Free Speech

Lawyers, Law Students, Law School Administrators, and Language

Yale Law School's diversity miseducation.

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[1.] Words and phrases can have different meanings, connotations, and associations to different people. "Work will set you free," for instance, might seem like a perfectly good slogan to many. (Consider freedom from economic dependency on parents or spouses or the government.) But it might not work well for listeners who know it was also the sign written in German at the entrance to Auschwitz. At least it will yield an unpleasant association for them—never a good effect for a slogan supposed to inspire people. And it might make them question the motives of the speaker, even if they ultimately answer the question with "he probably just didn't know the connection."

Likewise, using "he" as a generic singular pronoun might seem like a normal convention to some, but might make others bristle. Same for using "they" for the same purpose, which some readers might find normal and convenient, but others might find linguistically jarring or view as a distracting or disagreeable political statement. Nor is this limited to political reactions: To many, "decimate" means "To inflict great destruction or damage on" or "To reduce markedly in amount"; others think of the historical meaning, which involved killing, and in particular killing one out of ten. And such differing reactions are an unsurprising consequence of "diversity," in the simple sense of people with different experiences, educations, and attitudes coming together in one institution.

It's important to teach law students—and other students—to be keenly aware of such possibilities as speakers and writers. I often do that myself, especially when I teach my brief-writing clinic. (For instance, I routinely recommend that students avoid pronoun controversies by, if possible, pluralizing the referent and then using "they," which few readers would find controversial and distracting in its traditional plural context.)

At the same time, this goes both ways: It's important to teach students to be aware of the risk that they are seeing intentions and evil future plans that were not intended. Few people want a lawyer who constantly bristles at every term that could be interpreted as something bad, whether from opposing counsel, from prospective partners in a deal, from the lawyer's own client, or from coworkers. If a lawyer tries to argue that the other side's reference to Popeyes Chicken is actually racially offensive, because Popeyes Chicken is fried chicken and fried chicken has been used as part of anti-black stereotypes, the lawyer might well lose credibility with many judges or jurors, who may think that Popeyes Chicken is just Popeyes Chicken.

[2.] Which of course brings us to TrapHouseGate, where a Yale law student member of both the Native American Law Student Association and the Federalist Society e-mailed this invitation to the NALSA list:

Sup NALSA,

Hope you're all still feeling social! This Friday at 7:30, we will be christening our very own (soon to be) world-renowned NALSA Trap House [redacted] by throwing a Constitution Day Bash in collaboration with FedSoc. Planned attractions include Popeye's chicken, basic-bitch-American-themed snacks (like apple pie, etc.), a cocktail station, assorted hard and soft beverages, and (most importantly) the opportunity to attend the NALSA Trap House's inaugural mixer!

Hope to see you all there!

This was then forwarded to all the second-year students, some of whom were upset at what they viewed as mockery of blacks. "Trap house" apparently originally meant, and still sometimes means, a house where people would go to buy crack cocaine, which has generally been mostly associated with blacks; it also became associated with a subgenre of hip hop music, which is likewise seen as "black music." And Popeyes chicken is indeed fried chicken; blacks have sometimes been mockingly depicted as eating fried chicken and watermelon.

On the other hand, "trap house" also now appears to mean a place where young people of any race gather to drink and party—whether somewhat illicitly (since they're underage) or because they want to jocularly suggest such illicitness (much as some bars or bartender services call themselves speakeasies even though we're long out of Prohibition). The author of the invitation claimed that he was referring to this meaning and not the crack house meaning, which strikes me as quite plausible.

Likewise, there's a prominent podcast run by three white guys, apparently with no hint of racial mockery, called Chapo Trap House ("Socialism for the Extremely Online," according to Vanity Fair, which labels it as "hard-left"). And Popeyes Chicken is apparently much loved by many people of all races (see "The Popeyes Chicken Sandwich Is Here to Save America"), and the combination of fried chicken and apple pie is not a racial stereotype.

So here you have terms that can have different connotations to different people, based on their experiences with those terms. That's a good opportunity for people as writers and potential writers to see how what they write can produce a counterproductive reaction. (Again, remember that the e-mail wasn't supposed to be damn-the-reaction-I-must-scream-what's-in-my-heart self-expression, but rather an invitation aimed at persuading a broad range of people to do come to a party.) And it's a good opportunity for people as readers to see how their first reactions may be mistaken, and can counterproductively exacerbate tension.

[3.] Yet consider Yale Law School's response. The associate dean and the "diversity and inclusiveness director" called the author of the e-mail in to discuss the controversy—itself perhaps an overreaction, but perhaps justifiable. But rather than framing it as "here's how we can all learn to avoid unnecessary misunderstandings," they called him with a message labeling this a "deeply concerning and problematic incident." And, to quote the liberal Northwestern professor Andrew Koppelman,

Then came this disastrous blunder: "The email's association with FedSoc was very triggering for students that already feel like FedSoc belongs to political affiliations that are oppressive to certain communities through policies. … That of course obviously includes the LGBTQIA community and black communities and immigrant communities." …

This may have truthfully reported how some students feel. But [the director] should have distanced the law school from those feelings.

When the student declined to apologize, they sent out this e-mail:

To quote Koppelman again,

Here mediation has ceased. The law school has taken it upon itself to declare who is right and who is wrong. Colbert was publicly branded as "racist" before his peers.

And, at a follow-up meeting, the director "says, 'You're a law student, and there's a bar you have to take. So we think it's really important to give you a 360 view.' This is more menacing than anything that was said the previous day. It suggests that this episode might be brought up to the character and fitness inquiry of a bar admission." So instead of teaching, we see "bullying" and "coerci[on]" (to again quote Koppelman).

[4.] But as importantly, we see Yale teaching the wrong lesson to students on the other side of the controversy: The lesson that, when you see a statement that has a bad connotation to you, the right thing to do is to ignore the reality of diversity—the reality that different people honestly perceive words to have different connotations—and instead immediately label the statement as "racist" and in need of addressing as "Discrimination and Harassment."

Again, would you want a lawyer working for you who consistently reacts that way, when he's negotiating a deal with a prospective business partner of yours (or even with a litigation adversary's counsel, where often calming the waters is more important than roiling them)? Would you want a lawyer who routinely demands sanctions for the opposing side over things that many judges are likely to just see as minor miscommunications? Sometimes such a reaction might be useful—but much more often it's destructive, of professional relationships and of credibility.

Likewise, would you want a lawyer who would routinely react this way to things you as the client say, or you as a coworker say? Or would you prefer a lawyer, who if genuinely troubled by one possible interpretation of a statement, reaches out to the speaker and asks something like, "I'm not sure I quite understood what you meant by 'trap house'; can you explain a bit more? … Oh, really? That's odd; I took it as some reference to crack houses—you might not know, but that's what trap house still usually means in many contexts—and as some pejorative allusion to black crack addicts. I think some others took it the same way. Very glad that's not what you had in mind."

Which reaction is Yale Law School teaching students to offer in the future, at school, at work, in court, or elsewhere?