Aaron Sibarium: Elite Law Schools Are Going Woke

June 18, 2022 Updated: July 4, 2022

“The whole premise of the American legal system is that everyone—no matter how unpopular—deserves legal representation. John Adams famously defended the British soldiers accused of the Boston Massacre. And he said it was one of the greatest things he ever did for the fledgling Republic that he helped found. And that ethos is just not there to the same degree today.”

Was the Supreme Court draft ruling leak indicative of a broader shift in America’s legal institutions?

I sit down with Aaron Sibarium, a writer for the Washington Free Beacon and the former opinion editor of Yale Daily News. He’s been researching how law schools have been impacted by woke ideology.

“Law schools have, for many years, been graduating the sorts of people who believe that long-standing legal norms perpetuate oppression and that we are justified in suspending them in order to solve various moral emergencies,” Sibarium says.

How will this ideological shift impact America’s legal systems long-term?

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Jan Jekielek: Aaron Sibarium, such a pleasure to have you on American Thought Leaders.

Aaron Sibarium: Thank you for having me.

Mr. Jekielek: Aaron, you’ve been doing some pretty remarkable work. I’ve been following you for a while.  Basically looking at this woke or sometimes it’s called Neo Marxist, sometimes it’s referred to as successor ideology, takeover of American institutions. Back in March, you wrote this piece about essentially the takeover of the legal profession, which wasn’t something that I’d seen discussed very much. And then we saw the fruits of that, when these notes leaked from the Supreme Court. So I want to actually start there with  this piece. You predicted the types of things that might happen, but that one, I think, took everyone by storm. So what actually happened for this unprecedented breach in the Supreme Court system?

Mr. Sibarium: Well, obviously we don’t know for sure who leaked it, so this is all speculation. But one of the common hypotheses is that it was a liberal clerk who leaked it, either to pressure the justices to defect and to not overturn Roe or, and I think this may actually be more plausible, in order to gin up public support for Democrats before the midterms. Now, obviously it’s an unprecedented leak. There have been leaks before, but nothing like the full draft of an opinion in modern history and certainly not the full draft of an opinion as controversial as this one will be.

So I think a lot of people were asking, how did this happen? Don’t Supreme Court law clerks have a sense of decorum and a sense that these deliberations need to be private? Don’t they care about the court being unbiased by public pressure? And it would seem that at least for one clerk, the answer is no. Or at least they don’t care about that as much as about achieving a preferred policy or political outcome.

I think this took many people by surprise. I confess, while I was certainly surprised by the magnitude of the leak, it wasn’t that surprising to me that it happened in retrospect because law schools have for many years been graduating the sorts of people who believe that long standing legal norms perpetuate oppression, and that we are justified in suspending them in order to solve various moral emergencies. And certainly a lot of progressives think that the end of Roe would be a moral emergency. So it’s not terribly surprising to me. It would not be terribly surprising to me if we discover that a liberal clerk leaked this.

Mr. Jekielek: You were at Yale yourself, and you watched actually, while you were in school these types of changes taking place—this type of ideology entering campus. I want to, before we continue, just give me the background of how you entered this field to speak.

Mr. Sibarium: Sure. So I came into college in 2014, a pretty normal moderate Obama Democrat. I was always anti-political correctness as it was called then, but on all sorts of policy and even cultural questions, I thought, “Yeah, the left is right and the right is wrong.” Then I became the opinion editor of the “Yale Daily News” right at the time that the explosion of woke activism began on college campuses.

Yale was the epicenter of this, but it quickly spread to all sorts of elite schools. There was some controversy over Halloween costumes, over cultural appropriation. A professor, Nicholas Christakis was confronted [and] surrounded by a huge group of students in the courtyard of one of the dormitories. It was a very big controversy, came to national attention.

And while it was going on, I was the one who had to field and edit everyone’s op-eds about the controversy, including op-eds from the wokist of the woke Yale students. So I got to see how they think up close. I also got to see how they write. The answer in most cases was not very well, and that was all rather startling to me. I think I’d already been questioning some of my priors, but that really accelerated my disillusionment with mainstream progressivism.

