A poorly worded tweet became a career-altering conflagration for Ilya Shapiro in a particularly egregious example of cancel culture. It prompted him to take a hard look at the state of legal education, which he now skewers in Lawless: The Miseducation of America’s Elite. He and host James Patterson discuss the book, the atrocious impact critical theory and DEI has had on our law schools, and what the future might hold.
Books by Ilya Shapiro:
Lawless: The Miseducation of America’s Elites
Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court
James Patterson:
Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.
Hello and welcome to the Law & Liberty Podcast. Today, my guest is Ilya Shapiro, a senior fellow and director of Constitutional Studies at the Manhattan Institute. He was executive director and senior lecturer at the Georgetown Center for the Constitution, and before that, vice president of the Cato Institute and director of Cato’s Robert A. Levy Center for Constitutional Studies. Today, we’ll be talking to Mr. Shapiro about his forthcoming book, Lawless: The Miseducation of America’s Elites, which should be coming out very soon after this podcast, so be sure to look it up on Amazon-
Ilya Shapiro:
Actually, by the time this airs, I think it’ll already be out. January 14 is the pub date, so Lawless: Miseducation of America’s Elites. Go get it in any and all formats.
James Patterson:
That’s right. For those of you who need a little bit of schooling about self-promotion, Mr. Shapiro has provided you excellent example. Be on top of all this stuff. Anyway, welcome to the podcast.
Ilya Shapiro:
Good to be with you, and it was good to recently hang out with you and talk deep thoughts at a Liberty Fund retreat about the future of fusionism, and I’m happy to discuss the illiberal takeover of hire and especially legal education here.
James Patterson:
It was a great event. Fusionism, as always, a topic I love to talk about, and it was great to hear your thoughts about it as well, but that’s all kept hush-hush. What’s spoken at Jacksonville stays in Jacksonville. This is a book that’s not merely addressing a public policy problem, but it’s one that has a bit of a personal touch to it. Why don’t you tell the audience who’s not aware of your experience with cancel culture about what maybe was part of the motivation for this book?
Ilya Shapiro:
Yeah, Lawless uses my so-called lived experience as a jumping-off point for discussing problems with ideology, bureaucracy, failed leadership, all of these. The morass of pathologies in higher ed, and especially legal education. I focus on that not simply because I’m a lawyer but because, while it’s sad and unfortunate for human civilization, if English or sociology departments go off the rails, law schools train the next generation of the gatekeepers of our legal and political institutions, so that’s very important, if they start disbelieving in the objectivity of truth and the rule of law is illegitimate and all these. … We’ll get into that. Anyway, my personal experience, what launched this endeavor. I had been at the Cato Institute for nearly 15 years, and the opportunity presented itself to take my career in a new and exciting direction and join Georgetown Law School’s faculty to direct their Center for the Constitution, which is an important center, as we’ve learned, because the rest of the law school is the center against the constitution.
Randy Barnett hired me, he founded that center, a giant in the legal academic world, especially in the libertarian legal academic world. Hired me to run the center, to teach some classes, have an inward-facing focus as well as an outward-facing focus to proselytize about originalism, and so forth. A few days before I was due to take that job, I was due to start February 1st, 2022, was when Justice Breyer’s retirement news broke, and my day job, my bread and butter is as a follower and advocate before the Supreme Court. My previous book, Supreme Disorder, also still available both in hard and soft cover. It talks about the politics of judicial nomination fights and all the rest of that. I was doing media that day, I think it was January 27th, and I was on the road, happened to be on the road in Austin, Texas.
If I was at home, this probably wouldn’t have happened, the book wouldn’t have happened, because that night, when I got back to my hotel room, I was doom scrolling Twitter, not a best practice, and becoming more and more upset about President Biden hewing to his campaign pledge to appoint a Black woman to the Supreme Court. Now, there’s nothing wrong in the abstract with appointing a Black woman to the Supreme Court, but I thought and still think that the president should consider people of all backgrounds and not limit their candidates for any job, whether it be janitor or Supreme Court justice, based on race and sex. I was stewing it in that upset and fired off an ill-advised hot take on Twitter, as we all tend to do, I think, from time to time.
