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Unpacking the absurd and unethical boycott of Columbia graduates

In an open letter to President Minouche Shafik, 13 Trump-appointed federal judges have announced that they will not hire graduates of Columbia University because the campus has become “ground zero for the explosion of student disruptions, antisemitism, and hatred for diverse viewpoints.” 

The boycott, including undergraduates and law students, is irrational, self-defeating and unethical — with no redeeming features. How bad is it? Let me count the ways.

Irrational. Although the judges’ letter doesn’t specifically mention the Columbia encampment protesting Israel’s war on Hamas, that was, obviously, the context for their complaint that “Disruptors have threatened violence, committed assaults and destroyed property.” 

It is true that the Columbia students, and their more militant allies outside the campus gate, have been more aggressive than most. Columbia was the first school where pro-Palestinians staged a successful building takeover, breaking windows and destroying property in the process.

But it is a non sequitur to blame the university for the disruptions of its most unruly students. Shafik was by far the most adamant of the university presidents who testified before the House Education and Workforce Committee. She declared, where others equivocated, that calling for “genocide of the Jews” would violate Columbia’s code of conduct.

Shafik has twice called New York City police to remove protesters. Unlike some other presidents — at Northwestern and Brown, for example — she refused to accede to their demands. More students have been arrested at Columbia than at any other university, including those with much greater enrollments.

Whether one favors negotiation or law enforcement, it is nonsensical to accuse Columbia of tolerating violations of “established rules concerning the use of university facilities and public spaces.”

The judges’ letter, dated May 6, also demands that Columbia impose “serious consequences” on students who have “participated in campus disruptions,” apparently unaware that such suspensions had been announced a week earlier.

Self-Defeating. Even if the judges were correct that Columbia was lax in responding to the encampment’s disruptions, it would still be, well, bonkers to boycott the entire student body on the theory that they cannot “assume the risk that anyone they hire from Columbia may be one of these disruptive and hateful students.” 

Haven’t they ever heard of interviews? Savvy judges should easily be able to weed out any bad actors unless they believe there is a conspiracy among Hamas supporters to establish sleeper cells in judicial chambers. Even Fox News hasn’t gone that far.

It is unknown how many law students have been among the several hundred in the Gaza encampment, but it is unlikely to have been very many, and few if any are in the clerkship market. It is — what’s that word? — bonkers for judges to penalize all Columbia Law graduates to shield themselves from purely hypothetical, and probably imaginary, disrupters.

What’s more, the 13 Trump appointees wouldn’t draw an ideological cross-section of students in their applicant pools. Most progressive and liberal students would not care to spend a year or two assisting an ultra-right-wing judge. Even moderate women may well balk at living in Texas, where nine of the 13 have chambers, given its draconian abortion laws.

The law students most likely to bear the consequence of the boycott will be members of the conservative Federalist Society, already marginalized in their law schools — or so purport the 13 judges — and now refused interviews by sympatico jurists.

One of the eventually disqualified Columbia Law graduates might well be someone like Marie-Alice Legrande, a non-Jewish German national who organized Law Students Against Antisemitism, despite the strident opposition of left-wing student groups. 

When the student senate indefensibly denied the group’s initial petition for formal recognition, Legrande persevered, despite getting “hostile comments” from pro-Palestinian students. Her efforts eventually led to a special student senate meeting, at which the group was approved.

Principled students like Legrande should be welcome in any judicial chambers, no matter where they attended school, rather than shunned because of the speculated misdeeds of others.

The boycott would likewise apply to those like the 500 Jewish students who signed an open letter decrying the Gaza protesters’ “hateful rhetoric and simplistic binaries,” and declaring their belief “in the Jewish People’s right to self-determination in our historic homeland.” 

The judges claim to be standing up for “diverse viewpoints,” but they would end up turning such students away.

Most bizarre, however, is that the boycott will begin with the “entering class of 2024,” none of whom have been present during the current turbulence. This provision demonstrates that the boycott is not intended to avoid hiring disruptive students, but rather to coerce Columbia by discouraging enrollment. That is an unethical objective, as explained below.

Unethical. Federal judges have great discretion in hiring law clerks and chambers staff, but it is not unbounded. They are constrained by two provisions of the Code of Conduct for United States Judges, binding on all lower federal court judges.

Canon 3B(3) states that judges must make hiring decisions, including law clerks, “fairly and only on the basis of merit.” In addition, Canon 2B prohibits the exploitation of their position to achieve non-judicial purposes by “lend[ing] the prestige of the judicial office to advance the private interests of the judge.”

The Columbia boycott has nothing to do with the merits of unknown future applicants, who will not graduate until 2027 or 2028, when the Gaza encampment may be only a dim memory. Rather, it is intended to coerce Columbia into making certain nebulous changes in its practices, including some that have already happened (disciplining students) and some that are so vague (more freedom of speech) as to be indeterminable.

The only relatively concrete demand is for Columbia to change “the composition of its faculty and administration,” presumably by hiring more conservatives. That is a good idea, but it shouldn’t be pursued by threatening repercussions.

The ethics rules have no exception for self-professed noble objectives such as compelling a university to “reclaim its once-distinguished reputation.” Law clerks and other staff are public employees, provided to judges for assistance in deciding cases. It is flatly improper to use the positions as a reward, or punishment, dangled before third parties to bully their compliance with a judge’s ideological agenda.

Although the judges’ boycott has no redeeming value it does have some silver lining. It is notable that only 13 of Trump’s more than 260 judicial appointees signed the boycott letter, meaning 95 percent did not have anything to do with it.

Moreover, the boycotting judges have preemptively disqualified themselves from cases arising from Gaza encampments — perhaps related to the recent arrests at Texas campuses — given the vehemence with which they denounced the protesters.

The judges’ letter ultimately reads like a display of MAGA bona fides or an audition for promotion in the event of a Trump restoration. The absurdity of the boycott is an insult to higher education and an embarrassment to the judiciary.

Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is a coauthor of Judicial Conduct and Ethics” (Fifth edition).

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