Law Schools

Yale Law Professor Suggests Punishing Students For Following The Rules

Nothing instills respect for the rule of law like having a 'three strikes' rule and authorities calling for punishment after one strike.

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yale law schoolAny discussion of the Yale Law School protest fallout must begin with proper context: the Federalist Society chapter invited a speaker from an SPLC recognized hate group and when an overwhelming number of students expressed disgust at this move, the school blamed the protesters. Free speech isn’t a bailout for people going bankrupt in the marketplace of ideas, just a guarantee that they get a chance to earn whatever applause or derision they generate.

But apparently Yale Law School is less concerned about lending its credibility and goodwill to speakers hostile to the very humanity of some of its students, and more worried about students expressing themselves. After all, “speech” is for the people on stage, not the little people in the audience!

Bringing us to the latest gob-smacking development in this affair. From the Yale Daily News:

Law professor Kate Stith, who moderated the March 10 panel that was disrupted by student protesters, sent tenured law faculty a blistering memorandum on Thursday arguing that the students had violated Yale’s free speech policy and should be educated and potentially sanctioned.

Re-education and sanctions. A very cool response to dissent that historically never goes awry.

The professor’s memo is an especially interesting take since everyone else — including other critics of the protest — agree the students complied with the stated Yale free speech policy. The school has a “three-warning protocol” whereby protesters disrupting an event are given three warnings before discipline. All sides agree that ONE warning was issued and at that point the protesters left the event.

The person who issued this single warning? Professor Kate Stith. So the person who could have taken action that would have put the students in violation of Yale’s free speech policy but didn’t is now howling that the students violated the free speech policy. How could she even suggest sanctions when she knows she did not issue the second or third warning as required under the plain language of the existing rules?

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“As a former prosecutor, I know well that not every violation has to be an occasion for sanctions,” Stith wrote.

There are a lot of questions being asked about “being a former prosecutor” already answered by the professor saying “as a former prosecutor.” Strict adherence to protocol shouldn’t get in the way of a possible punitive action! Seriously though, it’s quite the lesson in instilling respect for the rule of law for an umpire to decide to forego strikes two and three just to move the inning along.

“In my judgment we should use this moment as an opportunity to educate our students about the core importance of free expression to our academic mission—and to make clear, as Dean Gerken has forcefully written, this can never happen again.”

What probably shouldn’t happen again is the whole “lending Yale’s reputation to normalizing the assault of human rights” thing. As one student eloquently put it in this piece:

“The First Amendment is complicated and it protects both sides of an argument,” AJ Hudson LAW ’23 said in an interview early last week. “But it seems like it’s only ever used as a tool to tell students of color, queer students, or female students to shut up.”

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Certainly that’s the Yale Law School take. Both sides have a right to speech, no matter how much one side wants to strip it from the other half of the equation. That’s what makes this whole thing so pernicious: the rhetoric coming from the anti-protester corners isn’t about imposing balanced “time, place, manner” restrictions to ensure expression is equally respected — it’s a full-throated rejection that protesters have any right to speak at all.

Every denouncement of this Yale protest focuses on the wholly manufactured requirement that students sit quietly and listen to whatever nonsense a school chooses to bless. Under cover of high-minded language about the “academic mission,” critics divert the discussion from the debatable but reasonable stance that protests should manifest as, say, a picket line outside the building, to the conclusion that expressing disagreement with a law school guest is per se a morally unacceptable or even sanctionable offense.

This is more than semantics. A robust discussion can be had about balancing the rights of student protesters to be effectively heard with the right of a school to run an orderly event. We can disagree about where to draw that line while all recognizing that some line can exist. Yet, that’s not the discussion that the school (and its cheerleaders in the media) are flogging.

Unfortunately, this incident feels like a canary in a mine moment. Coming years will likely see more aggressive efforts to recast “free speech” as a cudgel to silence dissent and enshrine a new right to be indoctrinated without interruption. Talk to non-lawyers and you already hear people willing to claim that Twitter banning Donald Trump is an assault on free speech as opposed to free enterprise using its platform as it sees fit. That’s a spectacular failure on the part of lawyers to educate the public on what free speech does and does not entail.

Allowing these “free speech” narratives to progress to actively demonizing protest in all forms is another step in this dangerous civic miseducation.

And the nation’s pre-eminent law school seems to be doing its part to foster that damage.

Moderator denounces Law School protesters in faculty-wide memo [Yale Daily News]

HeadshotJoe Patrice is a senior 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. Joe also serves as a Managing Director at RPN Executive Search.

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