A league of their own

At a springtime reception for students admitted to Yale Law School, a quiet question circulated among some prospective members of next fall’s class: Should I still attend Yale?

Aaron Haviland—a third-year law student slated to graduate in May—answered yes: “But it’s a harder decision than when I made it.”

Haviland doesn’t have an acute case of senioritis. But he and other conservative students at the Ivy League law school say they face another condition: a hostile environment for students who defend religious liberty.

That’s not a shocking ailment given the leftward tilt at many major universities, but even Haviland was surprised at the response earlier this year when Yale Law School’s chapter of the Federalist Society announced an event featuring attorney Kristen Waggoner. She works with the religious liberty organization Alliance Defending Freedom (ADF).

The group is known for its Supreme Court victories in religious liberty cases, including its win in the Masterpiece Cakeshop case.

“Let’s call a spade a spade,” declared the student representatives of first-year law students. “ADF is a hate group that does not belong on our campus and does not deserve legitimization.”

Another student group upped the ante, suggesting students that support groups like ADF don’t belong on campus either.

The leadership of the OutLaws, an LGBTQ group, wrote an open letter asking law school Dean Heather Gerken to clarify Yale’s admission policies: “Will students be admitted to this community, who, for example, have worked to sue cities and states for passing anti-discrimination laws and ordinances?”

The answer appeared to remain yes, but another part of the OutLaws’ demands gained traction: They asked the dean to clarify whether Yale Law School would offer funding for summer fellowships to students working for organizations that “discriminate against members of its community.”

In a nutshell: “Will students be able to receive [fellowship] funding to push discriminatory agendas during their summers?”

About a month later, the dean announced the law school wouldn’t offer funding for summer fellowships, postgraduate fellowships, or loan forgiveness programs to students working for organizations that violate Yale’s nondiscrimination policy.

The full implications weren’t immediately clear, but Haviland and others said it seemed like a direct response to religious liberty groups like ADF. Yale Law School denied it was targeting Christian organizations. Still, Haviland was floored: “A lot of us felt thrown under the bus.”

Being thrown under the bus is painful, though it isn’t new. Still, what happens at Yale sets a tone for other universities and schools, and it raises questions about how to respond when opportunities get pinched. In an often-downbeat climate, there are still compelling—and sometimes surprising—examples of perseverance under pressure.

CONSERVATIVE STUDENTS at Yale are accustomed to pressure.

Haviland says when he first arrived at Yale Law School in the fall of 2016, the environment was less intense for conservative students. That changed when Donald Trump won the presidency, but the intensity exploded last year when Trump named his pick for the next Supreme Court justice: Yale Law School graduate Brett Kavanaugh.

‘A lot of us felt thrown under the bus.’ —Aaron Haviland

At first, Kavanaugh drew praise from some of the law school faculty, but it wasn’t universal. An open letter—signed by students, alumni, and professors—contended Kavanaugh’s nomination was “an emergency for democratic life, for our safety and freedom, for the future of our country.” (Among other things, the letter cited worries that Kavanaugh would become a pro-life vote on the court.)

The intensity boiled over when Christine Blasey Ford accused Kavanaugh of sexually assaulting her at a party during their high-school years.

Students asked law professors to cancel classes so that some 300 students could conduct a sit-in on the Yale Law campus to protest the Kavanaugh nomination. Dozens of professors agreed and some joined the protesters. Ahead of the congressional hearing to examine the accusations, one protest sign on campus read, “YLS loves rape culture.”

The climate was difficult for students who wanted to reserve judgment. One second-year law student told The New York Times, “It would be just a total land mine explosion to speak about this publicly.”

The tensions continued after Kavanaugh’s confirmation, and they hit another land mine in February: That’s when the Federalist Society announced it would host ADF attorney Kristen Waggoner at an on-campus event.

Public statements almost immediately appeared on “The Wall,” an email bulletin board open to the law school community. The OutLaws posted its letter protesting the ADF visit, and more than a dozen other student organizations posted letters of solidarity. Members of the Native American Law Students Association said that instead of attending the event they would spend their time “supporting our queer friends by listening to them about what it is like to be queer in Trump’s America.”

Many of the other groups’ statements echoed the sentiments in the OutLaws’ letter: “This event is not designed to allow students to call out bigotry. It is engineered to give a bigot a prestigious platform.”

KRISTEN WAGGONER already had a prestigious platform.

ADF, where Waggoner serves as a vice president, has won nine Supreme Court victories in the last seven years. Most recently, Waggoner prevailed as lead counsel in the Masterpiece Cakeshop case.

The Supreme Court ruled 7-2 that the Colorado Civil Rights Commission had trampled on the religious beliefs of cakeshop owner Jack Phillips, who had declined to bake a cake for a gay couple’s wedding ceremony.

Here was Waggoner, a graduate of Regent University Law School—a Christian school in Virginia—arguing the case successfully in front of a Supreme Court packed with justices from Harvard and Yale.

Other attorneys from ADF are also Regent grads, and serve as a reminder to prospective law students that an Ivy League education isn’t required for winning cases at the highest levels.

Haviland, the current Yale Law student, said ADF’s success in front of the justices seemed lost on his classmates: “ADF won 7-2. Are you really telling me that Justice Kagan and Justice Breyer are bigots too?”

Andrew Koppelman, a law professor at Northwestern University who describes himself as a gay rights advocate on the political left, wrote that not listening to opponents is an unwise strategy for lawyers: “The last thing you should do, if you’re a law student, is refuse to hear someone whose arguments you can’t stand, particularly someone who has successfully litigated against your own view.”

