Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at [email protected], and you can subscribe by clicking on the button below.

Happy Friday. It’s time for some updates in everyone’s favorite legal-academic soap opera, As the Yale Law School World Turns.1

As usual, I assume familiarity with all recent scandals and controversies at Yale Law School, including Dinner Party-gate, Trap House-gate, and Antiracism Training-gate. Also as usual, I reached out to the YLS administration for comment, providing them by email with detailed bullet points listing the core factual points in this post. The administration issued this statement, through spokesperson Debra Kroszner: “We are not going to respond to speculation and false accusations made anonymously in the press. Dean Gerken is committed to maintaining the confidentiality of faculty deliberations, as is our norm, and we have no further comment.”

Alrighty then! There’s a lot to cover, so let’s dive right in.

Dean Heather Gerken was personally involved in Trap House-gate—specifically, the administration email attacking Trent Colbert.

The main “villains” in Trap House-gate, the scandal in which the Yale Law School administration tried to intimidate and threaten 2L Trent Colbert over his “trap house” email, have been two members of YLS’s Office of Student Affairs (“OSA”), associate dean Ellen Cosgrove and diversity director Yaseen Eldik (hereinafter “C&E”). They were the folks who met with Colbert in person and spoke to him by phone, and they sent the email condemning his “pejorative and racist language… in the strongest possible terms.”

What did Dean Heather Gerken know about their actions, and when did she know it? Some of Gerken’s communications could be read as implying that C&E were “freelancing.” Recall what she wrote in her school-wide email:

I have spent every year of my deanship trying to foster an inclusive community and create an environment where students feel called into the community rather than called out. The email message from administrators to members of the 2L class did not strike the appropriate balance between those two goals. I take responsibility for that failure, and I am sorry for it. Our future communications will better conform to our values.

And in speaking to certain alumni and donors, Dean Gerken has similarly conveyed the impression that she was not personally involved in Trap House-gate. For example, she has told concerned alumni and donors that she would investigate the circumstances surrounding the creation and sending of the email condemning Colbert.

But is there anything for Dean Gerken to “investigate”? As I have learned from multiple sources, Gerken knew about the Colbert condemnation email before it went out—because, in fact, she authorized it.2

How do we know this? It’s in the report prepared by Professor Ian Ayres after Dean Gerken asked them to investigate Trap House-gate.

Before the Ayres Report was completed, Dean Gerken suggested to some within the YLS community that she would make the report public. But now that it’s completed, it has not been made public, nor has it been shared with members of the faculty. In fact, faculty members are not even allowed to read the Ayres Report themselves; instead, they must go to Professor Ayres's office and have it read aloud to them (which strikes me as ridiculous).

What explains the cloak-and-dagger protocols around the Ayres Report? Some think they’ve been instituted because of what the report reveals about Dean Gerken personally signing off on the OSA email attacking Trent Colbert—and Gerken’s desire to keep this under wraps.

How does this information affect the job security of Cosgrove and Eldik? It puts them in a much better position, since their controversial actions received Gerken’s advance authorization. And it means that if she tries to move against C&E, they might turn on her—and go public with any negative information they might have about goings-on at YLS.

Some critics of C&E have wondered why they haven’t been fired or reassigned yet—and why Gerken’s community-wide email went so easy on them, casting their actions as simply “attempting to carry out their obligations under University policy.” Now that we know how their handling of Trap House-gate had Dean Gerken’s blessing, this all makes much more sense.

Yale Law faculty members are at each other’s throats—and several are angry at Dean Gerken as well, whose deanship review is in its final stages.

This afternoon, the tenured faculty at YLS will meet to discuss the Ayres Report. Be prepared for fireworks.

This is actually the second faculty meeting to discuss the Ayres Report. The first meeting, on November 17, did not go well and was highly acrimonious (as I predicted it would be, comparing it to “legal academia’s answer to the Red Wedding”). That meeting ended with at least eight members of the faculty still waiting to speak—and some suspect that the questioner queue in Zoom was manipulated to prevent certain professors from taking the floor.

After the first meeting about the Ayres Report, several professors requested a second meeting, especially since so many faculty members did not get the chance to speak at the first. Dean Gerken initially rebuffed these requests—but after an angry outcry, she relented and agreed to another meeting, the one taking place this afternoon.

