Judge Ho’s School-Based Law Clerk Boycott Is Unconstitutional

In recent remarks at a Federalist Society event in Los Angeles, Judge James Ho of the Fifth Circuit lamented the failure of other judges to join his boycott of hiring law clerks from certain schools.

Noting that UCLA Law School students weren’t punished for their disruptive protest at a campus event with a Trump administration official, Ho reiterated his call for a hiring ban of all law students from Yale, Stanford and Columbia, where disruptive protests have occurred. He also has indicated an intention not to hire any disruptive protesters regardless of affiliation.

This boycott isn’t just inappropriate conduct for a government official. It’s blatantly unconstitutional.

The judge has said his ban is based on the schools “favoring certain viewpoints.” He wants all students associated with those schools to be barred from judicial clerkships based on that association regardless of whether the students themselves participated in protests. He also wants the schools to change their viewpoints and the offending protest activity to cease for the universities (and the students) to avoid his ire.

Of course, Ho, like the rest of us, can voice his views freely and criticize particular beliefs and viewpoints. But the US Supreme Court in NRA v. Vullo ruled that a government official can’t “attempt to coerce private parties in order to punish or suppress views the government disfavors.”

Yet that’s exactly what Ho is doing here: He is threatening universities with the loss of valuable government employment opportunities for its students unless the schools change their policies regarding disruptive protests on campus.

It’s the judge’s role as a government official that distinguishes his action from boycotts by private actors. The boycott would deny publicly funded judicial clerkships to graduates to influence the behavior of law schools on matters of public concern.

Ho’s action goes beyond expressing his personal views in an effort to persuade. It’s a brazen use of his power as a government official to pressure private institutions to conform to his preferences. It’s this conduct—targeting third parties to suppress viewpoints with which he disagrees—that is expressly disallowed under Vullo.

Government censorship has, admittedly, become rampant under the current administration. Universities are facing the loss of federal funds and fines if they don’t comply with government mandates to limit support for diversity and other initiatives. The FCC is threatening the loss of licenses and fines for reporting with which it disagrees, and even for jokes by late-night comedians. But Ho’s action doesn’t get a pass simply because the administration is willing to repeatedly test the limits of the First Amendment.

Boycotting students based on their protest activity or their affiliation with institutions where disruptive protests have occurred also directly implicates those students’ freedom of speech and association.

The Supreme Court held that the First Amendment prevents the government from “conditioning hiring decisions on political belief and association... unless the government has a vital interest in doing so.” Similarly, the Court held that government employment generally may not be denied based on an applicant’s constitutionally protected speech.

Of course, the Court also recognized that certain government positions are sensitive, with a heightened need for trust and confidence, which may outweigh these other interests. The job of a judicial law clerk is arguably such a position, as clerks often work in close confidence with judges and provide counsel on difficult issues, which is appropriate to consider when making an individual hiring decision.

But Ho isn’t talking about individual hiring decisions. His boycott is an across-the-board ban on public employment as a law clerk based not just on a student’s political speech and activity but much more broadly on their attendance at a particular institution of higher education.

The boycott casts too wide a net, eliminating the prospect of a judicial clerkship for any applicant from one of the targeted universities or who participated in a political protest regardless of other considerations. Although all judges have an interest in hiring clerks who accord with their views, Ho’s boycott disenfranchises a far larger swath of students without regard to whether any particular applicant would in any way be incompatible with the position.

By overtly seeking to pressure universities to change their viewpoints and policies, the boycott facially lacks any relationship to the merits of applicants, and punishes innocent individuals as a means to coerce the universities. In this respect, the boycott is clearly wrongheaded, inappropriately imposing guilt by association.

Federal judges occupy a powerful bully pulpit and are free to use it to express their views. As the Court stated in Vullo, “nothing here prevents government officials from forcefully condemning views with which they disagree.”

Ho can advocate, as he regularly does, for his views on the state of legal education and student protest. He should hire who he wants and urge others to do the same. But as a government official, his powers of persuasion are limited to just that—persuasion. Improper coercion and the invocation of guilt by association aren’t part of the arsenal.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Charles F. Walker, a retired partner of Skadden, Arps, Slate, Meagher & Flom, writes on issues related to political protest and the First Amendment.

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