And then if you’re disillusioned with mainstream progressivism, who on campus is going to be friendly with you? Well, it’s conservatives, right? Even if you don’t agree with them on abortion or whatever, they’re not going to call you racist or sexist for believing in free speech. And so, there’s a process of natural social osmosis, where you become friends with people who are dissidents of various stripes, and then that exposes you to those dissident ideas. And I don’t know if I’d really consider myself a conservative, but certainly I’ve been pushed further right by this process. And I think it is safe to say that I am de facto on the right.

Mr. Jekielek: Well just something fascinating I’m finding. You’re describing yourself being pushed into being a dissident, being among dissident voices. The people writing these op-eds that you’re describing, they see themselves as the dissidents don’t they?

Mr. Sibarium: Yes, they do. And this is actually I think an important characteristic of wokeness. There’s a false consciousness where the people who have taken over all these institutions nonetheless see themselves as victims and maintain that the institutions are in the grips of a white supremacist ideology. Even though of course the institutions are actually in the grip of an ideology that sees white supremacy everywhere and has made its central goal the exorcism of white supremacy—alleged white supremacy from all institutions.

And I think that false consciousness is sincere by and large. There’s some people who are grifters, but a lot of other people genuinely believe it, or at the very least if they disbelieve it on some level, they’re not conscious of the fact that they disbelieve it. And so it’s really hard to argue with these kinds of individuals. And this is one reason why I think rational argument is not really the solution to the problem.

And for many years, I think that was the way people thought about it. It was, “Ah, these kids are irrational. So we just have to persuade them through the light of reason that free speech is good.” No, that does not work. Many of these people cannot be reasoned with and the thought process needs to be, how do we take the institutions back?

Mr. Jekielek: Because these are basically articles of faith that these people have, and they’re not going to be dissuaded.

Mr. Sibarium: Yes. We can get into this. I don’t love comparing it to a religion because I think that can obscure certain things, but it’s certainly that this ideology has religious characteristics. It’s very dogmatic. And you think about trying to persuade a Catholic not to believe in transubstantiation. It’s like, what are you going to do? It’s like a category error to even think that this is something that someone arrived at through a process of detached, rational argument or that the reasons they hold this view are particularly rational or philosophical.

It’s not to say that the view is true or false. It’s just to say that if you think that you’re going to argue someone out of belief in transubstantiation, it’s like you’re making a category error about what this belief even is and what the point of it is. Reason wasn’t really what mattered here. And when people try to argue back by saying, “Ah, but you’re making a logical fallacy.” It was like the two sides were engaged in fundamentally incommensurate epistemic projects. And I think really seeing that and indeed seeing the limits of debate was a big part of what started to change my thinking.

Mr. Jekielek: Well, so what happened? I mean in the bigger picture and let’s talk about the legal profession, because many people saw it in different places and of course there is … critical theory does come from the legal profession. Indeed, I know that. But somehow many of us as we’re learning, imagine that the legal profession would somehow be more immune just as we imagine the maths or the physics or sciences would be more immune, but it turns out that’s not the case, right?

Mr. Sibarium: Right. What happened was the kids who were protesting in 2015 then went to law school, some of them. And then they brought their ideas to law school and their culture to law school. I would say, look, in 2018, Heather Gerken, the Dean of Yale Law School wrote this op-ed in “Time” where she said, “Yeah, like Middlebury people shouted down Charles Murray, but here at Yale Law School, we don’t have anything like that. Because we teach people in the art of the adversarial profession.” And then of course, three, four years later, Yale Law School launches an inquisition against a student who uses the term trap house in an email.

It launches an inquisition against Amy Chua, hundreds of students shout down, or attempt to shout down a bipartisan event on free speech that the Federalist Society hosted. It’s just one controversy after another. And I think the approximate cause of that is just the population of Yale Law School changed. And the norms just changed. And once the students, a critical mass of students believe in this thing, unless the administration is really willing to stand up to it, it just takes over like that. And Yale Law School certainly has not been willing to stand up to it. And that’s not unique to Yale Law School.

Mr. Jekielek: Well, okay. So really it’s coming from the students? That’s fascinating.

Mr. Sibarium: Yeah. So it is coming from the students. It’s also coming from certain mid-level administrators who are in DEI offices and have an institutional incentive to perpetuate this ideology. I think  that’s a big part of the story here, that we’ve institutionalized the activist class, and once that class is institutionalized, there’s just no limiting principle on what it will do.

