Free Speech, Justice, Law Schools

Yale Students Demolish Dean's Dumb Argument

Dean Gerken thinks law students shouldn't protest. Her students disagree.

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A couple weeks back, Dean Heather Gerken of Yale Law School penned a piece for Time magazine bemoaning campus protestors going around and disrupting speakers invited to schools just because those speakers happen to be racist cretins. The nerve! Ultimately, as one would expect from the dean of the most prestigious (and sanctimonious) law school in America, she used the piece as a defense of her own brand by arguing that law students would never dream of protesting because they understand civil discourse so much better than the undergraduate rabble. Lawyers believe in hearing out their opposition, after all!

It’s the sort of Pollyanna-ish professional lionizing every law school attempts but can never, ever do better than Yale.

When Gerken’s piece hit the presses, I mulled writing a detailed response about the perils of mythologizing legal minds as docile bulls**t receptacles incapable of voicing a thought beyond putting on a stoic grimace in a detached, sterile environment. Ultimately I didn’t because I got distracted by Marc Kasowitz going ham on an online critic. Seeing as the Kas was pushed aside mere days later, that probably was the right call. Looking back, the mere fact that Marc Kasowitz exists as a wildly successful attorney who until recently had access to the highest levels of power probably does significant harm to Gerken’s argument in its own right. But that’s neither here nor there.

Thankfully, Gerken’s own students wrote the devastating takedown that her article so richly deserved. This week, The Nation published a response co-written by Yale Law School students Will Bloom, Wally Hilke, Bethany Hill, Amit Jain, Andrés López-Delgado, Maya Menlo, and Joseph Meyers that takes direct aim at Gerken’s suggestion that enlightened protest is anathema to the law:

She argues that this professional decorum is the most effective way to overcome division, reminding us that it was powerful enough to protect lawyers like Thurgood Marshall from violence during the civil-rights era.

Unfortunately, Dean Gerken’s article mischaracterizes both the protest that we and around 20 other students helped organize against Charles Murray in October 2016 and the treatment of civil-rights lawyers in the South.

Perhaps the only thing more dangerous than the myth that ideal lawyers should dispassionately accept vile propagandizing as “just another opinion” is the myth that Thurgood Marshall was the “good” civil rights figure because he used the law. It’s a rhetorical tactic that immediately places every other person fighting in the streets for basic human rights as “bad.” Thurgood Marshall’s efforts are duly lauded as heroic, but they should never be placed in distinction to the work of people who disrupted civic order and took beatings for it. Not to go all Audre Lorde, but there’s this whole “master’s tools will never dismantle the master’s house” thing.

Dean Gerken suggests that disruptive protests undermine activists’ causes and harm academic debate. To this point, 57 percent of Americans in 1961 thought that disruptive lunch-counter sit-ins and freedom rides hurt black people’s’ chances of being integrated in the South. It is now clear that this criticism was not meant to support racial justice but to suppress it: Most of those Americans did not want black people to be their equals.

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Hindsight is 20/20? No, seriously, the sort of agitation that gives Gerken hives today has always unsettled white folks. But one of our superpowers is completely rewriting history to make it look like we were all cool with the sit-ins when history proves we were supposed to be.

Frankly, you’ve got to hand it to the radical right. I have no doubt that Gerken’s article was an entirely well-meaning defense of the legal profession, but that’s the whole trick of it, isn’t it? The public tongue-clucking over campus speakers is the result of a brilliantly orchestrated wedge strategy to get otherwise reasonable people to vocally undermine social justice movements by turning abstract notions of “free speech” into cudgels to silence dissent. And they’ve found the easiest marks in the world in lawyers.

We have no interest in civil conversation with a man who denigrates the cognitive capacities of women and people of color. People like Murray who repeatedly and unapologetically engage in bigoted speech despite being repeatedly and soundly rebutted have no place on a university campus.

This is what gets me about the “academic freedom means Richard Spencer gets to give the commencement address” crowd. The academy isn’t “bad ideas romper room” where every brain fart gets a full airing. He published his work, it sucked, and we’ve watched it get eviscerated by experts for 20 years. He doesn’t get to play at the big kid’s table. As Professor M.G. Piety eloquently put it:

Murray should be allowed to speak, of course, but it is entirely inappropriate, in my opinion, for him to be an invited speaker on a college campus. It is no more appropriate for Murray to speak on a college campus than it would be for the host of the Arts and Entertainment series “Ancient Aliens” to do so. Murray’s views are the sociological equivalent of Holocaust denial in their departure from accepted standards of science and scholarship.

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The students conclude:

Confronting racism is difficult, but essential, work. Promoting civility can undermine this work by policing the tone and speech of those who are oppressed, diverting our attention away from efforts to combat ongoing white supremacy. Though the study of law and its decorum may be sobering, it does not mean law students should abandon protest and dissent.

This is an essential point — there’s a time and a place for civility in any strategy, but whenever it comes up, the first question you should ask is, “Is this just about policing dissent?” Because if you’re not careful, you can easily become part of that 57 percent of 1961 Americans who thought black people should stop making such a scene about their rights.

We intend to use all of the lessons of our legal training to fight injustice wherever we encounter it.

Good. I’m not generally one for gauzy portrayals of the lawyerly life, but this — not genuflecting at the altar of some contrived notion of civility — is what makes lawyers worthy of respect.

No, Law School Didn’t Teach Us to ‘Engage’ With Racists [The Nation]
Dean of Yale Law School: Campus Free Speech Is Not Up for Debate [Time]

HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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