David Lat’s open letter to the dean of Yale Law School

As I pointed out over the weekend, there has been an ongoing battle in the media over exactly what happened at a recent First Amendment panel at Yale Law School. Organizers of the event claimed student protesters disrupted but did not quite cancel the event while a writer for Slate has argued the student disruption was brief and not very serious. In the middle was David Lat a lawyer who founded the site Above the Law and then left to start his own Substack site called Original Jurisdiction.

Lat originally wrote a lengthy piece on the events at Yale which downplayed the disruption but after receiving additional information including an 18-minute audio clip he revised his assessment and added an update:

Based on what I have heard from additional sources, as well as video and audio I have reviewed, I now believe that the disruption of the event was longer and more intense than described in the preceding paragraph. The noisy protest continued, at varying levels of intensity, throughout most if not all of the proceedings. This made it difficult for audience members to hear or focus upon the speakers at times, and it even disrupted classes and a faculty meeting taking place in other parts of the building. This new information doesn’t really change my analysis of the free-speech issues discussed below—except to perhaps reinforce my conclusions—but I note it for the record. It also explains why, a few paragraphs down, I have replaced “disruption” with “getting completely canceled.” The event was significantly disrupted, even if it wasn’t totally canceled à la Hastings and managed to limp to a conclusion.

It turns out that Lat also knows Heather Gerken the dean of Yale Law School. He supports her and she even once invited him to give her his “candid” thoughts about how she was doing as dean. Today, Lat took her up on that in a public way, writing an open letter on how he believes she should have responded to the disruption of the panel event.

I’d like to share my serious concerns about the state of free speech at YLS. It’s a theme that runs through several recent controversies at the law school—Dinner Party-gateTrap HousegateAntiracism Training-gateFedSoc-gate—and it’s front and center in the latest dispute, arising from a loud and rowdy protest of a March 10 event sponsored by the Yale Federalist Society (“FedSoc”)…

As someone who knows and cares a lot about leadership—it’s no coincidence that the Tsai Leadership Program was launched during your deanship—you understand that part of being a leader is taking heat. So you shouldn’t have left others to take the heat for you. Instead, you should have strutted out into that hallway, wearing your fabulous signature boots, and told the protesters: “Enough. You are all in flagrant violation of Yale’s free speech policies. If you do not quiet down immediately, you will be disciplined.”

Not confronting the protesters on March 10 was, I submit, a failure of leadership—but it might have been understandable, in the heat of the moment and the chaos of the situation. A less understandable failure of leadership is not sending out a school-wide email after things calmed down, like the one that Dean David Faigman sent out after a similar event at UC Hastings Law, offering a ringing affirmation of free speech and explaining how the protesters violated university free-speech policies.

Lat then goes directly in to the underlying problem at Yale, which is that progressive students have decided those who disagree with them are “Bad People” who should be silenced lest they do harm to the community. That, says Lat, is where Dean Gerken should have drawn a clear line for students with regard to freedom of speech.

Progressives are free to think that their opponents are Bad People. They can exclude them from social gatherings. They can make Bad People feel unwelcome in affinity groups (already happening at YLS, with members of certain affinity groups being forced to choose between affinity-group and FedSoc membership). They can make fun of Bad People with satirical fliers.

But it’s your job, as the Dean of Yale Law School, to tell Progressives that in an academic community based on free expression, there are limits to how much they can act on the view that their opponents are Bad People. Progressives can’t shut down duly organized events because they disagree with the speakers. They can’t weaponize anti-discrimination policies to punish the protected speech of their opponents. They can’t make up and spread lies about professors with unpopular views (or the students who dare to associate with those professors). It’s your job, as the Dean of Yale Law School, to remind Progressives of all this—even if they complain, call you “complicit,” or say you’re a Bad Person too.

Kudos to Lat for stating the obvious knowing that it is longer seen as obvious by a surprising number of people these days. As for Dean Gerken, she has apologized in the past for errors of judgment, so hopefully she’s willing to do the same here.

There really have been a number of these incidents at Yale Law recently. I wrote about the “Trap House” email and about the Amy Chua meltdown. Why does any of it matter? Because Yale styles itself the leading law school in the country. These students will become judges, academics and leading attorneys in a few years. It would be good if a lesson in the basics of free speech were a part of their education at Yale Law.

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