The Volokh Conspiracy
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Shenanigans at Yale Law School
Administrators threaten retaliation against a student for declining to apologize for an email that did not merit an apology
Reprinted with permission, the article is by Aaron Sibarium of the Washington Free Beacon, originally published here. I did not think a summary with link would do this one justice:
Administrators at Yale Law School spent weeks pressuring a student to apologize for a "triggering" email in which he referred to his apartment as a "trap house," a slang term for a place where people buy drugs. Part of what made the email "triggering," the administrators told the student, was his membership in a conservative organization.
The second-year law student, a member of both the Native American Law Students Association and the conservative Federalist Society, had invited classmates to an event cohosted by the two groups. "We will be christening our very own (soon to be) world-renowned NALSA Trap House … by throwing a Constitution Day Bash in collaboration with FedSoc," he wrote in a Sept. 15 email to the Native American listserv. In keeping with the theme, he said, the mixer would serve "American-themed snacks" like "Popeye's chicken" and "apple pie."
The student, who requested anonymity for fear of retaliation, is part Cherokee, the Indian tribe that was forcibly displaced during the infamous Trail of Tears.
Within minutes, the lighthearted invite had been screenshotted and shared to an online forum for all second-year law students, several of whom alleged that the term "trap house" indicated a blackface party.
"I guess celebrating whiteness wasn't enough," the president of the Black Law Students Association wrote in the forum. "Y'all had to upgrade to cosplay/black face." She also objected to the mixer's affiliation with the Federalist Society, which she said "has historically supported anti-Black rhetoric."
"Trap house" has been a term used in progressive pop culture since at least 2016, when the socialist podcast "Chapo Trap House" burst onto the scene. Hosted by three white men, the podcast has received sympathetic profiles in the New York Times, the New Yorker, and the Guardian, none of which suggest that there is anything racial about its name. Once associated with inner city crack dens, "trap house" has also become generic slang for any place where young people can score beer.
The hosts of Chapo Trap House did not respond to a request for comment about the show's title.
Just 12 hours after the email went out, the student was summoned to the law school's Office of Student Affairs, which administrators said had received nine discrimination and harassment complaints about his message.
At a Sept. 16 meeting, which the student recorded and shared with the Washington Free Beacon, associate dean Ellen Cosgrove and diversity director Yaseen Eldik told the student that the word "trap" connotes crack use, hip hop, and blackface. Those "triggering associations," Eldik said, were "compounded by the fried chicken reference," which "is often used to undermine arguments that structural and systemic racism has contributed to racial health disparities in the U.S."
Eldik, a former Obama White House official, went on to say that the student's membership in the Federalist Society had "triggered" his peers.
"The email's association with FedSoc was very triggering for students who already feel like FedSoc belongs to political affiliations that are oppressive to certain communities," Eldik said. "That of course obviously includes the LGBTQIA community and black communities and immigrant communities."
The statement signals that administrators at the country's top-ranked law school now regard membership in mainstream conservative circles as a legitimate object of offense—and as potential grounds for discipline. The Federalist Society, founded by Yale Law students in 1982, has spread nationwide over the past four decades and become one of most influential legal groups in the country. Members include all six conservative justices on the Supreme Court, as well as the late Antonin Scalia, who spoke at the society's inaugural conference.
The episode also offers a peek into the culture of campus diversity offices that claim to be a resource for all students. Behind closed doors, the leaked audio suggests, these bureaucracies are less ecumenical than their public messaging lets on: Their goal isn't to make universities more inclusive, but rather to wield the threat of exclusion against disfavored groups.
Throughout the Sept. 16 meeting and a subsequent conversation the next day, Eldik and Cosgrove hinted repeatedly that the student might face consequences if he didn't apologize—including trouble with the bar exam's "character and fitness" investigations, which Cosgrove could weigh in on as associate dean. Those investigations review aspiring lawyers' disciplinary records in considerable detail: The New York State Bar, for example, asks law schools to describe any "discreditable information" that might bear upon an "applicant's character," even if it did not result in formal discipline.
