Federal judge presses colleagues not to hire Yale Law School protesters

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A federal judge sent a mass email to fellow judges, urging them to reconsider whether to hire any Yale Law School (YLS) students who protested an event hosted by the school’s chapter of the Federalist Society, which had invited an anti-LGBTQ speaker to campus. 

Key Players

Laurence Silberman, a senior judge on the U.S. Court of Appeals for the District of Columbia Circuit, was nominated by former President Ronald Reagan. In a March 2021 dissent over a defamation lawsuit, he condemned the mainstream press as “virtually Democratic Party broadsheets,” praised Fox News, and attacked “Big Tech” for censoring conservative views. 

The Yale Federalist Society (YFS), an organization “committed to encouraging open and honest debate on the fundamental legal issues of our day,” regularly hosts speakers. In September 2021, a YFS “trap house” theme party invitation was accused of being racially charged, sparking backlash amongst students.

Alliance Defending Freedom (ADF), a conservative religious rights group, advocates for legislation pertaining to “religious liberty.” Classified by the Southern Poverty Law Center (SPLC) as a hate group, the ADF has defended state-sanctioned sterilization of trans people, argued LGBTQ people are more likely to engage in pedophilia, and claimed that homosexuality will destroy Christianity and society, Yale Law News reported. 

Kristen Waggoner, the general counsel of Alliance Defending Freedom (ADF), previously defended a Colorado baker who refused to make a cake for a gay wedding, an incident at issue in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

Further Details 

On March 10, 2022, the YFS hosted a speaker event on civil rights litigation in the wake of the Supreme Court case Uzuegbunam v. Preczewski, which ruled that individuals can still receive financial compensation for having their Free Speech rights violated by laws or policies that no longer apply. In that case, ADF represented Uzuegbunam. YFS invited Waggoner to the event, as well as Monica Miller of the American Humanist Association. 

Citing the ADF’s designation as a hate group by the SPLC, many members of the Yale Law School community took issue with Waggoner’s invitation, leading around 120 students to attend the event in protest, Yale Daily News reported. 

As the panel began, event moderator Kate Stith was immediately met with boos and jeers as she read out the names of the speakers. YLS students asserted their protest was Free Speech. She responded “come on, grow up,” to which a student in the crowd asked, “Will those trans kids [have the chance to] grow up?”

Many students filed out of the room in protest thereafter, Slate reported. Yale Daily News noted that six protesters confirmed that Yale police officers were also present at the event.  

According to the Yale Police Department, the police officers — four in uniform and two in plain clothes — were there “not to enforce YLS policy but rather to protect the safety of the demonstrators and those they were protesting.” 

YLS spokesperson Debra Kroszner defended the stationing of police as being in accordance with university policy that required a police presence when visitors bring their own security details, as Waggoner had. But protesters criticized the police presence as reckless. 

An open letter, signed by over 400 students, condemned the YFS for platforming the ADF “at a time when LGBTQ youth are actively under attack in Texas, Florida, and other states. … Even with all of the privilege afforded to us at YLS, the decision to allow police officers in as a response to the protest put YLS’ queer student body at risk of harm.”

Outcome 

Silberman sends email for judges to think twice, receives mixed reactions

On March 17, in light of the protest, Silberman sent an email to a mass of federal judges, urging them to reconsider whether to hire as clerks YLS students who participated in the protests, Reuters reported. “All federal judges – and all federal judges are presumably committed to free speech – should carefully consider whether any such student so identified should be disqualified for potential clerkships,” Silberman wrote. 

He asserted that YLS students “attempted to shout down speakers participating in a panel discussion on free speech,” and that the incident “prompts me to suggest that students who are identified as those willing to disrupt any such panel discussion should be noted.” 

The email received mixed responses. Judge John Walker, nominated by former President George H.W. Bush to the 2nd U.S. Circuit Court of Appeals, based in New York, said he appreciated the warning. “Thank you for your email. I couldn’t agree more,” he wrote. 

But U.S. District Judge Donald Graham, nominated by George H.W. Bush to the Southern District of Florida, disagreed. “How would we as judges all over the country know about the activities of a particular student? Shouldn’t there be a finding that a student acted inappropriately at least by the institution of higher learning. I don’t intend to get into the fact finding process. I have enough trials in my District,” Graham wrote. 

U.S. District Judge Andrew Gordon, nominated by former President Barack Obama to the District of Nevada, expressed frustration over the email conversation. “Please do not hit ‘reply all.’ It’s very distracting to receive all these comments when I’m trying to get my work done. And it clogs up my email inbox,” Gordon wrote.

Yale Law dean expressed disappointment at protesters

Heather Gerken, dean of YLS, said in a March 28 statement that some students were “rude and insulting” to law school faculty and staff and some continued to be disruptive from outside the room where the panel occurred. 