So it’s a mix of the students, norms changing among the very young and then that trickling up into law  schools as those students come to law schools. But it’s also broader changes in the way all of academia works. All of academia, these DEI offices, they’re everywhere. And then there’s this deeper question about  how the DEI offices came to be in the first place.

I think that’s partly ideology, but partly also legal incentives. A private school like Yale is not bound by the  First Amendment, but it is bound by the Civil Rights Act. And you see the construction of these bureaucracies really began or accelerated in the ’90s when civil rights law began to attach more draconian penalties to institutions that were found to have created a hostile work environment.

And before the ’90s, there was no sexual harassment training. You just, you didn’t have that. And now you have it everywhere. And that the main reason for that is that there was just a change in the legal environment. And then these bureaucracies that started as compliance mechanisms take on a life of their own, they have these self-interested incentives to perpetuate the idea that racism and sexism are everywhere, because otherwise why have that anti-racist anti-sexist bureaucracy? And so it’s kind of, I think partly legal pressures that set the ball in motion and then a organic process of bureaucratic self-aggrandizement that perpetuates it.

Mr. Jekielek: So it’s interesting. I imagine if you’re in the HR office and you are an adherent of this ideology, while you’re hiring somebody through the shared language … or I don’t know how it is actually, I’m very curious how this works, but probably okay, this person’s on my team and clearly my whole purpose is to stack as much as possible with team players, because we’re all somehow exactly on the same wavelength and we’re going to be able to push this together. I imagine that there’s just this critical mass. Because also among  a lot of the academy, it’s professors, especially in the blank studies like women’s studies, blank studies departments. It’s become really the dominant ideology in these places.

Mr. Sibarium: Yes. So it is, although I think the ideology is comparatively more dominant among administrators than professors. And you even see this when you look at statistics, like professors, it’s like 20 to 1 are liberal, but then if you look at administrators, it’s like 40 to 1 it’s just, there are not conservative administrators. This just does not exist anywhere.

Whereas at Yale Law or Harvard Law, even if the staff or the professors overwhelmingly lean left, the old guard tends to believe in basic norms of free speech and due process and tends to, I think be very upset when administrators trample on those norms of free speech and due process as they have done at some of these universities.

To give you just one example, a lot of the deans, administrators of law schools encouraged the American Bar Association to make anti-racism training an accreditation requirement for law schools and they eventually did make something like that a requirement. But it was actually a group of very distinguished Yale Law School professors among others who submitted comments to the ABA criticizing some of these proposals because they were worried that it would infringe upon academic freedom.

So you see this clash between faculty who want more power and are upset that administrators have usurped it from them. And then the administrators who just really don’t care what the faculty think. And now for various reasons just are the real loci of power within the universities.

Mr. Jekielek: Well, and I think if I recall at Yale in your piece, there’s more administrators than there are faculty now or something like this, right?

Mr. Sibarium: Yes. Yes, there are. At Yale there are more.

Mr. Jekielek: That, there’s something going terribly wrong here, or?

Mr. Sibarium: Yeah. Well look, it’s partly just the self perpetuating, self inflating logic of bureaucracy. Bureaucracies always tend to get bigger. There’s this conservative meme that it’s easier to tear something down than to build something up. But in the case of bureaucracy, it’s actually the opposite. It’s much easier to create a bureaucracy than it is to get rid of it. And that’s a problem.

I think there’s always a chicken and the egg issue here, which is like what fueled what, but certainly coincident with the growth of these bureaucracies has been a change in the way students think of higher ed. It’s maybe more acute at the undergraduate level than the law school level, but I think it has affected all levels where education is now seen as a consumer good, and the point of going to school is to get a special experience.

Like at all these Ivy league schools, they have tons and tons of amenities for the students. And they’re sold as playgrounds for four years where you can just have fun, get drunk, hook up with a few people. That’s the selling point. As the students come to take on a more consumerist orientation toward the university, the university has in turn taken on a corporate self-conception [that] extends and influences this bureaucratic bloat. So there’s two things working at once. You see that the way in which people think about the institution has changed. And then the structure of the institution itself has changed. And these two things fuel each other simultaneously.

