When I first heard that Judge James Ho publicly criticized Yale Law School for its practice of cancel culture, I was delighted. Not only did he criticize the school, but he said he would no longer hire clerks who graduated from Yale. I called out a raucous cheer, so delighted was I to hear that someone of note was finally attacking the cancel culture disease:

The judge, who sits on the US Court of Appeals for the 5th Circuit, cited a number of incidents at schools in which prominent figures had faced ‘campus vitriol.’

He singled out Yale – consistently ranked as the top law school in the US – for particular criticism, saying the institution ‘not only tolerates the cancellation of views, it actively practices it.’

In an apparent attempt to pre-empt accusations of hypocrisy, he added: ‘I don’t want to cancel Yale. I want Yale to stop cancelling people like me.’ He urged other judges to follow suit.

In response, 12 other federal judges declared they would no longer hire Yale graduates, although they signed up anonymously. While citing other incidents at Yale, they described an event that featured lawyer Kristen Waggoner, who defended Jack Phillips, the Christian baker who refused to create a cake for the wedding of a gay couple. The protest went so out of control that the police were called. Others have criticized these protests:

U.S. Circuit Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia Circuit, who died on Sunday, had called on judges to think twice about bringing on Yale students who disrupted it after that event in March.

Yale Law Dean Heather Gerken has called the behavior of some students at that event ‘unacceptable.’

Since Judge Ho made his statement, another judge, Elizabeth Branch, a federal judge serving on the U.S. Court of Appeals for the Eleventh Circuit, has publicly joined the protest.

And yet, perhaps we should look at the situation more closely.

First, there are the students who will be impacted by this decision. When they originally applied to Yale Law School, they may not have known about the school’s reputation for supporting cancel culture. Should they have checked out this possibility before they applied? Should they have done the same for any schools they applied to? Should a school’s reputation for the support of free speech be a consideration for a potential law student? Or should we just consider these students collateral damage in this effort to speak up against cancel culture and condemn schools that are prepared to accept this woke agenda?

Second, perhaps other prestigious schools that support cancel culture should be called out. Why should they be considered acceptable when their attacks on free speech are likely just as egregious?

Third, will this decision by Judge Ho meet his intended goal? Will Yale reconsider its allowance of cancel culture? Will students decide that they will apply to Yale anyway, since there are other valued and prestigious clerk positions to which they could apply?

One lawyer made the following observation:

Notably, one initial criticism leveled at Judge Ho’s speech was that Ho alone would not have the clout to affect Yale Law by withholding clerkships. ‘Perhaps I’m underestimating Ho’s clout, but I can’t imagine students turning down coveted seats at the nation’s most prestigious law school because he put it on his personal blacklist,’ the lawyer Vivia Chen wrote in Bloomberg Law earlier this week. ‘And what are the odds that other federal judges, even unabashed conservative ones, will trash the resumes of awesome Yalies because of the school’s woke reputation?’

Finally, it might be worthwhile asking whether this was an appropriate use of criticism:

These tools are neither good nor bad. Their aims can be noble (the Montgomery bus boycott or the #MeToo movement) or shameful (the Hollywood blacklists or the Scarlet Letter). They are used (and complained about) by both the left and right. But they can be misused. We should boycott, shame, and shun people who commit terrible acts: racists in the Jim Crow south, the South African apartheid regime, or Harvey Weinstein. In these cases, the tools of cancel culture served good ends with appropriate means.

We should not use them against innocent people whose actions we dislike but who pursue reasonable (if mistaken) goals. Targeting people with opposing political views has become too common on both the left and right — for example, boycotts of Target for allowing customers to use bathrooms matching their gender identities and companies with ties to the NRA. Using social sanctions to punish political opponents produces mistrust and cycles of retaliation, where we boycott people for boycotting or (like Judge Ho) for not boycotting those we revile.

The authors of this article added the following:

We should reserve boycotts, shaming, and shunning for intolerable behavior. Judge Ho points us in the opposite direction, into a world where we punish everyone whose views offend us, including those who will not join our boycotts. Strategies like these are the cause of our cancel culture problems, not the solution.

I’m torn. On balance, I am glad that Judge Ho took this unpopular position and therefore risked being the target of disapproval. He has put other law schools on notice that their practice of cancel culture is not acceptable. The students who may be affected will learn that real life is difficult, and that our expectations may need to change based on changing circumstances. They may also learn that going to one of the most prestigious universities doesn’t guarantee the perfect appointment. Choosing a school based on other criteria, such as truth and virtue, may be more important.

I support Judge Ho. What about you?

Published in Law