What Can Be Done To Stop Campus Disruptions?

I recently wrote about the latest campus disruption at UCLA. As you might have predicted, the students who interrupted the event faced no consequences. By contrast, UCLA suggested that the FedSoc chapter could face liability if they named the people who protested at the public event. As FIRE pointed out, the school cannot impose liability for sharing truthful information. UCLA quickly backed off.

Yesterday, the Los Angeles Chapter of the Federalist Society hosted a panel discussion about free speech on campus. The panelists were Professor Eugene Volokh (formerly of UCLA), Professor Jon Michaels (UCLA), and Yitzy Frankel (a student at UCLA). Judge Jim Ho moderated. But as Judge Ho often does, he shared his thoughts on the matter.

Judge Ho’s introduction was covered in Bloomberg, so I thought it might be useful to present his full remarks in context. I asked Judge Ho, and he graciously allowed me to share his comments.

The recent incident at UCLA Law School should alarm every lawyer, every judge, every citizen who cares about the future—and the future leadership—of our country.

To begin with, this is not just one incident. It’s just the latest in a string of incidents on campuses across the country. And it reveals what has been kept hidden for too long from the American people. Too many law schools have stopped teaching students how to be good citizens—let alone good lawyers. Too many institutions of legal education have become incubators of intolerance. And I worry about the impact on the rest of our country.

Let me be clear: I didn’t fly halfway across the country because some law school event went poorly. At the end of the day, I really don’t care about what happens at UCLA. That doesn’t affect me at all.

Here’s my concern: If this is what we’re teaching the next generation of lawyers and leaders—that this is how you treat people you disagree with—ask yourself: What else are they willing to do to those they disagree with? What other lines are they willing to cross? What kind of country does that look like? And is it the kind of country any of us would like to live in? Because what happens on campus doesn’t stay on campus.

Students are learning all the wrong lessons. They’re bringing those lessons to workplaces and communities all across America. And it’s tearing our country apart.

But even that’s not what most infuriates me about recent events at UCLA. What most infuriates me is that my branch of government has no interest in doing anything about it.

Four years ago, a similar incident occurred at Yale Law School. A group of woke law students disrupted an event that, ironically, was intended to promote free speech—simply because one of the speakers was a prominent Evangelical Christian lawyer.

The disruption is troubling. But as I’ve tried to point out, disruption is not the problem. It’s the symptom. The problem is discrimination. Discrimination against conservatives. Against Christians. Against Jews. Against anyone disdained by cultural elites.

Not only did Yale refuse to do anything about the disruptors—they did precisely the opposite: They threatened to punish a conservative student for sending an email announcing a Federalist Society event.

So I announced that I could no longer in good conscience hire law clerks from Yale Law School. I pointed out that many judges would obviously refuse to hire from a racist law school.

So if it’s okay to stand up against racism, why not for freedom of speech? Why can a judge oppose discrimination based on race, but not religion?

I also pointed out that many judges are obviously willing to hire only from a small group of so-called elite law schools. So they’re already boycotting the overwhelming majority of law schools. And if it’s okay for judges to boycott non-elite law schools, then surely it’s okay for judges to extend that boycott to include intolerant law schools as well.

Finally, I pointed out that, if enough of us did this, then we’d never have to actually institute the boycott. The intolerance would stop in a heartbeat. Because we all know that law schools are strongly motivated to maximize the number of their law students placed in judicial clerkships.

Those who have written extensively about wokeism and intolerance—folks like Vivek Ramaswamy and Ilya Shapiro and Senator Ted Cruz—they have all come out in strong support of the boycott.

By contrast, when I made my pitch to my colleagues in the judiciary, I didn’t just lose—I lost badly. A handful of federal trial judges across the country expressed strong support. But out of the 179 federal circuit judges nationwide, only one other circuit judge agreed to join me—Lisa Branch of the Eleventh Circuit. Now, I’ve written plenty of 1 against 16 dissents on my court. But this was the first time that I’ve ever lost 2 to 177.

But you know what? If judges don’t want to do this, fine. I’ve learned a lot about judicial personality in my eight years on the bench. If judges want to say that, as a matter of principle, we should never engage in boycotts, okay then.

Here’s my problem. Just last year, when the Heritage Foundation was charged with antisemitism, a number of judges made clear that they would refuse to associate with the Heritage Foundation. And they specifically boycotted an event that would have featured the Heritage Foundation’s work. There was even a whole panel of judges to talk about these issues during the most recent Federalist Society convention.

So just to review the bidding: It’s okay to boycott Heritage. But you can’t boycott woke law schools. Let’s just be very honest about what’s going on here. Let’s be candid about the double standards that plague the judiciary. It’s okay to boycott Heritage, because you’ll never be punished for attacking conservatives. It’s okay to boycott Heritage, because it’s okay to virtue signal to cultural elites. It’s okay to boycott Heritage, because judges who punch left are excoriated—but judges who punch right are celebrated.

It’s these double standards that exemplify my longstanding problem with my branch of government. I never expected to become a judge myself. But before I took the bench, I was involved in the federal judicial selection process for over two decades, from the Justice Department, to the Senate Judiciary Committee, to the Federal Judicial Evaluation Committee in Texas. And based on my experience, I’ve come to learn one simple lesson about judicial selection: When you pick judges based on elite credentials, you’ll get judges who will care only about elite approval. You’ll get climbers, not fighters. Lawyers who aren’t warriors—who are timid, not tough.

Law students often ask me: Why haven’t more judges joined the boycott? Well, you’d be surprised how many judges have told me: Love what you’re doing. Please keep doing it. But sorry I can’t join you. You’d be surprised how many judges have told me: Well, if you can get other judges to join you, then I’ll join you.

Look, I get it. There’s safety in numbers. It’s scary to be alone, or in the extreme minority. But Deuteronomy 20 tells us that, when you go to war, don’t be afraid of an army greater in number than yours. Just worry about being on the right side, and the rest will take care of itself.

We should heed the words of Justice Thomas: North is still north. Right is still right. Even if you stand by yourself. We need judges to follow in the mold of Justice Thomas—judges who are willing to stand alone when necessary—judges who care more about principle than prestige. It’s unfortunate what happened at UCLA Law School. And it’s unfortunate that the judiciary won’t do anything to help.

There is a lot of unpack here.

First, as I noted at the time, I supported Judge Ho’s boycott of Yale, and later of Columbia. It is regrettable this strategy did not catch on more.

Second, Judge Ho is correct that other judges support him privately, but will not say so publicly. Judges are, by their very nature, cautious. They follow, but do not lead.

Third, Judge Ho alludes to the boycott of an event promoting the Heritage Guide to the Constitution Heritage at the Federalist Society National Lawyer’s Convention, which I referenced in my resignation letter and other writings. I think you can distinguish between a judge personally boycotting a problematic think tank and a judge boycotting students who attend a problematic university, but that distinction is thin. Indeed, if the argument is that a boycott is never proper, both of these actions are inappropriate. The truth is that judges, like everyone else, choose who to associate with and who not to associate with. That is what a boycott is. The only difference is that Judge Ho and his colleagues make their views known publicly.

In the end, what can be done about campus disruptions? The answer, it seems, is nothing.