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.
Orin Kerr (a conservative law professor at UC Berkeley):
“Fifth Circuit Judge James Ho recently announced that he will be taking on cancel culture through his law clerk hiring practices. … He has therefore decided that, in his capacity as a United States judge, he will no longer hire any Yale Law graduates as law clerks. And he is encouraging other judges to join him. … This a bad idea, and I hope other judges do not adopt it. Given our blog’s traditional readership among conservative judges and clerks, I thought I would take a minute here to say why. … [Ho] is trying to use his position as a government official, and the accompanying power to direct taxpayer dollars to employ staff, in a way that maximizes his personal agenda outside of his government work. Some will agree with that agenda, and others won’t. But whatever your views on that, I think this ‘boycott’ crosses an important line. It’s the line between judges expressing their personal views in an effort to persuade (which is fine), and judges harnessing their power as government officials to create pressure on private institutions to further their personal agendas (which is not fine, in my view). …”
https://reason.com/volokh/2022/09/29/boycotting-law-schools-in-clerk-hiring-as-a-way-to-influence-law-school-culture/
Another useful discussion by conservative legal journalist/blogger David Lat:
https://davidlat.substack.com/p/a-prominent-federal-judge-declares
My experience with academia began fifty years ago when I entered graduate school. I subsequently worked as a teaching assistant and adjunct faculty (like Obama) before finding a full-time position. Consequnetly, I experienced faculty life at more than one institution of higher learning. The majority of my colleagues published enough to get by, taught moderately well, and did their best not to upset the faculty who held power within the department. I saw affirmative action hires, some with spouses attached, who were hired not for their outstanding dissertations but for their sex or their race, and I saw colleagues who were mediocre scholars and teachers but who curried favor with the ‘senior’ faculty rise while those who were better scholars and teachers but did not curry favor rarely got beyond associate professor. Those who dared to rock the boat, however gently, were shown the door before they came up tenure. Hardly ivory towers, and certainly not places were one could speak freely.
As Kissinger quipped, university politics are vicious because the stakes are so small. What he did not note was that they are the only stakes many in the Academy have because a Ph.D. in literature or history or the social sciences does not ‘qualify’ you for anything except university teaching (although economists might find jobs in government and business), so to be denied tenure is to be thrown on the job market in your early to mid thirties without any hope of finding a well-paying job, if you can find one at all.
Throughout you are dependent on the good-will of your professors in graduate school and the senior faculty in your department. There is no objective authority to which a faculty member can appeal, and their professional organization are effectively impotent. So the structure of academia breeds a handful of prima donnas and thousands of underpaid, unappreciated understudies, most of whom prefer to go along to get along because they have no other choice. Most are narrow specialists, a handful are competent scholars, so few have the courage to risk careers which take a decade or more to consolidate (one/two years for a Masters, five or more for a Ph.D., then another five for tenure). Principle is a debating point in philosophy courses, not a dearly held value to be defended at the cost of one’s career.
So bravo for Judge Ho! But Professor Turley is probably correct; a principled action will not even cause a ripple in the stagnant waters of academia.
Dear ‘An old guy’ First, ‘age is just a number…’ . you’re experienced and sharp as a tack. What you described has gone on unchecked in the Corporate World, too. Boomers have had to live through enormous injustices re::a whole slew of ‘woke’ cards, esp. ‘the race card..’ However, there is always room for change and reverse engineering…. people only need to wake up and sometimes it take years, decades.. but the small drips such as Judge Ho’s decision, eventually erode, burst through and tear down walls when the pressure grows by other drips being added, etc. and ‘The Flow’ finally gets changed……………
Finally, Professor Turley has pinpointed the most effective way to effect change: alumni.
I no longer contribute to my 4-year University and I let them know why in no uncertain terms. Not that my piddling contributions have hurt the school, but if the big donors who believe in freedom of speech principles withheld their money, at some point we might see change — one can hope.
But I think the Judge is doing what he can and for that he should be commended. The walk of 1000 miles must necessarily start with one step. Let’s see if any other Circuit or other Courts follow suit.
You’re wrong. This is an uncharacteristically weak analysis.
Judges make decisions about the clerks they hire in part on the law school the clerk attended. EVERY hire. It’s part of the screening process. That’s why the top student at the worst ranked law school is never hired for a clerkship. Just because the top law student at that school is not considered for a prestigious clerkship does not mean she’s being “punished”. It means the hiring judge has decided that in general, her school does not produce students with the intellect, skills, values, etc. the hiring judge believes is important in a clerk. Sure, the judge may be missing out on some great potential clerks. But that is a cost he’s willing to accept by using the school attended as a way to screen for candidates.
So if this judge has decided Yale Law no longer produces law school students with the values that he believes are important for a good clerk to have, then why consider them for clerkships? Sure, he may miss some outstanding candidates who buck the values that Yale has attempted to inculcate. Just as he may miss a rare gem who’d make an oustanding clerk who attended the lowest ranked law school.
Yale chose to create this culture. It did not just happen. Trustees, alumni, donors, administrators and yes, students, are all complicit. It’s what they want. They chose it.
Now the judge gets to exercise his freedom to choose.
He isn’t simply making a decision about his own hires. He said “Customers can boycott entities that practice cancel culture,” and “I hope that other judges will join me as well.” At least discuss Ho’s actual argument instead of pretending that he’s only “exercis[ing] his freedom to choose.” Boycotts serve a broader purpose.
Our country has lost the meaning of freedom. We came from being hunters and subsistence farmers to a modern civilization. And now we are using our freedom to dismantle the institutions that made it possible.
I have to disagree with you professor.
I think not hiring these students is the right course of action.
