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A Worrisome Peek Inside Yale Law’s Diversity Bureaucracy

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Have you ever wondered what deans of diversity do behind closed doors? Until last week, the public had little visibility into their methods. Then covertly recorded audio emerged of Yaseen Eldik, Yale Law School’s director of diversity, equity, and inclusion, and Ellen Cosgrove, an associate dean, pressuring a student to issue a written apology for emailing out a party invitation that offended some of his classmates.

The Yale Law student in question, Trent Colbert, belongs to two student groups, the Native American Law Students Association, or NALSA, and the conservative Federalist Society. He emailed members of the former group that “we will be christening our very own (soon to be) world-renowned NALSA Trap House … by throwing a Constitution Day Bash in collaboration with FedSoc,” adding that refreshments would include “Popeye’s chicken, basic-bitch-American-themed snacks (like apple pie, etc.),” and various beverages. That is what offended some of Colbert’s peers, including the president of the Black Law Students Association, who reportedly likened Colbert’s references to “Trap House” and Popeyes to blackface.

[Read: Yearbooks aren’t the only place to find blackface on campus]

A dispute over a party invitation—even an arguably offensive one—may sound more like a matter for a high-school vice principal than one for Ivy League deans. Nevertheless, the diversity administrators spent many hours on this low-stakes drama among high-IQ adults, affording outsiders an unusual peek at their methods and a related series of crucial mistakes, most stemming from an inability or unwillingness to see how the interests of students diverge from the interests and incentives of their office. Irrespective of whether the invitation was racially offensive, the behavior of Yale Law’s diversity bureaucrats was unethical, discreditable, and clearly incompatible with key values that the elite law school purports to uphold.

Similar diversity offices are now operating at institutions around the country, but their inner workings remain mysterious to many faculty members and students. The Yale Law controversy raises the underexamined question of what it actually means for diversity offices to ethically fulfill their mission, and whether choices made behind closed doors would retain support if exposed to sunlight.

When the law school’s diversity office summoned Colbert for a meeting the day after the invitation went out, he was confused about the reaction to his words. As he later explained to the legal commentator David Lat, “I was never aware of the word ‘trap house’ having any racial connotations. I thought of a ‘trap house’ as like a frat house, just without the frat … I had been calling it that in messages with other NALSA board members for months, and nobody had said anything to me about it.” He also said that the mention of Popeyes was not intended as a racist allusion and that someone else in the organization had chosen the food.

[Elizabeth Bruenig: The new moral code of America’s elite]

Colbert related his confusion to Yale’s diversity officials when they met––and they purported to believe his claim that he was ignorant of any racial connotations. Still, they went on to repeatedly pressure Colbert to apologize for the email, which they referred to as “triggering,” even though no evidence suggests that anyone experienced a bout of PTSD. As Aaron Sibarium of The Washington Free Beacon reported when he broke the story, the administrators also told Colbert that both his ideological affiliation and his race were affecting the amount of scrutiny he was getting—more scrutiny because he belongs to a conservative organization, less because he is not white. They also counseled him to apologize in part because a failure to do so might someday sow doubts with bar associations, which typically mandate that newly minted lawyers have good character to be licensed.

Skeptics questioned the veracity of the Free Beacon’s reporting. But the publication posted corroborating audio that Colbert had recorded during his meetings with administrators, prompting an ideologically diverse backlash against Yale Law. Republican Senator Tom Cotton called the incident “insanity,” while the progressive Slate writer Mark Joseph Stern lamented that Yale’s approach was wrong on the merits and “folly,” as “it provides grist for the grievance-industrial complex that drives the conservative legal movement.” In The Washington Post, Ruth Marcus objected to “a grievance culture in which every slight, real or perceived, is greeted with outsize demands for disciplinary consequences.”

Not everyone was so critical.

After listening to the audio, the Yale Law professor Monica C. Bell wrote on Twitter that a mostly white group of commentators had put themselves in “the odd position of dictating to Black students what they should find offensive.” She also noted that, especially on racial matters, the public conversation about what counts as outrageous changes over time, and “people like those commentators, or even myself, might not be the right ones to sit from on high and drive it.”

[Read: The cost of balancing academia and racism]

Bell is right about the need for epistemic humility. We should all be cautious about pronouncing—across generations and cultures—what should or shouldn’t offend other people. That question is inherently subjective. So is the question of how much one person should be expected to know about how people of other generations or cultures interpret a given term—especially a relatively obscure one whose meaning is evolving. Of course, the offended Yale students themselves made presumptions about how their Indigenous Gen Z classmate understood trap house, failed to inquire as to what cultural contexts had informed his usage, and urged their elders to pronounce from on high. The diversity bureaucrats ultimately weighed in on the offended students’ side, condemning the invitation.

