Gerber For Faculty Positions

The law school deans at places such as Yale, Harvard, Stanford, and Penn rarely turn to me for advice. Ok, never. That’s partly because I am not a lawyer but mostly because I am the head of the National Association of Scholars (NAS), an old organization that is known as one of the conservative voices in academe, and that’s a voice that is conspicuously unwelcome in the counsels of elite law schools.

I sometimes pause on that word “conservative,” because nothing in our charter says that. In fact, our official mission is to “uphold the standards of a liberal arts education that fosters intellectual freedom searches for the truth, and promotes virtuous citizenship.” And we never stray from that by as much as a millimeter. But seemingly in the last five minutes or the last five years, or whatever, those have become fighting words. What counts as “liberal education” these days? If it is teaching students that the pursuit of “social justice” and “global citizenship” are the central purpose of higher education, we are indeed out of step with the times. We favor a view of liberal education that emphasizes a breadth of understanding of core subjects, including Western civilization, American history, and the natural sciences.

The other parts of that mission—intellectual freedom, the search for truth, and virtuous citizenship—are likewise disputed territory these days. I trust the reader knows the deal. “Intellectual freedom” on the contemporary campus often seems limited to the grievance group with the loudest voice. The search for truth has been post-modernized as the assertion of power and the need to provide safe spaces for those who have their own “truths.” And “virtuous citizenship” has virtually disappeared in the enthusiasm for all sorts of post-colonial and post-national allegiances.

But I am not writing today to stir up these controversies. Rather, I am here as your friend, Deans Heather Gerken, John F. Manning, (now-Provost) Jenny Martínez, and Sophia Z. Lee—and any other law deans who care to hear me out.

The occasion is the significant reputational damage that your schools have suffered in the last year of so. Some of this has to do with your law students who have conspicuously sided with Hamas in the current war in the Middle East. This has alienated alumni and in some cases important donors, but it has also alerted the general public to the ideological tenor of your schools. You may regard that as an unwarranted judgment on the part of people who are not sufficiently aware of the intellectual rigor of your programs, but you can hardly deny that this alienation has taken place.

The Hamasian moment, of course, does not stand alone. Observers have been taking in your schools’ heavy investment in the rhetoric and policies of the diversity-equity-inclusion (DEI) movement as well. Prioritizing racial identity and racial grievances are seen by the wider community as among the central concerns of contemporary legal education. You may well be proud of that, but you are also aware that many of your alumni, financial supporters, and the general public are skeptical.

And then there are the handful of instances in which your schools have engaged in what might be called “conduct unbecoming.” In March 2022, a mob of about 120 Yale law students shouted down a panel that included a speaker from the Alliance Defending Freedom. The students eventually left the room but continued their disruption outside the doors. Dean Gerken, you described the protesters’ behavior as “unacceptable,” but found no grounds for charging a violation of the school’s disciplinary code.

I accept that you had the institutional authority to make this decision, but it was not without consequences. The most visible of those consequences was Federal Judge James Ho announcing that he would not hire law clerks from your school. Other judges joined his boycott. And many Americans took notice of this as evidence that something is seriously amiss at Yale Law School.

In October 2022, about 75 Harvard Law School students walked out of a panel in which two legal scholars were presenting their arguments against legal abortion. It was a staged disruption organized in advance by four law school students. As disruptions go, this was a mild instance, but it underscored the unwillingness of the students to listen, reflect, or engage those with whom they disagreed.

In March 2023, a mob of students disrupted a lecture at Stanford Law School by U.S. Court of Appeals Judge Kyle Duncan. When Judge Duncan sought the intersession of a law school authority, Tirien Steinbach, the associate dean of diversity, equity and inclusion, nominally upheld the judge’s right to speak but proceeded to egg on the protesters. Dean (now-Provost) Martínez, you apologized to Judge Duncan—twice—but imposed on the students only a half day of training on “non-disruptive protest.” Judges Ho and Elizabeth Branch extended their Yale boycott to Stanford, and again the public was left with the difficult to erase impression that the law students involved had little or no respect for the law, free speech, or civil disagreement, and that the Stanford Law School administration doesn’t really care. That impression again may be unjust, but it is hard to deny it exists.

