James C. Ho is a Trump-appointed federal judge on the Fifth Circuit of the U.S. Court of Appeals. That means he’s a conservative judge on the most conservative federal appellate court; further, this story was reported by a conservative website, the Free Beacon. If you want to ignore it because of that, that’s your problem, for what’s important is whether the issues adduced are worth discussing, not who raises them.
The other person mentioned here, who’s adhering to Ho’s decision, is Judge Elizabeth Branch. She’s Ho’s equivalent—and also appointed by Trump—for the Eleventh Circuit, a southern circuit court comprising Alabama, Florida, and Georgia. Last year both Ho and Branch announced they were no longer hiring clerks from Yale Law School:
Ho and Branch, who introduced Ho at the Texas Review event, are 2 of 14 federal judges boycotting Yale Law School over a rash of high-profile free speech scandals, including an incident last March in which hundreds of students disrupted Kristen Waggoner, a religious liberty lawyer who has won several cases at the Supreme Court.
Why I’m presenting this is not because I agree with these Judges, even in the decision I’m mentioning, but to make the point that if a school creates and emphasizes a policy promoting free expression, and prohibits disruption of speech, then unless it penalizes the disruptions, the law is toothless. A policy without sanctions is not a policy at all.
And so, below, you can see Ho’s explanation for his decision:
The letter to which Ho refers below was one I highlighted recently; it was from Stanford Law School (SLS) Dean Jenny Martinez to the SLS community about the disruption that occurred when SLS students effectively deplatformed a visiting conservative judge, Kyle Duncan. You can read Martinez’s letter here. It highlighted Stanford’s commitment to free speech, said that “enforcement of university policies against disruption of speakers is necessary to ensure the expression of a wide range of viewpoints,” and announced that DEI Dean Tirien Steinbach, who contributed to the disruption in several ways, had been put on leave.
At the time I thought it was a good letter, and though the disruptive students should have been disciplined (as they would be at my university), Martinez didn’t do so because they couldn’t be easily identified. I let that go, but after reading Ho’s remarks, I do think that any student who violates a school’s free-speech policy in this way should be disciplined. At Chicago, I believe, they are first given a warning, and then expelled or suspended if they commit a second offense.
I’ll indent Ho’s words, taken from an address he gave on April 1 to the annual meeting of the Texas Review of Law & Politics
I’m a graduate of Stanford University and the University of Chicago. As we consider recent events, I wonder if my first alma mater has a lot to learn from my second.
The University of Chicago has long been a national leader when it comes to freedom of speech in higher education.
One former President of the University of Chicago put it this way: “Education is not intended to make people comfortable—it’s meant to make them think.”
But law schools today are turning this upside down. At some law schools, education is more about making students comfortable—at the expense of making them think.
. . .Here’s the good news. This problem should be easy to solve. Most universities already have rules in place ensuring freedom of speech and prohibiting disruptions.
The problem is that these rules aren’t enforced. Students disrupt without consequence. Administrators tolerate or even encourage the chaos.
It’s not because most students or faculty support these tactics. When I visit law schools, I’m always told it’s just a small fraction of students who practice intolerance. But the majority tolerates it, because faculty members don’t want to be controversial. And students just want to graduate, get a job, and move on with their lives.
But I want to draw a sharp distinction between students being afraid and faculty being afraid.
Students are just starting their lives. They don’t want to end their careers before they even begin.
We shouldn’t be putting it on the students to police other students. It should be on the grown-ups to lead, to teach, and, where necessary, to punish.
But the grown-ups are scared to do anything. We’re the opposite of the Greatest Generation. We’re leaving our country worse off, not better, for the next generation.
. . . .I go back to my alma mater, the University of Chicago. A few years ago, the law school held an event featuring a professor who favors anti-boycott laws to protect the State of Israel. Before the event, the law school reminded students of its free speech policy.
But one law student thought he found a clever loophole. Rather than disrupt the event himself, he recruited others to campus to disrupt the event.
Well, my law school was not impressed. Chicago suspended the law student for the rest of the year—and told him that he’d have to re-apply for admission if he ever wanted to come back.
And guess what: Chicago hasn’t experienced a disruption ever since.
