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New evidence challenges Yale Law's refusal to punish students for disrupting free speech event

Federalist Society refuses to change its events schedule, including 40th anniversary symposium, but president says dean made an "atextual revision" to Yale policy to justify not punishing disruption of its event.

Published: March 30, 2022 6:31pm

Updated: March 30, 2022 11:24pm

Yale Law School is under fresh scrutiny for refusing to punish students who, based on a review of more than 90 minutes of audio released Wednesday, substantially disrupted a recent First Amendment event.

Dean Heather Gerken, who was reappointed in January despite race-related controversies as recent as last fall, told the community Monday that the Federalist Society (FedSoc) event on March 10 event with the conservative Alliance Defending Freedom (ADF) and liberal American Humanist Association (AHA) "went forward" after the first warning to protesters.

While she admitted that "several students engaged in rude and insulting behavior … made excessive noise in our hallways that interfered with several events taking place," and ignored directives from staff, Gerken said they didn't "shut down" the event.

However Just the News' review of the full 97 minutes posted by the Foundation for Individual Rights in Education, which the group said it received in two recordings from FedSoc, suggests the audience had trouble hearing speakers for most of the event due to the whooping, hollering, chanting, chirping, clapping, shrieking, stomping and banging on walls coming from outside, and occasionally inside, the room.

The first 20 minutes capture pre-event chatter in the audience and among Federalist Society members. The recording starts to get loud around the 23-minute mark, as protesters apparently start arguing with moderator and law professor Kate Stith, whose plea to "grow up" provokes an offended "whoa" from the audience.

Stith tells protesters around the 25-minute mark, "You're welcome to stay and listen and ask questions," at which point they apparently exit. The interruptions resume outside the room two minutes later and continue for several more minutes, including a chorus of "Happy Birthday." 

The din starts growing around 36 minutes, then explodes less than a minute later, suggesting protesters entered the room again, before quieting down. AHA speaker Monica Miller then managed to speak relatively uninterrupted for several minutes. 

ADF's Kristen Waggoner drew more active engagement from the audience. Her discussion of the "unfair advantage" of transgender women who are biologically male in women's sports first prompted sustained interruptions, including the chant "protect trans kids." 

Protesters left the room again and resumed chanting, banging walls and screaming for several minutes before the event closed. The audio ends with the hosts discussing a "very circuitous route" out of the building to avoid protesters, but they were still greeted with "shame" chants.

FIRE program officer Zach Greenberg agreed with Just the News' estimate that about 30 of 50 minutes of active discussion was disrupted. The audio verifies firsthand accounts from FedSoc members that "panelists struggled to project their voices above the noise, and were only able to address the audience for a small part of the event," he said.

Yale Law didn't respond to Just the News queries about how the audio may challenge Dean Gerken's characterization of the disruptions and whether refusal to punish disruptors may chill the speech of student groups such as FedSoc.

"We will not be changing, cancelling, or otherwise modifying any of our forthcoming events this Spring," Zack Austin, president of the Yale FedSoc chapter, told Just the News in an email. That includes its forthcoming symposium commemorating the national FedSoc's founding at Yale in 1982, which will fully focus on the Supreme Court abortion case Dobbs.

But he criticized Dean Gerken's "atextual revision" of the law school's policy on disruption, which he said encourages student groups to cancel their events and shields protesters "from almost all accountability. Courageous students who continue with their events would be protected less than those who cave in."

FedSoc has been directly under Gerken's jurisdiction since November, due to a series of controversies involving the Office of Student Affairs, according to Austin.

OSA leaders warned the Native American Students Association not to cosponsor a party with FedSoc, claiming it would threaten black and LGBTQ students, and more recently passed out T-shirts to students promoting reparations, "prison abolition" and critical race theory.

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But the dean's office has been slow to discuss with Austin the disruption of the March 10 event, he said, even as OSA has indulged the student protesters, who lashed out at administrators for the police presence at the end of the event.

On March 14, he asked for a meeting with Gerken, who told him six days later they could talk "in April." When Austin mentioned hearing about a "roundtable" with protesters, student government and administrators that was happening sooner, the dean told him to ask for permission to attend.

While he learned the student government approved his attendance, protesters reportedly refused to participate with Austin, so the student government ended up limiting the roundtable to its own members.

Austin was also blindsided by a Yale Daily News report about a "norms discussion" scheduled for Thursday between protesters and the administration, referring to Gerken's statement that protesters had violated Yale norms but not policies. 

"Understanding the administration's perspective on those norms and our free speech policies is absolutely vital to my chapter's membership," especially with its 40th anniversary symposium coming up, Austin wrote to the dean's office, asking for an invitation, in an email thread he shared with Just the News.

The office responded that the meeting was reserved for student government members to discuss policies and norms, the protesters' concerns about police, and how to organize future discussions with student groups such as FedSoc.

"This is not the close collaborative culture Dean Gerken espouses; it is not due process for our members; it is not substantive discussion," Austin told Just the News.

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