This week, a fellow alumnus asked me whether we can reasonably advise our daughters to attend Yale. This is a very good question. The overwhelming theme of the Kavanaugh nomination is clear: the behavior prevalent among certain students at both Georgetown Prep and Yale is deeply disturbing. There is unquestionably a culture of impunity among elites. Yale’s name has come up too many times in connection with this claim.
If you are from a developing country like I am, Yale is not an outlier. Institutions in the developing world rarely hold elites accountable; there is very little that elites cannot get away with. This includes rape. Indeed, it was precisely for this reason that those of us who are watchers of “Third World” politics, as we still say in Jamaica, were struck when the former South African President Jacob Zuma was charged with rape in 2005.
But what happened to Jacob Zuma is not happening to Judge Kavanaugh. No reasonable person expects the accusations against Judge Kavanaugh to ever be tested in a court of law. The only question is whether he will be promoted to the Supreme Court. Institutions in the United States are looking more and more like those in a developing country.
In the last week, we have heard people say out loud what was previously whispered. If you are a white suburban teenage boy, you can sexually assault a teenage girl as long as you play by the rules. What are the rules? Go to Yale for undergrad. Go to Yale Law. Get a fancy job. Coach your daughter’s basketball team. Then when you are accused of “teenage horseplay,” we will reflect on your “contributions” and state what a pity it would be to derail your promising career. In Jamaica, we have a term for outrageous but ultimately forgivable behavior: We call it “youthful exuberance.” Americans refer to it with the phrase “boys will be boys.”
When discussing the complicity of elite institutions, one can hardly fail to mention the Kozinski affair. Prior to spiriting off into the night following accusations of harassment, Kozinski was a well-known judge whose clerkship was prestigious. Indeed, Kavanaugh clerked for Kozinski. If media reports are accurate, at least one Yale law professor knew that Kozinski’s chambers constituted a hostile environment. The professor reportedly advised female students of Kozinski’s reputation, then let them decide whether to apply to his chambers, presumably with the professor’s formal recommendation. Why put this burden on female students? How could a professor knowingly send a student into the den of a harasser? It is this sort of revelation that leads my friend to wonder whether she should be advising her daughter to attend Yale. The only reasonable response from the professor would be to refuse to write letters for any student, male or female, seeking a Kozinski clerkship.
Thankfully, some very courageous Yale Law students are setting an example for their professors. As they have pointed out, complicity was never a defensible response. As professors, we need to do more than simply avoid complicity. We need to use our power to break this culture of impunity. Society uses “Yale Law School” as a shorthand for excellence and, by extension, trustworthiness. Given my own background in the developing world, I think that this is a mistake. But the fact remains that elite status and trustworthiness remain connected in the public imagination. It is for this reason that Kavanaugh took the time to underscore that he had graduated from Yale.
Elite designations have gatekeepers. If you acquired them, it means that your record has been reviewed by people who are experts at screening. This, of course, is false. Most professors typically have no idea whether a candidate that they recommend has a history of violence. God forbid that years later the candidate ends up as a Supreme Court nominee.
Economists call this an information asymmetry problem: we do not know who the predators are among us.
We have the power to change this default position of ignorance. Senator Mazie Hirono asks each and every nominee whether they have ever been accused of sexual misconduct. Yale needs to follow suit. Yale needs to require applicants to state affirmatively that they have never been accused of sexual misconduct.
The message will be clear. If it is later found out that they lied, this may be the basis of exclusion from the elite club that they worked so hard to join.
The point of this proposal is less about actual exposure of sexual predators, though a few prominent exposures will surely reinforce the point. The point is to change the balance of power. For example, if Kavanaugh did in fact commit assault, he might have thought twice if he knew that his victim had the power to derail his Yale application. It will also create an incentive for those accused to cooperate with the authorities, if they believe themselves to be innocent.
This proposal will go a long way to undermining rape culture. Outrageous high school yearbook entries and quips like “what happens at Georgetown Prep stays at Georgetown Prep” will slowly but surely disappear. If the stakes are high enough, teenage boys will self-police.
Yale is surely not the only institution with these challenges. But given the current national focus on Yale, it has a responsibility to lead the way. Yale needs to recognize the urgency of the current situation and implement this proposal right away, including at the Law School. Yale has a debt to pay: this is the minimum that it owes to Yale students, Yale women and the country, given its extraordinary record of sending its students into positions where they exercise extraordinary power.
Eleanor Marie Lawrence Brown is a Professor of Law and International Affairs and a Senior Scientist at the Rock Ethics Institute at Pennsylvania State University. She attended Brown University and the Yale Law School. She was a Reginald Lewis Fellow at Harvard Law School and a Rhodes Scholar at Oxford University. Contact her at firstname.lastname@example.org .