FedSoc Doesn’t Want Dialogue — They Want Us to Shut Up

We are second year students at Yale Law School and members of the Dred Scott Society, an organization founded by Yale Law students that are descendants of the enslaved and colonized seeking to examine, interrogate, and dismantle white supremacy within the legal profession. Our namesake is a Black man who sued for his freedom and was declared property by the United States Supreme Court. We chose this name to remind ourselves and our classmates of the violence that this profession has wrought, and to commit ourselves to the liberation of our people.

Yale Law School has been in national news over the past few days in the wake of an invitation from one of our classmates, Trent Colbert, to a “trap house” party. The use of trap houses and fried chicken, the catering for this party, as racially pejorative statements are well-documented. Students took to our class-wide group chat to ask if this invitation was serious. After Colbert ignored messages in our groupchat, several students reported the email to the Office of Student Affairs, the body that typically handles harm within the law school community with few individual consequences for students. He met with administrators who kindly, generously, and gracefully attempted to explain to him why a trap house party would be offensive. He recorded this meeting and shared it with a commentator after ignoring repeated efforts to engage him in shared forums.

A piece of important context for this invitation is that Colbert is a member of the Federalist Society (FedSoc). One of our administrators explained in a meeting with Colbert that given his membership in FedSoc, this invitation was especially harmful, considering the policies that they have advanced, the judicial appointments they have streamlined, and the individuals that represent their organization. Commentators across the political spectrum have sneered at students who took offense to Colbert’s message because they were “triggered” by his membership in FedSoc and have taken students to task for refusing to engage him in conversation. The flippant comments fail to take into account the gravity of the situation and diminish the pain experienced by students — especially Black students — as a result of Colbert’s message and the subsequent media storm that followed his actions.

If you have ever professed a dedication to “dialogue,” we ask you to reflect on what it means for students who are descended from the enslaved and colonized to engage in dialogue with those who have time and again harmed us and our communities; what it means for us to have extended multiple invitations to talk to an individual who genuinely offended some of us; and whether those who criticize us actually want dialogue, or if they just want us to be silent.

To understand Colbert’s actions, we first have to understand the history of the Federalist Society and how it has appropriated the language of dialogue and intellectual diversity to push forward an agenda that is unequivocally anti-Black, anti-immigrant, anti-worker, anti-poor folks, anti-woman, and anti-LGBTQAI+. You may hear from some that FedSoc had little to do with this incident, that Colbert acted on his own. But FedSoc’s decision to remain silent — deafeningly so — is in complicity with this behavior, and Colbert, along with other commentators, have been drawing on appeals to “performativity,” “cancel culture,” “and dialogue,” tropes often used by the Federalist Society.

The Federalist Society was founded in 1982 by a group of law students at the University of Chicago, Harvard, and Yale Law Schools. These students wanted to bring the “Reagan Revolution” — which defunded welfare programs and oversaw the boom in mass incarceration, through appeals to small government values and originalism — to their law schools. Originalism is a theory of constitutional interpretation that posits that the Constitution should be read as its authors wrote it and would have read it. Obviously, at the time of ratification, the Constitution was a tool of white, hetero-patriarchal oppression against enslaved peoples, against Native American and First Nation peoples, and against women and people with other gender identities, making domination and oppression the axes upon which the nascent nation turned.

Students join FedSoc often out of a mindset of scarcity of resources, a desire for power, or both. With its ties to conservative leaders across the judiciary, corporate, and legal fields, FedSoc has the power and institutional capital to catapult its members into jobs, clerkships and judicial appointments that control our economy, make decisions about our lives, and wield power over our communities. The power that their members can hold in these roles and appointments is the return on investment that FedSoc’s funders have banked on.

It’s important to underscore that the Federalist Society’s rise to prominence and power was due to “a stream of funding coming from a handful of very conservative corporate donors who were deliberately trying to change the politics and public opinion” in the United States. For instance, the Olin Foundation provided seed money for the Federalist Society when it was just a student group at Yale, Harvard, and UChicago and these sustained investments have allowed FedSoc to be one of the most powerful legal organizations on the American right. James Pierson, the Executive Director and Trustee of the Olin Foundation from 1985 to 2005 has said the following:

“If you said to a dean that you wanted to fund conservative constitutional law, he would reject the idea out of hand. But if you said you wanted to support Law and Economics, he would be much more open to the idea. Law and Economics is neutral, but it has a philosophical thrust in the direction of free markets and limited government. That is, like many disciplines, it seems neutral, but it isn’t in fact.”

Many members of FedSoc claim that it is an organization like any other law school group, such as a Defender Society or an affinity group. But the organization is far from neutral, as Pierson’s quote above suggests. Theories of law and economics, limited government, and originalism are often provided as the underlying justification for decisions and policies that have attempted to destroy poor communities of color and otherwise marginalized people. They commonly claim that there is no racist, homophobic, transphobic, sexist, classist, or violent intent behind their positions; harm is an unintended consequence to many FedSoccers, if they recognize the harm at all.

