By: Washington Free Beacon Staff
These are remarks delivered by Fifth Circuit judge James Ho on Saturday, April 1, to an annual gathering of the Texas Review of Law & Politics.
Thank you, Lisa, for that lovely introduction. Allyson and I first met Lisa at a Federalist Society lawyers convention over two decades ago. And we’ve been good friends ever since. It’s always a privilege to stand with her—whether in New Haven, Connecticut, or Austin, Texas.
And thank you to the Texas Review of Law & Politics. I can’t believe this is TROLP’s 25th Annual Banquet—or that I’m TROLP’s 25th Jurist of the Year. I’m deeply honored to be included in such an extraordinary group of jurists.
Adam tells me I’m the first Jurist of the Year who first worked with TROLP as a law student. I’ve attended over twenty TROLP banquets since then.
So standing here at the podium today—it’s profoundly humbling—but it also causes me to reminisce about how much has changed since I was in law school.
I’m a graduate of Stanford University and the University of Chicago. As we consider recent events, I wonder if my first alma mater has a lot to learn from my second.
The University of Chicago has long been a national leader when it comes to freedom of speech in higher education.
One former President of the University of Chicago put it this way: “Education is not intended to make people comfortable—it’s meant to make them think.”
But law schools today are turning this upside down. At some law schools, education is more about making students comfortable—at the expense of making them think.
Law schools like to say that they’re training the next generation of leaders. But schools aren’t even teaching students how to be good citizens—let alone good lawyers. We’re not teaching the basic terms of our democracy.
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.
And they’re doing it to accomplished litigators, legal scholars, even federal judges. Judges on the U.S. Court of Appeals for the Seventh, Eighth, Ninth, and Eleventh Circuits, as well as the Fifth Circuit, have been disrupted while trying to speak on campus.
Now, I have zero concern about judges being criticized. Thank goodness we live in a country where people are free. So judges should expect to be criticized. And we shouldn’t sweat it. People should become judges for public service, not public applause.
My concern is how law students are treating everyone else they disagree with. I’m concerned about what this is doing to the legal profession—and to our country.
Students learn all the wrong lessons. They practice all the wrong tactics. And then they graduate and bring these tactics to workplaces across the country. What happens on campus doesn’t stay on campus. And it’s tearing our country apart.
Here’s the good news. This problem should be easy to solve. Most universities already have rules in place ensuring freedom of speech and prohibiting disruptions.
The problem is that these rules aren’t enforced. Students disrupt without consequence. Administrators tolerate or even encourage the chaos.
It’s not because most students or faculty support these tactics. When I visit law schools, I’m always told it’s just a small fraction of students who practice intolerance. But the majority tolerates it, because faculty members don’t want to be controversial. And students just want to graduate, get a job, and move on with their lives.
But I want to draw a sharp distinction between students being afraid and faculty being afraid.
Students are just starting their lives. They don’t want to end their careers before they even begin.
We shouldn’t be putting it on the students to police other students. It should be on the grown-ups to lead, to teach, and, where necessary, to punish.
But the grown-ups are scared to do anything. We’re the opposite of the Greatest Generation. We’re leaving our country worse off, not better, for the next generation.
The 1980s were called the decade of greed. Today, we’re living in the decade of fear.
But fear is no excuse for those who seek positions of leadership in our profession. And that includes the legal academy. No one forces you to become a law school dean—just like no one forces you to become a judge. But if you take the job, you take the responsibility to enforce the rules—no matter how loud you’re booed.
We need law school leaders to put aside their fears of the mob, and get serious about enforcing the rules and enforcing intellectual freedom. If they’re serious, it seems obvious that there are three steps they need to take.
First, it’s not enough to have a policy. You have to enforce it.
Rules aren’t rules without consequences. Administrators who promote intolerance don’t belong in legal education. And students who practice intolerance don’t belong in the legal profession.
I go back to my alma mater, the University of Chicago. A few years ago, the law school held an event featuring a professor who favors anti-boycott laws to protect the State of Israel. Before the event, the law school reminded students of its free speech policy.
But one law student thought he found a clever loophole. Rather than disrupt the event himself, he recruited others to campus to disrupt the event.
Well, my law school was not impressed. Chicago suspended the law student for the rest of the year—and told him that he’d have to re-apply for admission if he ever wanted to come back.
And guess what: Chicago hasn’t experienced a disruption ever since.
