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    John Warner is the author of Why They Can't Write: Killing the Five-Paragraph Essay and Other Necessities and The Writer's Practice: Building Confidence in Your Nonfiction Writing.

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Can Yale Law Students Dismantle Their Own Privilege?

Yale Law students question the nature of their own institution. Will it lead to a reckoning?

October 3, 2018
 
 

While the Brett Kavanaugh nomination to the Supreme Court roils the country, a smaller, related battle is happening at one of our most venerable and powerful educational institutions, Yale Law School.

The battle seems to be happening on two fronts, and student disapproval of the law school’s reflexive support of Kavanaugh is only one of them.

In the wake of Kavanaugh’s nomination, news leaked that Yale law professor Amy Chua had instructed female students that to maximize their chances of clerking for Kavanaugh, they should seek to project a “model like femininity.” 

What this says about Kavanaugh is impossible to know because there’s no evidence he mandated such a dictate. It's entirely possible that Chua is enforcing a rule based on her own notions of "excellence," but the news and reactions in its aftermath say a lot about the way power and privilege intersect at an elite place like Yale Law.

Regardless of the specific charge of Chua’s “advice,” it’s widely acknowledged that Chua and her husband and fellow law professor Jed Rubenfeld have significant sway over which students get a shot at prestigious clerkships, experiences which open the doors to jobs at white shoe law firms, or access to political king and queen makers. Chua and Rubenfeld are alleged to be running a patronage operation doling out these chits to those they favor. Running afoul of the couple for whatever reason, is likely a bad career move.[1]

Yale Law School is widely viewed as a bastion of liberalism, but power clearly trumps politics and the bonds of the tribe matter above all. Ostensible liberal Amy Chua supports Brett Kavanaugh because the only thing better than having a direct pipeline to a federal appellate court judge is having a direct pipeline to a Supreme Court judge.

The tension on the law school campus is characterized by David Chen of the New York Times who describes “more diverse, politicized student body uncomfortable with the privilege of an Ivy League pedigree, even as it actively pursues it.” 

In this sense, the Yale students are acting to dismantle the system which makes their degrees so meaningful. What makes a degree from Yale Law School so special is not the quality of the education (though I’m sure it’s good), but the legacy of connections, the proximity to power to which one gains entre by becoming a member of the tribe.

If Kavanaugh is confirmed, four of the nine current justices will be graduates of Yale Law School.

Some responses to the Chua news reveal how difficult it is to even clearly see the privilege at work once one is benefiting from it.

J.D. Vance, author of Hillbilly Elegy, the journey of his hardscrabble Appalachian upbringing to Yale law graduate, wrote in defense of Amy Chua, saying that she was willing to give him advice about how to navigate the law school, even though he came from such humble beginnings.

Vance was considering applying for a clerkship in the office of Judge Alex Kozinski of the 9th Circuit Court of Appeals, but was warned off by Chua who asked why Vance would want to work for “such a scumbag?” 

As was recently revealed publicly, Judge Kozinski has been a serial sexual harasser for the entirety of his career. Dahlia Lithwick at Slate describes the dynamic that kept her (and dozens of others) silent about Kozinski’s behavior for over 20 years, even as it was an “open secret” among elite law circles. 

The “brilliant” Kozinski simply held too much power to be challenged, and rather than do the ethical and moral thing, Chua simply warned off one of her personal favorites from working for a “scumbag.”

Imagine the years of damage Kozinski did in his position, including closing off potential routes to a position on the Supreme Court if students could not bear to clerk for him.[2]

To Vance, this isn’t a problem since it worked out for him, and he believes his personal protector deserves protection, but the current generation of Yale law students seems to want to go further when it comes to challenging entrenched interests of power.

Dean of Yale law, Heather Gerken, remarking on the student protests said, “Our students are calling upon the best values of this institution, and we are listening carefully. This is a moment of reflection for this institution, and we will do our best to answer our students’ call and work in partnership to make sure we live up to those values.”

While the Kavanaugh nomination has been undeniably traumatic on many levels, I believe one of the benefits has been to open up questions about these obvious disconnects between values and behavior, to lay bare what so many of us know, but lack the power or agency to act upon.

“I went to Yale” was one of Kavanaugh’s defenses when charged with excessive partying, as though admission to an elite school would be impossible if he had been a high school drinker. In this formulation, the achievement of elite status is a kind of absolution for past sins and even a validation of one’s actions going forward. The validation of the meritocratic tribe then allows for free rein as an authority in other areas, as we see with Chua’s prominent side project as a “tiger mother” parenting expert. (See also Steven Pinker's self-declared expertise on The Englightenment.)

I have to say, I admire the Yale law students and their willingness to question whether or not their institution is living up to its values. It’s an approach a lot of us in less august spaces would benefit from as well.

But at the same time, I can’t help but believe they will never succeed in achieving their goals because without the access to power, power which is primarily projected through the kind of tribal loyalty we’ve seen demonstrated by Chua towards Kavanaugh and J.D. Vance toward Chua, going to Yale does not pay nearly so many dividends.

In essence, the students are asking Yale to be something other than Yale. I’m not sure that can be done.

 

[1] Rubenfeld is also currently under investigation by the law school for alleged misconduct, possibly regarding behavior towards female students. 

[2] Brett Kavanaugh clerked for Judge Kozinski and claims he was not aware of any of Kozinski’s harassing behavior, a claim which strains credulity given the scope of Kozinski’s misconduct.

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