As the bitter controversy continues over Yale Law School’s disastrous mishandling of a discrimination complaint, some have wondered whether there ought to be diversity officials at all. The mutual incomprehension among students that led to this situation actually shows that they can do valuable work — if they get it right.

In some ways, opposition to racism is baked into the modern university. Law schools like Yale, where I was a student, or Northwestern, where I teach, admit the best students they can find, regardless of race, sex, social class, or other ascribed statuses. But that egalitarian ethic has not always existed. The old hierarchies leave their mark, and members of previously excluded groups often feel that they don’t belong. If that affects their academic performance, the university’s educational mission is impaired.

Faculty should care about this experience of isolation because teaching is an exercise in rhetoric, and rhetoric has a moral dimension. It forces you to learn about your audience, to get outside your own head and into the heads of other people. Universities need to know what alienates students.  Otherwise we can’t do our jobs as effectively as we could. The alienation of minority students is a problem that needs to be addressed.

But addressing it can’t involve the embrace of any substantive orthodoxy. As the 1967 Kalven Report noted, a university “cannot insist that all of its members favor a given view of social policy,” because that means “censuring any minority who do not agree with the view adopted.” Rather, what the university can contribute to social policy is clarity, the dispelling of ignorance and confusion. That has implications for the role of diversity officers.

My point will be clearer if we consider the specifics of what happened at Yale.

Yale Law’s Troubles

Yale Law’s problems began when Trent Colbert, a law student who belongs to both the Native American Law Students Association and the conservative Federalist Society, invited some classmates to an event co-hosted 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 “Popeyes chicken, basic-bitch-American-themed snacks (like apple pie etc.)” and hard and soft drinks.

“Traphouse” originally referred to crack houses in poor neighborhoods, but according to Urban Dictionary, in a passage that Colbert has since quoted with approval, this term 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.’”  

The invitation was almost instantly screenshotted and shared on 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. Eldik also said this in the meeting:  “The email’s association with FedSoc was very triggering for students who already feel like FedSoc belongs to political affiliations that are oppressive to certain communities.” The episode received plenty of negative coverage, including two earlier articles of mine. (There are now allegations that they also demanded an apology from the president of the school’s Federalist Society, who had nothing to do with sending the email.)

Doubts have been cast on the good faith of everyone involved: the students who complained, the administrators, and Colbert himself. Some consideration, however, should be given to the hypothesis that everyone was doing the best they could with a difficult situation and that the problem lay with the structure and protocols of the system that was set up.

To understand what happened, consider the point of view of each of the parties involved.

One African American member of the Yale Law community explained to me (usefully augmenting the statements of others) how the “traphouse” invitation was received:

First, there is a long history of white student organizations on college campuses (usually white fraternities) throwing parties that make fun of Black culture. When these particular students were coming of age, there was a spate of national stories about “blackface” parties in which organizations made fun of Black people, always serving fried chicken.  

Now, was Trent’s email obviously advertising a party like these? No. But it’s not far-fetched to see ‘traphouse,’ ‘Popeyes chicken,’ and the overall tone of the email and think they are seeing an advertisement for one of these parties. Indeed, it might be an obvious go-to for a Black person.

Then there’s the New Haven context. That particular Popeyes closest to Yale is the dividing line between ‘Yale’ New Haven and the Black New Haven that Yale students tend to avoid. It is at the intersection of Whalley Avenue and Dwight Street, which generally is the farthest west street that YLS students are willing to live on.

Now, do I think Trent knew any of that? I strongly doubt it. But just because Trent did not intend to be racially insensitive doesn’t mean that he wasn’t. Indeed, the link probably seems quite boldfaced to Black students who live in New Haven, understand the meaning of Popeyes here, and grew up in an era where wayward frat house + fried chicken parties (sometimes with actual blackface and sometimes with clothing and refreshments that were direct references to Black culture) were appearing in the national news.