Mr. Jekielek: Fascinating. For people in the system, it’s been described by some of the people you interviewed as living in a panopticon. Absolutely every little thing you do, you’re aware that it will be recorded and you will be judged based on it.

Mr. Sibarium: Correct. I think that the panoptic effects of social media have combined with the bloat of bureaucracy in a very unhealthy and dare I say, Orwellian way.

Mr. Jekielek: Yes. But just growing up as a young person in a world where everything you do is measured, recorded. I mean, I don’t know. I can think of many things that I did that I’m quite happy weren’t on video.

Mr. Sibarium: Yeah, of course. And part of the other problem here is that it doesn’t have to be an explicit transgression of the ideological dogma. It can be anything. And then if you transgress the ideological dogma, this happened at Princeton, Joshua Katz professor writes an oped that’s critical of some of the social justice stuff. And then the school newspaper starts digging into his past and unearths these already settled and adjudicated allegations, an incident where he’d slept with a student.

They’d already punished him for this and said, “All right, you served your time. You’re done.” Then of course, the school paper motivated by presumably woke ideology and anger at this op-ed digs up the allegations.

Then the school starts reinvestigating him and uses this, among other things uses emails exchanged over many years in order to claim, I think somewhat tenuously that Katz did things that he says he didn’t do. And so then they say they’re firing him over, having behaved inappropriately with a student, but the whole new investigation would not have happened but for the initial ideological transgression.

And I think, technology has made it much easier to come up with pretexts for these kinds of political witch hunts. People may debate that characterization of the Princeton thing, but I just, as a broader point, it’s just easier to find something that looks bad about somebody in a world where everything is immortalized with technology. And I think that’s just a big, long term structural change that’s fueled a lot of this stuff.

Mr. Jekielek: This whole Joshua Katz case, and I can see you’ve been following that quite intently, is absolutely fascinating. There’s this one element, for example, that basically they’ve been getting rid of their Greek classes and Latin classes and so forth. So they want to switch to other languages, non-Eurocentric languages. But it turns out that Joshua Katz is one of the few people who can actually teach these remaining languages. I mean, you can’t write that. You can’t write this stuff. It’s weird, poetic.

Mr. Sibarium: You can’t make it up. I mean, it’s amazing. He’s probably one of 5, 10 people on earth who speak some of these languages because they’re so obscure. Yeah. I mean, as an aside, the whole notion that  Greek and Latin or even Eurocentric languages, I think is somewhat a historical … the very concept of modern Europe and white Europe is just, doesn’t really map on very well to the ancient world.

Mr. Jekielek: But they are Western, right?

Mr. Sibarium: Yes, they are. They are Western.

Mr. Jekielek: See, I was using their terms.

Mr. Sibarium: No, I mean, I think you can say they’re Western, but this is another characteristic of woke ideology, the tendency to project modern racial, conceptual and even bureaucratic categories back onto a pre-modern, very non bureaucratized society. Right? The whole concept of race in the United States, many of them were just invented by the federal government in the ’70s, like AAPI.

There’s no biological or really sociological reason why all these discrete Asian groups should go together. But they do because the Office of Management and Budget in the ’70s was like, ah, well, we need a way to administer minority, set aside and affirmative action programs, and these activists are pushing to be included. So well, we’ll make up this category and just say it works.”

And it’s nonsense, but it’s just the demand of pragmatic administration causes all these like fake categories to come into being. And then people try to apply the categories back onto history as if they are these transcendent classifications that all human society falls into. And it’s just, it’s just not true.

Mr. Jekielek: In this case, there’s this situation where like, and this is, I don’t know, is this characteristic of how these woke bureaucracies work? But they’re basically firing him in a very public way, as far as they understand, prior to actually letting him know that’s what’s going to go down.

Mr. Sibarium: Yeah. So they fired him. They actually, the first he heard of it apparently was when the  “New York Times” reached out about his firing. They hadn’t even told him before it was public. And yeah,  look, they clearly wanted to make it a public thing because he had offered to resign privately, quietly and they  rejected his offer and were like, “No, we are going to reserve the right to make a big public statement about this,” which again you don’t know, but to the extent people are speculated that politics was the real reason they were firing him, that is certainly consistent with that story.

