13 Federal Judges Boycott Columbia University

By: John G. Malcolm / @malcolm_john | May 17, 2024

Read more at https://www.dailysignal.com/2024/05/17/13-federal-judges-boycott-columbia-university/

COMMENTARY BY John G. Malcolm @malcolm_john

John G. Malcolm is The Heritage Foundation’s vice president for the Institute for Constitutional Government and also directs Heritage’s Meese and Simon centers.

Is it proper for federal judges to boycott hiring students who attend a particular university? Thirteen federal judges, all of whom were appointed by former President Donald Trump, have announced that they are going to do just that. In a May 6 letter to Minouche Shafik, president of protest-rocked Columbia University, the 13 judges referred to “recent events” there and informed her that, “absent extraordinary change,” they would “not hire anyone who joins the Columbia University community whether as undergraduates or law students—beginning with the entering class of 2024.” 

The recent events, of course, are the campuswide anti-Israel demonstrations that resulted in the occupation of a school building (Hamilton Hall), multiple arrests, and a smaller-than-usual commencement ceremony punctuated by ongoing protests.

Such antisemitic protests, of course, have been taking place on dozens of campuses, but things seem to have been particularly bad at Columbia. 

In addition to occupying a Columbia University building and assaulting maintenance workers, protesters accosted and assaulted Jewish students, shouting “F— Israel” and “Israel is a b—-” and telling them that they would be Hamas’ “next targets” and should “Go back to Poland!” (This last was a thinly veiled reference to Auschwitz, Treblinka, Majdanek, Belzek, Sobibor, and Chelmno, the horrific extermination camps for Jews that existed in German-occupied Poland during World War II.) 

Many protesters at Columbia were joined by sympathetic faculty members (hundreds, according to The Guardian), who linked arms and formed a protective wall around the anti-Israel encampments. Among these supportive faculty members was Joseph Massad, who said Hamas’ Oct. 7 terrorist attacks in Israel, which left over 1,200 dead and 250 hostages taken, was “awesome” and a “stunning victory of the Palestinian resistance.”

The situation became so dicey that one rabbi associated with Columbia said Jewish students should go home and remain there because the school could not guarantee their safety.

Columbia Law School was not exempt from this activity. The editors of the Columbia Law Review—presumably among the best and the brightest students—said that they, like most of their classmates, were “irrevocably shaken” by what was happening on campus and demanded that the school cancel final exams and simply pass all students.

What judge could have faith in the integrity and academic rigor of any institution teaching future lawyers that this is an appropriate response to disturbing events?

As someone with a long family history at Columbia (my grandfather taught at the medical school and I went to Columbia, as did my father and my daughter), these hits close to home.

In their letter to Shafik, the 13 federal judges wrote that they had “lost confidence in Columbia as an institution of higher education” and that the school had “become an incubator of bigotry.” To restore academic freedom and reclaim a “once-distinguished reputation,” the judges stated, Columbia should do three things at a minimum:

1) See to it that students and faculty members who violated the school’s rules and disrupted campus life, including by threatening Jewish students, suffer serious consequences.

2) Ensure that in the future the university protects free speech and enforces rules of conduct in a neutral and nondiscriminatory fashion.

3) Make “[s]ignificant and dramatic change[s] in the composition of its faculty and administration” to promote viewpoint diversity.

Two of the judges who signed the letter are appellate judges, namely James Ho of the 5th U.S. Circuit Court of Appeals and Elizabeth Branch of the 11th Circuit. Also signing: eight District Court judges from Texas (Alan Albright, David Counts, James Hendrix, Matthew Kacsmaryk, Brantley Starr, Jeremy Kernodle, and Drew Tipton), a District Court judge from Georgia (Tilman Self), a District Court judge from North Dakota (Daniel Traynor), a judge on the Court of Federal Claims (Matthew Solomson), and a judge on the Court of International Trade (Stephen Vaden).

