told, “You need to exit. You guys need to exit as soon as possible. You need to get out of here and you need to go out this door with the police and they will take you to a police vehicle and they're going to need to drive you off campus.” And then that's what happened. We had to walk through all the chanting protestors who continued to yell out things. And they were blocking the exit initially. And I don't want to ascribe intent, such as they were not going to let us leave, but there were just so many of them and they were continuing to be very hostile, and the hallways were super volatile.
I was later told that classes nearby had to be canceled. Meetings had to be canceled. And some even suggested that the floor was shaking in some other rooms because of the stomping and pounding that was going on.
WARD: Did anyone apologize to you?
WAGGONER: (laughs) Nope.
WARD: Professor Stith didn't say, “I'm so sorry”?
WAGGONER: No, and again, I felt like I wouldn't want this to be pinned on her because I think she did the best she could in the moment and, you know, professors aren't necessarily equipped for that. The professionalism that she had and with me and with Monica was clear. She was just very kind, and the way she initially stood up was extraordinary. But I was astonished at the way that the students treated her. I think she was intimidated; I think it shook her as well. She seemed shaken. She gave that statement after about law schools being in crisis.
Reflecting on the events, I think she was as shocked by it as we were. And so I don't necessarily fault her in those moments for not doing more. I do fault the Associate Dean, who I later learned was in the room [NOTE: According to David Lat, it was Dean of Students Ellen Cosgrove who was in the room. More on this in my next newsletter], and I fault the Dean. And the Yale statement after was just so deeply disturbing because it's just a complete misrepresentation of what happened. And I can't believe they're not condemning the students' behavior. [NOTE: Two weeks after the event—a day after we did this interview—Dean Gerken issued a statement saying that what had happened was “unacceptable,” but Waggoner told me she did not believe it was enough. See below.]
WARD: What about the judge who said that the students who were “willing to disrupt any such panel discussion should be noted” and that judges “should carefully consider whether any student so identified should be disqualified from potential clerkships”?
WAGGONER: Judge Silberman basically said, if you are considering applications for clerkships from students that you've confirmed were at this protest and who were behaving this way, you need to carefully consider whether you should hire them. And I know there was a lot of commentary about that after the fact.
WAGGONER: It falls so far below the decorum that would be expected of law students. And I think that's some of what has gotten lost as well in some of these stories is we're not dealing with kids. It's not even undergrad. These are people that are supposed to be committed to be engaging with civility with their opponents. The entire profession and our justice system hinges on civility and the rule of law. And they can't even follow their own rules and they can't stand to engage or even hear or be in the room with someone that they disagree with. That is, I think, what's so deeply concerning for lawyers that are in the profession.
WARD: And tell me something: Has anyone other than me reached out to you who's not what people would call part of the conservative media? Because, as you said, this ought not really to be about ideologies.
WAGGONER: I wouldn't say that there are a ton in terms of journalists. But I would say if you were to look at law professors—if you were to look at those who are scholars or appellate lawyers or academics we have, or influencers in general, we have had several who don't align with us on anything else but [who] have stood up for decorum and said, “This kind of bullying and belligerent [behavior] has no place in the law school.”
WARD: Yes. And then I know Kate Stith has said afterwards that this is a trend—that Yale law school is not unusual. What do you feel about that?
WAGGONER: Well, [as] I said, we are on campuses pretty regularly as an organization, and we haven't experienced anything quite like this. And Yale does have a storied history on these things, and they're not protecting the students. I mean, when you think about the kind of physical intimidation that went on, what’s also deeply troubling was: What would [it] be like to be a conservative student and go to that school and to have the jeering, the aggressively belligerent comments? I mean, on one of the audio recordings, a student is saying, "Fight me, bitch." And it's not entirely clear to me if she was saying that to me or if she was saying that to another Federalist Society member. I don't know, but I've been told that the students [from] the Federalist society were threatened with violence as well.
And it's stunning to me that Yale wouldn't take a stand. I think it was UC Berkeley [NOTE: According to David Lat, it was UC Hastings College of the Law in San Francisco] where something happened—not with us—but an incident, and the dean came out and just made it very clear that that behavior would not be tolerated [and] took a completely different approach than what Yale did. And I think that's what's so disturbing about the whole thing—that Yale [has] done nothing other than basically affirm that it's okay to do that. [They’re] allowing themselves to be ruled by a mob.
WARD: Have you been in touch with Professor Stith or anyone at Yale since this?
WAGGONER: I've not. I do think it's important for me to say we did not reach out to anybody about what happened. We went to lunch with the students after the whole thing. Monica and I enjoyed our conversation very much. Much of the lunch was about, “How is it that we can be so kind to each other?” And Monica was kind of stunned by what had happened. She's like, "My people are the ones that were shunning me.” Anyway, we just had a really good time, but the whole thing was jarring to me.
I was trying to collect my thoughts on the plane home. But we never contacted media. We never contacted Yale. And it was Yale's own doing that made this blow up in that student newspaper article. That was the first report to be released, and it was just blatantly wrong. And I don't know who gave them the video clip that exposed it, but it was not us.
