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.

Comments

[Brett Bellmore]

Yeah, that was kind of obvious at the time, and I wasn't the only person who noted that when it was posted about here.

[Mr. Bumble]

So how will surreptious recording be treated at YLS?

[Rev. Arthur L. Kirkland]

Comments indicate readers find this repetitiveness tiresome.

Perhaps the Volokh Conspiracy could find other ankles and heels of America's better elements at which to nip incessantly?

[Michael D]

Considering this is a new policy, it is worth addressing. I am certain you can understand the interest in how policies at one of the nation’s premier law schools is important, especially in light of recent events at YLS.

Perhaps you need your “betters” as you often say, to explain this to a “clinger” such as you who continually defends the status quo so long as the status quo aligns with your ideology.

Shall I post a song to help you better understand?

[Rossami]

I think it's truly rich that RAK is whining about repetition being tiresome.

[Rev. Arthur L. Kirkland]

I respond to what this white, male, right-wing blog regularly serves, which is a rotation of a dozen or so selections from from the losing end of the culture war and the wrong side of history.

[Yankev]

Arthur, you have been complaining about this website for a decade, while incessantly trolling with contrarian, ill-founded, and ahistorical arguments. At the risk of repetition, let me once more suggest that you demand a full refund of your subscription fee, and find a site more to your liking.

[Krayt]

-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."

Like direct lawsuits and, more importantly, dear colleagues, loss of federal money if you don't impose the government's censorship regime.

"It's about deep, repeated harrassment!"

No, that boat left the dock long ago.

[Reallynotbob]

Certainly, a no-recording policy is designed to protect the institution. It may have a side effect of protecting students or faculty, variously, in future situations.

Equally certainly, this type of policy is de rigueur at most U.S. companies and law firms that adopt professional HR policies. Here's advice from SHRM from 8 years ago:

https://www.shrm.org/hr-today/news/hr-magazine/pages/1114-recordings-at-work.aspx#:~:text=Sample%20Policies&text=No%20employee%20may%20record%2C%20by,wishes%20to%20record%20the%20conversation.

[Krayt]

Honest to god: “Those who love laws and sausage should never watch either being made.”

All legislators should be required by law to wear recording devices for everything they do, ye e’en unto the toity and sinning room. Cost of exercising power.

“But that will make it impossible to twist arms and tit for tat.”

And?

You’re so damned concerned about other people tracking missteps legally, they may need recordings, so let’s apply it to a 10,000x greater plague than rotten corporations.

[WuzYoungOnceToo]

ye e’en unto the toity and sinning room

I'm shamelessly stealing this.

[Social Justice is neither]

The only people this would protect are the abusers, that is the whole point.

[Longtobefree]

How did it used to go?

Oh, yeah. "If you are telling the truth, a record of the conversation can't hurt you".

[Rev. Arthur L. Kirkland]

"That's why I never use email and check everyone for wires"

-- disgraced former Pres. Donald J. Trump

[MaverickNH]

Recordings of such meetings by the accused are always advisable, as many cases come down later to suspensions/terminations, regardless of acquiesce to proposed remediations (apologies, cessation of speech, etc.), for other documented reasons. Nothing to lose.

[Publius_2020]

Which highlights the obvious distinction between recordings in different contexts. Social context is different from teaching context, and both are different from disciplinary context. There are decent "Chicago Principles" reason to discourage surreptitious recording in social and teaching contexts on the grounds that it is often used to chill free speech. But in the disciplinary context, the purpose is to create a record that protects due process -- a crucial function. That's why we have court reporters.

[Hugo S. Cunningham]

Good distinction-- between free and vigorous classroom inquiry, and prosecution of an individual defendant.

[Yankev]

I think you misspelled persecution.

[David Nieporent]

I reiterate that nothing in Yale's new policy prohibits overt recordings. Just surreptitious ones.

[David Bernstein]

So there should be a blanket policy allowing students to record any sessions that involve potential disciplinary action. Lack of any such recording should disqualify anything said or done at such a meeting from being used against the student.

But again, it's doesn't smell good to ban surreptitious recordings in the name of free speech when it was a surreptitious recording that blew the whistle on an attempt to bully and potentially punish a student based on his speech.

[Rev. Arthur L. Kirkland]

" So there should be a blanket policy allowing students to record any sessions that involve potential disciplinary action. Lack of any such recording should disqualify anything said or done at such a meeting from being used against the student. "

Is that the practice at conservative-controlled schools? At George Mason?

[David Nieporent]

So there should be a blanket policy allowing students to record any sessions that involve potential disciplinary action. Lack of any such recording should disqualify anything said or done at such a meeting from being used against the student.

I mean, I agree with this, but I would point out that it sort of flips the specific incident in question on its head: Yale wasn't trying to use stuff said at the meeting against the guy; instead, the guy was trying to (successfully) use stuff said at the meeting against Yale. So an exclusionary rule type policy like the one you propose, while a good idea, would not be fully protective of students.

[Rossami]

Is your hypothesis that the two administrators above would have been just as egregious in their bullying if they had known about the recording? Or is your hypothesis that the threat of recording would have turned them into competent, non-bullying administrators?

My guess is that making an overt recording would have merely made the bullies surreptitious and therefore harder to root out.

[kkoshkin]

Eldik and Cosgrove are mafiosi who serve no useful purpose in higher education. Frankly, the "jobs" they perform are almost certainly counterproductive to any notion of what would constitute "education."