I said, “Look, if I was a progressive Democratic president, I think I would appoint the chief judge of the DC Circuit, the second most powerful court in the land. A man by the name of Sri Srinivasan, happens to be an Indian American immigrant as well, but under today’s hierarchy of intersectionality, that won’t fly, and so we will be left with a,” quote, “Lesser Black woman.” Meaning that, if it’s not Srinivasan, as I was positing, everybody else was less qualified, but in the limitations of Twitter, the character limits and so forth, it came out as “Lesser Black woman.” Then I went to bed and things blew up overnight. My ideological enemies called for my head, an investigation was launched. It was four days of hell for me, personally, I wouldn’t wish it on anyone other than the Twitter troll who launched all of this cancellation attempt against me, Slate‘s legal correspondent, Mark Joseph Stern. I felt my entire professional life crumbling before my eyes. Everything that I’d worked for decades, my parents’ sacrifices in taking me out of the Soviet Union.
It was terrible, it was God-awful. Then the Dean of Georgetown, Bill Treanor, after slandering me with his initial statements about how what I said was appalling and we can’t tolerate his saying that no Black woman can ever be qualified for the court, which is not what I said. Anyway, instead of either firing me or vindicating me, saying, “Well, that’s protected by our free speech policy, even if I don’t agree with what he’s saying,” or what have you, he took a middle course. He punted, as, as I’ve come to learn, higher ed officials, law school deans tend to do. Punted it to the DEI office and the human resources to investigate me for whether I violated Georgetown’s harassment and anti-discrimination policies, which was bizarre, because it was an investigation of a tweet, and you apply … these policies are very short and straightforward, so you sign that to some junior law professor to look at it for half an hour and come up with a conclusion.
No, it ended up being a four-month so-called investigation with Zooms with these HR and DEI people with just banal questions, and what have you, which I detail in the book. At the end of which, these four months of purgatory, if you will, that followed the four days of hell, some junior associate in the big expensive DC law firm that Georgetown hired to advise them, Wilmer Hale, looked at the calendar and realized I was not an employee of Georgetown when I tweeted, and therefore, these policies don’t even apply to me. They don’t have jurisdiction, as it were, and so I was reinstated on that technicality. It wasn’t a vindication of free speech or anything else. I celebrated that, but then I read the fine print, this 10-page report from the Office of Institutional Diversity, Equity, and Affirmative Action, which said that if I were to say something equivalent that caused offense, then I would be creating a hostile educational environment and I would be back in the star chamber.
Taking advice of counsel and Professor Barnett and my wife, who’s a better lawyer than all of us, I realized I simply could not continue. It was untenable, I would not be able to do the job I was hired for, whether in terms of writing op-eds or commenting in the media about, say, the challenge to Harvard’s affirmative action program that was ongoing in the Supreme Court at the time or other cases involving, I don’t know, a graphic designer who didn’t want to create a web page for a same-sex wedding, or any of these sensitive, controversial, political, legal issues. Somebody would call offense, there’d be another letter-writing campaign, and away we’d go. I realized that I had to quit, I had to resign, and as we lawyers do, I made a loud exit. I published my resignation letter in the Wall Street Journal, as one does.
Announced my next move to the Manhattan Institute on Tucker Carlson’s show on Fox News, as one does, and I’ve been using this platform I’ve been given ever since to shine a light on the rot in academia and sound the alarm about these weaknesses in ideology, bureaucracy, leadership. Never intended to be a poster boy for cancel culture, but they tried to cancel me, I canceled them, and here we are.
James Patterson:
A big question I always had for you about this experience was, to what degree did you have, really, any confidence in the ability for a DEI office at Georgetown to actually promote diversity, equity, inclusion? Because it seems to me that its true operation was to enforce a ideological monoculture or compliance, and do so by creating a process-is-the-punishment situation where you’re going through all of these meetings. Is it really even trying to promote real diversity, equity, and inclusion, or is it just, like you said, a star chamber meant to extract judgment without due process?
