Boycotting judges invited to speak at Yale Law School

Yale News reports….

Following months of controversy, Yale Law School appears to have invited federal judges boycotting its students for law clerkships to speak on campus.

Federal judges James Ho and Elizabeth Branch implied in an Oct. 13 letter to YLS Dean Heather Gerken that they had been invited to speak at a Law School panel. Made public in legal analyst David Lat’s newsletter, the letter derided alleged attacks on free speech within the Law School, echoing announcements the judges made earlier that month that their offices would no longer hire Yale Law students as clerks.

The judges’ letter thanked Gerken for “the invitation to meet to discuss the state of freedom of speech and intellectual discourse at Yale Law School,” requesting that the event take place prior to a proposed date of Jan. 17, 2023.

“We’ve stopped teaching students the fundamental importance of respecting diverse viewpoints,” the judges’ letter reads. “That appears to be the case at various universities across America, but especially at Yale. Yale not only tolerates the cancellation of views — it practices it.”

No event has so far been announced to students or the public. Gerken declined to comment for this story.

Debra Kroszner, a spokesperson for the law school, did not confirm that Ho and Branch had been invited but alluded to planning a future panel with federal judges.

“As part of an ongoing lecture series that models engaging across divides, we are in the early stages of organizing a panel discussion for next semester with federal judges,” Kroszner wrote.

Ho sits on the U.S. Court of Appeals for the 5th Circuit out of Louisiana, Texas and Mississippi; Branch sits on the Eleventh Circuit, based in Georgia, Alabama and Florida. Both are staunch conservatives.

David Lat LAW ’99 first published the judges’ letter on his blog “Original Jurisdiction” on Oct. 20. Lat told the News that he had not seen Dean Gerken’s initial communication to Ho and Branch.

Lat described Gerken’s supposed invitation as a “high risk, high reward move,” elaborating that the Dean’s choice to host the conservative judges would either be seen as brilliant or catastrophic depending on how students receive the panelists.

“If the visit ends up like last March, with protesters trying to drown out the judges, then this will be something of a disaster,” Lat said.

Lat referenced conservatives who criticized Gerken’s for not sufficiently penalizing students who protested Waggoner’s speaker event.

“If this visit goes well, she looks like a hero. If the visit goes poorly, it just confirms what the judges have been saying about Yale Law all along,” he said.

Ho made headlines last month for saying he would no longer hire Yale Law students as clerks; his ban applies to future students who matriculate to Yale, not current students or graduates. Gerken has not directly responded to the boycott. Several federal judges, including fellow prominent conservatives, have since criticized the boycott.

Scrutiny on free speech at the law school, largely from conservative figures, intensified after a series of high-profile incidents that garnered national headlines. In October 2021, a Yale Law student was accused of racial insensitivity in an email, a controversy now informally dubbed “Trap House-gate.” At a Federalist Society conference in September, Ho also referenced a March incident in which a group of students protested a speaker with a history of anti-LGBTQ ties.

When asked about his predictions on student responses to the tentative event, Lat told the News that though he believes tensions are settling down at YLS, some students feel “very irate at Judge Ho” and could express their frustration with his invitation.

The judge’s boycott coincided with an Oct. 12 announcement from Dean Gerken to YLS alumni regarding amendments to the school’s policy on recording and revisions of the disciplinary code.

“This important and ongoing work takes place against the backdrop of long-standing efforts to encourage the robust exchange of ideas that is essential to any academic community,” Gerken wrote. “In all of these efforts, our core model remains the same — we know that the best way for our students to learn is by engaging with their peers and faculty in small, iterative conversations within our community.”

A spokesperson for the law school confirmed that work on the disciplinary code began last fall, and that Gerken’s statement to alumni had been planned for several weeks prior to the judges’ announcement.

Floyd Abrams LAW ’59, who founded the Floyd Abrams Institute for Freedom of Expression at Yale Law School, found Gerken’s message to alumni “wholly consistent” with First Amendment principles.

“[The message] should serve to make clearer still what [Gerken] had said before: that attempts by law students to suppress speech on campus with which they differ are irreconcilable with principles of free expression and unacceptable at Yale Law School,” Abrams wrote to the News in an email. “Her new statement which included an invitation to both jurists (who have accepted) to visit the law school and discuss a variety of steps it is taking to assure free expression on campus is commendable.”

Lat also noted his optimism that the changes, compounded with the tentative appearance of Judges Ho and Branch on a panel, would signify that YLS was “moving in the right direction.”

Ho was appointed to the bench in 2018.

Correction, Nov. 8: An earlier version of this story stated that 10 other judges who have not been publicly named are also participating in the Yale Law boycott. This claim was derived from an unsubstantiated source and has been removed. The story has been updated.