An open letter to Yale Law School Dean Heather Gerken

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Dear Dean Gerken,

Many years ago, when I was a student at Yale Law School, the institution prided itself on offering a continuation of liberal education. I very much appreciated the opportunity to supplement the standard legal studies program with forays into the classics of English jurisprudence; explorations of different bodies of religious law and the interpretative traditions to which they gave rise; philosophical reflections on the limits of reason, legal and others; and, in the effort to understand the intricacies of American constitutional law, readings of history, literature, political thought, and sociology. By going beyond teaching technical expertise in black letter law, Yale has enabled students to gain an appreciation for the place of law and the courts in a free and democratic society.

At the same time, worrying signs at the time cast doubt on the strength of Yale Law School‘s commitment to maintaining an atmosphere of free and open inquiry, a vital prerequisite for liberal and legal education. A progressive orthodoxy reigned in the law school. The majority – among students and professors alike – seemed to view the conservative view as an aberration to be frowned upon but which could be tolerated in small doses. Particularly in constitutional law courts, in-depth analysis of both sides of the argument tended to give way to a plea for incremental results. Some of my classmates were willing to define race partly in terms of political opinions. According to their calculations, if one could not rely on a faculty member to assert prescribed beliefs – for example, abortion or affirmative action – then, in order to measure the diversity of law schools and faculties, this professor should not be classified as belonging to a historically disadvantaged group, regardless of the professor’s skin color, ethnicity or gender.

Judging by the Trent Colbert case, the disturbing trends visible during my days at Yale have worsened considerably. Due to the school’s disproportionate role in training law teachers and judges across the country, restoring the on-campus understanding and practice of freedom of thought and discussion is particularly urgent.

In mid-October, Aaron Sibarium reported in the Washington Free Beacon that Associate Dean Ellen Cosgrove and Director of Diversity Yaseen Eldik lobbied Colbert – a sophomore who is part of Cherokee and is both a member of the Native American Law Students Association (NALSA) and the Federalist Society – “to apologize for a ‘trigger’ email in which he called his apartment a ‘trap house,’ a slang term for a place where people buy drugs. On September 15, Colbert (he requested anonymity in the original version of the article for fear of reprisal) used the NALSA mailing list to email members an invitation to a Constitution Day party. September 17 organized in conjunction with the Federalist Society. In addition to using the term “house trap” – which has become common slang beyond its original meaning of place to take drugs – Colbert wrote that the chicken of Popeye would be served. “Within minutes,” according to Sibarium, “the lighthearted invitation had been captured and shared on an online forum for all sophomore law students, several of whom alleged the term ‘trap’ denoted a blackface party.”

Cosgrove and Eldik hastily summoned Colbert. At their September 16 meeting, Eldik informed Colbert that his membership in the Federalist Society compounded the offense of “house-trap” and his mention of fried chicken, both of which invoked racial stereotypes. “The association of e-mail with FedSoc has been very empowering for students who already feel that FedSoc belongs to political affiliations that are oppressive for certain communities,” according to Eldik. “This of course includes the LGBTQIA community, black communities, and immigrant communities.”

The purpose of the meeting called by law school officials and their subsequent communications with Colbert, however, was not merely informative. Cosgrove and Eldik urged Colbert to apologize, worryingly suggesting that failure to do so would damage his reputation and hurt his candidacy for the bar. Eldik went so far as to write an apology for Colbert; he addressed black law students, acknowledged “any harm, trauma or upheaval” caused by his email, and said Colbert “would actively educate himself so that I could do better.” After Colbert refused to send the ghost-written pardon request, Cosgrove and Eldik emailed all members of the second-year class that accused Colbert of using “racist language” and condemned his invitation “in the strongest possible terms”.

Shortly after the publication of the Sibarium article on October 13, the law school published a declaration claiming that “Yale University and Yale Law School have strong protections for free speech, and no student is investigated or punished for a protected speech.”

October 18, according to report in the Yale Daily News, you, Dean Gerken, emailed members of the law school community promising to “‘take whatever steps are necessary” to ensure that the law school upholds its values ​​of freedom expression while creating an inclusive environment for all students. A law school that nurtures an environment hostile to free speech divides the community into warring factions while depriving students of the exchange of opinions and reasoned assessment of competing perspectives essential to learning law and to the maintenance of a free society. Therefore, your willingness to take decisive action in favor of freedom of expression is welcome.

To help you improve the offending, chilling protected speech, and censoring dispositions that have gained a foothold at Yale, I offer three proposals to reinvigorate a culture of free speech in law school and across the world. ‘university:

First, Yale Law School should incorporate a section on free speech and liberal education into the orientation of incoming students. The mini-course can award Chapter II by John Stuart Mill’s On Liberty, “Freedom of thought and discussion”; the 1974 Report of the Free Expression Committee at Yale, also known as the Woodward Report; and the 2015 Report of the Committee on Freedom of Expression, also known as the Chicago Principles. These texts clarify the benefits of a solid and open inquiry for individuals, free societies and institutions of higher education, and outline the virtues on which freedom of expression depends. Students at Yale Law School should discuss this firmly and openly.

Second, Yale Law School is expected to hold an annual college-wide conference on free speech. The conference is expected to be complemented by a week of special programs, including a colloquium led by the university’s guest of honor as well as guest dinners with faculty and small groups of students. By highlighting each year a lawyer, an academic, a judge, an elected official, an activist, a journalist, a novelist or any other figure who has contributed to the theory and practice of freedom of expression, the faculty of law would enhance the appreciation of how the communities formed by the principle of free speech speech and therefore built around tolerance are inherently inclusive. The law school would also convey to the campus community that the faculty and administration view freedom of speech as vital to the mission of the law school and the university.

Third, Yale Law School should hold a series of regular debates for the academic community on key issues in US constitutional law. Decades ago, all credit goes to the student-run Federalist Society, which jumped in to sponsor events featuring a genuine exchange of opinions between right and left. However, by allowing the Federalist Society to gain a near-monopoly to foster vigorous debate on highly controversial issues, the law school is sending the message that free speech is a partisan principle. This reinforces the pernicious but increasingly popular idea that vigorous presentation of various aspects of moral, political and legal issues favors the majority at the expense of members of historically disadvantaged groups. In fact, it is difficult to identify a single victory for individual freedom and equality under the law in the United States that does not rest on the generous protections of free speech provided by the United States Constitution.

Such steps will kick off the hard work of refounding legal education at Yale into liberal education and, it is hoped, serve as a model for university and higher education across the country.

Truly,

Pierre Berkowitz
Yale Law School, Class of 1990

Peter Berkowitz is the Tad and Dianne Taube Principal Investigator at the Hoover Institution at Stanford University. From 2019 to 2021, he was Director of Policy Planning at the US State Department. His writings are published on PeterBerkowitz.com and he can be followed on Twitter @BerkowitzPeter.



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