DAVID LAT RESPONDS TO YALE LAW DEAN HEATHER GERKEN’S WEAK RESPONSE TO THE EMAIL SCANDAL:
The tone of her email is certainly understated; Dean Gerken is keeping calm and carrying on. Her message does not reflect the state of crisis at YLS—which might explain why it has garnered harsh criticism from certain online commentators. . . .
Notwithstanding her words, I think it’s clear to any objective observer that Yale Law School in 2021 is no longer a place where people can “discuss the unmentionable,” or anything even close to unmentionable. And it’s far from the only institution in higher education suffering from a chilling effect that could give Princess Elsa frostbite. . . .
I’m also glad that Gerken reiterated that the offended students in Trap House-gate “were told by administrators that the University’s free speech policy precluded disciplinary action of any sort.” That should go without saying, but I’m glad she said it.
But I do think part of this statement is… disingenuous, to put it mildly. Yes, the offended students were told that no disciplinary action would be forthcoming—but what about Trent Colbert? As we all know from the recorded conversations and correspondence, associate dean Ellen Cosgrove and diversity director Yaseen Eldik heavily hinted in their initial conversations with Colbert that the controversy might have implications for his application to the bar someday. Colbert wasn’t told until weeks later that no discipline would be forthcoming, after it was clear that he wouldn’t be giving them the apology they tried to squeeze out from him.
And wait, it gets worse. The most problematic part of this paragraph is item (3), in which Gerken claims that Cosgrove and Eldik were simply “attempting to carry out their obligations under University policy whenever discrimination complaints are filed.” Such doublespeak would make a totalitarian regime proud.5 Anyone with an ounce of familiarity with Trap House-gate knows that their conduct was, in the words of Professor Akhil Amar, “dishonest, duplicitous, and downright deplorable.” . . .
Now for the worst part of this paragraph: the reference to “our norms surrounding secretly recorded conversations and the sharing of private correspondence without permission.” Jeez. Was this really necessary, Dean Gerken? It reads discordantly with the rest of the message, which focuses on big-picture themes like intellectual freedom and the importance of community, and it comes across as petty and thin-skinned. Cf. her email announcing the Ayres Commission, complaining about “partial facts reported out in a charged media environment.”7
It’s gratuitous—nothing more than a passive-aggressive complaint about leaking from an administrator, i.e., someone who hates leaks. As Justice Brandeis famously wrote, “Sunlight is said to be the best of disinfectants”—and this reads like Gerken trying to pull down the blackout shades. It would have been so much better for her to have written something like this: “I expect the committee will address steps we can take as a community to create an environment in which people can disagree, even vehemently, while still treating each other with the utmost respect and dignity.”
And also, let’s be honest: thank God Trent Colbert recorded his conversations with Yaseen Eldik.8 I agree with David Bernstein: “The student who recorded these conversations not only protected himself, he did a public service by revealing the bullying and attempts at intimidation by YLS administrators. But she’s suggesting, in effect, that the whistle blower is blameworthy!”
If Colbert had not taped the conversations, his version of events would have been seriously questioned, and his story would not have gotten the traction that it did. And we wouldn’t be where we are today—which is, after significant unpleasantness, hopefully the start of a new chapter at Yale Law School.
Well, hopefully.