Mr. Jekielek: How much of this is performative? This is the question that I keep … like how much of it is for display, for sending a message, all this kind of stuff?

Mr. Sibarium: Certainly a lot of it. I do think, well, like the Princeton thing, certainly is going to communicate a message to people that if you transgress the ideology, it is more likely that your past will be dug up and used against you. I mean whatever you think about why they fired him and whether you take their explanation at face value or not, it’s very clear that just the causality was that he wrote this op-ed, it was controversial, the controversy generated more scrutiny, and the scrutiny in turn led to this investigation being reopened.

Mr. Jekielek: And just to be clear, he wrote an op-ed criticizing wokeness.

Mr. Sibarium: Yes, yes. And I would say also to be people honed in on, he called a student group a small local terrorist organization in the context of basically saying that they metaphorically terrorized their peers.  Yes, it’s hyperbolic language, but a lot of the people who he was criticizing used hyperbolic language too, including some of the exact same language of terrorism to describe things that weren’t actually terrorism.

And in the grand scheme of things, I read a lot of criticisms from both left and right of our current order. Language he used was nowhere near as incendiary as plenty of other language that’s used every day on Twitter. So the whole idea that this was extra out of bounds is just silly.

Mr. Jekielek: So what does it look like being a law school student now in say Yale or some of these other schools that are, I guess, deep in the ideology?

Mr. Sibarium: It varies by school. Harvard and U Chicago are probably not as bad as Yale, Georgetown, Stanford, et cetera, just for a lot of weird contingent reasons. But in general, I would say kids are very afraid to say what they really think. They’re afraid to play devil’s advocate in the classroom. I’ve heard stories about  kids being raked over the coals for merely offering a hypothetical defense of a Scalia descent. Even if you  say, “I am not endorsing this, I’m just saying one could argue that,” which is what you’re supposed to do in law school. There will be a struggle session where all the kids are like, “I can’t believe you would say this horribly racist thing.”

The adversarial culture that’s supposed to characterize law school classrooms, I think has really, really eroded and at a place like Yale, I’m sure there are certain professors who are better than others, and you can take classes where the kids are more, there is more open debate, but my sense is that there really is just a imperative to keep your head down if you don’t want to experience what some people have called social death. I mean, they use that. A Harvard law professor I spoke to used that term. That’s how he characterized how even liberal students feel about potentially saying something slightly at odds with woke orthodoxy.

Mr. Jekielek: I mean, this of course will sound bizarre to many people like myself because debate is what  is done in the legal profession. Yes. I mean, that’s what it’s about, right? And convincing people of things. How does that square with what’s happening?

Mr. Sibarium: Well, I think it has a number of downstream effects and I want to be careful here because some people I think will read this account and think, “Ah, so the lawyers are just going to like clam up and like burst into tears at the first controversy in the courtroom and won’t be able to do their jobs.” And to be honest, I doubt that’s really what is going to happen. And I worry that if people act like that’s what’s going to happen, they’re going to miss what’s so dangerous, which is not … if all these kids just like melted down on the first, the moment they got into an adversarial context, well, that’d be great. They’d have no power. The problem is that they don’t actually melt down.

What they’re going to do is I think transform various legal institutions from within, prosecute a substantive ideological agenda through courts and government agencies. And also where the breakdown of adversarialism might be a big deal, is when it comes to like say ethics requirements for the bar, and if you  make an off the cuff comment on the courtroom steps and someone perceives it as racist, and then they report you to the bar and you get a harassed with ethics complaints or something. There’s a lot of ways in which you can make the profession less hospitable to opposing points of view.

I think one concrete way this manifests is that in law firms, big law is just not going to take controversial pro  bono cases or at least, or they may take ones that we would consider controversial, but defund the police activism I think you can probably get away with doing pro bono stuff, but like someone told me something like, “God help you. If you want to file an Amicus brief for Feminists For Life.” There’s all sorts of causes like abortion, religious liberty that increasingly big law firms just don’t want to touch because their younger staff will get really mad at them and be like, “How can we represent X, Y, or Z evil person?”

And then the other dynamic is that corporations that work with the firm will reach out to the firm and be like, “We’re not happy that you’re representing this other guy who’s problematic.” And if Coca-Cola is implicitly threatening to separate with your law firm, Coca-Cola is a huge client, so you’re not going to want to lose them. So there’s also economic incentives that force the law firms to avoid controversy.