Ilya Shapiro:
Well, as I write in Lawless, this is based in good intentions. I’m not saying that these inquisitors have malevolent motives. I mean, they might not have liked me, because they didn’t like my comments that didn’t fit into their rubric of privilege hierarchy, or whatever, but they want to make America a better place, they want to make Georgetown a better place, and so forth. But globally speaking, these DEI offices fail on their own terms. That is, campus climate surveys. … Now, I’m no statistician, so I can’t say it definitively, but there’s no correlation between the size of a DEI office or the number of staff, or its budget, and an increase in student feelings of belonging or comfort with diversity. In fact, there’s some indication articles that I’ve read that seem to say that there’s an inverse relationship. Far from failing, they actually cause harm in the very things that they would be doing.
Certainly my experience with this office, it was … After a while, after the shock of whether my whole professional career would crumble, and I started getting speaking invites and job offers and writing invites and things, my lawyer gave me the green light eventually just to keep doing my job, speaking about the Supreme Court and legal issues. Not talking about the investigation or Georgetown, but do my normal job. It became clear, the longer this went, that it was just a farce. Not that I was expecting very much of it going in, but I mean, to drag on for months and months, and it became apparent that the dean was just waiting for the students to get off campus, so when he made his eventual announcement, there wouldn’t be mass protests and what have you, is another aspect of this profile encouraged that’s a problem.
No, I mean, these DEI offices are just … Again, I’m not saying these actors are all evil or what have you, but the whole institution … They even have an industry group. The association, I forget what the actual name is. It’s something like the Association of Human Resources Professionals for Diversity Offices, or something like that. Thousands of members, and like the great political economist, Mancur Olson liked to say, “The growth of bureaucracy is the decline of nations.” Similarly, this educational bureaucracy, whether with private schools or public schools, is very much to the detriment of the core mission of an open inquiry advancing human knowledge. In this case, teaching lawyers.
James Patterson:
Yeah, the cultural climate of academic research is supposed to be one of relative openness and tolerance, because of the diversity of views and the multiplicity of disciplinary approaches, but it seems like there’s an attempt to enforce a orthodoxy here. Maybe not with, like as you said, bad intentions, but at least with unintended consequences. Did you find that your colleagues at Georgetown were at all concerned about these restrictions on them, or were they advocates for them?
Ilya Shapiro:
Very few people who supported me at Georgetown took public positions, or even emailed the faculty listserv. Nick Rosenkranz is one, Randy Barnett was in a delicate situation. He was working on the dean, there was no need him, he was hiring me. He necessarily played a different role, but no, the Georgetown faculty, they were the attack dogs who said I should be fired. David Cole, legal director of the ACLU, who’s always also on faculty at Georgetown, said that what I said was definitely terrible, maybe racist, but I shouldn’t be fired over it. Okay, that process argument is perfectly fine, but most people just … As you say, this toxic climate on campus, most people are just trying to keep their head down and not get caught in the cancellation crossfire.
James Patterson:
Yeah, that is something I’ve really worried about, because the purpose of university administrations, especially at universities as prestigious and long-lived as Georgetown, is to preserve the academic climate for faculty research and for student learning, and from what I gather, that is the opposite of what they’re interested in here. They’re really much more interested in sacrificing those two ends for the purposes of avoiding bad press and avoiding potential lawsuits, and it seems to me that sticking to your guns and showing that you will so is probably better for both of those purposes, both the academic mission and for avoiding lawsuits. If you’re willing to say that, “I’m going to play this game too,” I will defend myself, I’ll defend my faculty, I’ll defend my students who actually discourage people from coming after you, but because of all the caving, people know that it works, and so they’ll push even for something as absurd as trying to go for your ouster and then succeed. It’s maddening.
Ilya Shapiro:
Well, to be clear, they didn’t oust me. You have a black eye to Georgetown and to Dean Treanor and everyone involved there, alumni still question him. There’s an impact on donations, I understand. He apparently curses my name and things like this.
James Patterson:
As it should be.