The federal judges noted that the anti-Israel demonstrations on the Columbia campus had made it clear “that ideological homogeneity throughout the entire institution … had destroyed its ability to train future leaders of a pluralistic and intellectually diverse country,” and that it was equally “clear that Columbia applies double standards when it comes to free speech and student misconduct.” 

The judges cited abortion as an example, stating that they had “no doubt” that the response of Columbia administrators would have been “profoundly different” had religious conservatives on campus who “view abortion as a tragic genocide” engaged in an uprising. 

I also have no doubt that this is true, and could cite many other examples: Protest racial preferences in admissions policies or the establishment of black-only housing on campus? Rally against biological males being allowed to compete in women’s sports? Galvanize a petition drive against being forced to refer to students by their preferred personal pronouns? Raise a ruckus over the legality and morality of same-sex marriages? Gather a crowd and give a speech claiming that the 2020 presidential election was stolen?

Not a chance! Any student group that did any of those things would be subjected to discipline for engaging in “hate speech.” But wear a mask and carry placards proclaiming, “From the River to the Sea, Palestine Will Be Free” (with its implicit message that Israel must and will be eliminated)? Well, then, “It depends on the context.” 

There are those, including Columbia Law grad Dan Abrams (whom I recently debated on this subject on his NewsNation show) and MSNBC columnist Jessica Levinson, who say this is a dramatic overreaction tantamount to guilt by association that punishes innocent students who didn’t participate in anti-Israel protests.

Levinson goes so far as to say that the 13 judges are engaging in extortion and blackmail of Columbia. Other commentators, such as Berkeley Law School professor Orin Kerr, say they believe that “judges as judges do not have an important role to play in our society beyond the work they do in the courtroom or in chambers … , and they shouldn’t be trying to help American society solve problems like anti-Semitism, in any kind of official capacity.” 

Still others, less thoughtful or kind, have stated that the judges who vow not to hire Columbia graduates are engaging in a performative protest designed to appeal to “their chosen audience of wackjobs.”

One wonders whether these critics would respond the same way if a university or college, and especially a law school, were to foster a hostile environment, replete with threats to students by mask-wearing fellow students and faculty members, for female, black, or LGBTQ students?

Are there students who will suffer the consequences of this hiring boycott even though they had nothing to do with, and may well have disapproved of, the campus protests? Certainly. But the same could be said of any boycott.

When a group chooses to boycott a product or restaurant chain because of some corporate policy or practice, those who produce that product or work in that restaurant inevitably will suffer the consequences and may well lose their jobs, even though they had nothing to do with formulating the policy or implementing the practice that the protesting group finds objectionable. Boycotts are a blunt but often effective tool designed to bring about systemic change from the top. And change is certainly needed here.

Many of our elite universities, including Columbia, pay far less attention than they should to teaching students how to think and far more attention than they should to teaching students what to think. Overwhelmingly liberal faculty members and administrators divide the world into “oppressors” and “oppressed,” indoctrinate students in left-wing ideology, and “cancel” any contrary views in the process.

It shouldn’t be surprising that some campus activists (supplemented by well-funded outside agitators), used to getting their way with the administration and utilizing a “heckler’s veto” to drown out views they don’t like, occasionally resort to mass protests, threats, and violence when they don’t immediately get their way.  

Those who have observed and decry these developments have the right, if not the duty, to use what leverage they have to promote change. Alumni, for example, can cease donating to their alma mater, which I did several years ago and some far-bigger donors are threatening to do now.

And judges have considerable leverage too in the form of desirable and highly prized clerkships in their chambers that can serve as launching pads for a promising legal career. Judges have a special role to play in promoting civil discourse in society, respect for the rule of law, and making sure that students (and future lawyers) are taught the skills they need to engage with an inquiring and open mind in a critical analysis of various texts and arguments, legal and otherwise.

Such things should be the bread and butter of every university, but, sadly, that is not the case today.

Columbia University professes to provide a top-notch education in an environment that is welcoming to all people and all views. Its law school no doubt touts the fact that its students, including conservative students, have a leg up in terms of obtaining prestigious federal clerkships. Although the latter is certainly true, the former is subject to serious doubt—and these 13 judges are letting everyone know it in a public way.

