It is not often that two of my alma maters appear prominently in the same piece of legal analysis. Eugene Volokh uses both in his argument against secondary boycotts.
A secondary boycott is one where rather than boycott an individual or organization whom one sees as a problem, one boycotts an individual or group associated with the individual or organization whom one sees as a problem. I suppose that one can also boycott both.
In this case, the problem is Yale's Law School's policies and their implementation go against the free speech rights of certain students but not others. (Institutionally Yale has been leaning this direction for a long time and I noticed earlier stages when I was a student there thirty years ago.) Earlier this year, Yale law students disrupted the presentation of a speaker with whom they disagreed. Yale excused the law students' bad behavior. Recently several judges have called for a boycott of hiring clerks who have graduated from Yale Law School. For a law school that has prided itself on being the number one law school in the country, having your students ineligible from receiving a clerkship based solely on attending your school is a severe blow, at least to one's pride.
As Volokh points out, this is a secondary boycott. It cannot possibly punish the perpetrators of bad policy. Instead it punishes those who are guilty of association with the perpetrators, and may be involuntary associates. I wonder how many law students decide which law school to attend based on who the dean is.
Yale's policies, however, seem to work against the preparation of effective lawyers. Law, by its nature, is an adversarial occupation. A lawyer may have to work for clients who hold opinions he or she personally is opposed to. He or she will certainly have to face legal opponents with whom he or she disagrees. Many lawyers laudably pursue conciliatory courses designed to minimize disagreements, but such a course of action may not be available in every case. Usually suppression of one's legal opponent and their right to present their case is not an option. Law schools do their students a disservice if they allow them options in law school that they are not allowed in court.
Yale Law School has since claimed to have made changes in the direction of free speech. Whether they actually have remains to be seen.
Even if Professor Volokh's understanding of the situation at BYU does not match facts on the ground (and to be fair, he proposes it as a hypothetical), his points about the problems of secondary boycotts remain.
