Yasmine Halmane, Staff Photographer

Heather Gerken, Dean of the Yale Law School, has spoken out about a set of controversies that have rocked the institution in recent weeks. In a Nov. 17 email to the YLS community, Gerken acknowledged administrative errors and recommitted to preserving free speech.

The Law School gained national attention after administrators censured Trent Colbert LAW ’23 for an email announcing a social event with language that some students saw as racially insensitive. On Sept. 15, Colbert announced a party between the Native American Law Students Associations and the Federalist Society. Multiple students alleged that the invitation, which used the term “trap house,” constituted racial discrimination. When administrators became involved, drafting an apology letter that they urged Colbert to sign and suggesting that his reputation in legal circles could be affected by the incident, it sparked broad conversations about campus racism and free speech. 

At the 2021 Federalist Society National Lawyers’ Convention, president of the Yale Federalist Society Zachary Austin ’17 LAW ’22 revealed that he was also asked to apologize for Colbert’s email in a meeting with Associate Dean of YLS Ellen Cosgrove and Director of Diversity, Equity & Inclusion Yaseen Eldik. Austin alleged that they were joined at the meeting by Chloe Bush, the Office of Student Affairs administrator responsible for approving the Federalist Society’s budget. Since the OSA did not provide an alternative explanation for Bush’s role at the meeting, Austin said that her presence “came across as fiscal pressure on our organization to comply.” 

On Nov 15, two unnamed law students filed a complaint against Yale University, as well as Gerken, Cosgrove and Eldik. The complaint accused the University and administrators of “blackball[ing]” them from job opportunities after they refused to endorse a statement condemning law professor Amy Chua for violating restrictions and hosting them in her home. Two legal experts called the suit “frivolous” and “embarrassing,” respectively. Gerken’s email did not address the lawsuit, which University spokesperson Karen Peart previously said was “legally and factually baseless.”

“​​There are things the Law School administration should have done differently, and for that I take full responsibility,” Gerken wrote in her email to the community. 

In the email, Gerken wrote that her first step would be ensuring the YLS administration had “the right team in place” with the necessary support and training to navigate any similar conflicts that might arise within the community. 

Going forward, Gerken wrote, students will be offered assistance in resolving disagreements in a manner consistent with University policies, and all parties involved in complaints regarding free speech will be informed that University policy precludes disciplinary action.

After students raised issues of racial discrimination from Colbert’s email, they were told he would not be disciplined. But at a meeting with administrators, Yale’s leaders did not tell him that he would not face disciplinary sanctions.

After Colbert’s email, Eldik and Cosgrove emailed the second-year class, writing that an “invitation was recently circulated containing pejorative and racist language. We condemn this in the strongest possible terms [and] are working on addressing this.”

Gerken emphasized that she has prioritized inclusivity throughout her deanship, seeking to 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,” Gerken wrote. “I take full responsibility for that failure.”

Gerken set an additional goal of ensuring that all students and student groups are treated professionally, fairly and impartially. 

At a Nov. 11 event held at the convention, Sterling Professor of Law Akhil Amar ’80 LAW ’84 said that YLS had not treated the Yale Federalist Society fairly. 

“In my own view, on the basis of all sorts of information, some public, some yet to be made public, is that the law school is not living up to our highest of commitments,” Amar said at the convention. “The administration has been dilatory, duplicitory, disingenuous and downright deplorable.” 

Gerken wrote that “no student or student group should ever have reason to believe that administrators are acting in a biased or unfair manner, and I deeply regret that this impression was given in this instance.”

As an ongoing action, Gerken assembled a group of faculty members to “think about how to maintain our cherished intellectual environment and warm community,” citing Professors Justin Driver, Oona Hathaway, Tracey Meares, Nick Parrillo and Claire Priest as the leaders of this effort.

Other universities, including the University of Chicago in 2014, have also drafted reports on committing to freedom of expression on their campuses.

Currently, the University’s free speech policies are governed by the “Report of the Committee on the Freedom of Expression at Yale,” colloquially known as the Woodward Report. Gerken did not offer more context about exact responsibilities the group of faculty members will take on, but said their work would outline steps to create an environment in which people could disagree as well as review the norms surrounding sharing private correspondence and covertly recorded conversations. Colbert secretly recorded his conversations with Eldik and Cosgrove, which were subsequently leaked to the press.

In an Oct. 18 email to the Law School community, Gerken explained that she was directing Deputy Dean Ian Ayres to conduct a “review” of the events and the responses to them. With these findings, she would decide how the institution would proceed, Gerken wrote. Ayres found that a number of students who  raised concerns over the perceived racial insensitivities in Colbert’s initial email were told by administrators that the University’s free speech policy precluded them from taking disciplinary action against Colbert.   

Ayres also found that the boards of the Federalist Society and NALSA were both “entirely unaware” of Colbert’s invitation before it was sent.

Ayres’ review found that members of the administration “were attempting to carry out their obligations under University policy whenever discrimination complaints are filed.” Although protected speech is never a cause of disciplinary action, the email explained, administrators are encouraged to facilitate informal resolutions. 

Three students previously explained that the University had made clear Colbert was at no risk of discipline and detailed why they found the email’s language offensive. Students had previously told the News that they attempted to reach out to Colbert individually about his email, but that he did not respond for several weeks.

Austin declined to comment on Gerken’s email. Colbert declined to comment on Gerken’s email, instead referring the News to a blog post he published on Oct. 25, titled “Why I Didn’t Apologize For That Yale School Email.”

In the post, Colbert doubled down on his refusal to sign the apology email drafted for him by Yale Law School administrators. 

“An action does not warrant a forced apology just because an individual or a group demands it,” Colbert wrote. “Instead, an apology should be a sincere expression of remorse and admission of fault. The Yale administrators did not believe I had been racist by using the phrase ‘trap house.’ But it did not matter. They urged me to placate students via public submission.”

John G. Balestriere, the lawyer representing the two plaintiffs in the lawsuit against the Law School, told the News that they hope that one outcome of this lawsuit is to ensure that “nobody else has to go through what they went through.”

“Our clients are seeking money damages because they have been damaged in a monetary amount,” Balestriere said. “Whatever would be appropriate to the court and they’re also open to any kind of reasonable discussion regarding sentiment which could be beyond money.”

Despite the recent incidents, law professor John Witt emphasized that the rigor of academic instruction was continuing. His students at Yale are “amazing,” he said.

“Their intellectual energies seem undimmed, they have bold research agendas and searching and curious minds,” Witt wrote. “They continue to do terrific work and to have exciting ideas, potential distractions be damned.”

Gerken was appointed Dean of Yale Law School in 2017.  

Clarification, Nov. 19, This article has been updated with a quote about the lawsuit and to clarify that Gerken did not specifically address it, as well as to reflect Gerken’s prior email starting an investigation into the incidents and explaining that she would decide the school’s course with the investigation’s findings in hand.