Allow them to rack up college debt in useless degrees, or promoting hate leftist ideology while they continue their long term careers as baristas.
The best truth the good professor offers herein:
“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 best truism)
School A:
“Study the material presented at lectures. This material will appear on the final exam.”
“Your grade will increase according to your correct answers.”
School B:
“Study the material presented at lectures. This material will appear on the final exam.”
“I expect you to engage in research of opposing viewpoints. Please raise them in class if I have not done so, and feel free to respectfully challenge me or others in the class to encourage discussion and debate. Your final exam will include an essay on your research, your conclusions, and how well you can defend your position.”
Which school would you send your son or daughter to?
Well said.
Ditto
The movement promoting censorship at universities is grassroots: it starts with the students and faculty and administrators cow to any demand. True, faculty and administrators are also no longer diverse and may even encourage students in their behavior. Refusing to understand or even listen to different viewpoints most certainly lead to not only bad, i.e., incompetent lawyers, but dangerous ones if they arrive at positions of power in government as demonstrated by, e.g., Kristen Clarke. I agree with previous commentators that the students are not mere victims and both students and law schools should feel the consequences of their actions against free speech. Professor Turley is too nuanced in his approach and too kind to the students. Bravo, Judge Ho!
“The sad reality is that many on the professors long ago jettisoned the interests of their students and their institution in favor of pursuing their own agendas.” And to that you can add the vast majority of all prog/left bureaucrats, government functionaries and politicians and most despicably – religious leaders who have fallen naively to the siren’s call of an utopian paradise on earth.
Music
Yale! Yale! The gangs all here!
Where’d ya go to high school?
Was your ma a Trump tool?
I agree with the majority opinion expressed here and agree with Judge Ho and disagree with Professor Turley. In fact Professor Turley gives very strong reasons to disagree with himself. The student and parents of these students have a very clearcut say in going to Yale and are not Innocent pawns. If there are more Judges who start doing this maybe we will get some results in countering the crusade against free speech. Choices do have consequences. Now I would like to see Supreme Court Justices start to do the same thing. Maybe they should also boycott all law students from California since the governor there likes to boycott everyone he does not agree with. It’s a choice whether to live in California or move to a free state. Let people know that their are plenty of us out here who do not drink the progressive Cool Aid and regard it as the poison that it is.
Finally a Judge (employer) that understands failure to learn all sides of an issue are important to the Legal system!!! Every Judge should take this position in employing folks that have attended grad school that refuses to teach/allow any side of an argument that would help temper “Group Think”!
I often agree with Turley, but this time, absolutely not. He says that we should not punish students for the “failure of the faculty.” Yet, the main example he gave of the stifling, anti-first amendment environment at Yale was of students cancelling a conservative speaker. It’s not just the faculty, it’s the students who are the culprits. In fact, I would say that the students lead and faculty follow, out of fear for their jobs and reputation. I agree that the alumni can be an important part of this battle, but students have to take responsibility and face consequences. Besides, why would any judge worth his salt want to employ a sniveling self-righteous punk who doesn’t understand or respect the Constitution? Judge Ho, carry on. You are hitting them where they just might feel it.
Those student are the reasons the professors have jobs. They are going about it backwards. They should challenge the professors in court based on the course description that is chock full of lofty legal fairness, introspection, etc. “The devil in is the course description” AKA – the ingredients you are purchasing must match what is in the cake.
GioCon: Totally agree. It is a PERSONAL boycott. Like not shopping at a store you dislike. Where all this ends, who knows? Everything, almost every institution has been tainted by politicization, and that mostly from the Left. There should be some price to pay for demonizing those you disagree with.
I assumed that Judge Ho was not so much using the students as a means, but rather predicting the likely consequences of the education they are likely to have received at Yale. I would hesitate to hire any recent law graduate from Yale or from my own alma mater, Harvard, for any case with even a remote connection with constitutional law.
Judge Ho should do what the USDOJ and FBI have done: collect closed circuit videos from Yale to identify those students who prevent speakers from appearing or interfere with their appearances when they do. Then refuse their applications for clerkships. Easy.
“…have done in the January 6 cases” (in which closed circuit video from the Capitol has helped identify persons who entered the building that day.
Disagree with Turley here. If enough judges follow Ho’s example students will think twice before attending Yale. Alumni surely can play a part but students can as well. I suggest parents boycot Yale as well and send their kids (and money) elsewhere.
The Judge is wise beyond even Professor Turley’s notice……the Judge is applying the same tactics to Yale University that the University does to anyone who have differing views than those in positions of authority at the University.
We need more Judges to do that…..and make those who care culpable howl like when General Sherman led the Union Army on its march through Georgia from Atlanta to Savannah.
That is the only way to demonstrate the wrongheadedness of those who censor and discriminate against those with differing views.
Make them Howl Professor…..make them howl!
Judge Ho has Professor riled up….not for what he is doing but for the method….but the Professor fell prey to Ho’s plan…..as he is speaking out….and that is what Ho intended….to get the issue debated….not ignored.
No. They are not victims.
These Yale law students are the foot soldiers of censorship.
They are the ones who shout down conservative speakers and Blick access to forums.
Let them understand that actions have consequences.
Not only the faculty but students, themselves, are responsible for the wrongful censorship on the Yale campus. True, not all Yale students promote censorship, and it would seem to be wrong as well to punish the Yale students not actively engaged in censorship. Yet the attendance of these students at Yale, a school known to engage in censorship, is at least passive promotion of censorship. After all, they could have attended the University of Chicago or some other school that does not accept censorship. Instead, the students chose Yale. It is appropriate to punish the Yale students, for the institution’s promotion of censorship, by denying them federal district court clerkships.