The Culture War Is Getting Worse — Yale Law School Edition

On the campus of Yale University in 2012 (Michelle McLoughlin/Reuters)

Over at the home page, I’ve got a piece making the case that the latest edition of the Chick-fil-A wars demonstrates how our culture war continues its downward, toxic spiral. One of the prime sources of renewed conflict is the increasing progressive tendency to use the financial and cultural power of progressive institutions to force social change regardless of the underlying mission of the institution. For example, Apple now apparently exists to sell hardware and software and to oppose religious freedom legislation. Citigroup exists to provide sophisticated banking services and to try to advance gun control. Financial and cultural strength gained through unrelated endeavors is then weaponized against law-abiding conservative citizens and mainstream conservative causes.

For the latest example, look no further than Yale Law School. The school has capitulated to student fury at the Federalist Society and the school for hosting an event featuring my friend (and former colleague) Kristen Waggoner, an attorney at the Alliance Defending Freedom. In a sane world, Yale would welcome Kristen. She’s one of the most capable constitutional advocates in the nation, a relentlessly civil and reasoned voice on even the most emotional topics, and a person of deep faith. She’s also a winning supreme court lawyer. But no — relying in part on the discredited Southern Poverty Law Center, students protested her presence. Writing in USA Today, 2018 Yale Law graduate Samuel Adkisson tells what happened next:

Par for the course at Ivy League institutions, a list of demands soon followed. The organizations called on Dean Heather Gerken to implement policies that would make it more difficult for students to work at “discriminatory” organizations, like those promoting religious liberty. They also asked her to consider denying admission to applicants who worked on certain religious liberty efforts before law school. Such lists are normally good for a laugh. And this one seemed no different.

But in late March, Yale Law School adopted a novel tactic: one-upping the protesters. It announced three major policy changes that went further than many of the protesters’ demands, all under the guise of an expanded nondiscrimination policy.

The new policies require all employers to swear that, when hiring students or graduates who benefit from certain Yale funding, they will not consider an applicant’s “religion,” “religious creed,” “gender identity” or “gender expression,” among other factors. The effect of this, for instance, is if a Yale Law student or graduate wishes to work for an organization that does consider religion in hiring — say a Catholic organization or Jewish advocacy group — Yale will cut them off from three important programs.

The programs are Yale’s summer public-interest funding, its loan-repayment program, and its post-graduate fellowships. The effect is two-fold. First, it deprives disfavored groups of access to top Yale talent if those students need access to the relevant programs (and at least some students choose the school in reliance on those programs). Second, it narrows the career options of Yale students who’ve never violated a single Yale policy and are (in theory, at least) protected by Yale’s own nondiscrimination policies. Adkisson describes how Yale’s policy will work in the real world:

Under the guise of nondiscrimination, Yale Law School has announced it will blatantly discriminate. A student is barred from aid if she works at a synagogue that gives preference to Jewish applicants, but not if she works at an organization that peddles anti-Semitism yet hires all comers. A graduate is blocked from funding if she works for the Christian Legal Society, but not if she works for the Freedom from Religion Foundation. And a graduate is not eligible to receive loan assistance if she is a professor at Brigham Young University, but is eligible if she works for Berkeley.

If Yale was a public university, its new policy would be blatantly unconstitutional. But it’s a private university, so I have serious concerns about Senator Ted Cruz’s letter threatening potential federal action against the school. Yale should live up to the commitments it makes in its own nondiscrimination policies, and the federal government can enforce applicable, valid nondiscrimination laws, but we should not confuse Yale’s actions with a constitutional violation. Yet we shouldn’t excuse what Yale is doing, either. It has recruited students to the school and pledged to protect them from religious discrimination. Not only is it failing that pledge, it’s actively discriminating against religious students. It’s using its financial and cultural power to punish unrelated legal organizations. This is exactly the kind of intolerant, progressive, punitive action that is making our culture war worse.

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David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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