Which brings us to the ‘triggering’ FedSoc association. What’s important to understand here is that YLS FedSoc has a reputation among the student body that is not just about being conservative but is actually about deliberately holding events that are intended to rile up the progressives. For the past few years, though, there’s been one or two events per year that seem intentionally inflammatory, usually involving an anti-gay speaker.

What all this reveals is a horrible coincidence. Colbert made clear that he hadn’t known the racial coding of the term “traphouse” and didn’t even select the menu.  “Insensitive” isn’t the best word for the inevitable phenomenon of linguistic diversity, because it implies that the speaker could and should have done better.  Colbert isn’t unique. People use lots of terms with no idea of their origins. “Free rein” began as a metaphor from horseback riding (it means letting the animal go wherever it wants), but many don’t know that and turn it into “free reign,” or even the entirely nonsensical “reign in.”

This episode also shows the limitations of diversity training. One can warn people about the most common racial slights, like complimenting  Asian Americans for not speaking with an accent. But there are so many opportunities for misunderstanding and offense that it is impossible to guard against them all in advance. They need to be addressed as they arise.

But not the way Yale did it. The administrators purported to believe Colbert but nonetheless pressured him to apologize, insinuated that his bar admission was at risk, and composed a suggested email. Perhaps they honestly thought that they were simply offering advice about preserving his reputation (and that of the FedSoc president, whom they also pressured to apologize). The power differential transformed advice into bullying. When he wouldn’t do as they asked, they emailed the entire second-year class condemning his “pejorative and racist language.” Their response feels weirdly mechanical, with a prescribed protocol that must always be followed. (That tendency sometimes manifests in ways that are much worse than what happened at Yale.)

Colbert explained his resistance: “I don’t believe that the now-common ritual of compelled apology, complete with promises to ‘grow’ and ‘do better’ (their words, but ones I’m sure you’ve seen many times before), helps anyone, or is even intended to. If we continue to indulge this culture of performative denunciation, the very idea of an apology will lose its meaning.” Paul Campos blames Colbert for going to the press and not just letting the matter drop, but it’s unreasonable to expect someone to remain silent after being denounced as “racist” to all the students in his class. Yale has in the past responded to misconduct allegations by allowing its students to suffer devastating reputational harm, notably in its reprehensible mistreatment of Sarah Braasch and of the students involved in the Amy Chua controversy. If I were Colbert, I would have been terrified. He was entitled to defend himself.

The real problem is the cycle of offense and counter-offense. Don Roos, the movie writer and director (notably of the brilliant comedy The Opposite of Sex), started his career as a television writer. One of the shows he worked on was the prime time soap opera The Colbys. He recalled the show’s conventions in a 1998 interview

Nobody could really behave in a healthy emotional way. That was number one. Everybody had to be outraged at how people were treating them; they had to really go with their worst instincts, usually. If you thought of a scene, you had to ratchet it up and have people take offense where no offense was intended, be suspicious when no conspiracy was planned … You got rid of a lot of hostility that way, torturing your characters.

Mediate, Don’t Adjudicate

When conflicts like this happen, it is useful to simply get the parties to listen to each other. That is not adjudication or arbitration. It is what mediators do. Mediators are expected to have no commitment to any particular outcome, and no power to compel one. Mutual understanding is a tough enough ask. Had Yale’s administrators made clear at the outset that they were not considering any punitive sanction, that would have eliminated the sense of danger that poisoned their interactions. The aim of mediation is to help the parties understand each other’s narratives about what happened and why. That might produce some kind of agreement, but there are no guarantees. 

At Yale, evidently, hard feelings persist on all sides. Sometimes that can’t be helped. Colbert is right that ritualized solutions are a recipe for hypocrisy. Misinterpretations of words and actions happen and are more likely in a diverse society. It is good to promote clarity. The Kalven Report declared: “A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community.”  That means that disagreement is inevitable. Coercive attempts to make it disappear — to impose a single resolution and demand everyone’s allegiance to it — imposes an orthodoxy antithetical both to the inevitable variety of viewpoints in a free society and to the mission of the university.