Columbia, the Boycotting Judges, Neutrals, and Secondary Boycotts
The boycott of Columbia graduates by a group of judges led me to the following thoughts (adapted from a post about the 2022 boycott of Yale Law graduates, which was begun by a judge who is also one of the signatories to the Columbia boycott).
[A.] Just to make clear at the outset, I agree that judges are entitled to choose whom to hire, and that they indeed often prefer some law schools or colleges over others for many reasons that are often only weakly correlated to the school’s relative academic quality. (Columbia students may well have been the beneficiary of such preferences far more often than they have been handicapped by such preferences.)
Indeed, I think that judges are even entitled, if they so choose, to hire clerks based in part on the clerks’ ideological views, though I do not see the proposal as calling for that. Clerkships are the unusual sort of job for which ideological compatibility as to legal matters (e.g., originalism vs. living constitutionalism, textualism vs. purposivism, the interpretation of various controversial constitutional and statutory provisions, and the like) should generally be seen as a legitimate hiring criterion, cf. Elrod v. Burns and Branti v. Finkel. To my knowledge, many judges, both liberals and conservatives, have considered ideological compatibility in hiring clerks, though many others, both liberals and conservatives, have generally not considered it.
[B.] But here’s the heart of my disagreement, not as a matter of legal command but as a matter of what one might loosely call the ethics of American freedom and democracy: My view is that we shouldn’t threaten innocent neutrals as a means of influencing the culpable.
Columbia students aren’t the ones who set Columbia policy. They may disagree with that policy, or they may not know enough about the subject to have a view. Even if they go to Columbia knowing about Columbia policy (and about the boycott), they shouldn’t be held responsible for what Columbia does, and they shouldn’t be retaliated against as a means of trying to pressure Columbia to change. Such “secondary boycotts,” as labor law refers to them in a somewhat different context, are both unfair to the “neutral[s]” that are being boycotted, and likely to “widen[] … strife.” (I’m not claiming here that there’s anything illegal about the proposed boycott of Columbia graduates, but only that some of the reasons labor law disapproves of secondary boycotts also carry over to this situation.)
[1.] Let me offer an analogy. As I understand it, BYU apparently forbids same-sex sexual or even romantic behavior by its students. (The precise rule changed recently, but it appears that it still forbids same-sex romantic relationships even if they do not include sexual conduct.) Let’s say that some judges or law firms organized a boycott of all BYU graduates (law school or undergrad) on the theory that this may help pressure BYU to change its policy. Assume that such a boycott would be sincerely motivated by opposition to anti-gay policies generally—the boycotters would gladly add other universities if it were publicly known that they have similar policies—not to Mormons as a religious group.
My reaction would be: Keep the BYU students out of it. If you want to refuse to give talks at BYU because of its policies, or to stop giving money to it, fine. But students should be able to choose the educational institution that’s best for them (based on a variety of factors, including proximity to family, financial aid, curriculum, educational quality, and more) without becoming targeted for boycotts.
Maybe the students agree with this particular policy of BYU’s. Maybe they disagree. Maybe they’re unsure. Maybe they just haven’t thought about it. But they shouldn’t be sucked up into this fight, however important the goal of the boycott might be.
They should be free to sit it out as neutrals. Indeed, retaliating against neutrals (or insisting that no-one is a neutral in such matters) is bad for the very values of tolerance and open-mindedness that the boycotting judges and I and many others care about.
[2.] Or say that some judges or law firms try to influence states’ policies on abortion by boycotting all graduates of universities in states that ban or sharply restrict abortion. To be sure, this is less likely to be effective, because the universities would have less effect on the state’s policies, but who knows? Maybe the many parents of state university students and graduates would be animated by this to pressure the legislature, or to vote for a pro-abortion-rights ballot measure.
But here too, my reaction would be: Keep the students out of it. Boycott (say) Texas if you wish,
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