The Volokh Conspiracy

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Free Speech

Columbia, the Boycotting Judges, Neutrals, and Secondary Boycotts


The boycott of Columbia graduates by a group of judges led me to the following thoughts (adapted from a post about the 2022 boycott of Yale Law graduates, which was begun by a judge who is also one of the signatories to the Columbia boycott).

[A.] Just to make clear at the outset, I agree that judges are entitled to choose whom to hire, and that they indeed often prefer some law schools or colleges over others for many reasons that are often only weakly correlated to the school's relative academic quality. (Columbia students may well have been the beneficiary of such preferences far more often than they have been handicapped by such preferences.)

Indeed, I think that judges are even entitled, if they so choose, to hire clerks based in part on the clerks' ideological views, though I do not see the proposal as calling for that. Clerkships are the unusual sort of job for which ideological compatibility as to legal matters (e.g., originalism vs. living constitutionalism, textualism vs. purposivism, the interpretation of various controversial constitutional and statutory provisions, and the like) should generally be seen as a legitimate hiring criterion, cf. Elrod v. Burns and Branti v. Finkel. To my knowledge, many judges, both liberals and conservatives, have considered ideological compatibility in hiring clerks, though many others, both liberals and conservatives, have generally not considered it.

[B.] But here's the heart of my disagreement, not as a matter of legal command but as a matter of what one might loosely call the ethics of American freedom and democracy: My view is that we shouldn't threaten innocent neutrals as a means of influencing the culpable.

Columbia students aren't the ones who set Columbia policy. They may disagree with that policy, or they may not know enough about the subject to have a view. Even if they go to Columbia knowing about Columbia policy (and about the boycott), they shouldn't be held responsible for what Columbia does, and they shouldn't be retaliated against as a means of trying to pressure Columbia to change. Such "secondary boycotts," as labor law refers to them in a somewhat different context, are both unfair to the "neutral[s]" that are being boycotted, and likely to "widen[] … strife." (I'm not claiming here that there's anything illegal about the proposed boycott of Columbia graduates, but only that some of the reasons labor law disapproves of secondary boycotts also carry over to this situation.)

[1.] Let me offer an analogy. As I understand it, BYU apparently forbids same-sex sexual or even romantic behavior by its students. (The precise rule changed recently, but it appears that it still forbids same-sex romantic relationships even if they do not include sexual conduct.) Let's say that some judges or law firms organized a boycott of all BYU graduates (law school or undergrad) on the theory that this may help pressure BYU to change its policy. Assume that such a boycott would be sincerely motivated by opposition to anti-gay policies generally—the boycotters would gladly add other universities if it were publicly known that they have similar policies—not to Mormons as a religious group.

My reaction would be: Keep the BYU students out of it. If you want to refuse to give talks at BYU because of its policies, or to stop giving money to it, fine. But students should be able to choose the educational institution that's best for them (based on a variety of factors, including proximity to family, financial aid, curriculum, educational quality, and more) without becoming targeted for boycotts.

Maybe the students agree with this particular policy of BYU's. Maybe they disagree. Maybe they're unsure. Maybe they just haven't thought about it. But they shouldn't be sucked up into this fight, however important the goal of the boycott might be.

They should be free to sit it out as neutrals. Indeed, retaliating against neutrals (or insisting that no-one is a neutral in such matters) is bad for the very values of tolerance and open-mindedness that the boycotting judges and I and many others care about.

[2.] Or say that some judges or law firms try to influence states' policies on abortion by boycotting all graduates of universities in states that ban or sharply restrict abortion. To be sure, this is less likely to be effective, because the universities would have less effect on the state's policies, but who knows? Maybe the many parents of state university students and graduates would be animated by this to pressure the legislature, or to vote for a pro-abortion-rights ballot measure.

But here too, my reaction would be: Keep the students out of it. Boycott (say) Texas if you wish, but don't boycott individual Texans (or temporary Texans).

[C.] And this is also related to another familiar principle: rejecting guilt by association. We may refuse to hire people do various bad things, but we shouldn't refuse to hire people who are friends with those people, or who belong to the same groups as those people.

