Thread by @aaronsibarium

What do Martha Nussbaum, JD Vance, Nicholas Christakis, and Tom Cotton have in common? They're all outraged by Yale Law School's recent conduct—with Cotton going so far as to threaten Yale's federal funding.

Here's why such threats won't do anything: 🧵

bit.ly/3nqJZnv

Cotton told the Free Beacon that if Yale Law wants to "keep getting federal funds," it "should focus on teaching the law and protect the free speech of [its] students."

But it is the threat of losing federal funds that motivates censorship in the first place.

Though private schools like Yale are not bound by the 1A, they are bound by civil rights laws that forbid discrimination and harassment. That means they have an incentive to flout their own speech protections whenever a student registers offense, no matter how trivial it seems.

"Universities are not punished for stifling free speech," said @ProfDBernstein, a constitutional historian at George Mason's Antonin Scalia Law School. "They are punished for allowing harassment."

The result has been a large and growing imbalance of bureaucratic power within elite institutions, which rely on a sprawling diversity apparatus to shield themselves from liability. The problem, Bernstein said, is that "you don't have a counterbalancing free speech bureaucracy."

The fruits of that asymmetry have disturbed even progressive professors. Yale's @NAChristakis—a self-described "lefty"—said that "the university has no business policing the expression of its students" and called on Yale to apologize for the "shameful episode."

Martha Nussbaum, a left-wing legal theorist at the University of Chicago, said it "would be appalling and chilling" for any administrator to suggest that "the Federalist Society is per se racist," as Yale Law School diversity director Yassen Eldik alleged.

Nussbaum's Chicago colleague Brian Leiter—who has argued America is "doomed" if it does not embrace socialism—agreed, telling the Free Beacon that "Yale has some serious academic freedom and free expression problems."

These problems have persisted in spite of Yale's official policies, which protect speech "deemed irresponsible, offensive, unscholarly, or untrue." The issue, Bernstein said, is that allegations of harassment tend to have more teeth than allegations of censorship.

Yale doesn't pay bureaucrats to enforce its free speech policies. It does pay them, as Bernstein put it, "to listen to anyone's harassment complaint, no matter how puerile it may seem."

That solicitousness derives from the way courts and government agencies have interpreted civil rights laws over the past three decades. To qualify as "harassment," SCOTUS ruled in 1986, conduct must be "sufficiently severe or pervasive" to create an "abusive" environment.

While exacting in theory, this standard has proven elastic in practice—eventually coming to encompass symbols, memes, and viewpoints that many regard as protected speech.

"Cases from the '80s and '90s defined harassment pretty narrowly," said UCLA Law's Eugene Volokh. But over time, harassment started "expanding to things that people perceive as expressing racist viewpoints, and then to things with a connotation that some people find offensive."

In 2013, for example, the Equal Employment Opportunity Commission said that displaying a Confederate flag could constitute harassment under the Civil Rights Act. And in 2016, a Jewish man successfully sued his employer over a training video that used the Hitler bunker video meme.

That concept creep has been accelerated by an activist tendency to conflate speech with violence. The claim used to be that the harm of racist language had to be balanced against free speech. Now the claim is that racist speech is violence, so balance goes out the window.

The Yale Law brouhaha—which was handled by the law school's "discrimination and harassment coordinators"—is the latest example of how the harassment bureaucracy can undermine free speech.

"If, after a full and fair hearing, administrators are found guilty of violating free speech or other academic freedom rights of students or faculty, they should be dismissed," said Princeton's @McCormickProf. "Until this begins to happen, you can expect more of this."

But YLS has no incentive to conduct such an investigation! It didn't break any laws by punishing protected speech. Whereas if Yale Law ignored the students whining about the "trap house" email, it could be sued for permitting harassment.

"Yale is sending the message that referring to Popeyes chicken and ‘trap house' might be punishable and maybe even illegal," Volokh said. "If ‘harassment' can be something as mild as that, then expressing views some find offensive will be even more clearly harassment."

All this suggests that the Colbert saga isn't just a preview of what will happen when today's students become tomorrow's judges; it is also a reflection of what has ALREADY happened to the law.

That transformation can chill speech even when allegations of harassment are ultimately dismissed, as they were in Colbert's case. "Regardless of the results of the process," Bernstein said, "going through the process itself is a huge harm."

Such processes have widened the gap between the purpose and structure of Yale Law School, which alums say is becoming a mechanism of conformity.

"The only reason this institution exists is to promote interesting thinking," said @JDVance1. "What it actually does is train people to be boring and provincial thinkers who harass other people for having original thoughts."

Even more liberal alums of the school share Vance's concerns, including Above the Law founder David Lat, who tweeted that "​​the intellectual environment at Yale Law School right now is extremely hostile to conservatives."

https://twitter.com/DavidLat/status/1450309615380570113

"If a conservative or libertarian law student asked me if they should go to Yale Law today," Lat said, "I would have to think long and hard about my answer."

https://twitter.com/DavidLat/status/1450309613862146050