If enough bright, conservative-leaning students who might wish to clerk for one of these judges decides to go to another university or law school that is more welcoming of their views, Columbia may suffer reputational harm. And that might prompt some much-needed change.

This isn’t the first time some of these judges have announced a boycott. Ho and Branch, the two appeals court judges who signed the letter, previously announced that they were going to boycott hiring law clerks out of Yale Law School and Stanford Law School. Both schools have long histories of liberal activism. 

In March 2022, over 100 students disrupted an event at Yale Law School hosted by the Federalist Society featuring a panel including Kristen Waggoner, then general counsel and now also president and CEO of Alliance Defending Freedom, a public interest law firm that litigates religious liberty cases—and quite successfully too. 

The students stood, waved signs, blocked the only exit, threatened to beat up event organizers, shouted profanities, and grabbed and jostled two Federalist Society members who attempted to leave. When Yale Law professor Kate Stith told these budding lawyers attending an elite law school that they should “grow up,” 417 students signed a letter condemning her.

In March 2023, 5th Circuit Judge Kyle Duncan was subjected to similar treatment by over 100 law students at Stanford Law School. Only this time Tieren Steinbach, the school’s associate dean for diversity, equity, and inclusion, who was supposed to be the adult in the room, egged on the students by saying that Duncan’s work had “caused harm” and questioning his judgment for having accepted an invitation to speak on campus, given some of his more controversial (at least to the riotous students) views on the law. 

Duncan responded: “You are all law students. You are supposed to have reasoned debate and hear the other side, not yell at those who disagree.”

An impressionable and thoroughly misguided future advocate responded, telling the federal judge: “You don’t believe we have a right to exist, so we don’t believe you have a right to our respect or to speak here.”  

When the dean of Stanford Law School apologized to Duncan for the students’ opprobrious behavior, she was greeted by hundreds of masked students dressed all in black and lining the halls, and found that her classroom had been vandalized.

Was the boycott by these two distinguished federal appellate judges effective? (Or, to quote the subsequently ousted Steinbach: “Is the juice worth the squeeze?”)

It may be too early to tell, but the initial signs are quite promising.

Earlier this year, the American Bar Association announced that it would require all accredited law schools “to adopt a policy that would allow faculty, students and staff ‘to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations or protests,’ and would forbid activities that disrupt or impinge on free speech.” The ABA’s new policy also applies to speakers invited by student groups.

At Stanford, Steinbach was placed on leave and ultimately resigned. Administrative staff was reminded that their job is to ensure that campus rules are followed and events are not to be disrupted. They were told they would receive additional training and that school policies would be revised and “clear protocols” provided.

The students who participated in hectoring Duncan were not disciplined, as they should have been. However, they were required to attend mandatory educational programming.

Stanford administrators also announced that, in the future, all students would attend a mandatory, half-day session “on the topic of freedom of speech and the norms of the legal profession.”

At Yale Law School, the dean issued a strong statement that the students’ behavior at the Federalist Society event was “unacceptable” and “violated the norms” of the law school. She wrote that Yale Law School “is an institution of higher learning, not a town square, and no one should interfere with others’ efforts to carry on activities on campus.” She punctuated the point by adding that “this is not ho­­w lawyers interact.”

Yale Law School also revised its disciplinary code and developed an online resource providing guidance on free speech and respectful engagement. Ho and Branch were invited to speak. Waggoner also was invited back to speak, this time without disruptions.

More recently, Yale Law School hired two prominent conservative scholars, including a former law clerk to Supreme Court Justice Samuel Alito who worked for him when Alito wrote the majority opinion in Dobbs v. Jackson Women’s Health Organization, the 2022 decision that overturned Roe v. Wade.

So, it seems that the organized bar, Yale, and Stanford were paying attention after all and are implementing some positive changes. 

Let’s hope Columbia does too.