As for the University of Pennsylvania Law School, I will limit myself to the case of law professor Amy Wax, who has been subject to years of protests by student groups, who were encouraged in their efforts by the former dean, Theodore Ruger, who accused her of “intentional and incessant racist, sexist, xenophobic, and homophobic” comments. The result of this most recently was a tribunal mounted by the university to strip Professor Wax of her tenure and fire her. Professor Wax is on my board; I’ve known her for more than a decade and regard Dean Ruger’s accusations as absurd. Be that as it may, the University of Pennsylvania lost at least one trust (and major donor) over its treatment of her and has put itself in the spotlight as so eager to appease the advocates of DEI, that it will go to any length to destroy the career of a DEI critic.

These are all cases that, prior to the outbreak of pro-Hamas festivities on campus, had already tarnished the reputations of these law schools. Doubtless if I had time and my readers had the patience, this list could be extended to many other law schools. But I’ve assembled this list not as part of a general indictment but rather to set the stage for a positive proposal.

Any of these schools could take a major step towards re-gaining public respect by showing that it is willing to hire to its faculty a recognized critic of DEI.

And I have the candidate for you: Scott Gerber.

I trust you have heard of him. But for readers who have not, Dr. Gerber was until about a week ago a tenured professor of law at Ohio Northern University. He is perhaps best known right now as the author of an article published in May in The Wall Street Journal, “DEI Brings Kafka to My Law School,” in which he recounted the frightening attempt by his law dean to fire him, by pulling him out of class under armed police escort.

No doubt the drama was meant to stigmatize Dr. Gerber in the eyes of students as guilty of some dark deed. But the issue was simply that he had raised objections to his university’s aggressive DEI initiatives, as is his legal right and academic freedom to do.

Ohio Northern University? What kind of law professor pursues his career in such a place? Judge the man, not the school. Cambridge University Press has just published his fourth academic book, Law and Religion in Colonial America. He has edited two others, and he also has had four novels published. He earned his Ph.D. and J.D. from the University of Virginia, clerked for U.S. District Judge Ernest C. Torres, and is a member of the Massachusetts, Colorado, and Virginia bars, as well as the U.S. Supreme Court bar. He is the four-time winner of the Fowler V. Harper Award for excellence in legal scholarship—five-time winner, actually, but ONU’s law dean withheld the award from him this spring so as not to make the summoning of armed police to his classroom look even more outrageous than it already did. He likewise is the three-time winner of the Daniel S. Guy Award for excellence in legal journalism, and has received awards for excellence in teaching and has lectured at universities around the country, including yours. He was a visiting professor at Brown University’s Political Theory Project during the 2018-19 academic year.

I am not going to pack his resume into this article—just enough to indicate he is a serious scholar long buried in an out-of-the-way place, where he apparently annoyed his colleagues as a rate-buster. Everything they did, he did a hundred times better—and then he refused to get on the DEI bandwagon.

I know how little regarded my counsels on these matters will be held, but I offer the earnest advice that you look up ex-Professor Gerber. He is a scholar of high repute who is just enough off the academic reservation that his appointment would go a long way to winning the approbation of many people who are now extremely skeptical of your schools’ ability to show genuine open-mindedness in legal scholarship.

Dr. Gerber’s story is widely known outside the bulwark of the progressive left. You can find my on-going chronicle of it in a series of articles I published in the wake of his Kafka-esque experience: “In Defense of Professor Scott Gerber;” “The Scott Gerber Case Revisited;” “Scott Gerber’s Case in Context;” and “Update: The Gerber Case.” But I’m far from alone in following his case closely. The AAUP, FIRE, the American Council of Trustees and Alumni, and other bodies have documented it many times as well. (The AAUP, which is on the left, has written to Ohio Northern University in defense of Dr. Gerber six times, which is an AAUP record.) He is, at the moment, a rare opportunity for some enterprising law school to defy the public’s low expectations and their faculty’s political lockstep by appointing an outstanding libertarian thinker, scholar, and teacher.

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