And that’s a problem, right? Because the whole premise of the American legal system is that everyone, no matter how unpopular, deserves legal representation. John Adams famously defended the British soldiers accused of the Boston Massacre. And he said it was the greatest things he ever did for the fledgling republic that he helped found. And that ethos is just not there to the same degree today as it used to be, partly due to these external corporate and even media pressures, but also partly due to the fact that lawyers just no longer believe in the way they used to that everyone deserves representation. And that it is in fact, a very honorable thing to do to defend someone say accused of rape, who you yourself think is guilty.

It’s honorable precisely because the justice system only works if even those people who you know are guilty get representation as a matter of course, but that I think requires you to believe in certain institutional premises that increasingly these lawyers don’t believe in and that they see as perpetuating all sorts of injustices within the legal system. So it’s a problem.

Mr. Jekielek: Well, as you’re speaking, I can’t help think about Marcuse’s repressive tolerance basically principle. The idea being that what’s right is what’s ideologically right. And what’s wrong, if it’s not ideologically right, it’s just always wrong. So, are you foreseeing the legal system being remade in this sort of  image?

Mr. Sibarium: There’s going to be pressure on it. Now, I think the good news is that the Federalist Society, there is a conservative legal movement that actually has institutions. And the fact that it has an  institutional presence does make it, I think, more effective. So I would imagine that there will always be  conservative lawyers and they’re not going to be just totally driven out, but I do think there will be these  softer pressures that cause more and more of the elite legal world to coalesce around a particular set of values that really are not liberal and are not the values of your parents’ lawyers.

It’s hard to predict exactly what will happen, but I think yes, you’re already seeing it erode. And look, the  Supreme Court thing is a good example where if people believe that in the presence of a great moral crisis  you can suspend all the norms of the legal system. And people believe that racism and sexism and all these things are current, ongoing moral crises that pervade every aspect of our lives. Well, then that’s basically an  argument for just jettisoning all the norms that make the legal system work the way it does. And it’s a bit hard to imagine exactly what that looks like, but it’s certainly going to be different than the legal system that we’ve had for many, many years.

Mr. Jekielek: Well, one way, one obvious way would be your guilt or innocence is determined by your position on the intersectional hierarchy, for example, as opposed to what actually happened.

Mr. Sibarium: Yes. And you know, I mean the other thing too, and this is zooming out a bit, but even if the law continues to be formally colorblind, even if the law continues to proceed under the norm of innocent  until proven guilty, when there’s these media show trials and all this institutional pressure outside the law, it  only matters so much what the law says. When, for example, you saw a lot of these states that were doing  racial rationing of COVID drugs.

They did back off in the face of legal threats, but they were willing to do it in the first place, even when they were told in some cases that it was illegal, but they just went ahead and did it anyway, because they were like, “Oh, just the consensus was just, well, racial preferences in medicine are just what you do.”

And so once that becomes just an institutionalized, common sense, almost conventional wisdom law can maybe blunt the worst excesses, but there’s only so many lawyers that can’t be everywhere at once. If people don’t feel a need to follow the law independent of sanctions, if the only reason they’re following it is because they’re worried about not getting in trouble not because they think it has some intrinsic normative weight you’re probably going to in practice, see a lot more things happen under the table that are illegal.

And yeah, just saying, “Well, but the constitution prevents this. Well, okay. But unless like some enterprising  reporter goes and surfaces that Utah is racially discriminating in the provision of life saving care, Utah’s still going to discriminate in the provision of life saving care, even when they’re told it’s illegal. And by the time someone sues them, they’re already going to have been doing that for like a year.

And that’s going to effect who lived and died in the state of Utah who had COVID. So it’s not enough to just even maintain a conservative or anti woke presence in the legal system. You really got to fight the war on all fronts because there’s just only so much that the law can do in the face of an overwhelming lawless elite consensus.

Mr. Jekielek: So how far gone are things then?

Mr. Sibarium: Pretty far gone, but in the long run, there’s some reason to be hopeful. I do think just the other day I saw Michael Powell, who’s a “New York Times” reporter, came out with a piece about trans women in sports that was I think respectful, but critical of Leah Thomas and some of these cases.