That kind of thinking didn’t prevail as the ADF visit approached. In a February twist, a last-minute travel-change kept Waggoner from making it to the event. Another ADF attorney, Jeremy Tedesco, spoke instead. Only about 30 students attended, and the event went forward without any major interruptions.

But a month later, law school Dean Gerken announced Yale Law School wouldn’t offer funding for summer fellowships, postgraduate fellowships, or loan forgiveness programs to students working for organizations that violate Yale’s nondiscrimination policy.

Those are crucial funding programs that make Yale Law School affordable for many students who would otherwise be unable to attend. And it sounded as if the school was denying funds to students working for organizations with a focus on religious liberty.

U.S. Sen. Ted Cruz, R-Texas, announced a congressional investigation into the funding policy; but since Yale is a private university, it seemed unlikely to some that the federal government could intervene on the question of legality.

Gerken, the law school dean, later clarified in a statement that the announcement only applied to an organization’s hiring policies, not its religious or ideological bent. “It will not inquire about political goals, litigation strategies, or policy objectives of the organization.”

But Gerken had also publicly thanked the OutLaws for raising questions about funding and nondiscrimination. Since the OutLaws’ original statement raised questions about organizations pushing “discriminatory agendas”—and not specifically about hiring policies—some students remained unconvinced the move didn’t have a deeper motive and wouldn’t have a wider effect.

Either way, Tyson Langhofer, an ADF attorney, said issue-based advocacy groups should be able to hire employees that agree with the mission of the organization. (In ADF’s case, they ask prospective employees if they agree with the organization’s statement of Christian faith.) Langhofer said that should apply to all groups, not just religious ones.

Indeed, Yale has funded fellowships for students working at the ACLU, a group that is often diametrically opposed to ADF’s positions. (An ACLU attorney argued against ADF’s Waggoner in the Masterpiece Cakeshop case.)

Gerken’s later announcement that the policy would include an accommodation for religious organizations didn’t soothe some students.

Jasmine Stein, a Wheaton College alum and a Yale Law student slated to graduate in May, said that it’s unclear how the school will define a religious organization or an accommodation. “Let’s see how the law school follows through,” she said. “But it’s difficult for me to feel optimistic that they will now be willing to stand up for their students.”

IT’S NOT THE FIRST TIME Ivy League students have felt set adrift by their college administrations.

This spring marks the 50th anniversary of student protests that led to Ivy League universities purging ROTC programs from their campuses.

In April 1969, Harvard University students staged a takeover of the school’s prominent University Hall. The students were protesting the Vietnam War—and the presence of ROTC military programs on campus. Police suspected that arsonists were later responsible for burning a Marine Corps classroom.

The Harvard administration blinked.

It eventually purged from campus the military program that had begun at Harvard in 1916 and that had once boasted 1,000 participants. Other Ivy League schools followed suit, including Yale. Students could still be ROTC cadets, but they had to travel to other colleges to take ROTC courses.

The anti-war sentiment continued for the next 15 years, but the animus shifted in 1993: That’s when Democratic President Bill Clinton approved the “Don’t Ask, Don’t Tell” policy that banned open homosexuals from serving in the military.

In an echo of the current dilemma, Harvard refused to pay more than $150,000 in annual funds to MIT for its students to take ROTC courses on campus. (Meanwhile, the school was accepting funds from the military for scholarships that covered the cost of tuition for cadets.)

But the defunding didn’t kill the ROTC program.

‘The last thing you should do, if you’re a law student, is refuse to hear someone whose arguments you can’t stand, particularly someone who has successfully litigated against your own view.’ —Andrew Koppelman

Retired U.S. Navy Capt. Paul E. Mawn, chairman of Advocates for Harvard ROTC, says a small group of anonymous alumni, including some veterans, banded together to cover the high costs for nearly two decades. He thinks some donors diverted donations they might have sent to Harvard to paying the costs for students to remain in ROTC.

And the students didn’t give up either.

Remaining an ROTC cadet meant Harvard students rose early to make a long trek to MIT to take courses. At the time, some said they had to miss Harvard courses to make it to ROTC classes. Cadets from Yale had to drive an hour and a half to the University of Connecticut.

Their numbers sharply dwindled, but the cadets in the program persevered, and by 2008 presidential candidate Barack Obama was among those calling on colleges to lift the effective ban. During the same year, Harvard allowed the Army to land Black Hawk helicopters on the campus to transport cadets to weekend training.

After Obama repealed the Don’t Ask, Don’t Tell policy in 2010, the Ivy League schools slowly started restoring offices and other facets of the program to campus. Mawn, the retired Navy captain, said he’s glad to see Harvard’s efforts toward building up the program again. But he also laments what his alma mater lost when ROTC students went elsewhere: “They lost good leaders.”

THE ROTC DILEMMA isn’t a one-to-one comparison with the current situation at Yale, but it’s possible even an Ivy League school with highly competitive admissions standards could lose good leaders if conservative students feel alienated and look for other options.

And Samuel Adkisson, a 2018 Yale Law School graduate, suggested in a USA Today op-ed that “donors should withhold funding from institutions that fail to respect religious and intellectual diversity.” Adkisson, a former president of the Yale Federalist Society, also noted: “What happens at our nation’s elite law schools rarely stays there.”

At the Federalist Society reception for accepted Yale students last month, Haviland says he told students that Yale even now presents tremendous opportunities, and he’s been pleased with many of his professors.

But he’s also mindful of Supreme Court Justice Samuel Alito’s warning after the high court’s decision that opened the door for gay marriage in 2015. Alito wrote the day would come when those who hold to traditional beliefs “will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots.”

“As far as I’m concerned,” said Haviland, “that position has been borne out.”

This story has been updated to correct the year President Bill Clinton approved the “Don’t Ask, Don’t Tell” policy.