Maybe boycotting all known close friends of, say, people who take over campus buildings (or who block abortion clinic entrances or riot at federal courthouses or capital buildings or police stations or what have you) might further discourage such misbehavior: Even people who don't mind the prospect of losing job opportunities, which they might not have wanted in the first place, might be deterred by the possibility of damaging their friends' careers.

But that's just not a boycott we should engage in, I think. We might boycott the trespassers, but we shouldn't boycott the trespassers' friends. And if being friends with a person who behaves badly shouldn't lead to one's being boycotted, attending an educational institution that behaves badly shouldn't, either.

[D.] Now so far this has focused on ethical judgment, but my argument is also pragmatic. My conjecture is that these sorts of secondary boycotts are especially likely to lead to retaliation and even escalation: a mouth full of teeth for a tooth.

What one might call primary or direct boycotts—we won't hire you because of what you said or did—are common enough, and often harmful enough, when the basis for the boycott is improper. But my sense is that, at least so far, the secondary boycotts are relatively rare.

I expect that, when some secondary boycotts are publicly urged by people who are seen as being on one place on the ideological spectrum (regardless of their deeper motivations), lots of others will arise from the opposite place, and will become much harder to fight once the precedent has been set. And if I'm right, then this pragmatic consideration has its own ethical dimension.

As I understand the Columbia boycott proposal, a major justification for it is that this is a dire measure for dire times—not something the judges are at all eager to do, but the only way they can see of solving the problem. Such pragmatic concerns can sometimes justify what would otherwise be behavior that would one prefer to avoid on ethical grounds. (One classic example is retaliatory tariffs, which even some supporters of free trade sometimes back because they are seen as the only effective means of getting the other side's initial tariff repealed.) But if I'm right that such boycotts are likely to lead not to mutual disarmament, but to retaliation and escalation, then their ethical problem is only compounded.

[E.] Now let me reply to a few possible responses.

[1.] Some might also argue that Columbia's policies are so bad that they produce a poor education, or a poor moral education. The judges' letter suggests this, I think, when it says,

Since the October 7 terrorist attacks by Hamas, Columbia University has become ground zero for the explosion of student disruptions, anti-semitism, and hatred for diverse viewpoints on campuses across the Nation. Disruptors have threatened violence, committed assaults, and destroyed property. As judges who hire law clerks every year to serve in the federal judiciary, we have lost confidence in Columbia as an institution of higher education. Columbia has instead become an incubator of bigotry. As a result, Columbia has disqualified itself from educating the future leaders of our country.

But the quality of an education, and the quality of a graduate as a prospective law clerk to a particular judge, turns on many factors. The correlation between Columbia's reactions to "student disruptions, anti-semitism, and hatred for diverse viewpoints" and graduate quality strikes me as likely to be very weak, and certainly not strong enough to justify a categorical "no Columbia" rule, especially given the costs of the rule that I discuss above.

Likewise, the letter argues that, if Columbia doesn't crack down on and identify those students who engage in "unlawfully trespassing on and occupying public spaces," then "employers are forced to assume the risk that anyone they hire from Columbia may be one of these disruptive and hateful students." But of course all employers assume the risk that anyone they hire from anywhere may be "disruptive and hateful." No university can assure employers that it lacks disruptive and hateful students, and I doubt that Columbia has many more than do other universities.

Perhaps Columbia's doing something about the student misbehavior will diminish this risk in some measure, but at most only a little. Indeed, say there are students who have disruptive and hateful impulses, but Columbia threatens such forceful retaliation that it effectively deters the students from acting out on those impulses while at Columbia. Then its graduates will still be "disruptive and hateful" on the inside, and ready to act up whenever they are in an environment where they can't effectively be deterred. And in any event, it's hard to see how Columbia's failure to properly discipline the small fraction of its students that misbehaves bears on the quality of the great majority of students who don't misbehave.