It is difficult to believe that these harms are anything less than targeted attacks when you consider that FedSoc’s members have steadily and consistently chipped away at the rights of marginalized people for decades. Members of the Federalist Society on the Supreme Court include Justices Clarence Thomas, Brett Kavanaugh, Samuel Alito, Neil Gorsuch, Coney Barrett, and Chief Justice Roberts. These justices have penned opinions against marriage equality (Chief Justice Roberts’s opinion in Obergefell v. Hodges; Chief Justice Roberts’s and Alito’s opinions in United States v. Windsor), against people’s right to access abortions (Justices Thomas’s and Alito’s opinions in Whole Women’s Health v. Hellerstedt; Justices Thomas’s, Alito’s and Gorsuch’s opinions in June Medical Services LLC v. Russo), against LGBTQ folks’ right to privacy (Justice Thomas’s opinion in Lawrence v. Texas), against racial integration in public schools (Chief Justice Roberts’s opinion in Parents Involved v. Seattle School District), against people from the country’s identified in Trump’s “Muslim ban” (Chief Justice Roberts’s opinion in Trump v. Hawaii), against immigrants seeking to cancel deportation orders (Justice Gorsuch’s opinion in Pereida v. Wilkinson), against the procedural rights of those arrested on erroneous information (Chief Justice Roberts’s opinion in Herring v. United States; Justice Alito’s opinion in Davis v. United States; Justice Thomas’s opinion in Utah v. Strieff), against students’ rights to free speech (ironic, considering their emphasis on the First Amendment; Justice Thomas’s opinion in Morse v. Frederick; Justice Thomas’s opinion in B.L. v. Mahanoy School District), against the rights of minors being interrogated by police (Justice Alito’s opinion in J.D.B. v. North Carolina), against the rights of minors sentenced to life without the possibility of parole (Justice Thomas’s opinion in Graham v. Florida; Justice Thomas’s, Alito’s, and Chief Justice Roberts’s opinions in Miller v. Alabama), against workers’ rights to collectively sue their employers for wage theft (Justice Gorsuch’s opinion in Epic Systems v. Lewis), against the rights of agrarian workers to organize (Chief Justice Roberts’s opinion in Cedar Point Nursery v. Hassid), and against Black people’s voting rights (Chief Justice Roberts’s opinion in Shelby County v. Holder).

In this last opinion, Roberts resuscitated the “equal dignity of states” argument that provided the legal justification for the decision in Dred Scott — our organization’s namesake and a decision in which the Court held that Black people were property. The pooled legal knowledge of our membership cannot name every decision that has harmed our communities, a testament to the extensiveness of this violence. And these are only opinions penned by sitting Supreme Court justices; there are many others in positions of power that have weaponized theories of small government and privatization to destroy the livelihood and power of the people. FedSoc chapters across the country invite speakers who have actively harmed students from marginalized backgrounds to our campuses. Just last week, they invited Kannon Shunmugam, Exxon’s lead lawyer who is actively working to help big fossil fuel companies avoid liability for their roles in the climate crisis, to Yale Law School. Shunmugam is also working to overturn McGirt v. Oklahoma to undermine the tribal sovereignty of the Creek people and execute Shaun Bosse.

To be clear, legal institutions have caused violence long before the Federalist Society, and even those who disavow the organization perpetuate white supremacy, racial capitalism, and patriarchy. The law as it is currently constructed is, by default, a tool of domination; it requires serious effort to use the law as a tool for harm reduction, much more as a tool for liberation. But it is simply disingenuous to speak of FedSoc and describe them merely as a space for “conservative” students. To engage in dialogue, we must all hold all of the cards.

In the past few days, numerous commentators across the political spectrum have claimed that students did not open themselves up to dialogue. This refrain is often preached by the members of FedSoc — “liberal” or “radical” students are willing to “cancel” people without ever having talked to them. We have heard this many times from students who have been called to account for their words and actions. Dialogue seems to be in demand among conservative students.

The concept of dialogue was popularized by Paulo Freire, a Brazilian educator and thinker in the field of critical pedagogy, in his book Pedagogy of the Oppressed. For Freire, dialogue is the process by which we name the world and thus change it, engaging in our vocation to become more fully human in the process. Dialogue is often uncomfortable, challenging, and hard. Dialogue was used to hold space for critical conversations with Indigenous people, workers, and otherwise marginalized people against the backdrop of revolutionary Latin America and adopted by people seeking to make change across the globe. Dialogue is a useful strategy to bring together people with different life experiences and analyses of the world who are committed to a cause.