Well, we have had at least two disruptions since, one is described here, and another forced the speaker to deliver her talk online instead of live. But let’s go on with Judge Ho:
The point is that law schools know what their options are. They know they can suspend or expel students for engaging in disruptive tactics. They know they can issue a negative report on a student’s character and fitness to state bar officials. They know it because schools have done it.
Second, at a minimum, law schools should identify disruptive students, so that future employers will know who they’re hiring.
Schools issue grades and graduation honors to help employers separate wheat from chaff. Likewise, schools should inform employers if they’re at risk of injecting potentially disruptive forces into their organizations.
Without that information, employers won’t know if the person they’re hiring is in one category or another. Now, some employers may be okay with that. But others may not be. No one is required to hire students who aren’t taught to live under the rule of law.
Third, it’s not enough to just promise freedom of speech. The Soviet Constitution promised free speech, too. But it was just words on paper—what our Founders called a “parchment promise.”
Our Founders taught us that it’s not enough to just promise certain rights. You need to establish a structure of government to ensure that your rights will be protected.
And here’s Ho’s beef. I’ve highlighted the money quote:
. . . .These three elements are plainly missing at Stanford Law School. Just look at the ten-page letter that was recently issued by the Dean. I know that letter has been praised by some people for standing up for free speech. I don’t share that view.
I’ll agree that there are some good words in that letter. But they’re just words. How do we know if those words are sincere—and not merely strategic? Because there’s good reason to be suspicious.
Remember, this wasn’t the Dean’s first reaction to recent events. Her first reaction was to defend the administrators as “well intentioned.”
So at best, this is a dramatic change of heart. Should we believe it?
Well, here’s the problem: The words in that letter are not accompanied by concrete actions. Because it imposes zero consequences on anyone. It doesn’t even say whether there will be consequences if there’s a disruption in the future.
Look, I get that no one wants to be vindictive. I believe in redemption and grace. But we’re not talking about good faith mistakes here.
Is it really that close of a call—whether it’s okay to call for someone to be raped? Do these future leaders really not have fair notice that they shouldn’t ridicule a judge’s sex life?
I’m all for second chances. But I’m not a schmuck.
This shouldn’t be difficult to understand. Rules need to be enforced. Violations must have consequences. You don’t need a fancy law degree to understand this. Anyone who’s ever been a parent understands this. Heck, anyone who’s ever been a kid understands this. Kids don’t obey parents who don’t back up their words with consequences.
. . .The real problem in the academy is not disruption—but discrimination. Rampant, blatant discrimination against disfavored viewpoints. Against students, faculty, and anyone else who dares to voice a view that may be mainstream across America—but contrary to the views of cultural elites.
Moreover, let’s just say it: The viewpoint discrimination we most often see in the academy today is discrimination against religious conservatives. Just look at which viewpoints are targeted most frequently at speaker events—and excluded most vigorously from faculty appointments.
Unless we take action to solve the real problem—discrimination, not disruption—all we’re doing is giving speeches.
. . .So what do we do about it? Well, ask yourself this: What do elite law schools do when they conclude that institutions are failing them? Yale recently called for a boycott of the U.S. News and World Report. And numerous schools have followed suit. Well, imagine that every judge who says they’re opposed to discrimination at Yale and Stanford takes the same path. Imagine they decide that, until the discrimination stops, they will no longer hire from those schools in the future. How quickly do we think those schools would stop discriminating then?
So Lisa and I have made a decision. We will not hire any student who chooses to attend Stanford Law School in the future.
And so Ho’s and Branch’s blacklist now include both Yale and Stanford. Is it fair to refuse to hire clerks from either of those law schools? I think this is a toss-up, but tend to come down against Ho and Branch. If a good student, and one without a record of disruption, applies to be a clerk, he or she shouldn’t be refused simply because they went to a woke law school. This is punishing the student for what the school does. (On the other hand, I can see that if this policy was exercised widely, it would give law schools an impetus to quell disruptions.) Further, because SLS and Yale are liberal law schools, a few conservative judges refusing to take any students further punishes the conservative students and does nothing to change school policy.