To be sure, I agree that Columbia can and should punish the disruptive students; I've argued that often before. My point is simply that Columbia's failures as to a few students shouldn't be a basis for a boycott of all Columbia students

[2.] Relatedly, the letter states,

Recent events demonstrate that ideological homogeneity throughout the entire institution of Columbia has destroyed its ability to train future leaders of a pluralistic and intellectually diverse country. Both professors and administrators are on the front lines of the campus disruptions, encouraging the virulent spread of antisemitism and bigotry. Significant and dramatic change in the composition of its faculty and administration is required to restore confidence in Columbia.

Now I agree that ideologically homogeneity does make a university somewhat less effective at training its graduates to work in an ideologically heterogeneous world. That may be particularly important for future lawyers, who have to be able to understand judges, jurors, clients, and opposing counsel of all ideological stripes, and to speak effectively to those people.

But while Columbia likely is unduly ideologically homogeneous, there's little reason to think that it's any more so than various other universities that the judges aren't boycotting. The judges' boycott, after all, was triggered by the Columbia administration's failure to properly respond to disruptive protests—not by some finding that Columbia is unusually ideologically homogeneous or unusually repressive of conservative views.

And, again, there are plenty of graduates of all schools who come out being closed-minded and ill-educated in speaking to people with other views, and plenty of graduates of all schools who come out otherwise. A categorical refusal to hire Columbia graduates seems like a very poor fit to Columbia's problems.

[3.] A 2022 speech by the judge who proposed the 2022 Yale Law School boycott (because of that school's restricting student speech and failing to adequately protect such speech) argued that,

Suppose a law school discriminates on the basis of race. Could a judge publicly refuse to hire from that school, in hopes of spurring change? Surely a judge could do so. And if so, why can a judge stand up for color blindness, but not freedom of speech?

As my BYU example involving sexual orientation suggests, I think we ought to eschew boycotts of neutral students even in that example. Of course, it's easy today to condemn discrimination by law schools against, say, black students, but of course that principle is so well-settled today that such boycotts are unlikely to be necessary: Law schools have for nearly 60 years been effectively legally forbidden from engaging in such discrimination, and the remedy for the discrimination is likely legal action rather than boycott. But in 1962, should employers have boycotted job applicants who had graduated from colleges that had engaged in race discrimination? There too it seems to me that such an approach would have been unfair to the many students who were just making the best of a difficult situation for them, and would have been more destructive than constructive.

And even if one might say that race discrimination in 1962 by law schools was so heinous that it would ethically justify such a secondary boycott, consider again the process of analogy and escalation: This example of a response to Jim Crow was being used as an analogy to pressure Yale Law School to suppress behavior that I agree is harmful, but not nearly as harmful as race discrimination was in 1962. Once we start down the path, and travel from 1962 race discrimination to 2022 Yale and 2024 Columbia, we're increasing the likelihood that things won't stop short of the BYU and abortion examples I gave—or perhaps won't stop even there.

[4.] Finally, I should acknowledge that many employers may already look down on BYU applicants, or on applicants who went to religious colleges more broadly, or on applicants from red states that have policies that the employers may dislike, or on many other applicants. There is likely little we can practically do about that (or for that matter about some employers unduly preferring applicants from schools in places they like, or from schools with ideologies they like). But turning this unspoken reality into something that is overt, publicly stated policy—policy that others are urged to adopt—strikes me as a major escalation.

[* * *]

All this brings to my mind Jefferson's first inaugural address, which followed an extraordinarily bitter election and indeed a period of overt suppression of dissent under the Sedition Act of 1798, but which aimed to hold out an olive branch to the losing side:

Let us, then, fellow-citizens, unite with one heart and one mind. Let us restore to social intercourse that harmony and affection without which liberty and even life itself are but dreary things. And let us reflect that, having banished from our land that religious intolerance under which mankind so long bled and suffered, we have yet gained little if we countenance a political intolerance as despotic, as wicked, and capable of as bitter and bloody persecutions.

Here too, I expect that many of the judges who signed the letter agree: Both they and I long for a return to a more harmonious, more affectionate political landscape, in the country as a whole, in our shared profession, and in particular in American law schools.

The question is: How do we get there? And I think that secondary boycotts will only push us further from our goal.