We have often discussed how dissenting faculty and students are increasingly subjected to retaliation for the exercise of free speech or free association on campuses. In many cases, such treatment involves shunning or blackballing by school administrators to prevent professors or students from participating in programs. That is the complaint by two law students (identified only as John Doe and Jane Doe) who allege that they were blackballed for supporting Professor Amy Chua, who was previously discussed as embroiled in a controversy at the school after she defended Justice Brett Kavanaugh. The students make some shocking allegations against the Yale Dean and other administration officials.
The use of the anonymous filing is interesting since the students claim that they were retaliated against by the law school, including being identified in a mysterious “dossier” circulated around the school. The anonymity would appear to protect them from the retaliation of lawyers and firms for bringing allegations against the school. John Doe is described as African American and Jane Doe is described as Asian American. They are seeking damages of not less than $150,000.
The complaint states that, because Yale does not use traditional grading (in favor of Honors, Pass, and Low Pass marks), there is intense competition for students to find other ways to distinguish themselves in the absence of a GPA: “While this system protects what would otherwise be the bottom half of a law school class, it makes competition tight for its more traditionally ambitious students, who often seek competitive federal clerkships or other government jobs, whose limited availability and competitive nature are considered highly prestigious and desirable.” One of the most sought after positions are “Coker Fellows” who work as teaching assistants.
The students say that Gerken was publicly critical of Chua for her defense of Kavanaugh and claim that she led an effort to gather derogatory information on Chua from students, faculty, and staff. Students were allegedly instructed to send such information to Cosgrove.
The two students met with Chua to discuss what they viewed as intolerance or unequal treatment for students of color. John Doe had resigned recently from Yale Law Journal over such complaints. The students met with Chua at her house and then things allegedly got rather bizarre:
“Unbeknownst to Jane or John at the time, these two meetings somehow
became the subject of pernicious law school gossip. One of their classmates went so far as to compile a bizarre 20-page document, the Dossier (Ex. A), that purported to document the “secret dinner parties” that Chua was supposedly hosting with John, Jane, and unidentified federal judges.”
What follows are extremely serious and shocking allegations:
49. Jane and John became aware of the Dossier in late April 2021, when it had begun to circulate among the Yale Law School student body.
50. Shortly thereafter, beginning on April 23, 2021, Cosgrove and Eldik contacted Jane and John concerning the Dossier. However, they were not investigating the fact that a Yale Law School student was circulating such a document for an apparent harassing purpose, or even investigating the allegations made in the Dossier.
51. Instead, Cosgrove and Eldik pressured Jane and John to make a formal statement confirming the allegations against, and lodge their own formal complaint, against Chua.
52. Despite Jane and John repeatedly denying the Dossier’s assertions, Cosgrove and Eldik pressured Jane and John to make such a statement, even calling them on a daily basis over the course of a week in April 2021, insisting that Jane and John had a “moral obligation” to “future generations of students” to make the false statements against Chua.
53. Cosgrove and Eldik also made references to Jane of the “effort against Professor Chua” and insisted that if Jane would “just give them” a statement, they would have “enough” against Chua.
54. During the course of this week, Jane and John consistently refused to make false statements, and instead repeatedly asked Cosgrove and Eldik for assistance against the troubling invasion of privacy and resulting harassment that they suffered.
55. Cosgrove and Eldik ignored these requests to help and discouraged Jane and John from filing a formal complaint concerning the harm the Dossier and its creator had caused Jane and John.
56. Instead, Cosgrove and Eldik ratcheted up the pressure. On a joint call including Cosgrove, Eldik, and Jane, Eldik told Jane that the Dossier would likely end up in “every judges’ chambers,” “following [her] even after [she] graduates,” effectively sabotaging any hopes of her securing a clerkship whether she applied now or in the future.
57. In a joint call including Cosgrove, Eldik, and John, Eldik and Cosgrove strongly suggested that John should not apply for a clerkship in the summer of 2021 because of the Dossier’s wide publicity.
58. It was suggested that, for these reasons, Jane and John should cooperate by making a statement against Professor Chua.
59. Cosgrove also directly threatened Jane, claiming that Yale Law School was receiving complaints about her potentially serving as a Coker Fellow due to the Dossier, and further suggested that such complaints would be moot if Jane made a statement against Chua.
60. That threat having no effect, Cosgrove became more direct, telling Jane that if Jane accepted a Coker Fellowship with the professor—despite Jane’s repeated denials that she had received an illicit offer from the professor—Cosgrove or another member of the Yale Law School administration would approach the professor with the allegations.
What follows is much of the same as the students detail allegedly direct action to block them from opportunities like the Coker Fellowships. What is most notable is that some of these allegations involve third parties, including a professor who was allegedly encouraged to reject the two Does for the fellowships. That means that this professor is likely to be called as a witness in depositions and any trial if the case survives a motion to dismiss. However, in ruling on such a motion, the court must assume all facts in favor of the students.
They allege a mix of contractual and tort claims: Cause of Action 1 (Breach of Contract), Cause of Action 2 (Promissory Estoppel), Cause of Action 3 (Intentional Interference With Prospective Business Relationships), Cause of Action 4 (Defamation), Cause of Action 5 (Unreasonable Publicity), Cause of Action 6 (False Light), and Cause of Action 7 (Intentional Infliction of Emotional Distress).