The audio in this controversy affords a rare opportunity to examine how administrators involved themselves behind the scenes and clarify why some observers are appalled by those actions. While trying to placate students aggrieved by Colbert’s message, Yale diversity officials made five major errors:

1. They failed to share important context with the community. In their first meeting with Colbert, the administrators listened to him explain at length that he had no idea trap house had racial connotations. Eldik then told him, “Having met with you and spoken with you, you’re an honest person; you’re someone who clearly has integrity; you’re a good person, and I want that to be what people see from you. And I would hate to have to spend however much longer in this vortex of people making claims about who you are without even having met you once. So I’m very protective over you.”

Later, when those same diversity bureaucrats put out a public statement about the matter, they did not include the temperature-lowering fact that Colbert had said he didn’t know that trap house had any racial connotations, or that they judged him to be honest, or that he “clearly has integrity,” or that his classmates should not make claims about him without knowing him. Instead, they emailed the law students, “We understand that an invitation was recently circulated containing pejorative and racist language. We condemn this in the strongest possible terms. As the Law School’s Discrimination and Harassment Coordinators, we are working on addressing this. If anyone has concerns they would like to discuss further, please reach out to us.” That was two-faced behavior, and most people subjected to it would feel betrayed.

2. The diversity officers exploited the complexity of Yale’s rules and procedures to pressure Colbert. TheAmerican legal system that Yale Law students will enter after graduation is typically at its most abusive when authority figures in government or corporations exploit their own superior knowledge of its intricacies to mislead and manipulate the inexperienced. The law school ought to be teaching students to eschew and oppose such abuses.

In this matter, Eldik and Cosgrove used their private meeting with Colbert to urge the outcome they wanted: a written apology from him to his classmates. While pushing for that outcome, they could have told Colbert what Yale later clarified in a public statement: “Yale University and Yale Law School have strong free speech protections, and no student is investigated or sanctioned for protected speech.”

But the administrators would’ve had less leverage over Colbert if he had understood that the speech at issue was protected and that he would not be officially investigated or sanctioned for it. So they kept Colbert guessing as to whether or how he was being investigated or disciplined, and whether Yale administrators might report him to the bar, making vague insinuations and maintaining strategic ambiguity—even as Colbert explicitly, repeatedly, asked for clarity. They modeled abuse of authority of a kind Yale Law graduates denounce furiously when their clients are subjected to it, and gave all students and faculty reason to distrust the forthrightness of Yale diversity administrators.

3. Yale diversity officials acted like a crisis-PR team. At multiple points in the recording, Eldik and Cosgrove talk of wanting the matter to go away as soon as possible (a goal Colbert himself suggested that he shared), rather than wanting it to play out in the way that is most just, procedurally sound, and educationally rich. When Colbert expressed his willingness to converse one-on-one with upset peers—interactions that would have value for all involved—the diversity bureaucrats discouraged him. As Eldik put it, “I don’t want to put the onus on Black students to reach out to you to talk more.” The administrators also said that “nipping this in the bud,” as Cosgrove put it, would be best. Eldik went so far as to explain that they needed to make sure their office looked good. As he put it: “I also don’t want to make our office look like an ineffective source of resolution because we’re just writing to students and telling them, ‘He’s so sorry; accept our expression of his apology’ on your behalf, so it looks almost as if, like, we’ve all just sort of folded into each other. And it erases your individuality and your agency in this.”

But any concern for Colbert’s individuality and agency was called into question soon after, when—according to the Free Beacon’s account and other outlets’ subsequent interviews with Colbert—Yale’s diversity administrators composed a draft apology for Colbert, apparently preferring the PR value of a quick letter of contrition over the educational benefits of letting a student reflect and write to his peers in his own words. What kind of educators interject themselves as ghostwriters for students? Colbert declined to sign the letter. (He did implement a review process for future NALSA emails and post a conciliatory message in an online forum offering to discuss the matter with anyone who wanted.) But if he had put out their statement as if he had written it himself, he arguably would have been violating Yale Law’s code of conduct. One wonders if bygone apologies at Yale were actually drafted by diversity officers. I emailed Eldik, Cosgrove, and Yale Law Dean Heather Gerken to clarify, among other things, how often the school writes apologies for others and whether doing so is standard procedure, but the officials didn’t respond to specific questions.