WARD: I haven't asked you this, but: Were you afraid?
WAGGONER: I struggle with how to answer that because, on the one hand, I wasn't fearing for my life. But it was also very clear to me it was an extremely volatile environment and, at any minute, something really bad could happen.
What I do remember clearly is my legs were shaking uncontrollably under the desk. And ordinarily I just don't do that. I do a lot of public speaking; I've argued in court. So I think I was reacting physically to the situation, and mostly it was just like fight or flight—like, “I'm going to get through this.” And literally I was thinking to myself the whole time, “I wanted to demonstrate to them what civility looked like.” I was not going to be intimidated nor was I going to argue or respond in anger. And when we got to a Q&A, and things that they said were just so outrageous, I just kept trying to focus on not saying too much to incite anything.
WARD: The things that were in the Q&A bit—were they coming from hostile people?
WAGGONER: Yes. Predominantly. One thing I will say that I would fault Stith for is she kept calling on the protestors, so, at some point, they all came back into the room. When they heard that it was Q&A time where they could disrupt, they came, and they just tried to dominate that. She kept calling on them—and it was clear from who was sitting on what side of the room as to who was on what side. And it was like she was placating them by saying, “I promised you I would let you ask questions.” So she was giving 80% or 90% of the questions to the students who weren't asking questions. They were hurling insults, saying things that were just completely untrue and not at all about the event, not even about something we would debate. She rarely called on the conservative students. And the questions weren't in good faith. They would stand up and make speeches. There was either no question or it would be a question like one that was reported: "What's the legal remedy for a dead trans kid?"
If you want to talk to me about our position on women's sports, [I’d] love to talk about that all day long, but at least you should pose a question. And they didn't; I mean, there were no questions at all. And then sometimes they would yell things out when other people were asking questions. So it just was not done in good faith, and it was completely out of control, and she didn't stop that. She let it keep going.
WARD: What did Monica Miller say to you afterwards? Did she say she was sorry that this had [happened]? Did she commiserate? I mean, you both went through it in a way.
WAGGONER: We did a joint op-ed in the Daily Mail. It does at least document what her thoughts were on it. I think we're an agreement on what happened, and, after we had lengthy conversation at lunch, she hugged me when we left, and she did apologize a number of times and expressed that she just couldn't even fathom what had just happened. We are at opposite ends of the ideological spectrum, but we both agree that finding common ground through civil discourse is essential to a flourishing society.
WARD: Well, I mean, at the end of the day, what is so interesting about this is that the students actually haven't had the last word here. Judge Silberman has had the last word. The bigger question is: Will what happened—and his response—matter?
WAGGONER: I think you're right. That's where I came out on it. I appreciate that Judge Silberman took it to heart. A prominent legal commentator, David Lat published an [original] story that wasn't right. But as he got hold of the audio, he [updated] his story and he even took Mark Stern from Slate to task because Mark Stern just completely misrepresented what happened. And David identifies as gay; we're not ideologically aligned on a lot of things. And, and I would say, Judge Silberman is not thought to be a conservative judge at all. But ultimately none of what they said matters if this just blows over and Yale does nothing.
WARD: What would you like to see Yale do?
WAGGONER: I would like to see them issue a statement that condemns the student's behavior, that says they will be embracing a culture of free speech on their campus—and that they're going to continue that. And in some tangible way, [to] demonstrate that. [E]nsuring that this doesn't happen again and that the Federalist Society can invite their speakers freely—because the topics that the Federal Society is addressing are topics that our Supreme Court is deciding on and the [idea] that law students and jurists wouldn't be able to engage in civil dialogue on this is horrifying.
It's just frightening to think of who our future leaders will be. My hope is that, if this continues, it won't be anyone from Yale who is engaging in this kind of behavior because I don't think we can have a stable democracy or a justice system that works without free speech. You have to engage with your opponents, and you can't just censor and crush those that disagree with you because we know that free speech is what helps us to search for truth.
WARD: Got you. Is there anything I haven't asked you?
WAGGONER: What I went through was jarring, but it would be worth it if Yale did something and all the law schools re-committed to a culture of free speech and respect—that would make it worth it. And I would return to Yale in a heartbeat. All it's done is deepen our resolve to show up. Honestly, in the midst of it, when they were saying these things that were just false, blatantly untrue, it just deepened my resolve to show up and set things straight. So I don't think it had the effect that they wanted.
WARD: Thank you so much. I really, really appreciate it.
NOTE: A day after this interview was conducted, Dean Heather Gerken issued a statement calling the behavior of the students “unacceptable.” In a message to students, faculty, and staff, Gerken wrote, “This is an institution of higher learning, not a town square, and no one should interfere with others’ efforts to carry on activities on campus. [Yale Law School] is a professional school, and this is not how lawyers interact.” However, she also wrote, “In accordance with the University’s free expression policy, which includes a three-warning protocol, those protesting exited the room after the first warning, and the event went forward.”