Ilya Shapiro:
Right.
James Patterson:
This is unacceptable behavior, they don’t deserve it.
Ilya Shapiro:
Karma is real. Apparently, this is not confirmed, but I was speaking at Fordham Law School soon after all of it concluded, and the scuttlebutt is that Treanor lost out on Fordham’s presidency, in large part over how he handled my case. He had come to Georgetown from being Dean of Fordham Law, and then he was up for the presidency and lost out on it. Anyway, all I did was right. Not quit right away and not grovel and bend the knee. I did apologize for poor communication. I said, “That was a poorly phrased tweet, I should have said it a different way,” and that’s it. I was invited to apologize further and start talking about systemic racism, and all these other tropes. I declined to do that. Just by holding out and saying, “Nope, I’ve got nothing.” Just by holding out until they had to make a decision one way or another ended up being the right thing, but you’re right, that university administrators, whether law school deans, department chairs, or provost presidents, these are largely not woke radicals or social justice warriors.
James Patterson:
Right.
Ilya Shapiro:
They’re careerist bureaucrats, and what they have to do to … Actually, they could do well by doing good, that is the right thing to do. Would help them both with PR, donations, all these other things if they have a policy and an established enforcement practice of not allowing these cancel culture inquisitions, what have you, to go on. To actually promote a culture of open inquiry and discourse and academic freedom, then that’s better on all sides. You see that from, say, the late Bob Zimmer at the University of Chicago, or the University of Chicago more broadly, which has been largely immune from these controversies. That happens to be my law school alma mater, so I’m proud of that. David Diermeier, the Chancellor of Vanderbilt, who’s gotten national plaudits for kicking students out of his office who took it over during the pro-Hamas encampments, and all of that.
Or Ben Sasse when he was president of the University of Florida, how he handled certain protests, versus say, what happened at Columbia. I mean, it is not a high bar. It’s not rocket science, you don’t have to develop whole new complicated theory or new policies to deal with these sorts of issues. It’s just apply existing rules. Georgetown’s free speech policy does not need fixing, it’s great on paper.
James Patterson:
Yeah.
Ilya Shapiro:
On pixels, but Dean Treanor the whole time was wringing his hands through his final statement when he reinstated me, wringing his hands about how difficult these issues are, because it presents a tension between our core values of free speech and equity. Well, no. I mean, who exactly was I harassing? Joe Biden? I’m not exactly sure how all of that is supposed to work. These careerist bureaucrats turn out to be, in large part, spineless cowards, and that weakness encourages a further breakdown in the campus community. I’ve kept speaking in law schools and other academic settings, and university leaders come up to me and say, “What should we do?” I’m like, “Well, enforce your rules. Create a culture … You’re very good,” university leaders are very good at sending emails, having trainings, just establishing cultures to advance, whether it be public service, environmentalism, entrepreneurship. “Whatever your values are, of your institution,” they’re good at doing that. Well, free speech, academic freedom, these sorts of things, tolerance of views you don’t agree with. They can do that, but in so many cases, they just don’t.
James Patterson:
Yeah, and it’s also an immense waste of everyone’s time. You would think these people would have more vacation days available to them if they didn’t make everyone sit in Zoom calls. They could just take the afternoon off instead.
Ilya Shapiro:
Actually, you mentioned Zoom calls and the meetings with the inquisitors, this is the other extra perverse dimension to all this, or bizarre or ridiculous. This is spring of 2022, and Georgetown still had heavy COVID restrictions, so I never actually met in person with Dean Treanor, with the DEI officer, or anybody else, because we would’ve had to been wearing masks if that was the case. All of this was done over Zoom.
James Patterson:
Which makes it all the more surreal and disembodied, literally. This isn’t just about your particular case, but also how this case prompted you to take a very hard look at legal education, big part of what you’ve written here. Why don’t you talk about the law school as an institution in the United States and how this approach has really made its way into forming its graduates.
