Judge James C. Ho of the United States Court of Appeals for the Fifth Circuit recently made headlines when he publicly declared that he would no longer consider graduates of Yale Law School for clerkship positions due to the erosion of free speech rights at the university. In my view, Judge Ho is right on the merits but wrong on the means. I do not believe that these students should be the subject of a boycott for the failure of the faculty. However, the real question is whether such a boycott would even work. The answer is no. Even if the boycott were successful in dramatically reducing the prestigious clerkship for the school, it would likely not produce a change of behavior by the faculty. The sad reality is that many professors long ago jettisoned the interests of their students and their institution in favor of pursuing their own agendas.
Federal clerkships are some of the most sought after positions for law school graduates, particularly appellate clerkships. They not only open up opportunities for the students but highlight the influence of their schools.
I respect Judge Ho’s objections over the demise of free speech at Yale. (For the record, I clerked on the Fifth Circuit on which Judge Ho serves). There has been a chilling loss of viewpoint diversity and tolerance on our campuses. It is the subject of my recent publication in the Harvard Journal of Law and Public Policy, entitled “Harm and Hegemony: The Decline of Free Speech in the United States.”
Judge Ho raised how cancel culture “plagues a wide variety of institutions” and “is one of the leading reasons why citizens no longer trust a wide variety of once-leading institutions.” He then noted that he will “no longer hire law clerks from Yale Law School” because “Yale not only tolerates the cancellation of views — it actively practices it.”
That is manifestly true as vividly shown in a recent incident disrupting a conservative speaker at the school. Yale was also recently ranked at the bottom of universities on the issue of free speech. (Ho graduated from University of Chicago which is ranked as the number one free speech university).
Judge Ho is himself a telling measure of how far we have departed from our free speech roots. He came to the United States from Taiwan as a young child and his family is acutely aware of the struggle for free speech in the nearby mainland China. Yet, today, some faculty at Harvard and other schools now insist “China was right” on censorship on the Internet and support the limitation of free speech as harmful. Speech controls have become an article of faith with many professors.
Judge Ho is trying to use a boycott to pressure these faculty and administrators to defend free speech. The problem is that these students should not be made cannon fodder in a campaign directed against the faculty. It uses the same cancel campaign elements to combat the intolerance of the university.
It will also not work. It is manifestly harmful to these institutions to purge their faculties of conservative and libertarian members and impose a growing orthodoxy in events and expression. It is killing the life’s blood of higher education, which needs diversity of thought, free speech, and academic freedom.
Moreover, these professors already know that their policies are undermining their students and devaluing the Yale degree for many on the bench. Even without a formal boycott, conservative judges (and judges who value free speech) are likely to be uneasy about the educational bias and intolerance shown at such universities.
These professors know that. However, orthodoxy always advantages those who can control debate and opportunities. Faculty members have effectively replicated their own values and reduced any dissent in publications or events. That was evident recently when the University of North Carolina held a “celebration of the First Amendment” that appeared more like a condemnation with a one-sided panel flagging the dangers of free speech.
The control over faculties, publications, and conferences means that academicians face little challenge over their own views. Academic conferences amplify those views and exclude those who might contest their scholarship or secure positions on panels or publications.
Institutional interest has not motivated faculties to reverse this trend. Even if judges expressly or privately (which is more likely) follow Ho’s boycott, it would not likely deter these professors who garner personal benefits from limiting dissent or allowing others to cancel opposing speakers.
The only solution is the alumni. Graduates must be willing to withhold contributions from these schools. Yale is at the virtual bottom of free speech rankings with other schools like Georgetown, Penn, and Columbia. That disgraceful distinction has not produced even a scintilla of concern at the school because faculty are insulated from any backlash. Indeed, they benefit on some levels from the viewpoint intolerance or limitations. It is only money that might motivate administrators to reconsider this trend as alumni refuse to subsidize orthodoxy.