I will protect free speech without fear or favor. But I have waited to write you because it is our conversations as a community that matter most. In our statement-hungry culture, university leaders are constantly asked to be referees, encouraging our students to appeal to a higher authority rather than to engage with one another and tempting outsiders to enlist academic institutions in their own political agendas.
I asked Waggoner for a response to Gerken’s statement. “I am disappointed that Dean Gerken’s letter implicitly suggested it was okay for students to treat Monica and [me] the way they did,” she told me. “Her statement downplayed the students unruly and threatening behavior and raises serious doubts about Yale Law School’s commitment to protecting free speech.”
UPDATE (4/1/22 2:09pm ET): A source has sent me a letter from Professor Kate Stith that was circulated to the entire YLS faculty this afternoon.
Here it is, in full:
To: Tenured Faculty, Yale Law School
From: Kate Stith
Re: Free Expression at Yale
Date: March 31, 2022
This is an important moment. Any formal determination that the March protest at Yale Law School did not violate Yale’s policy on Free Expression would set a terrible precedent at Yale and elsewhere.
I commend Dean Gerken for supporting Yale’s policy. I here explain why in my judgment that policy was clearly violated by the deliberate and extensive disruptions of a Federalist Society event in Room 127 on March 10, as well as by disruption of other events taking place in classrooms off the main hallway.
FACTS: The hallway disruption was far more than excessively noisy. An audiotape released on March 29 by the group FIRE* reveals disruption and interference even while the protesters were in Room 127. The audiotape further reveals the shocking and extraordinary disruption of the event after the protesters moved (twice) to the School’s main hallway—yelling, stomping, powerful chanting, and wall-banging. Students and faculty have also reported serious disruption of a faculty meeting and of two classes that were being conducted in other classrooms off the main hallway. Presumably there are audio/video tapes associated with these other classroom events. These recordings would also reveal the extent of interference.
LAW: It is critical to understand that Yale’s Free Expression policy does not only prohibit disruption that successfully shuts down an event or class. Rather, Yale’s policy prohibits “disrupting” an event, including “interfere[ing] with speakers’ ability to be heard and of community members to listen.”
APPLYING LAW TO FACTS: There is no doubt that the event in Room 127 was significantly disrupted. The audiotape posted by FIRE establishes that the noise seriously interfered with our efforts to hear and to speak.
ANALYSIS: Limiting Yale’s policy to prohibit only “shutting down” events would make no sense. Whether speakers persevere depends in part on how difficult it would be to move the event to a different platform, place, or day. Even more importantly, whether to shut down an event depends on the speakers’ and audience members’ personalities, hearing abilities, and preferences as to which is worse—giving in and stopping the event, or continuing in hard-to- speak/hard-to-hear and uncomfortable circumstances.
As it happens, events on March 10 were shut down by the remarkably loud and multi- source hallway noise. For instance, whoever was running the faculty meeting decided to shut down its in-person portion and proceed solely on Zoom. Students in the class in Room 128 have said the instructor urged them to “yell” in order to be heard. The instructor in Room 121 stopped the class at one point explicitly because the noise so interfered with the teaching function. And we in Room 127 ceased even trying to talk or listen on multiple occasions.
FREEDOM OF SPEECH FOR ALL: The Room 127 event had two speakers, one from
the Left and one from the Right. The topic was First Amendment Freedom of Speech. The two
panelists, who disagree on much else, had joined together in the Supreme Court, both arguing
that the State of Georgia had violated the First Amendment at a public college. They recently won, 8-1.†
Disrupting that panel discussion was especially ironic.
As a former prosecutor, I know well that not every violation has to be an occasion for sanctions. In my judgment we should use this moment as an opportunity to educate our students about the core importance of free expression to our academic mission—and to make clear, as Dean Gerken has forcefully written, this can never happen again. That said, we cannot make the most of this opportunity unless we recognize that a blatant violation of Yale’s Free Expression policy occurred on March 10.
*Foundation for Individual Rights in Education (thefire.org). The event formally opens about thirty seconds after minute 21. The hallway noise begins soon after minute 28 with the door being held open. I shut the door around minute 29. The protesters return to the classroom for Q&A soon after minute 35. Protestors begin to return to hallway soon after minute 68. The event wraps up around minute 88.
† Uzuegbunam et al. v. Preczewski et al, 141 S Ct 792 (2021).
Thank you for covering what is just a morsel of the breakdown in the universities. That is implicates a law school is even more troubling, though hardly surprising. The core of law school (I attended one that is ranked with Yale) is the discipline of listening to both sides and then analyzing. It is clear that that is not taught.
For Gerken to issue her lame statement is like the US protesting Crimea. Like Putin, the students know what these statements of "principle" mean: nothing. Without enforcement, the true message is, do what you like, we won't punish you.
Law school is meant to be a sacred haven where the capacity to analyze conflicting views should be taught. The practice of law is, nearly in its entirety, the practice of resolving conflict. If students cannot adhere to that, at the least they should be expelled for a year. Talk is cheap. Principles that are not enforced are no longer principles. The Ten Commandments become the Ten Discretionary Guidelines.