Ilya Shapiro:
It used to be, if anyone’s watched the movie The Paper Chase, which I encourage, it’s a movie from the ’70s about Harvard Law School and Professor Kingsfield, this very old-school professor, uses the Socratic method, asking questions of students to get to the ultimate point of his teaching. Law school used to be … The first year, you ran this cursus honorum, everybody takes torts and property contract, constitutional law, criminal law, legal writing. That’s it. Everybody takes the same thing, you run that rigorous gamut. For me, personally, that still was the case when I was at 1L. For me, I don’t think I necessarily got it, but 1L ended, and I passed and I survived. Then you go into your second year and you take more doctrinal elective. Securities, law, other topics in constitutional law. International law, these standard things.
Then the third year, it’s more wide-ranging. You either do independent studies and writing papers, or you take these more esoteric subjects. Sports law, say, entertainment law, advanced security. Whatever, things like that. It was all to understand and inculcate how our institutions work, the post-enlightenment tradition that the founders established, how our system of government work from a legal perspective, how to advocate zealously from your client, understand different perspectives. All of these sorts of things. That has shifted. Now, in many ways, students are taught to question the legitimacy of the law and the legal institutions itself. It’s bizarre, it’s dangerous, because if all of our institutions, say, are irrevocably imbued with racism, sexism, patriarchy, all of these different things, they need to be deconstructed and reconstructed in a year-zero revolutionary zeal. It’s very much like the Chinese Cultural Revolution or the French Revolution, or what have you.
That doesn’t say good things about these graduates, whether they’re going to be prosecutors, public defenders, judges, general councils of companies, nonprofits, what have you. I mean, it undermines the whole basis of American freedom, prosperity, equality, what have you. I mean, the notion that equality under the law is a white supremacist dog whistle, these things that these postmodern theories come up with. I’ll tell you, when I was in law school in the early 2000s, these … This comes from critical legal studies, from which critical race theory and queer theory are offshoots. We thought of these crits as a spent force. That was something from the ’80s, early ’90s, these weird flare-up of theories that had been long relegated to the sociology departments, or what have you. But it turns out that, as one of the chapters in my book, Lawless, is called, “Critical Theory Returned with a Vengeance.”
Especially in the last 10 years or so, the Obama Administration’s worsening of race relations, the Ferguson Effect from 2014, social media and the work that Jonathan Haight and Greg Lukianoff have documented about how that generation approaches things differently, is culturated differently. The election of Donald Trump, COVID, the killing of George Floyd, all of these things changed … Well, changed all of society, but really affected law schools in that particular way, in a very negative way. That is to the point where, as I write, Derek Bell and Kimberly Crenshaw, the founders of critical race theory, have replaced Louie Brandeis and William Blackstone as avatars of legal education, which is very dangerous.
James Patterson:
Yeah. This is something I’ve thought about a few times, which is that the critical approach is really just one theory that you can apply from a bunch of different vantages, right? It can be critical race or critical queer, or whatever. It’s actually easier than the cursus honorum that you just mentioned. That’s hard, it’s hard to teach and it’s hard to learn. This might actually reflect a desire from both the faculty and the students just to have to do less work. Is this maybe what’s going on here, or is it that there’s a demand for this education rather than demand for someone who does securities and torts?
Ilya Shapiro:
Never discount the laziness of either students or professors, for sure.
James Patterson:
As a professor, I never discount it. I know myself too well.
Ilya Shapiro:
Yeah, there’s an intellectual laziness and there’s also just a lazy laziness in general. I think that’s part of it. Another part of it is bureaucracy, because … We’ve just been talking about the theory and the ideology from an academic perspective, and what’s taught, which gets covered a fair bit, but something that is less sexy is the bureaucratic growth and how there are now, in every institution, more non-teaching administrators staff than teaching faculty. Whatever is going on with the faculty, in terms of ideological discrimination in hiring, types of courses that are offered, how law is taught, the fact that, even though a majority of the Supreme Court and half the judiciary in general are originalists, but originalism is, at best, taught as in some sneering, snide way that really is a detriment to the students. Setting aside that academic intellectual part, the fact that the bureaucracies have exploded and, in the last decade, most of that bloat has come in the DEI space really does a further disservice, and it’s made these non-teaching staff who are not imbued or raised up in academic virtues or academic values is really troubling, because you have these structures.
