The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Campus Free Speech

The Allegations in the New Lawsuit Against Yale Law School


[1.] I reviewed them again, and thought I'd post just the factual allegations (which start below at item 3). [UPDATE: The excellent David Lat has more.] As I read them, I found myself comparing them to the tone of the alleged conduct by two of the same administrators (Cosgrove and Eldik) in their interaction with Yale law student Trent Colbert (from TrapHouseGate), so I thought I'd include them alongside; let me know whether you too see a common thread in the tone:

The associate dean [Cosgrove] and the "diversity and inclusiveness director" [Eldik] called the author of the e-mail in [that's the "trap house" party invitation] to discuss the controversy …. [T]hey called him with a message labeling this a "deeply concerning and problematic incident." And, to quote the liberal Northwestern professor Andrew Koppelman,

[Cosgrove and Eldik told Colbert] "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." …

[When the student declined to apologize, they sent out an e-mail condemning the student's invitation for supposedly "containing pejorative and racist language."]

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).

[2.] You might also compare the allegations with the same two administrators' alleged interaction with Yale law student and chapter Federalist Society president Zack Austin, as reported based on Austin's account by David Lat:

[Right after meeting with Colbert], Cosgrove and Eldik met with Zack Austin, after sending him what Cosgrove later described as a "formal summons." … [W]hy was Austin summoned to meet with YLS administrators? According to Austin, Eldik said something to him along the following lines when they met:

I think you as a cis/het white man decided to have some fun, and convinced a man of color with a backyard to send out an email announcing a costume party where it wouldn't be frowned upon if people came in blackface to eat some fried chicken while dancing to trap music.

… As Austin explained yesterday:

No one who has taken a statutory interpretation class—even one at Yale Law School—could possibly believe in good faith that the email said anything remotely related to [a blackface party]. As I began to explain that to Yaseen, we were joined by Dean Cosgrove and … [Office of Student Affairs] administrator [Bush, who is] responsible for approving FedSoc's budget. Especially because she was never in any meeting with Trent, her pressure came across as fiscal pressure on our organization to comply. Despite my repeated requests, OSA has not provided an alternative explanation for her presence.

Our heaps of documents—including Trent's relatively unknown email prepared for the FedSoc listserv—refuted any allegations that we were planning a blackface party. Dean Cosgrove, Chloe, and Yaseen appeared to acknowledge as much. Nevertheless, they tried to pressure me into sending out a public apology that they had drafted for me. I was told that if I didn't apologize, my reputation in the law school and in the broader legal community might never recover. I refused.

[3.] Now, to the allegations from the new lawsuit, which relates to DinnerPartyGate rather than TrapHouseGate; I extracted them from the Complaint, but removed the paragraph numbers and merged paragraphs together for readability:

Jane and John Begin Their Studies at Yale and Meet Chua

Plaintiffs Jane and John enrolled at Yale Law School in the Fall of 2019. After a successful academic year in her first year of law school, Jane met [Professor Amy] Chua for the first time in the Spring of 2020 in her International Business Transactions class. John met Chua for the first time in the Spring of 2021 while also enrolled in her International Business Transactions course. Chua became perhaps the most famous member of the Yale faculty following the success of her 2011 memoir Battle Hymn of the Tiger Mother and has served as an important mentor for her students, many of whom successfully obtain prestigious clerkships.

Defendant [Yale Law School Dean] Gerken began publicly criticizing Chua in September 2018—a year before Jane or John had even enrolled in the law school—during the confirmation hearings for now-Supreme Court Justice Brett Kavanaugh. In response to anonymous public allegations that amounted to Chua having given advice on dress or appearance to clerkship candidates preparing for interviews, Gerken sent an email to all members of the Yale Law School community (which was quickly leaked to the press) concerning the "allegations of faculty misconduct" supposedly against Chua and describing them as "of enormous concern" to Gerken. In her missive, Gerken also directed students who had "been affected by misconduct" to "reach out to" Defendant [Associate Dean] Cosgrove.

It was subsequently reported in 2019 that Chua had entered a "no-socializing" agreement with the University whereby she agreed to not socialize with students off-campus. Starting in February 2021, both Jane and John became embroiled in Gerken and Cosgrove's apparent vendetta against Chua.

That month, Jane and John separately attended Zoom "office hours" with Chua to discuss their coursework. These office hours discussions would also cover career discussions and any concerns that Jane or John voiced about the University. In particular, John struggled with what he felt was a lack of institutional support for students of color, which ended with his frustrated resignation from the board of the Yale Law Journal. His resignation received media coverage including on the popular legal blog (particularly among law students) Above the Law. This caused John to face significant hostility at the school.

Chua, having similarly faced such race-based, online-instigated hostility, as well as being one of the few faculty members of color at Yale Law School, was in a unique position to offer John guidance on these issues. Given the sensitive nature of the subject, John and Jane (who was John's friend and had also faced similar hostility) wished to discuss their issues with Chua in person. To avoid meeting in public to discuss such a sensitive subject, Jane, John, and Chua decided to meet at Chua's home, which was a common practice amongst Yale faculty members. (In fact, Gerken has met with both Jane and John at Gerken's own residence on several occasions.)

John and Jane met Chua twice at her home, in February 2021 and March 2021. Both meetings included only John, Jane, and Chua, and no meals were involved.

The Dossier

Unbeknownst to Jane or John at the time, these two meetings somehow became subject of pernicious law school gossip. One of their classmates went so far as to compile a bizarre 20-page document, the Dossier (Ex. A), that purported to document the "secret dinner parties" that Chua was supposedly hosting with John, Jane, and unidentified federal judges. The Dossier eventually gained such wide circulation that it became the subject of investigative reporting from news outlets including The New Yorker, The New York Times, and The Atlantic. The New Yorker described the Dossier as "extremely thin," and The New York Times anonymously quoted "several" Yale Law professors who had told the newspaper that "they were shocked at how unpersuasive" the Dossier was.