But although the “not hiring” tactics are likely to be completely ineffectual, I agree with the general message Ho and Branch are conveying: students should not only be educated in First Amendment Principles, but also punished if they violate a school’s own free speech principles. And yes, it would be good if universities and law schools had greater ideological diversity. This is particularly true in law schools, for unless you hear arguments from the conservative side, how are you going to argue effectively before conservative judges in the future?
Finally, schools should punish students who violate free-speech principles by deplatforming or disrupting speeches. One offense is sufficient to call a student in and tell them, “don’t do it again.” If they do do it again, punish them more severely, and put it on their records. I’m all for second chances. But I’m not a schmuck.
28 thoughts on “In a punitive decision, two federal appellate-court judges decide to no longer hire clerks from Stanford Law School”
A blanket decision to not hire any Stanford grads is as performative as it gets. The vast majority of those students would hew to a reasonable view of free speech, and are still among the tops in the country.
Given their behavior, and the fact that most of Martinez’s own class on constitutional law demonstrated when she showed up the day after Duncan’s deplatforming, I’m not so sure that Stanford Law students do “hew to a reasonable view of free speech,” unless you think that shouting down speakers is a “reasonable view.”
“We will not hire any student who chooses to attend Stanford Law School in the future.”
This is not a blanket decision. It exempts the current students and targets Stanford’s future customers, which, I think, makes it brilliant.
No it is not brilliant. It shows that the judge is biased and does not belong on the bench. This is not a judge I would want deciding any matter I would have before the court because he has demonstrated he cannot be fair and impartial.
I think it’s unjust. It’s punishing future students for the actions of the present students. It is a novel take on Original Sin, but I think it’s wrong.
I’m not convinced that “in the future” modifies “chooses to attend,” rather than “will not hire.”
Conservative judges blackslisting “liberal” schools would have two possible effects on those schools’ policies. 1. These schools, wishing to keep their student populations philosophically (ideologically?) diverse, would clamp down on disruptions. Otherwise potential students (e.g. conservatives) would elect to attend a different school, hurting the school’s diversity of thought. 2. The schools might well continue to tolerate ideological intolerance, as they have in the recent past, happy with the notion that fewer e.g. conservatively minded students would attend. By the same token, those schools would end up much less likely to invite conservative speakers.
Obviously path #2. will be the easier one to follow, but would produce schooling of lesser quality.
Ho is wrong about no action being taken. The administrator who attended the event, and while there criticized the speaker but did not stop the disruption, has been placed on leave. Little has been said about this publicly (and rightly so as a personnel matter), but surely this must count as an action taken in response to the disruption.
[ sigh… ]
is there anything or anyplace free of ideology? I read an Oxford U. primer on ideology* and it seems to suggest we are pretty much in a layer cake of ideology.
*Ideology : a very short introduction
On the surface, everything in the article and commentary is on the up-and up. People should have a right to express their ideas without harassment, and responses should be to those ideas, not attacks on the ones expressing them.
The trepidation I feel about the whole issue is that although far-right individuals can sound perfectly logical and calm while defending free speech, you can bet that if they ever get control of our country, free speech will be a thing of the past in a big hurry.
I think the damage that Trump and his acolytes have done to this country is reflected by too many people reaching for personal attacks instead of logically rebutting arguments to too many issues. Modeling can be subconscious; even if you don’t agree with Trump and the Trumpers philosophically, copying their tactics becomes acceptable, especially if you see those tactics as effective. And, it’s NOT conscious. It requires thought and preparation to take a step back and keep your values intact when the opposition is in your face pretty much constantly.
It did occur to me that when Judge Ho wrote that:
there has heretofore appeared to have been at least one glaring exception to this principle as to the president who appointed Ho.
Comment #5, on the right-wing in general: “you can bet that if they ever get control of our country, free speech will be a thing of the past in a big hurry.” I used to suppose so too, but a simple comparison makes me re-think. Compare the campus atmosphere in
the 1950s (or ask someone who experienced that fabled period) with today’s campus atmosphere. I submit that the supposedly terrifying period of “McCarthyism” was a walk in the park compared to the dominant zeitgeist of the last 10 years or so.
The First Red Scare was no walk in the park for free speech either, Jon, with the Yiddish pamphleteers from Schenck v. United States (1919) and labor leader Eugene V. Debs all being imprisoned under the Espionage Act for sedition merely for advocating against US conscription laws, not to mention the so-called “Palmer Raids.”