It is unclear whether that is what Cosgrove was referring to when she warned on Sept. 16 that things "may escalate" without an apology. "I worry about this leaning over your reputation as a person," Eldik chimed in. "Not just here but when you leave. You know the legal community is a small one."
The best way to "make this go away," he continued, would be to formally apologize to Yale's Black Law Students Association. "You're a law student, and there's a bar you have to take," Eldik said in a follow-up meeting on Sept. 17. "So we think it's really important to give you a 360 view."
When the student resisted, saying he'd prefer to have a face-to-face discussion with anybody offended by his email, Eldik nonetheless drafted an apology for the student to send in the service of "character-driven rehabilitation."
Addressed to black student leaders, the note included an apology for "any harm, trauma, or upset" the initial email may have caused. "I know I must learn more and grow," the draft apology concluded, "[a]nd I will actively educate myself so I can do better."
The student ultimately declined to send the note, instead telling his classmates in an online forum that he welcomed conversations with anybody offended by his choice of words.
When the student hadn't apologized by the evening of Sept. 16, Eldik and Cosgrove emailed the entire second-year class about the incident. "[A]n invitation was recently circulated containing pejorative and racist language," the email read. "We condemn this in the strongest possible terms" and "are working on addressing this."
Eldik, Cosgrove, and Yale Law School dean Heather Gerken did not respond to requests for comment.
Dubious discrimination complaints are nothing new at the Ivy League law school. In February, for example, a raft of affinity groups accused the Yale Law Journal of systematically excluding black students from the masthead. When the prestigious publication released its admissions data, it turned out that black students had been admitted at a rate of 61 percent—far higher than the rate for any other race or ethnicity.
But as "discrimination" and "harassment" have taken on ever wider meanings, anti-discrimination offices have taken on a larger mandate, enforcing not just equal opportunity but progressive ideology. At least one complaint alleged that the email "was a form of discrimination," Eldik told the student, while the "harassment" claims centered on how "psychically harmful" it had been.
That concept creep has been enforced by bureaucratic self-interest. Anti-discrimination officers have an incentive to address grievances in heavy-handed, public ways, a fact the audio drives home. When the student suggested letting his peers reach out to him individually to discuss their feelings about the email, Eldik responded: "I don't want to make our office look like an ineffective source of resolution."
That resolution may not involve any formal punishment. In a third meeting on Oct. 12, nearly a month after the initial incident, Eldik and Cosgrove assured the student they would not put anything in his file that might pose a problem for the bar.
"We would never get on our letterhead and write anything to the bar about you," Eldik said. "You may have been confused."
At their first meeting, Eldik had hinted that the student's race might result in some leniency.
"As a man of color, there probably isn't as much scrutiny of you as there might be of a white person in the same position," Eldik informed the Native American student. "I just want to acknowledge that there's a complexity to that too."
Update 3:58 p.m.: After the publication of this piece, Yale Law School released a statement saying that "no student is investigated or sanctioned for protected speech" at the law school. "At no time was any disciplinary investigation launched or disciplinary action taken in this matter," the statement read. "While any person may report concerns about a lawyers' character and fitness to the bar, the law school has a longstanding policy of reporting only formal disciplinary action to the Bar Association."
UPDATE FROM DB: First, note the non-denial by YLS that the events happened as reported. Meanwhile, Reason's Liz Wolfe provides a sensible take on the controversy.
UPDATE 2: FIRE sends along the following statement:
Yale Law School is repeating a very tired play from a very tired playbook: intervene at the first whiff of controversy. Yale says it didn't "investigate" a student for his obviously protected expression. Fine. Whatever you want to call it, hauling a student into an administrator's office to issue him veiled threats about his career unless he issues a pre-written apology drafted by the administration is an abuse of power and immoral. Full stop. Yale continues to issue statement after statement about its commitment to free expression. But actions speak louder than words, and Yale's actions repeatedly trample on the rights of its students and faculty members.