“I expect far more from our students, and I want to state unequivocally that this cannot happen again,” she wrote. “My administration will be in serious discussion with our students about our policies and norms for the rest of the semester.”

Ted Cruz speaks at Yale, urges school to punish protesters

On April 11, after signing an open letter calling on YLS to discipline the protesters, Sen. Ted Cruz (R-Texas) spoke at a campus event sponsored by the William F. Buckley Program. During his 40-minute speech, Cruz condemned the protesters, the culture of censorship, and “group think” at elite universities, CT Insider reported. 

“Instead of doing what one would imagine Yale lawyers would be capable of doing, which is presenting arguments and reasoning, they instead tried to exercise the heckler’s veto and just scream down anyone who disagrees,” Cruz said. 

Although there was no protest at Cruz’s speech, some students still criticized the school’s decision to host him. 

Marielene Rodas, a senior, waited to attend the event with a sign that read “traitor.” She said that the Buckley program was “pathetic” for hosting Cruz, especially since its mission is to “promote intellectual diversity.”

Another federal judge calls for YLS boycott

In September 2022, Judge James C. Ho, nominated to the 5th Circuit U.S. Court of Appeals by former President Donald Trump, said that the YLS students had not been appropriately punished for shutting down the speaker events, urging a similar boycott. 

“Yale not only tolerates the cancellation of views—it practices it,” Ho said. 

Ho’s words drew support from some of his colleagues. 

Trump-appointed Judge Elizabeth Branch of the 11th U.S. Circuit Court of Appeals wrote that Ho had raised “legitimate concerns about the lack of free speech on law school campuses, Yale in particular,” and that she would not consider hiring its graduates as clerks. 

Reportedly, 12 other judges anonymously signed on to the boycott, the Washington Free Beacon reported. 

However, conservative Judge Jerry Smith, a Yale graduate who was nominated to the 5th Circuit U.S. Court of Appeals by former President Ronald Reagan, condemned the boycott as “regretable,” Insider Higher-Ed reported. 

“I regularly (and recently) have had Yale clerks who, consistently, are extremely talented and performed spectacularly in upholding the rule of law and supporting toleration for diverse viewpoints,” Smith wrote in an online system for federal clerkships.

Potential recusal looms for Ho

Russell Wheeler, a former deputy director of the Federal Judicial Center, the education and research agency of the U.S. federal courts, said one could make the case that Ho’s impartiality could be questioned if YLS alumni were to argue before him, Bloomberg reported. 

“Ho having said what he did, ‘I don’t want anything to do with people from Yale Law School as clerks,’ it’s not so much of a leap to say, ‘Well, you probably don’t want anything to do with people who are lawyers and might not take their arguments seriously because you have a bias against people who went to Yale,’” Wheeler said.

YLS’ Free Speech response

On Oct. 12, Gerken issued a letter to the school’s alumni announcing its steps to preserve Free Speech, such as a revision to the school’s disciplinary code to “encourage free expression” and the welcoming of a new Dean of Students. The policy also prohibited all “surreptitious recordings” in an effort to reduce self-censorship of professors and guest speakers.

Gerken said the changes were to “encourage the robust exchange of ideas that is essential to any academic community.”

YLS bans press, tightens security on similar event in January 2023 

Waggoner was asked to return to YLS to discuss 303 Creative v. Elenis, a pending case in the Supreme Court surrounding a Colorado web designer who contended that forcing her to create websites that celebrated same-sex marriage violated her Free Speech rights. The event was viewed as a do-over of the previous event.

“Last September,” wrote law blogger David Lat of Original Jurisdiction, “I suggested that Yale Law School should bring back Kristen Waggoner, arguing that ‘if Waggoner could return to [YLS] and not have to leave the building with a police escort—or even leave having had a pleasant experience—that would go a long way toward showing an improved intellectual environment at Yale.’ And it looks like someone heeded my suggestion.”

On Jan. 24, 2023, the event went on without disruption, but included heavier restrictions, such as no press and no cell phone recordings. Only law students were allowed to attend. Some students and faculty said the restrictions were “a forceful and well-coordinated attempt to control access to an event,” the Washington Free Beacon reported. 

One panelist, former American Civil Liberties Union president Nadine Strossen, had disapproved of the restrictive measures. 

“For an event that is discussing important First Amendment issues—and is designed to illustrate Yale Law School’s announced recommitment to Free Speech—it is sadly ironic that elementary freedom of speech principles are being violated,” Strossen said. 

Nevertheless, the conversation between Waggoner and Strossen was described as “cordial” and “well-mannered.”

On Jan. 25, YFS tweeted that they were “thankful to all who helped the event go on without interruption.” The tweet included a photo of the event showing seated attendees, a stark contrast from the March 2022 event.