In addition to that contentious first meeting, professors have been going at each other over email. Two major antagonists are Professor Roberta Romano, a Sterling Professor and leading expert in corporate law, and Professor Monica Bell, a newly tenured professor who focuses on criminal justice and race and the law. Professor Romano’s criticism of the administration is already a matter of public record, as is Professor Bell’s defense of the administration (particularly diversity director Yaseen Eldik, her best friend).

Their disagreements could soon become public. For the past few weeks, Professor Romano has been working on a statement that would criticize the administration’s treatment of Trent Colbert, condemn the administration’s handling of the situation as a violation of due process and free speech, and reject claims that the Federalist Society is “racist” or “triggering.” She has invited like-minded colleagues to sign on to her statement, which she plans to issue publicly. But other professors, most prominently Professor Bell, disagree strongly with Professor Romano, and they might issue a counter-statement if and when Romano's statement goes out. Stay tuned.

All this takes place against the backdrop of whether to give another five-year term to Heather Gerken, who became dean of YLS in 2017 (news that I enthusiastically broke, noting that “it would be hard to imagine a better pick than Professor Gerken”). As I reported last month, the decision about whether to renew Gerken’s deanship was postponed. It was originally expected last month, but it got moved to this month.

The faculty will meet to discuss giving Dean Gerken another term this coming Wednesday, December 8. The situation is very fluid, so things could change—but as of now, despite all the drama, my prediction is that the faculty will vote to renew Gerken will be reappointed. [UPDATE (12/7/2021, 10:32 a.m.): There is actually no formal vote of the faculty. Instead, the Dean Review Advisory Committee makes a recommendation, which they then discuss with the faculty at meetings—but there is no formal, up-or-down, roll-call vote. This post has been edited throughout to reflect this fact.]

Yes, the sturm und drang has been riveting. But an incumbent dean enters the review process with a strong presumption in favor of renewal—and for Gerken, the first woman to serve as dean of YLS, the presumption is even stronger. Furthermore, as I noted a few weeks ago, any missteps by Gerken must be weighed against her many accomplishments, such as diversifying the student body, diversifying the faculty, strengthening ties with alumni, launching a new leadership program, and fundraising.

Even though Gerken has her critics, especially among the “old guard,”3 she still has many allies and supporters on the faculty, especially among the young professors—several of them her hires, who remain loyal to her. Over the years, she has done many favors for colleagues, both personal and professional; she is a genuinely nice, thoughtful, and helpful person. Many of them remember her kindnesses, and they won’t vote against will support her.4

And remember that at the end of the day, we’re talking about the Yale Law School faculty. They’re hired based on their scholarship, and that’s what they want to focus on. Many of them just want to put this controversy in the rearview mirror, and very few have any interest in becoming dean themselves (not surprisingly, since it’s a thankless task). For these folks, the easy vote is a vote to renew. choice is to support her renewal.

So my guess—speaking predictively, not normatively—is that Gerken will be renewed. It’s possible she could be renewed for less than the customary five-year term, which is what happened to Robert Post, not the most popular YLS dean ever. [UPDATE (12/4/2021, 8:52 a.m.): Popularity is subjective; on an objective level, Dean Post accomplished a great deal during his time as dean. As for why he was not renewed for a second five-year term, there were a number of reasons—including the fact that he never intended or desired to serve for ten years]

But I think Dean Gerken will be renewed, at least for some period of time. If and when she’s renewed, I hope that she’ll take away some lessons from recent events:

• First, she needs to have the best team in place—and if that means firing and replacing some folks in her administration, then she needs to do that, even if might be unpleasant for her.

• Second, she must be supremely protective of free speech, even—and especially—in situations where that speech might be offensive or hurtful.

• Finally, she must not be afraid to push back against the students when necessary. The inmates can no longer be running the asylum—which is what has arguably been the case since the bruising battle over Justice Brett Kavanaugh’s confirmation, when a certain woke wing of the YLS community rose to power by branding all who disagree with them as Bad People (e.g., “complicit” in sexual assault, racism, sexism, etc.).

