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.
h/t: T.m.
