Two judges in the Fifth Circuit of the US Court of Appeals, James Ho and Elizabeth Branch, just announced that they will not hire clerks from Stanford Law School after the incident last month when Stanford students attempted to and succeeded in silencing Judge Kyle Duncan.
This isn’t the first school that Ho and Branch announced that they won’t accept clerks from. Last year, they announced that they would no longer accept clerkship applicants from Yale Law School, as the Washington Free Beacon noted.
Breitbart, reporting on the incident at Stanford that sparked the boycott, noted:
As Breitbart News reported, Judge Duncan was shouted down by protesters at Stanford last month who objected to his conservative views on LGBTQ issues. A dean in attendance backed the protesters, not the judge.
Stanford apologized to the judge — though the dean in question, Associate Dean for Diversity, Equity, and Inclusion Tirien Steinbach, did not, and wrote an op-ed in the Wall Street Journal defending her actions.
Stanford Law School Dean Jenny Martinez wrote a ten-page letter about the school’s policy on free speech. But that, according to Ho, was not enough.
Ho described his decision to boycott Stanford students in a speech at an annual gathering of the Texas Review of Law & Politics, saying:
In a nation of over 300 million Americans, we’re bound to disagree on a wide number of issues. But we’re supposed to know how to agree to disagree with one another. We’re supposed to engage one another with a presumption of good faith and in the earnest belief that there’s something we can learn from our fellow man. We’re supposed to fight it out in the political sphere—but then come together as colleagues, neighbors, and fellow citizens.
But what some law schools tolerate and even encourage today is not intellectual exploration—but intellectual terrorism. Students don’t try to engage and learn from one another. They engage in disruption, intimidation, and public shaming. They try to terrorize people into submission and self-censorship, in a deliberate campaign to eradicate certain viewpoints from the public discourse.
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.
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.
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.
Anyone can talk a big game about freedom of speech. We all know how to give flowery speeches about intellectual freedom. The recent letter from the Stanford Dean contains some good words, too. But that letter promises no meaningful, lasting institutional change to eradicate discrimination.
So we have to start facing the facts. We have to stop burying our heads in the sand. And we have to ask ourselves: If a law school openly tolerates and even practices religious discrimination, who would want to go to that law school? And why would we want to hire them?
The current President of the Stanford Federalist Society put the point well recently: “A lot of us who worked very hard to get to Stanford are kind of feeling like suckers right now. But you get here, you experience this, you see that there’s a mob, there’s a way you’re expected to think. You might have thought the law school was to teach you how to debate with people, and how to make an argument. But in fact, it turns out it’s to teach you how to think a very particular way, to hold a certain set of beliefs. And if you don’t want to do that, then maybe these elite schools are not for you.”
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.
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