Yale Law needs to learn to watch its language

Yale Law needs to learn to watch its language
© Yale University. (Michael Marsland)

A recent episode at Yale Law School, in which administrators disastrously mishandled a discrimination complaint, shows how today’s culture wars are sometimes fueled by mutual misunderstanding — sometimes even about the meaning of words.

Trent Colbert, a Yale Law student who belongs to the Native American Law Students Association (he’s part Cherokee) and the conservative Federalist Society, invited classmates to an event cohosted by both groups. “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," he wrote. The invitation promised “Popeye’s chicken, basic-bitch-American-themed snacks (like apple pie etc.)” and hard and soft drinks. 

“Trap house” originally referred to crack houses in poor neighborhoods, but, according to Urban Dictionary, “has since been abused by high school students who like to pretend they're cool by drinking their mom's beer together and saying they're part of a ‘traphouse.’” 

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The invitation was almost instantly screenshotted and shared to an online forum for law students. The school’s Office of Student Affairs received nine complaints. Associate Dean Ellen Cosgrove and diversity director Yaseen Eldik responded by summoning Colbert to a meeting, which he recorded, pressuring him to publicly apologize and denouncing him when he didn’t. The episode has received plenty of negative coverage, including in an earlier article of mine

This has been a weird dialogue of the deaf, a farce of incomprehension. The press coverage has not been immune. Two points particularly need clarification: the basis of the initial complaints, and the meaning of “racism.” 

The students who complained were entitled to be concerned. Ruth Marcus of The Washington Post thought their complaints revealed “a grievance culture in which every slight, real or perceived, is greeted with outsize demands for disciplinary consequences.” But there is a long history of white college students holding parties that ridicule Black culture. Fried chicken is a frequent feature of those parties. In New Haven, the Popeye’s closest to Yale is at the dividing line between "Yale" New Haven and the Black New Haven that Yale students often avoid. The term “basic bitch” originated in rap music.

All this was a horrible coincidence. Colbert made clear that he hadn’t known the racial coding of “trap house,” and didn’t even select the menu. Had this promptly been conveyed to the complainants, the problem might have evaporated.

Cosgrove and Eldik purported to believe him but nonetheless pressured him to apologize and composed a suggested email. Perhaps they honestly thought that, as they claimed, they were simply offering advice about preserving his reputation. The power differential transformed advice into bullying. I hope people on the left don’t need me to explain the idea of privileged people who are dangerously oblivious of their own power.  

Colbert wisely refused to publicly confess wrongdoing. That evening, Eldik and Cosgrove emailed the entire second-year class. "[A]n invitation was recently circulated containing pejorative and racist language. We condemn this in the strongest possible terms" and "are working on addressing this." They did not mention his innocent explanation.

Here is another respect in which different people assigned radically different meanings to the same language. Here, the operative term was not “trap house,” but “racist. 

In contemporary parlance, “racist” has two distinctive definitions. One, the more familiar, subjective one, describes a person who consciously embraces an ideology of white supremacy. But another, newer meaning describes any speech or conduct that, intentionally or unintentionally, has the objective effect of promoting the institutions that tend to subordinate Black people. (Set aside that reasonable people often disagree about whether a given statement or action has that effect.)

The most innocent possible explanation for the use of the term in Eldik and Cosgrove’s message to the students would cite the second, objective meaning. (The subjective one would have been actionably defamatory.) The epithet “racist” was applied to the language, not its author. The objective meaning accounts for the weird fact that, as Colbert told me, “They sent that out while they were on the phone with me telling me that there’s no judgment here.” 

This also would explain how Yale could, after sending this message, declare that it has no intention of reporting his email in response to bar examiners’ character and fitness inquiries. If you accept the objective definition, there is no judgment or blame, because Colbert could say racist things without knowing it or even being capable of knowing it.  Maybe that’s why they didn’t mention their knowledge of his intentions: It was irrelevant.

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But even if you believe all this, it still doesn’t exculpate the administrators. The subjective term is by far the most common usage. In a mass email, that is the meaning most readers can expect to take away, and they wrote nothing to correct that impression. They identified themselves as “the Law School’s Discrimination and Harassment Resource Coordinators.” So Colbert was publicly branded as “racist” before his peers. If this was not deliberate malicious harm of a student, it at least amounted to culpably reckless endangerment.

UCLA law professor Eugene Volokh observes that Yale is teaching the wrong lesson to students on the other side of the controversy: The lesson that, when you see a statement that has a bad connotation to you, the right thing to do is to ignore the reality of diversity — the reality that different people honestly perceive words to have different connotations.” Eldik and Cosgrove might have performed a useful function in conveying that reality. No diversity training could possibly prepare for the weird coincidences that generated the initial offense. Their mistake was to adopt one side’s narrative and attempt to impose it on everyone. 

The job of managing diversity is well worth doing, but it needs to be done better than it was here. One can say that hereditary aristocracy is a bad idea without embracing the politics of Robespierre. And one can say that anti-racism work is important without embracing Yale’s ham-handed approach.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Gay Rights vs. Religious Liberty? The Unnecessary Conflict” (Oxford University Press, 2020). Follow him on Twitter @AndrewKoppelman.