4. The officials failed to acknowledge their own conflicts of interest. Students can learn from writing their own apologies, insofar as apologies are warranted, and more generally from working out problems among themselves. But that process can include conflict that makes administrators nervous, and if students succeed in working out their problems on their own, then the diversity bureaucracies will look less necessary.

[Read: Whose interests do college diversity officers serve?]

When he recorded parts of his meetings, Colbert correctly sensed that, in his case, his interests and those of the diversity office were divergent. Yet in the recordings, Eldik and Cosgrove repeatedly talk as if all of their interests are aligned, even as they say and prepare to do things that illustrate the divergences. Colbert worried that the written apology they sought would afford antagonists an opportunity to pick apart whatever he wrote, extending the controversy and leaving him worse off than if he did nothing. Eldik acknowledged that an apology would be scrutinized but minimized that concern, assuring Colbert, “I can’t imagine that that would do anything other than make you a thoughtful, reasonable, kind person, and that is more likely to have this go away, which is clearly what you want, than, I think, any other alternative.”

A better-informed and more transparent adviser would have directed him to the academic literature on apologies—including the strongest case for and against making one. As the USC Marshall School of Business scholar Peter Kim once explained to me, ​​if a transgression is seen as intentional––as was true in Colbert’s case––“an apology can be quite harmful.” Rather than finding an apology appropriate, it is typically seen in these circumstances as confirmation of the belief that someone has done wrong and has character flaws. Deans are not obligated to give any PR advice to a student. But if they do, they shouldn’t omit all information that cuts against their desired outcome. A law school, of all places, should be especially attentive to the ethical obligations that go along with representing oneself as someone’s mentor and advocate.

5. The university failed to safeguard student expression. In Yale’s telling, the university does not investigate or punish protected speech. Administrators may not technically violate that standard by asking you probing questions in multiple meetings and condemning your actions in an all-student email. But “the university’s excuse that no formal investigation occurred is woefully inadequate,” the Foundation for Individual Rights in Education, a nonpartisan organization that works to protect free expression and due process for faculty and students, declared in a statement, because Eldik and Cosgrove were “at best, exceedingly vague about the process the student was undergoing and what consequences he might face if he failed to cooperate,” and, “to the ears of any reasonable student, some of these remarks were at best negligent, and at worst veiled threats.” The foundation is right: “If administrators want to invite a student to participate in an informal and optional conflict resolution process, the burden is on administrators to make crystal clear to the student that participation is wholly voluntary and that the student will in no circumstances face any punitive consequences for declining the invitation.”

The most significant question that remains unanswered at Yale Law School: Was this case unusual, or do the diversity bureaucrats at Yale treat lots of people this way behind closed doors? Cosgrove and Gerken, the law school’s dean, figured prominently in my colleague Elizabeth Bruenig’s report on a bizarre controversy that erupted around Amy Chua, a prominent Yale Law professor whom administrators apparently punished in the spring. Some students had made murky complaints that Chua had entertained other students at her home—and that this was evidence of a threat to students’ safety. Bruenig attributed the dispute to “the culture of elite institutions, where putatively righteous ends justify an array of troubling means, and noble public virtues like fairness and safety cloak more prosaic motives.”

The school’s faculty have a collective responsibility to probe what’s being done in their name.

In a statement Monday, Gerken said that ensuring that Yale Law lives up to its values is her responsibility, “and I stand ready to take any steps necessary to do so.” She added, “I will not, however, act on the basis of partial facts reported out in a charged media environment, as that would be a disservice both to members of our community and to the norms of our profession.”

Ian Ayres, the law school’s deputy dean, will lead a review of the incident. If the assessment is to prove useful, it should ask how deeply Yale Law truly believes something else that Gerken wrote in her message:

The vigorous exchange of ideas is the lifeblood of this Law School. Protecting free speech is a core value of any academic institution; so too is cultivating an environment of respect and inclusion. These two values are mutually reinforcing and sit at the heart of an intellectual community like ours. There are times when it can be a challenge to balance these twin values.

Failing to adequately protect free speech was just the beginning of what Yale Law’s diversity administrators got wrong in Colbert’s case. Never mind the office’s question-begging name. Withholding important context from the community, exploiting asymmetries of information to pressure a student, pretending to be acting on his behalf, obscuring clear conflicts of interest, and ghostwriting apologies in an academic setting are all ethical failures that—contrary to Gerken’s wishes for her institution—cultivate neither respect nor inclusion.


*This article previously described the structure of Yale Law’s administration incorrectly. The school has a director of diversity, equity, and inclusion but not a separate Office of Diversity, Equity, and Inclusion.

This content was originally published here.

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