Again, these deans who are inculcating culture, and what have you, having trainings, having all sorts of organizational sessions, orientations, handholding the safety-ism and the therapizing of education of higher ed, where students need a crying room to process the trauma of not just exam season, which is how all this started off 20 years ago, or what have you, but elections that didn’t go their way or the presence on campus of someone like me or someone else. Judge Kyle Duncan at Stanford, who got shouted down because … It’s just these bizarre trends, which are driven by bureaucracy, even beyond, again, the concern that definitely exists from the academic faculty perspective.
James Patterson:
Students certainly know how to respond to those incentives, where a bureaucracy that’s mostly afraid of liability or complaint will leverage that administration against their own faculty members, so the faculty will end up caving lowering standards, and this is occurring even at elite institutions. What does this mean then for the next generation of attorneys and judges that are forthcoming?
Ilya Shapiro:
Right. I mean, even the deans of elite law schools cow at their supposed underlings who run the DEI offices or the university-wide ones. What it means is that students are not well-prepared to execute their jobs if it’s triggering and unsafe and improper to teach, I don’t know, the arguments against gay marriage, say, or about the graphic design or the cake baker that doesn’t want to work a gay marriage, or what have you, or the pro-Second Amendment arguments. In all of these spaces, the so-called politically incorrect positions, just so you can understand them, so you can be a more effective argument for your progressive side, “No, we can’t do that.” It makes for less-effective lawyers. It also makes for legislators and developments in the criminal and civil justice space that is really detrimental to society. For example, sentencing based on race in Canada, for example.
Certain places in California, you’ll get different sentences for the exact same behavior between two criminal defendants, the same behavior, same criminal record, they’ll be sentenced differently depending on what race they are. It’s the antithesis of equal justice under the law, for example. One other thing here I should mention. We’ve been talking about the head deans, we’ve been talking about DEI offices. The admissions office is also a component here in that, especially at the elite places, your Yales, your Stanfords, they screen for activists rather than scholars. If you write in your personal statement, “I want to change the world, I want to radically restructure these illegitimate institutions,” what have you, that’s going to give you a leg up versus if you say, “Well, I want to prosecute child molesters,” or, “I want to work on corporate antitrust to make corporations, American free enterprise, more efficient and fair for the consumer,” or something like that.
Sometimes they make headlines or somebody wrote, “Black Lives Matter,” 250 times in their personal statement, and then they got into … I forget whether it was Stanford or Yale, but these sorts of things. Admissions offices are also to blame in this degeneration of our system.
James Patterson:
There’s a weird problem with this, where you have … In the law school market of students and faculty, the most elite universities are experiencing even higher rates of application, and then lower-ranked ones are actually starting to kind of starve. But the question then becomes, are these elite institutions receiving high-rates application? Are they really elite if they’re not doing the job that you said they do and they’re producing inferior attorneys, people who … We could even joke that it’s a vast right-wing conspiracy to make the left’s attorneys worse, but that’s not it, right? It’s actually like internal incentives, as we talked about before. Would you really call Yale Law School an elite institution if it doesn’t even teach towards its first year and can’t even comprehend defending the Second Amendment rights that Constitution currently upholds?
Ilya Shapiro:
Well, we’ve seen, society-wide, the decline in respect and confidence in, well, institutions generally, but certainly higher ed more than most institutions. This has been especially highlighted since October 7th. How is it that the heart of antisemitism in our country is based in the most progressive, so-called educated spaces, and where, as Bill Ackman wrote in his evocative essay that came out the same day that Claudine Gay resigned the presidency of Harvard, “The antisemitism is the canary in the coal mine, the tip of the iceberg that signals pathologies that are there underneath.” The crisis in higher ed is very much in our national public discourse now. You’re right, the places that don’t merit respect are declining in respect. Conversely, places that … Again, it’s a low bar, where their leaders are actually doing their job and preserving the core truth-seeking mission of any institution, or preserving the teaching of law and respect for the rule of law, and things like that, are relatively rising.
