Yale Law School Wars, Part Two: When the Powers That Be Grant Pre-Emptive Victim Status
In one more sign that conservatives have taken charge of the narrative and are winning the controversy over the March 10 protest at a Federalist Society-hosted debate on civil liberties at Yale Law School—an important inflection point in the ongoing debate about freedom of speech and whether it is being stifled on elite college campuses—last week, 1,400 conservative lawmakers and public figures, including academics, wrote a letter to Heather Gerken, the dean of Yale Law School, asking for the protesters to be punished and the school to amend its original statement saying that the event had not been seriously disrupted.
The letter to Dean Gerken includes signatures from Republican Senators Ted Cruz and Mike Lee, as well as nine members of the House of Representatives and the governors of Idaho, Mississippi, Nebraska, Oklahoma, and Tennessee. It urges the school to punish the "threatening and violent behavior" directed at the speakers, who, as I reported in a Q&A with one of them last week, were escorted out of the event by police.
Ok, you could legitimately ask: Who really cares what Ted Cruz thinks? (I did ask YLS for a response as to what they think, but, as of publication, I am waiting on an answer.)
The problem that YLS administration has here is that it would appear from the audio recording above that the YLS Federalist Society did catch administrators falsely minimizing what happened. Dean Gerken did ultimately write in a statement that what had happened was “unacceptable,” but she also said that no policies on free speech had been violated.
Following that statement, in an extraordinarily bold move, Professor Kate Stith, the moderator of the event, wrote in a letter to YLS faculty (published in full by me) that YLS’s policy on freedom of expression “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.”
Even so, on Twitter, some of the protestors—including third-year law student Rachel Perler—tweeted that stories of complete disruption were false. “Students had a slightly rowdy but peaceful and rule-compliant protest,” Perler tweeted.
So, what is their version of what happened? And what evidence do they have to support it with?
I have reached out to the protesters (including Perler) both on email and on Twitter to get their point of view—and I offered to present it without editorial comments from me, just as I had done in a Q&A with Kristen Waggoner, the conservative speaker.
One protester emailed to say yes, they’d talk on the condition of anonymity.
And then the source disappeared on me.
When Yale Law Students who (understandably) want to protest the presence on their campus of the general counsel of an organization that has argued in various states to criminalize LGBTQ people are hesitant to talk publicly about their protest—well, that’s a problem, because what they are doing is handing control of the narrative to their political opponents.
And that narrative is possibly about to get worse.
This is because on the horizon there is a far bigger Federalist Society event than the March 10 event. The Nathan Hale symposium is to be held on April 13, in the exact same classroom as the March 10 event: room 127. The symposium will mark the 40th anniversary of the Federalist Society, begun at YLS. And on the docket is Dobbs v. Jackson Whole Women’s Health—the case before the Supreme Court that could overrule Roe v. Wade.
Zack Austin, the head of the YLS Federalist Society chapter, tells me that someone who protested on March 10 has already written to an online forum called “The Wall,” where all YLS events are posted, saying, “This is terrifying.”
Concerned about the upcoming event, Austin emailed Gerken on March 14 to ask for a one-on-one meeting. On the 20th, Gerken answered that she would be “away until the Wednesday after spring break” and said she was “sure [the assistant to the Dean] can find a time after that.”
Austin responded, “I’m concerned about waiting until April to discuss these issues.” He noted that he had learned about “a roundtable conversation planned for next week involving approximately 25 attendees, including Deputy Dean Ayres; a University Vice President; Yaseen Eldik; Dean Cosgrove; other faculty and administrators; the student government; select affinity group leaders; and student organizers of the protest. The student groups asked for a meeting the same day I did, March 14. But I was not invited to that conversation, nor has any administrator made me aware of it.”
“That particular meeting…came in response to a request to meet regarding the University’s policing policies. As I understand it, it was the student reps who requested the inclusion of other students and chose which ones to include,” Gerken answered. “If you wish to attend that meeting in order to discuss policing policy, you should certainly let the student reps know. You may want to attend even if you aren’t interested in the policing policy, as I would expect that administrators and faculty will reinforce the importance of our free speech policy at that meeting, as they are doing elsewhere. Again, just reach out to the student reps about your interest.”
Regarding Austin’s concern the voices of other students were being prioritized, Gerken added in that same March 24 email, “You are not being treated differently than other students. To the contrary, I have never had as many one-on-one meetings with any student group leader during my deanship. Usually it takes several weeks to schedule a meeting with me for reasons that you can imagine. And here I did you the courtesy of explaining precisely why my schedule is particularly tight that week, which is something I would not normally do with a student. I am surprised that you came to such a conclusion.”
Austin responded to that email, “My overwhelming concern about the Nathan Hale symposium is the safety of my chapter, which certainly implicates the police policies and all of the aforementioned policy and personnel concerns I raised. I will reach out to the student reps to be included in the meeting; I hope we all share an interest in avoiding a repeat of the events of March 10th.”
As of now, Gerken and Austin have still not met. And the clock is ticking toward that Nathan Hale symposium this week. (At the time of publication, a spokesperson for Yale Law school had not responded when asked for comment.)
Even the mere hint that Austin and his Federalist Society peers have been excluded from preparatory discussions around this upcoming event and the possibility of an accompanying protest is not just stupid, it’s politically dangerous—for the progressives.
Why? Because it’s handing victory to the hosting group in advance by giving them victim status ahead of time in the inevitable debate about free speech that will almost certainly come in the event of another out-of-control, possibly rule-breaking ruckus.
At Yale Law School specifically, there’s a paradox at play that makes what happens there especially critical and important in the larger culture wars.
Nationally, the Federalist Society has risen in just 40 years to an organization of remarkable strength and potential control over the thorniest issues in our constitution. Six of the nine current Supreme Court justices are members of it. One can quite understand the anxiety from liberals at its growing expansive power and remit, and the reported uptick in cases on the “shadow docket” controlled by SCOTUS.
But Yale Law School—the very birthplace of the Federalist Society—is one place, ironically, where multiple sources say that FedSoc isn’t in the majority in either in the student or faculty body and thus needs to be treated with extra care and dexterity in order to win a bigger political point about free speech. It’s too easy to trample on them and be viewed as the enemy.
Already, the saucepan is simmering dangerously hot.
One faculty member I spoke on the condition of anonymity told me, “For the first time in 25 years, students are asking me not to share their responses to provocative questions I ask them to consider in class. I’ve never seen anything like this. It’s a sign the pendulum will swing back.”
Remember, I’m writing this at a moment when comedians, the ACLU, and even Bill Maher have been alienated by the left, especially on college campuses.
So is it wise in that climate to have the optics that Federalist Society members such as Zack Austin are being excluded from protocol meetings and and being denied meetings with the dean? In my mind, Dean Gerken should meet with Austin and his peers pronto in order to take control of the narrative rather than respond to it from the back foot. It’s time for everyone at Yale Law School to recall—and act—upon the wisdom of the adage: "I disapprove of what you say, but I will defend to the death your right to say it."