The Volokh Conspiracy

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


About That Yale Law School Statement on Its Commitment to Free Speech…


I was a bit perplexed that in defending YLS's commitment to free speech, Dean Gerken noted that "the faculty revised our disciplinary code and adopted a policy prohibiting surreptitious recordings that mirrors policies that the University of Chicago and other peer institutions have put in place to encourage the free expression of ideas."

From the proverbial "veil of ignorance," this may indeed be a good policy.

But in context, one may recall that the only reason that the law school's egregious bullying of a student involved in the ridiculous "trap house" scandal came to light was because the student, Trent Colbert, surreptitiously recorded statements made to him by two administrators, to wit:

-5:15: The student is told that "as a man of color, there probably isn't as much of a scrutiny of you as there might be of a white person in the same position."
-5:32: Eldik says that the student's affiliation with the Federalist Society was "very triggering" for students who "already feel" that the conservative group is "oppressive to certain communities."
-7:15: Eldik says his office has received complaints that the student's email was a "form of discrimination" and "psychically harmful."
-10:00: Eldik starts to pressure the student to apologize.
-11:40: Cosgrove and Eldik propose addressing the apology to the leaders of the Black Law Students Association specifically.
-12:10: Cosgrove warns the student that "these things amplify over time," so apologizing quickly is important "for your sake."
-13:35: After the student suggests letting his peers reach out to him individually to discuss their feelings about the email, Eldik responds: "I don't want to make our office look like an ineffective source of resolution."
-14:05: Eldik says his office has received "eight or nine student complaints about this" and tells the student that the best way to make this "go away" would be an apology.
-14:23: Eldik says an apology would give the student "character-driven rehabilitation."
-15:10: Eldik says he worries about the email affecting the student's reputation, "not just here but when you leave. You know the legal community is a small one."
-16:20: Eldik volunteers to help draft the email.
-18:10: Cosgrove warns that escalation is a possibility if the student doesn't apologize.
-20:00: Eldik characterizes the student's email as an invitation "to make a mockery of black people."
-1:13: Eldik says, "This is all because we care about you," and tells the student, "I don't have to do my job like this."
-1:35: Eldik says, "You're a law student, and there's a bar [exam] you have to take, so we think it's really important to give you a 360 view."

In this context, when a student avoiding punishment for speech only because he recorded administrator threats, trumpeting the "no surreptious recording policy" as a boon to free speech at Yale seems tone deaf at best.