The Volokh Conspiracy

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

Free Speech

Yale Law School Dean's Response to TrapHouseGate Controversy


Aaron Sibarium (Washington Free Beacon) reports, and David Lat (Original Jurisdiction) quotes it more fully [UPDATE: Right after posting this item, I saw Lat's analysis, which quoted the e-mail in full, so I replaced my original quote from Sibarium's excerpts with the more extended quote from Lat, though I also then noticed that Sibarium had the full e-mail but in PDF form; Lat's analysis is also much worth reading]:

To the Members of the Community:

Recent events at the Law School have been the subject of controversy both on campus and in the national media. While the past several weeks have been difficult, they present an important opportunity for us to reflect on our values and renew the commitments necessary to maintain a vibrant intellectual environment.

Let me start with first principles. Free speech is the touchstone of every academic community. It is essential that we can all speak on—and disagree about—the most challenging issues of the day. The long-standing "Report of the Committee on Freedom of Expression at Yale" emphasizes "the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable." A thriving learning community depends on wide-ranging conversation that includes people with very different points of view and from all parts of our society.

Conversations in such a diverse community should take place in an environment where everyone is treated with respect and where we hold ourselves accountable to one another. That is why "The Rights and Duties of Members of the Yale Law School" require a "scrupulous respect for the equal rights of others." Moreover, Title VI of the Civil Rights Act of 1964 and University policy oblige the Law School to ensure a learning environment free of discrimination on the basis of race, color, or national origin.

[Deputy Dean Ian Ayres, who just investigated and wrote a report about Trap House-gate,] found the following:

(1) Several students raised concerns with the Law School and alleged that the email invitation in question constituted racial discrimination. Students who raised those concerns were told by administrators that the University's free speech policy precluded disciplinary action of any sort.

(2) The boards of the Federalist Society and NALSA—both groups whose presence on campus we value—were entirely unaware of the email invitation before it was sent.

(3) The administrators involved, acting in their roles as the Law School's designated "Discrimination and Harassment Resource Coordinators," were attempting to carry out their obligations under University policy whenever discrimination complaints are filed. While protected speech will never be the subject of discipline, staff are asked to help facilitate informal resolution where possible.

Much of the remaining information Dean Ayres shared with me concerned personnel matters, which I will not discuss in a community-wide email.

There are things the Law School administration should have done differently, and for that I take full responsibility. I am immediately taking the following actions:

First, I will ensure that my administration has the right team in place with the proper support and training to navigate challenging conflicts that arise within our community.

Second, when a complaint regarding protected speech is filed, we will ensure that all parties involved are informed with absolute clarity that the University's free speech policy precludes disciplinary action.

Third, while we will offer students assistance in resolving disagreements consistent with the University's process, we will be clear that students must make their own decisions regarding their level of engagement. A forced conversation cannot achieve the goals the University's process sets out.

Fourth, I have spent every year of my deanship trying to foster an inclusive community and create an environment where students feel called into the community rather than called out. The email message from administrators to members of the 2L class did not strike the appropriate balance between those two goals. I take responsibility for that failure, and I am sorry for it. Our future communications will better conform to our values.

Fifth, we will be sure that all students and student groups are treated professionally, fairly, and impartially. No student or student group should ever have reason to believe that administrators are acting in a biased or unfair manner, and I deeply regret that this impression was given in this instance.

Finally, I have asked a small group of faculty members to think about how to maintain our cherished intellectual environment and warm community. I am grateful to Professors Justin Driver, Oona Hathaway, Tracey Meares, Nick Parrillo, and Claire Priest for leading this effort. Their work will help identify institutional practices that support a robust intellectual environment. As part of this work, I expect the committee will address steps we can take as a community to create an environment in which people can disagree as well as our norms surrounding secretly recorded conversations and the sharing of private correspondence without permission.

In the face of challenging times, the grace, empathy, and intelligence of this community has always been a source of strength as we push forward our critical mission of teaching, scholarship, and service. Those values center me, and they also give me confidence in our ability to move ahead and advance the vital work of this school.

Sibarium adds:

The source of the current controversy stems from a September email invitation Colbert sent to classmates that invited them to his "trap house." After fielding complaints that the email was offensive, Cosgrove and Eldik suggested to Colbert he could face trouble with the bar if he didn't send a pre-drafted apology for his invitation. They also informed him that his membership in the "oppressive" Federalist Society had "triggered" his peers….

The e-mail is generally a step in the right direction, it seems to me, but a modest step. And when it comes to part of the last sentence (especially with regard to conversations with administrators), it may be a misstep.

I do appreciate that the possibility of secret recordings and of sharing private correspondence can indeed deter people from speaking frankly. But at the same time, I doubt that people would have taken Colbert's complaints—which Gerken now admits are well-founded—seriously without the recording that showed exactly what the administrators were telling him. Just as recordings of citizen-police encounters have proved important for credibly blowing the whistle on police misconduct (cf. here and here), so recordings of student-administrator interactions are important for credibly reporting on pressure and implied threats by administrators.

If Yale's reaction to this is, even in part, "bad things happened here, but let's create rules (or even mere 'norms') that make it impossible for people to credibly report such bad things in the future," that would be pretty counterproductive.

UPDATE: David Lat takes a similar view:

It's gratuitous—nothing more than a passive-aggressive complaint about leaking from an administrator, i.e., someone who hates leaks. As Justice Brandeis famously wrote, "Sunlight is said to be the best of disinfectants"—and this reads like Gerken trying to pull down the blackout shades. It would have been so much better for her to have written something like this: "I expect the committee will address steps we can take as a community to create an environment in which people can disagree, even vehemently, while still treating each other with the utmost respect and dignity."

And also, let's be honest: thank God Trent Colbert recorded his conversations with Yaseen Eldik. I agree with David Bernstein: "The student who recorded these conversations not only protected himself, he did a public service by revealing the bullying and attempts at intimidation by YLS administrators. But she's suggesting, in effect, that the whistle blower is blameworthy!"

If Colbert had not taped the conversations, his version of events would have been seriously questioned, and his story would not have gotten the traction that it did. And we wouldn't be where we are today—which is, after significant unpleasantness, hopefully the start of a new chapter at Yale Law School.