The Yale Daily News outed the plaintiffs in Doe v. Gerken—and broke some “news” about the lawsuit that’s not really news.

Yesterday the Yale Daily News named the previously pseudonymous plaintiffs in Doe v. Gerken, the lawsuit filed by two YLS students against Yale Law and three administrators, and reported that one of the two plaintiffs, Jane Doe, did receive an offer of a Coker Fellowship, a prestigious teaching fellowship. As you might recall, the complaint in the case alleges that after John and Jane Doe refused to go along with administration requests that they file complaints against Professor Amy Chua in Dinner Party-gate, administrators bad-mouthed the two students and tried to get them blackballed from career opportunities, including but not limited to Coker Fellowships.5

The YDN presented this Coker news as a “scoop”—but as it turns out, the fact that Jane Doe received a Coker offer was already public. I reached out to John Balestriere, lawyer to John and Jane Doe, and here’s what he told me:

Yes, of course, we knew that Jane Doe did receive the offer but did not serve.  While I get it that an undergraduate who is sloppy appears to want to willfully misread a complaint in the interests of pretending to get a “scoop” on a non-issue, we never claimed what the reporter seems to say we claimed.

And to his sloppiness: this one fact, of the many facts alleged in the complaint—that Jane was offered the position, but given everything declined to the Coker Fellowship, as she felt like she had to leave after all the misconduct—is in fact specifically noted in the long Liz Bruenig Atlantic piece. [Ed. note: see the last paragraph, noting that Jane Doe “quietly accepted one fellowship.”]

Not only is there no news here—the campus newspaper reporter doesn’t even seem able to do appropriate, and simple, due diligence and see what the prior (much better) reporting is on the subject in question.

So, what exactly happened with John and Jane Doe and the Coker Fellowships? Since my original report on Doe v. Gerken, I’ve learned a bit more about the backstory.

John and Jane Doe were interested in serving as Coker Fellows to Professor Paul Kahn, to whom they were close (having been in his small group themselves, and having worked for him as research assistants). But in the end, for reasons related to all the drama alleged in their complaint—the dissemination of “The Dossier” claiming that they attended Professor Amy Chua’s (non-existent) dinner parties, the badmouthing of John and Jane Doe to Professor Kahn and others, the overall environment of negative gossip and innuendo swirling around them—this didn’t work out, much to the Does’ disappointment.

At some point down the road, Professor Daniel Markovits, another small-group teacher, heard about the mistreatment of John and Jane Doe—and felt bad for them. He extended a Coker Fellowship to Jane Doe, who was otherwise an excellent candidate for a Coker, and she accepted. Her acceptance of the Coker Fellowship with Professor Markovits explains why Jane Doe is listed as a Coker Fellow in the Yale Law School Annual Bulletin, which was YDN’s source for its story.

But in the end, before she could serve as a Coker Fellow, Jane Doe withdrew from YLS and took a leave of absence for the 2021-2022 academic year. She claims that this was driven by the stress, anxiety, and anguish described in the Doe v. Gerken complaint. As John Balestriere told the Yale Daily News, Jane Doe “felt forced to leave the school and thus could not serve as a Coker Fellow. She lost her Coker Fellowship because of the administration’s misconduct.”

As for the merits of the lawsuit, I’m not an expert in education law, but a more knowledgeable source shared these observations with me:

• Yale University’s Policy Against Discrimination and Harassment defines retaliation broadly, as “any adverse action taken against a person who has reported a concern, filed a complaint, and/or participated in an investigation.”

• In Connecticut, university handbooks form part of the contract between a school and its students. See, e.g., Bradley v. Yovino (2021).

• The complaint alleges that Dean Gerken and Ellen Cosgrove, unhappy over the Does’ refusal to say what the administrators wanted in their investigation of complaints from The Dossier, tried to dissuade a prominent professor from hiring Jane and John Doe as Coker Fellows.

• If the allegations of the complaint are true, the actions of the administrators could constitute “adverse action” taken against students who “participated in an investigation,” and as such could constitute an actionable breach of contract.