They’re playing money ball. Your University of Chicago, your UVA, your Scalia Law School at George Mason are able to hire a professor, are able to entice students that perhaps they wouldn’t if your Harvard, Yale, Stanford, Columbia were less pathological.
James Patterson:
You saw the appointment of the first non-Yale/Harvard Supreme Court Justice with Amy Coney Barrett. Is her appointment kind of a sign that we’re no longer being held hostage to this duopoly, because the products of that duopoly aren’t really what they used to be?
Ilya Shapiro:
I think there has been a bit of a vibe shift, if you will, and indeed, in general, the last decade, more students from below the top 10 or so schools have been hired to be clerks for the Supreme Court, for example, and other similarly prestigious positions, which makes sense, because your top person or your top 5 percent at Notre Dame or Alabama or any number of schools that are still good, but US News doesn’t consider them to be top 10 or whatever, are going to be better than your average person, say, at Yale or Stanford. I think that recognition is out there. A bit of a democratization, if you will, a bit of a decline in the fetishization of these other schools, but I’m seeing some green shoots even at these properly-maligned schools. For example, Heather Gerken, who is the dean of Yale Law and isn’t one of these careerist bureaucrats who does want to climb that greasy pole even further to become president of one of these Ivy League institutions.
She has seen the hits that Yale law has taken, and so recently hired Keith Woodington away from Princeton to … Given him a bunch of money to do a free speech, academic freedom center and other programming, and not just senior established faculty. Hired a young junior professor who had clerked for Alito, of all things. I believe in the same year that Dobbs even came down, the overturning of Roe V. Wade. Something like that would not have happened had it not been for all of this bad publicity or, for that matter, the dozen or 14 federal judges that said, “Because of your bad free speech climate at Yale, we’re not going to be hiring clerks from there.” My friend, Judge Jim Ho at the Fifth Circuit, and Lisa Branch of the 11th have led that effort, and then added Stanford after the shouting down of Kyle Duncan.
Added Columbia after their terrible policies with regard to antisemitism. Those things are having an effect, and I’m an all-of-the-above person, so we should try lots of different things, both internally and, as economists would say, exogenous shocks to try to force reforms in these institutions.
James Patterson:
I’ve heard more than once from people who’ve worked in the judiciary that it’s actually very difficult sometimes to take traditional elite 1L or 2L students into their summer clerkships. You essentially have to reteach them or even engage in a new teaching that they didn’t get, but were supposed to get in order for them to be qualified clerks. Judges don’t always have time for that, so it makes sense that they would do this not just because of a kind of ideological counterattack, but because they need to get their jobs done, and these clerks aren’t doing their jobs. It’s breathtaking that it’s taken this long for law schools to respond to these incentives, but it’s one thing to get negative write-ups in the conservative press, but it’s another when federal judges won’t take your students anymore. That’s really hitting them in where they live.
Ilya Shapiro:
Or employers. After October 7th, the 100 top law firms, 200 top law firms in the country had an open letter to the deans of law school saying, “We can’t hire people who protest in favor of Hamas and baby killers,” and all the rest of it, “I don’t know what you’re doing, what culture you have, but you have some problems. Go fix it.” These are not right-wing institutions, the nation’s leading law firms, 95 percent donate to the Democratic Party, et cetera, but they recognize that, A, they want students that actually know how to write a memo, and B, are not going to be just inveterate bigots of that sort. That’s heartening to see, because there is a bit of a problem otherwise, in the sense that there’s some thinking that … Well, like in the ’50s and ’60s, law firms would say that, “Well, we would love to hire Black lawyers, but our clients don’t want them.” That excuse is hard to maintain these days.
James Patterson:
As we wrap things up, what is really the future for all of this? One theory I’ve heard many times is that this a heavy administrative bloat, DEI-focused university was a product of 0 percent interest rates, and as things actually become more expensive and we start to hit a cliff in student enrollment, because of a population decline after the housing crisis, the justification for having all these effectively unproductive administrators on staff really goes down the tubes. But on the other hand, they’re the ones who make a lot of the hiring decisions, so you end up with maybe law schools without faculty. What do you think is going to happen here? There’s a pretty wide-open situation here.