And not only Gene Debs; Emma Goldman and Alexander Berkman were also jailed under the Espionage Act. Afterward, they were deported to Russia under
the Immigration Act of 1903 (aka the Anarchist Exclusion Act). But their nearly two years in Bolshevik-ruled Russia greatly deepened Goldman’s education about the outcome of revolutionary politics, so one might say that this episode of history wasn’t all bad. .
I understand the sentiment expressed in Judge Ho’s letter and am in general agreement, although the letter itself strikes me as a bit of grandstanding, especially since the remedy he’s come up with — excluding graduates from Stanford and Yale law schools from any consideration to serve as his law clerks — flies in the face of the statements earlier in this letter:
Yes, I saw that contradiction. I suspect the judge did too, but decided the action would get attention and send a message. Perhaps worth it to draw attention to the issue.
How strange that we might find ourselves in general agreement with this super conservative judge! But that is where we are. Still, his statement will be a bit splashy but both ineffectual and unfair, like you say. I think the way forward is for this circuit court and a broad swath of others to get together and agree on a joint statement condemning those student disruptions, and to threaten to withhold hiring if the schools don’t take concrete steps to stop those kinds of shenanigans. And then to back up those threats of course.
Parenthetically, I don’t know how you’d identify a bunch of masked students, though.
They weren’t masked at Stanford, Mark. The Free Beacon published their names and photos.
There are ways to deal with masked disrupters. If the police have to be called, the miscreants will find that wearing a disguise in the commission of a crime is a more serious charge than the usual offences against public order themselves, like assault, mischief, participating in a riot, etc. (at least in.Canada.)
If they weren’t committing actual crimes and so of no interest to the police the university would need to be creative. Security personnel could simply unmask them and photograph them in the process of ejecting them, which the working-class guards might actually enjoy doing. The entire student body could be sanctioned, with restoration granted only to those students willing to rat out the masked marauders who fled, or who could produce evidence like selfies that they had not participated. The point is to impose high academic and social costs on the behaviour, not so much to make specific findings of guilt in every instance. Threatened with expulsion for participating in an academic mob, —and having to explain why to one’s parents—most students would readily cough up the names of the ringleaders at least.
There should be no need to worry that wearing of masks for public health reasons would be unfairly disciplined. It was well-established during the riots of 2020 at the height of the Pandemic that mass protests that violated masking orders were perfectly safe as long as organized for Left-wing causes. There should be no reason to excuse voluntary masking three years later.
“If a good student, and one without a record of disruption, applies to be a clerk, he or she shouldn’t be refused simply because they went to a woke law school. This is punishing the student for what the school does. (On the other hand, I can see that if this policy was exercised widely, it would give law schools an impetus to quell disruptions.)”
The tension you identify here makes me go back and forth. Collective punishment is illiberal, so while I understand the judge’s position, I can’t support it.
If schools enforced their rules, it would resolve the issue. Judges could choose to only hire clerks with a clean free speech record.
“and to threaten to withhold hiring”
Withhold hiring who? It’s one thing to refuse to hire individuals who have transgressed free speech rules but refusing to hire any students from schools that are not seen as “taking concrete action” amounts to collective punishment. Presumably, not every student at Stanford Law School was involved in shutting down the judge. At the very least one would expect that members of the society that invited him to come and speak were not seeking to shout him down; why then should they be punished?
This was intended as a reply to #7
Fads on US campuses have evolved, advancing from swallowing goldfish (1930s) to
streaking (1970s) to disrupting visiting speakers (this century). In the latter category, disruption of speeches by Israelis have been most popular, especially after Israel dares to take armed action in response to multiple rocket attacks from Gaza. On rare occasions, university administrations and even some local prosecutors have disciplined students for disrupting speeches (see https://en.wikipedia.org/wiki/Irvine_11_controversy ). It is not clear whether these few disciplinary measures had much effect. It is also unclear whether lectures on Liberal principles would have any effect. The most effective remedy might simply be a new fashion trend. What about a new fad of swallowing smartphones?
