Like it or not, Yale Law School is, at least for the moment, one of the premier duopoly of law schools in America. It has produced Supreme Court justices and legal academics galore. It’s graduates, like Senator Josh Hawley, sit in the halls of power with Harvard Law School’s grads, like Senator Ted Cruz. Going to YLS is a big deal. Graduating from YLS puts you on a path of power and privilege. And the current crop of students believes that they should use that power and privilege for what they believe to be good.
And that’s a problem. David Lat sums up the latest controversy, primarily reported by Aaron Sibarium of the Washington Free Beacon.
More than 100 students at Yale Law School attempted to shout down a bipartisan panel on civil liberties, intimidating attendees and causing so much chaos that police were eventually called to escort panelists out of the building.
The March 10 panel, which was hosted by the Yale Federalist Society, featured Monica Miller of the progressive American Humanist Association (AHA) and Kristen Waggoner of the Alliance Defending Freedom (ADF), a conservative nonprofit that promotes religious liberty. Both groups had taken the same side in a 2021 Supreme Court case involving legal remedies for First Amendment violations. The purpose of the panel, a member of the Federalist Society said, was to illustrate that a liberal atheist and a conservative Christian could find common ground on free speech issues.
The key feature here is not that students took issue with an invited speaker so much as the belief that the speaker’s organization, ADF, was evil and should not be heard. So they shouted the program down to silence it. At one point, Yale prawf Kate Stith, who was to moderate the presentation, rose to tell the students to “grow up.”
The students did not appreciate Stith’s admonition, and let their feelings be known.
Numerous issues arose from what happened at YLS, from a debate over whether silencing a speaker is an equivalent exercise of free speech, such that it would be hypocritical to support the free speech rights of the invited speakers and not the rights of the students to silence the speakers,* to whether this was as chaotic and bad as it first appeared, or just a brief if loud expression of disapproval that didn’t prevent the program from proceeding.
On the students part, they subsequently sent an open letter signed by a majority of the YLS student body grieving the administration having called in Yale Police to assure order.
We write as a coalition of queer students and allies deeply concerned with the presence of armed police at a peaceful protest of law students on campus this past Thursday.
As an aside, there are rumors that some students were “bullied” into signing the letter, and threatened that their failure to do so would signal that they were racists, etc. From the outside, a new issue arose when D.C. Circuit Judge Laurence Silberman sent an internal email to all Article III judges.
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.
For the nonlawyers, federal judicial clerkships are huge on baby lawyers’ resumes, the sort of thing that starts future Supreme Court judges down the very special path traveled only by the most select. It’s a big deal.
Judge Silberman’s slightly equivocal call to “disqualify” students who disrupted the panel, presumably based on who signed the open letter, is the wrong response, adding more “cancel” to a culture spiraling downward toward its nadir. It’s no less wrong to “disqualify” a student from their potentially bright future of prominence because of their beliefs than to silence a speaker.
At the same time, the fact that a significant number of students at one of the two most prominent law schools believe that speakers with whom they disagree must be silenced, and that their beliefs trump all others to the exclusion of suffering any speech, any idea, any speaker, any organization, that does not pass their ideological litmus test cannot be tolerated, raises a critical question about whether YLS (and, indeed, law students at all the elite schools) should be our future senators and Supreme Court justices.
In the past, norms of behavior might have prevented this issue from arising, not because elite law students didn’t hold extremely progressive beliefs, but because they constrained their most childish impulse to throw a tantrum to silence others whose views differed. They might be curious enough, on the one hand, to listen and consider what a speaker had to say before vehemently disagreeing with them. They might be polite enough to suffer an argument with which they disagreed rather than taken the course of action of pre-emptively silencing it so it could not be said or heard by those who were curious.
Professor Stith’s simple admonition, “grow up,” was the right answer. The students are allowed to disagree, and allowed to express their disagreement. They can protest, if that’s what they think will serve some useful purpose. But what they did instead was behave like spoiled children, brats, who believe they are entitle to do act however they want, subject to no norms of civility or propriety. Perhaps if they grew up, recognized the disgraceful childishness of their ideas and ways, they will one day be worthy of high office and great power.
But their reaction to Stith wasn’t to realize they were behaving like entitled children, but the response one expects of spoiled brats. If that’s what a YLS education represents now, they have no future pulling the levers of society in the future. Not that they should be “disqualified,” but that there is no place for such infantile behavior in a judge’s chambers, a courtroom or the halls of Congress.
*Volokh has taken the position that uninvited speech in a non-public forum that serves only to silence the invited speaker is not an exercise of free speech. Much as I agree with the outcome, it’s conclusory, and it’s unclear what principled basis supports Eugene’s conclusion.
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