In recent years, conservative groups such as FedSoc have appropriated the framework of dialogue to avoid accountability for saying and doing harmful things. They believe that dialogue simply requires talking about our views across differences in a civil manner (read: appealing to white, middle class standards of respectability); their “both-sides”ism requires those have been harmed to sit at a table with those that have harmed them and listen to why the latter wish to cause the former harm. If you do not engage in conversation with FedSoc on their terms, then you have no room to complain of any injury.

Think of this in any other context; if someone hit you, should it be on you to seek out conversation with that person and hear their side of the story? Dialogue is not meant to be an excuse for harm: Freire himself recognized this when he said that, “dialogue cannot occur between … those who deny others the right to speak their word and those whose right to speak has been denied to them.” Indeed, dialogue can only happen between those who wish to become critically conscious of the world and transform it.

Those who choose to embrace racist rhetoric and refuse to engage, or even own up to their views, impede progress and continue to uphold white supremacy, patriarchy, and other systems of unjust dominance. Despite their feigned neutrality and stated commitments to dialogue, FedSoc fears open, transparent, and honest conversations that would shine a light on the toxic issues they continue to support.

The latest incident at Yale Law School is the latest illustration of FedSoc members’ bad-faith commitment to dialogue and FedSoc’s weaponization of silence and free speech to further the harm and protect their organizational reputation. After the racist invitation was sent, one student created a survey asking class members if they understood what a trap house was (⅓ of poll respondents didn’t). He then took on the work of explaining why this party theme was offensive. He wrote, “‘Trap House’ is interchangeable with ‘crack house.’ It’s slang for the rundown house in a ghettoized area where people do or sell drugs. It’s a reference to the racist impact of both drugs and the war on drugs as well as urban decay and redlining.” He explained that some students grew up in places where trap houses were common, that some of us grew up with family members that struggled with addiction, that some of us have had loved ones incarcerated. A “trap house” party was, frankly, a slap in the face to those of us with these lived experiences.

In the weeks that have followed this exchange, commentators have taken to the media and their twitter feeds to insist that a trap house is simply a house where parties happen, a term devoid of any racial connotations. Ask yourself if you’ve ever heard of a trap house in a white, suburban community. These commentators stretch credulity and insult their readers’ intelligence when they insist that the language was benign. They also play directly into FedSoc’s strategy — instead of engaging in any way with the harm that was experienced, they shift the plane of the debate to recast a multi-million dollar organization with hundreds of members as the victim.

Another student invited our classmates to “ask sincere questions if there was any lingering confusion peers had on the topic.” Not a single student responded. Days passed. Colbert finally responded to these messages with a curt message that neither substantively addressed the points raised by students nor apologized for the harm that students — especially Black students — told him he caused. Instead, the message said simply:

“if you have been hurt by anything I’ve said and would like to talk, I am happy to do so in an individual setting. My DMs are always open.”

Following that message, students did reach out to share the ways that Black students had been hurt and create space to talk individually. In addition, he was invited to have a private mediated talk with the Black Law Students Association Board, which he declined. He chose to leave these many messages from his peers on “read.”

Colbert’s narrative of being a victim of cancel culture based on his membership in FedSoc attempts to both diminish the harm that he caused and erase the role that his own actions played in causing the harm in the first place. It seems that the obsession with dialogue around this incident is just a tool of distraction.

And throughout all of this, Yale’s FedSoc chapter has remained silent. They were listed as a co-host of the party. The other co-host, the Native American Law Students Association, thoughtfully responded to students’ concerns, explained how Colbert sent the email without the board’s approval, and apologized. Other than clamoring for dialogue, FedSoc’s modus operandi is remaining silent when its violence is exposed. This is so well-known that it is a running joke at law schools that FedSoc members will intentionally miss sessions of Constitutional Law during 1L year when reproductive rights and marriage equality are discussed. By refusing to speak when its members cause harm, FedSoc perpetuates harm and saves its own reputation, planting the seeds for future acts of violence.

To be explicit, we are not canceling, attacking, or demonizing Colbert; we are simply providing context that is critical to understanding this incident and its place in the legal community, context that has been sorely missing in other coverage. We are publicly inviting him into the dialogue that he himself asked for. Dialogue can be powerful, generative, and even transformative. Dialogue is not talking at someone or preaching; rather, it should be a process of learning with, in which we co-constitute the world around us as we come to understand our place in it. But to engage in dialogue, we must approach with love, humility, and faith.

We leave you with some final words from Paulo Freire that reflect our vision for dialogue: “If I do not love the world — if I do not love life — if I do not love the people — I cannot enter into dialogue.”

Liz Jacob and Emma Perez are second-year law students at Yale Law School. For direct inquiries, please email dredscottsociety@yale.edu.

--

--

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store