Personally I see it as an employer is free to interview and hire whatever candidates they want to. If they don’t want to interview candidates who they think have had poor instruction or training in a crucial area, then they are free to reject them. I suspect Jerry would probably not want to take on doctoral students who had gone to a university that taught evolution “was just a theory”, since it would have been extra work on his part to “re-educate” them on an important part of his work.
Publicly stating the problem with the law schools in question puts pressure on the law schools to shape up. That doesn’t mean that the students don’t have other options regarding where to apply for work, and does warn applying students that some law schools are better than others.
I would think that a blanket boycott is going too far. Such a boycott might lead to a (non-disruptive) Stanford graduate not getting a job that he or she is qualified for. And, a boycott might cause the judge to lose a fantastic graduate because of his own blanket decision. A reasonable approach might be for judges to scrutinize student records very carefully for signs that they participated in or advocated for disruptions like those that occurred at Stanford. Reject candidates that demonstrate those proclivities (either at the university or online). The universities should do better and need to enforce the rules. But until that happens, caveat emptor. Nix the boycott, but the hiring judges need to do their due diligence.
The nature of the response depends on the nature of the problem. Are we dealing with individual students who misbehave despite the wishes of the leadership and the training within their institutions, or have some institutions of higher education become seminaries of the new illiberal faith? If the former, then refusing to hire any student from a given institution is, indeed, a form of collective punishment. But if the latter? If some institutions are developing students with the intent that they subvert our law and governing institutions, our schools, and our corporations, then a blanket refusal to hire from such institutions might be in order. The question then becomes the nature of host institution support. Are they recruiting, indoctrinating, and placing cultural militants? Or are they less aggressive but knowingly providing haven and institutional support? To what degree do you accept collateral damage to any innocent students among them? If you will accept none, then how do you excise or otherwise combat the rot in the institution if it has proven incapable of self-reform? Do you simply let it spread?
This seems to be a core difference in the comments I read here: some of us appear to think that we are dealing with individual instances of ignorant or bad behavior on the parts of a handful of students, faculty, and administrators; others of us believe that the rot goes far deeper, and that a militant minority is attempting to (or already has) seized control across a number of institutions with the intent to redefine not only our liberal conceptions of rights but also the very nature of what it means to be a human being. How you respond depends on how you perceive the threat—if you perceive a threat at all. No matter how you respond— or do not respond—there is great opportunity for miscalculation and abuse.
This is what my philosopher friend Viminitz calls The Deal on free speech, Doug. The First Amendment doesn’t answer here so it’s a negotiation under game theory. All sides would like to censor and silence their opponents, but this is unstable. Every time your opponent gets power, he squashes you under his heel. So you both agree to your second choice: neither can censor the other, no matter who has power. The world’s most famous deal here written in blood is indeed America’s First Amendment. But it doesn’t extend into every corner of society, like hiring law clerks. So here the deal was we won’t hold passionate protests by law grads against them because we expect them to advocate vigorously for clients. The Left used to say, “We won’t shout down Rightist judges because, well, that’s just not done.”
But at Stanford, the Left showed they broke the deal, and at other places, too. So the Right, in places where it has power like these Circuits, and where it will inevitably someday have broader power—some worry about a theocracy—, concludes that The Deal is off. We are no longer bound by it. No Stanford law clerks for us. Back to censoring our enemies when we can, as they will do to us. Free speech was nice while it lasted but we’re not suckers.
Under this version of Prisoner’s Dilemma, it doesn’t matter what oiutside observers think is going on: isolated miscreants or deeper rot. From the point of view of the players in the game, the Deal is off as far as we are concerned.
Anyway, props to Judge Ho on his use of sentence fragments and willingness to write “schmuck” in a boldface heading. That’s the sort of thing one might expect from someone prone to clowning around even as to serious subjects, such as yours truly. But it’s a pleasant surprise coming from a goyische legal bluechipper such as Ho, especially in an otherwise serious missive to his alma matter. 🙂
This seems totally pointless to me. First, it’s likely to be narrowly targeted to students who aren’t guilty. Far-left students are unlikely to want to clerk for conservative judges. Second, it probably won’t matter much to them, either, because I suspect that conservative law students from top schools who want to clerk for conservative judges are rare enough that they can basically take their pick.