On its face, the Dossier—which refers to Jane and John as "Jane Doe" and "John Doe" in its main text but identifies them by name through exhibited screenshots of text messages—claims that Jane and John had "repeatedly lied" about their experience as students of color at the Law School, and further "repeatedly lied" about the existence of the secret dinner parties, before supposedly admitting their existence to the Dossier's author either in person or in "self-deleting" text messages. As evidence, the Dossier included a number of text messages, some with Jane or John, none of which consisted of them admitting to any secret dinner parties. On the contrary, in large part they seemed to consist of the Dossier's author making his own claims in text messages—to Jane, John, and other unidentified friends—about the existence of such parties.

The Dossier also included photos of John's feet outside in the snow as "evidence" and denounced Jane and John for "deliberately enabling" a "secret atmosphere of favoritism, misogyny, and sexual harassment."

Jane and John became aware of the Dossier in late April 2021, when it had begun to circulate among the Yale Law School student body. Shortly thereafter, beginning on April 23, 2021, Cosgrove and [Director of Equity, Diversity & Inclusion] Eldik contacted Jane and John concerning the Dossier. However, they were not investigating the fact that a Yale Law School student was circulating such a document for an apparent harassing purpose, or even investigating the allegations made in the Dossier.

Instead, Cosgrove and Eldik pressured Jane and John to make a formal statement confirming the allegations against, and lodge their own formal complaint, against Chua. Despite Jane and John repeatedly denying the Dossier's assertions, Cosgrove and Eldik pressured Jane and John to make such a statement, even calling them on a daily basis over the course of a week in April 2021, insisting that Jane and John had a "moral obligation" to "future generations of students" to make the false statements against Chua. Cosgrove and Eldik also made references to Jane of the "effort against Professor Chua" and insisted that if Jane would "just give them" a statement, they would have "enough" against Chua.

During the course of this week, Jane and John consistently refused to make false statements, and instead repeatedly asked Cosgrove and Eldik for assistance against the troubling invasion of privacy and resulting harassment that they suffered. Cosgrove and Eldik ignored these requests to help and discouraged Jane and John from filing a formal complaint concerning the harm the Dossier and its creator had caused Jane and John.

Instead, Cosgrove and Eldik ratcheted up the pressure. On a joint call including Cosgrove, Eldik, and Jane, Eldik told Jane that the Dossier would likely end up in "every judges' chambers," "following [her] even after [she] graduates," effectively sabotaging any hopes of her securing a clerkship whether she applied now or in the future. In a joint call including Cosgrove, Eldik, and John, Eldik and Cosgrove strongly suggested that John should not apply for a clerkship in the summer of 2021 because of the Dossier's wide publicity. It was suggested that, for these reasons, Jane and John should cooperate by making a statement against Professor Chua.

Cosgrove also directly threatened Jane, claiming that Yale Law School was receiving complaints about her potentially serving as a Coker Fellow [a highly coveted teaching assistant position] due to the Dossier, and further suggested that such complaints would be moot if Jane made a statement against Chua. That threat having no effect, Cosgrove became more direct, telling Jane that if Jane accepted a Coker Fellowship with the professor—despite Jane's repeated denials that she had received an illicit offer from the professor—Cosgrove or another member of the Yale Law School administration would approach the professor with the allegations.

In his own interactions with Cosgrove and Eldik, John unequivocally denied the Dossier's claim that the professor had extended him an illicit Coker Fellowship offer. When John asked Cosgrove and Eldik to help him deal with the false rumors being spread by other students to the contrary, Cosgrove and Eldik indicated that they were unaware of any complaints or rumors to that effect—despite having threatened Jane with those very same rumors and complaints—and insinuated that they would require concrete proof of this harassment before assisting John. When John informed Cosgrove and Eldik about his concerns regarding the lies and misrepresentations included in the Dossier, it was suggested to John that unless he filed a complaint against Chua, the administration could not effectively protect him from further harassment.

Gerken's Retaliation

In April 2021, Defendant Gerken became personally involved in the efforts to pressure Jane and John to make a false statement against Chua. Gerken's direct involvement began when Jane, who was a student in Gerken's academic clinic and was then writing a lengthy paper under Gerken's direct and personal supervision, sought Gerken's advice in dealing with the Dossier.

While it later became apparent that Gerken was fully aware of the Dossier, Gerken advised Jane to "be candid" with Cosgrove and Eldik and faculty members who may hear of the Dossier. Jane in response explained to Gerken that the allegations in the Dossier were false and questioned why her own candor was at issue.

A few days thereafter, Gerken and Cosgrove personally approached the professor, who was in the process of hiring Coker Fellows for his small group, with the intent to induce the professor to decline to extend a fellowship to either Jane or John. The purpose of Gerken and Cosgrove's approach to the professor was to not only dissuade him from offering a Coker Fellowship to Jane and John, but to convince him that Jane and John were lying about their interactions with Chua, making them untrustworthy and unsuited for employment, despite the professor already employing both Jane and John as his research assistants.

In the course of this attempt, Gerken and Cosgrove brought with them a copy of the Dossier that Cosgrove had personally marked up with highlighting and annotations to show where Cosgrove believed that Jane and John were lying. Cosgrove did not try to investigate the specific allegations contained in the Dossier with Jane or John, even though they repeatedly informed her that it was full of lies and misrepresentations….

I asked Yale Law School for a response, beyond Yale's earlier response that "the lawsuit is legally and factually baseless, and the University will offer a vigorous defense," but was told the school wouldn't comment at this point; I will of course post any response if one is eventually released.