To me, there are signs that there’s a lot of dissatisfaction with this ideology. There are signs that, especially when the red wave comes in November, that there are going to be political recriminations. And there is a feedback mechanism that may prevent it from just being a secular straight race to the bottom for how woke we can be. But what worries me is that even if we’re fine in the long run and eventually there’s a blow back and eventually the regime collapses under the weight of its contradictions, it can do a lot of damage in the meantime.

And especially with young people, you see these studies on how young people believe, what they think about free speech. And it’s just, it’s very striking that the generation that is about to replace the boomers and everyone as the head of all these institutions, a lot of them really do buy into a much more censorious, much more illiberal set of values around free speech and diversity. And so I don’t know if we’ve really seen “peak woke” yet.

I think ultimately, what this will depend on is whether this generational title wave of young woke people can be shocked out of their ideology once the cost of it really starts to pile up. I don’t think … we haven’t even begun to see what true defund looks like.

And you saw like in certain cities, all these woke white liberals were like, “Yeah, defund the police.” And then, “Oh, now crime is up like 300 percent. Well, maybe we shouldn’t have done that.” When that thing happens in every institution all at once. And it’s really this generational tidal wave, you’re going to see a lot of cost to the ideology. And I think the costs are going to have to become quite substantial and felt by a very broad cross section of people for there to be some reconsideration of it.

I do think that will happen eventually, but some people will say, “Well, but it’ll happen eventually, Aaron. So why are you worried?” Well, the Soviet Union collapsed eventually, but it did a lot of damage in the meantime. And when it collapsed the attempt to pick up the pieces didn’t go so well either. I don’t think we’re on the cusp of Soviet totalitarianism or post Soviet Russia. I’m not saying that, but the point is just, just because something doesn’t last forever doesn’t mean it can’t do a lot of damage and that you shouldn’t fight against it.

Mr. Jekielek: No, I understand. And I mean, it’s fascinating to see this … I guess it was 2021 really that the place where I saw just society at large becoming cognizant of what’s happening was, and I’ve heard this story anecdotally literally hundreds of times, parents on zoom listening to what their kids are actually learning in school. I mean, just fascinating.

Mr. Sibarium: That’s the flip side to the panopticon. I don’t like the panopticon, but the way in which disillusioned parents have then turned the panoptic character of our society to their own advantage against these woke school teachers, it may be a reflection of a bad state of affairs in which everything we say is public. But it also does allow for a grassroots pushback to take place. And I do think that with, look, the COVID pandemic in so far as it accelerated the digitalization of everything did arguably provide dissidents of wokeness with more weapons and more knowledge of what was going on.

And I think that is a good thing, and I frankly think one challenge anti woke people need to think through is that a lot of things that they decry like the panopticon, like cancel culture, et cetera, are in fact effective means of fighting back against wokism. I mean, they just are. Libs of TikTok publicizing these crazy teachers, this clearly does move the needle. I don’t love all the laws that states like Florida have passed. But the reality is that when you create a chilling effect, people are like, will this school create a chilling effect to talking about LGBT things? And yes, and I think some of that chilling effect is bad.

I don’t want a teacher fired for just saying that they’re in a gay relationship or something, but if the educational institutions are all captured and they’re just saying insane things, and this is part of the curriculum, you do need there to be a chilling effect of some sort to get these institutions to stop.

And you saw with Disney in Florida, DeSantis stood his ground and really went after them and then now you see all these corporations suddenly are like, “Ooh, maybe we should be careful about taking positions on issues.” Yes, the chilling effect can be bad, but I think people aren’t being honest if they don’t recognize the upsides that certain chilling effects can have.

And ultimately I think a lot of the question here is, what is an acceptable chilling effect? What is justified in the service of combating this ideology, which itself, of course, has all sorts of chilling effects? And when do we start to really go too far and just not just become no better than the enemy, but just create all sorts of problems that no one foresaw and that we really want to stay away from. I think it’s genuinely a tough question and I’m not sure anyone has figured out the right balance.

Mr. Jekielek: Well, so let’s talk about that, the constructive tools of fighting back against this ideology.  You’re obviously doing a shining of the light on it in all sorts of different ways. That’s your way. These parents, obviously the same way, Libs of TikTok. Exactly. So is that one major way? What else is there?

