My reaction to Fifth Circuit Judge Ho’s announcement that he would not consider hiring students from Yale Law School as clerks, and his call to other judges to do the same, in reaction to the school’s embrace of “cancel culture,” was that it was misguided. This wasn’t because YLS hasn’t done enough to deserve to be called out for its failure to protect speech, as it hasn’t. It’s been a disgrace.

Occupying the lofty position of one of the top law schools in the nation and a primary feeder to clerkships and judgeships, the impact of sending law graduates into the legal ecosystem who believe they are entitled to silence and destroy anyone who fails to adhere to progressive ideology means that we face a future where free speech, along with a host of other rights like due process and presumption of innocence, is at extreme risk.

Some have argued that Judge Ho, as a conservative whose speech couldn’t survive Yale’s orthodoxy, had to do something. But was this the right thing to do?

I agree that Yale Law School has done too little to protect free speech there, and indeed has at times affirmatively undermined it. I agree that this makes Yale less effective at training lawyers, and, precisely because of its prominence, sets a bad example for other law schools.

I also share Judge Ho’s sense that many students and lawyers are finding themselves facing ideological discrimination based on their beliefs and statements, including ones that are very much part of mainstream discourse. That too is bad for our legal system, bad for democracy, and bad for our culture of free speech.

This question isn’t whether Judge Ho, or any other judge, has the right to select or reject any student from any school as his clerk. Of course he does. But that’s not what happened here. He publicly announced a boycott of all students of YLS. He publicly called for other judges, one of which has joined him, to do the same. In so doing, Judge Ho is making students pay for the sins of the school. While some students are certainly on board with Yale’s actions, they can be vetted based on their individual views, not because of the school they attended.

My view is that we shouldn’t threaten innocent neutrals as a means of influencing the culpable.

Future Yale law students aren’t the ones who set Yale policy. They may disagree with that policy, or they may not know enough about the subject to have a view. Even if they go to Yale knowing about Yale policy (and about the boycott), they shouldn’t be held responsible for what Yale does, and they shouldn’t be retaliated against as a means of trying to pressure Yale to change. Such “secondary boycotts,” as labor law refers to them in a somewhat different context, are both unfair to the “neutral[s]” that are being boycotted, and likely to “widen[] … strife.”

I’ve long argued that the concept of secondary boycotts is what distinguishes “cancel culture” from appropriate criticism and consequence. Hate what Joe says? Don’t listen to Joe and call out Joe for saying things you hate. Totally fair criticism and consequence. But threaten Joe’s school, employer, family, that if Joe isn’t expelled, fired, thrown out, a mob of ideological gnats will attack and you’ve got cancel culture. Of course, it’s easily deniable because it’s all unofficial, untested and unreviewable, but that harm is every bit as real as any other harm, except it only needs an accusation before its execution.

What Judge Ho is doing is no less “cancel culture” than what he complains of, not without cause. The students to be boycotted aren’t in charge of Yale Law School’s administration. They can’t discipline students who silence invited speakers. They can’t fire administrators who threaten and attack students whose “Trap House” heresy becomes the bizarre target of the unduly passionate. And the sweep of Judge Ho’s boycott will include the very students who aren’t quite as woke as others whom he should want to encourage.

Yale Law School Dean Heather Gerken has since responded to the furor by issuing a statement putatively directed toward its alumni, many of whom are deeply concerned by what’s become of Yale.

Yale Law School is dedicated to building a vibrant intellectual environment where ideas flourish. To foster free speech and engagement, we emphasize the core values of professionalism, integrity, and respect. These foundational values guide everything we do.

Good to know that Yale isn’t taking the public position that censorship is good, but stringing together fuzzy words doesn’t warm anyone’s cold cockles.

• Last March, the Law School made unequivocally clear that attempts to disrupt events on campus are unacceptable and violate the norms of the School, the profession, and our community.
• The faculty revised our disciplinary code and adopted a policy prohibiting surreptitious recordings that mirrors policies that the University of Chicago and other peer institutions have put in place to encourage the free expression of ideas.
• We developed an online resource outlining our free speech policies and redesigned Orientation to center around discussions of free expression and the importance of respectful engagement. Virtually every member of the faculty spoke to their students about these values on the first day of class.
• We replaced our digital listserv with what alumni fondly remember as “the Wall” to encourage students to take time to reflect and resolve their differences face-to-face.
• We welcomed a new Dean of Students who is focused on ensuring students learn to resolve disagreements among themselves whenever possible rather than reflexively looking to the institution to serve as a referee.

After disagreeing with Judge Ho’s secondary boycott, Eugene Volokh runs through a series of potential solutions to Yale Law’s issues.

Yet there are alternatives, I think. There is public criticism, which Yale has been getting a lot of, from left, right, and center. There is reason to think this has affected Yale in some measure, and will continue to do so if the criticism is sustained. Moreover, we’ve already heard of Harvard using Yale’s behavior to poach those top law school applicants who got into both Harvard and Yale: Apparently the “the Harvard Law School admissions office is working with the HLS FedSoc chapter to identify conservative applicants, and persuade them to choose Harvard over Yale.”

Whether Harvard Law School is any more tolerant of speech and thought than Yale is unclear. I strongly doubt it, and doubt that the cure resides in anything these schools can do as they are trailing, rather than leading, indicators of the ideological mindset students are bringing with them to law school. Maybe Judge Ho believes that this is the only weapon he has to affect change, but lacking other options doesn’t make boycotting YLS students for Yale Law School’s failings any less cancel culture than what’s happened on campus.