Again, I’m no expert in education law, but here’s what I can say with confidence: if this complaint makes it pass a motion to dismiss, discovery won’t be a picnic in East Rock Park. It’s never fun to be deposed—especially by John Balestriere, a skilled trial lawyer and Yale Law grad who combines Brooklyn street smarts with Ivy League intellect. And who knows what we’ll learn from emails, text messages, internal memos, and other communications between the defendants—which they’re now obligated to preserve, thanks to pending litigation.

There has been another (unjustified) uproar related to the Yale Federalist Society.

On November 5, well before Trent Colbert sent out his trap-house email, the Yale Federalist Society hosted a murder-mystery event—as it has done every semester for the past three semesters, without incident. This year’s event was called “Hell to the Chief: A Murder Mystery of Political Intrigue,” and it involved the murder of a fictitious chief justice. [UPDATE (11:35 a.m.): Corrected—the murder-mystery event took place after Trap House-gate. This explains why FedSoc was so careful with it, clearing it with Dean Gerken in advance given the heightened sensitivities.]

On November 23, Joe Patrice wrote a post on Above the Law about the murder-mystery party, with the title FedSoc’s Capitol Riot/Presidential Assassination Party Plan Totally Tracks. He blasted the event as “a murder mystery based on killing a president thrown by this group in the months after their fellow travelers stormed the Capitol forcing the evacuation of the Vice President.”

Alas, Patrice wrote his ATL post based on nothing more than the cover art for the invitation, which is like reviewing a play based on the promotional poster. So he got a few things wrong, as noted by Zack Austin, president of the Yale Federalist Society, in this request for a correction (emphasis added):

First, the storyline of the murder mystery was not that “the [P]resident is killed in some sort of coup attempt,” nor was it even remotely related to January 6th. The evening’s pretend murder victim was not the President, but rather a fictitious Chief Justice of the Supreme Court. The cover image you included in your article depicts the Supreme Court’s chambers.

Obviously we were not cheering for the assassination of a federal judge. As it happens, my fiancée’s eldest brother had to miss our engagement because he was assigned to protect Judge Esther Salas after her son was murdered by a violent misogynist last year. 

Perhaps more importantly, the ATL post misrepresented the central message behind the event, as Austin explained (emphasis added):

Second, your comments that the event constituted “intentional trolling,” “obliviousness,” or implicit advocacy of insurrection are not rooted in fact. To confirm this, you might ask your source to take a photo of the back of the cover sheet. Each was printed with a foreword where the author explained that the game’s purpose was to serve as a cautionary tale and to reinforce the importance of the rule of law and the danger of unchecked power. Saying that we lacked self-awareness contradicts the actual moral of the game.

When I receive a correction request that has merit, I thank the sender, apologize for the mistake, and correct my story. When Joe Patrice received Zack Austin’s correction request, he wrote an entirely new post that doubled down on his original conclusion, despite completely new facts.

I can’t say I’m surprised. When it comes to all things FedSoc, people reach conclusions first and find the facts to support them later. And even if there are no supporting facts, that doesn’t stop people from reaching conclusions anyway. Recall how diversity director Yaseen Eldik accused Zack Austin, a “cis/het white man,” of making Trent Colbert, “a man of color with a backyard,” send out the trap-house email—even though Austin didn’t learn about the email until after the fact.

I’d like to close with a favor to ask of my readers: I’d like to hear from defenders of Dean Gerken and the YLS administration more generally. I have many sources for my reporting, but I realize there’s self-selection going on: the folks most willing to talk to the media tend to be folks with criticisms of the status quo, so I probably don’t have a full cross-section of opinion in the YLS community. As always, I’m happy to keep my sources anonymous if they so desire—which is typically the case, given concerns about retribution.

These concerns are understandable. Instead of telling members of the Yale Law community to speak freely to the media because it has nothing to hide, the YLS administration has circled the wagons, complaining about “secretly recorded conversations and the sharing of private correspondence without permission.”

Complaints like these exert a chilling effect on whistleblowers and others who would like to surface problems at YLS so that they can be addressed. Addressing such issues is a process that causes turmoil and discomfort in the short term, but makes for a better and stronger institution over the long term. And a better and stronger Yale Law School is what all of us—students, faculty, administrators, and alumni—all want in the end.

Thanks for reading Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at [email protected], and you can share this post or subscribe to Original Jurisdiction using the buttons below.

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