Ilya Shapiro:
Well, who was it that said that, “Something that can’t go on, won’t”? Is that one of Herbert Stein’s maxims?
James Patterson:
Yeah.
Ilya Shapiro:
I think Ben Stein’s father. Yeah. I mean, at a certain point, it’s going to take … We haven’t talked about the Department of Education, but they can do various steps in terms of investigating and actually withholding funds, not having these sweetheart settlements, as we’ve seen from the Biden administration as it’s going out the door, of places that deny their students their civil rights, their free speech rights, and all the rest of it, or removing the ABA’s accreditation monopoly, for example. There actually is some accreditation competition among, say, liberal arts colleges, but there’s not in law schools. The ABA is the only game in town, and that’s bad. I have a whole chapter in my book, Lawless, on the perversions and foibles of the ABA. The education department could get rid of that, you don’t need new legislation to do that.
I think, as there’s a recognition that some institutions are better than others, both from students, from employers, we are going to have probably some shifts, and state legislatures for that matter, with respect to public schools at least, have a role to play not in dictating what gets taught in the classroom, but in eliminating offices that are counterproductive and not funding structures that are value-subtracting. Just like they can decide that this school is going to focus on STEM, that school is going to focus on liberal arts, we don’t want these DEI structures, we don’t want diversity statements in hiring. There’s certain things that there’s a role to play for both the public and private sectors.
James Patterson:
Actually, before we go, I want you to say something about the ABA since you do have a whole chapter on it, and I’m skipping that. This problem with the monopoly and the ABA in terms of its accreditation, what would be an alternative? Or is there an emerging alternative potentially for accrediting law schools?
Ilya Shapiro:
Well, within any state, the state bar, which typically answers to the state Supreme Court, can, for purposes of practicing law within that state, say, “You don’t have to go to an ABA-accredited law school.” I think that’s only in place in California, ironically perhaps. Other states could do that, but other states could also … If the education department removes the accreditation monopoly, they could find other ways to accredit. Surely, there would be other accreditors or certifiers that would spring up, and schools could say, “Well, I’m approved by the Liberty Fund,” or, “I’m approved by this other new accreditor.” The state Supreme Court could figure out who exactly they want to allow to practice law to get a law license in that state. States can get together in a interstate compact to have reciprocity in that regard, but you would have a burgeoning market, a competition in accreditors that simply can’t exist right now.
James Patterson:
This is something I didn’t know. I did not know that this was a federally-backed monopoly through the bar. Am I understanding this?
Ilya Shapiro:
Yeah, yeah. The Education Department accredits accreditors, if you will. Gives their stamp of approval that, “You have the right to accredit these institutions,” for them to get federal funds and things like that.
James Patterson:
Fascinating. This is actually a really great idea.
Ilya Shapiro:
Just so neither I nor anybody else needs to reinvent the wheel, the Defending Freedom Institute, my friend Bob Itell over there has been doing great work, has put out a couple of studies about reforming accreditation. It’s a really wonky, really nerdy subject, obviously, but the work is all there.
James Patterson:
The book is Lawless: The Miseducation of America’s Elites. The author is Ilya Shapiro. Thank you so much for appearing on the Law & Liberty Podcast.
Ilya Shapiro:
Well, thank you. In case your listeners want to find me, I also have a Substack, Shapiro’s Gavel. You can also go to the website of the Manhattan Institute, which is simply manhattan.institute. You might not be aware that .institute is a suffix, you don’t need org or com, or whatever, and you can find me on X, formerly Twitter, @ishapiro.
James Patterson:
The man himself, thank you so much. Thanks for listening to this episode of the Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts, and visit us online at www.lawliberty.org.
In addition to their legal strategy, opponents of DEI ought to articulate a set of moral and political principles for civil rights changes in higher ed.
Why impeachment has always been a tough call for the American people to make.