Yale knows how to discipline students, too—at least students who hold the wrong views. If you’re a member of the Federalist Society, and you send an email that another student says is offensive, Yale administrators may threaten a negative report on your character and fitness report to state bar officials. That’s what they did to the student who wrote the infamous “traphouse” email.
By contrast, a few months later, Yale refused to impose any consequences when students yelled and screamed during a Federalist Society event featuring Kristen Waggoner.
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.
So what does it mean to establish structural protections in the academy?
Well, I’ll put it this way: It’s not a coincidence that the worst disruptions typically occur at the worst schools when it comes to one critically important metric: intellectual diversity on the faculty and in the administration.
If you don’t have intellectual diversity in positions of leadership, who has the power, the motivation, and the strength of character to stand up for students, and for disfavored viewpoints, when these incidents occur? How do we know everyone’s views will be protected, if everyone’s views aren’t represented? Why should students welcome disfavored viewpoints in the classroom, when those viewpoints aren’t welcome on the faculty? What message does it send when you say you believe in diverse viewpoints—but it’s so obviously a lie?
The same checks and balances that we take for granted in our Constitution are entirely missing at too many schools.
These three elements are plainly missing at Stanford Law School. Just look at the ten-page letter that was recently issued by the Dean. I know that letter has been praised by some people for standing up for free speech. I don’t share that view.
I’ll agree that there are some good words in that letter. But they’re just words. How do we know if those words are sincere—and not merely strategic? Because there’s good reason to be suspicious.
Remember, this wasn’t the Dean’s first reaction to recent events. Her first reaction was to defend the administrators as “well intentioned.”
So at best, this is a dramatic change of heart. Should we believe it?
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.
Look, I get that no one wants to be vindictive. I believe in redemption and grace. But we’re not talking about good faith mistakes here.
Is it really that close of a call—whether it’s okay to call for someone to be raped? Do these future leaders really not have fair notice that they shouldn’t ridicule a judge’s sex life?
I’m all for second chances. But I’m not a schmuck.
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.
These problems aren’t unique to one or two schools. But I think it’s obvious why so much attention has focused on one or two schools. It’s because they present themselves as the nation’s best institutions of legal education. Yet they’re the worst when it comes to legal cancellation. Moreover, what happens at these elite schools impacts the profession and the country.
That’s why Lisa and I announced last fall that we would not hire any student who decides to attend Yale Law School in the future. History is replete with examples of how actions like this can have a positive influence on our country.
We believe our effort will help future students—either by influencing the dynamic at Yale, or by showing these students why they need to choose other schools.
I’m pleased to report that a number of Yale students and scholars have gone out of their way to inform Lisa and I that they support what we’re doing. In fact, some have admitted to us that they disagreed with us at first —but now that they’ve seen how the administration is reacting, they get it. And now they’re the ones urging us to keep it up—and not to pull back.
Why are folks at Yale urging us not to let up? After all, events at Yale have gone much more smoothly this year. Speakers haven’t been disrupted. Yet these students and scholars don’t want us to relent.
I understand why. It’s because the disruption of speakers is not the problem. It’s only a symptom of the problem.
The real problem in the academy is not disruption—but discrimination. Rampant, blatant discrimination against disfavored viewpoints. Against students, faculty, and anyone else who dares to voice a view that may be mainstream across America—but contrary to the views of cultural elites.
Moreover, let’s just say it: The viewpoint discrimination we most often see in the academy today is discrimination against religious conservatives. Just look at which viewpoints are targeted most frequently at speaker events—and excluded most vigorously from faculty appointments.
Unless we take action to solve the real problem—discrimination, not disruption—all we’re doing is giving speeches.
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.
I was on a Cub Scout camping trip a few weeks ago. We always remind the kids of the words of Sir Robert Baden-Powell, the founder of the Boy Scouts. Always “try to leave this world a little better than you found it, and when your turn comes to die, you can die happy in feeling that at any rate, you have not wasted your time but have done your best.”
Our Nation’s law schools are failing this basic standard. They’re supposed to make the world a better place. I worry they’re making the world a worse place.
That’s why I thank God for the Texas Review of Law & Politics. Thank you for standing when others would prefer to sit. Thank you for showing character when others prefer to show off their credentials. Thank you for demonstrating fortitude rather than fear. You inspire us all. And frankly, you embarrass us all. And you should. I hope you continue to embarrass us into standing with you, rather than sitting on the sidelines. Thank you, from the bottom of my heart.