Mr. Sibarium: Well, so I do think that is actually very effective and I’ve been surprised by how many institutions I’ve seen backtrack in the face of my reporting, like medical bureaucracies and even Yale Law School. They did some damage control after one of the stories I broke. The issue, the limit is that there’s just only so many reporters and you can’t uncover everything. And so in order for there to be a really persistent deterrent, it needs to be something more like a law or the threat of DeSantis coming in. Journalists aren’t powerful enough to create a systemwide deterrent, unless journalists are hegemonically anti woke, which of course is not true.

Mr. Jekielek: Well, I was going to say that many of them are actually on board with the whole thing.

Mr. Sibarium: And that’s the problem. I mean yes you can … and now granted you can sometimes get reasonable liberals to admit, okay. Yeah. Trying to ruin a kid’s life for using an innocent term and email is overkill, but yeah. On a lot of these questions, it is hard to get “The New York Times,” the media to really  jump down people’s throats in the way that they jump down people’s throats for racism.

And so, yeah, I do think you need to think in terms of incentives and the anti CRT laws are potentially one way of changing the incentive structures. Although, I think they have slippery slope problems and I’m also not sure how much they really do because the education establishment is so woke that really, a woke teacher is going to find a way around these laws.

Mr. Jekielek: It’s because, well, CRT, right? It’s not so much the teaching of that, “Well, there’s this theory.” It’s the praxis, it’s the implementation.

Mr. Sibarium: Exactly. Exactly. And look, honestly people talk a lot about the really crazy anti-white diversity training. Sure that stuff’s bad, but in some ways what’s maybe more consequential, because I suspect more kids actually believe it, is when you present U.S. history in a way where you just emphasize the bads and none of the goods.

You don’t even have to say it started in 1619. If what you assign a paper on every month is how X or Y oppressed group worked against their oppressors, that’s a valid thing to talk about, but if that’s the only thing that a teacher is emphasizing, kids are going to come away with a very skewed vision of U.S. history. And that’s not the thing that these laws I think are really going to be able to get at.

I alluded to this earlier. I do think that this structural asymmetry in the way civil rights law binds public and private institutions, but the First Amendment only binds public ones. I think that is a big problem and it’s tough, right? Because civil rights law is also actually a mechanism that can be used to fight back against this. You say, “Well, look, the plain reading of the Civil Rights Act is that you can’t discriminate on the basis of race.” And therefore giving, say like discriminating in medicine, where you give people of color extra points when it comes to allocating COVID drugs or doing these crazy diversity trainings where you inveigh against whiteness, you can use civil rights law as a tool to fight back against that.

But I think the problem is the result of that these asymmetric incentives is that there’s just more bureaucracy dedicated to policing racism than there is dedicated to vindicating free speech rights, especially in private institutions like academic, like universities that if not bound by the First Amendment, claim to believe in free speech and academic freedom.

And so, ideally I think you would find ways, if not legal then certainly through coordinated private action, of incentivizing the creation of countervailing bureaucracy, or incentivize the pairing back of some of the woke bureaucracy. Ideally by making the woke bureaucracy more costly. I mean, we’re at the point where it’s subsidized and you’re not really punished for having lots of DEI people.

If there were more negative consequences to having these massive, bloated bureaucracies on college campuses and elsewhere, I think you would see fewer of them. And that, the very fact that Disney and other companies did blink in the wake of DeSantis really going after them is evidence that they may have their woke employees, but corporations still, they can’t totally ignore the demands of the market.

I mean, when there’s a real threat to their bottom line, they do tend to recalibrate. So you have to either find a way of clawing back the woke bureaucracy or of creating a countervailing anti woke bureaucracy that serves as a check on institutionalized wokeness.

How you do that, of course, in practice is very complicated. What legal incentives will or will not give rise to this is a matter for prudential debate. And some of it can be done probably through the Presidency, executive orders and the administrative state. I think conservatives should not be so … I mean, we’re not getting rid of the administrative state. It exists, it’s going to exist. So I’m largely on board with the idea that you should where possible. If there’s like a President DeSantis, he should use the power of the administrative state to presumably fight, get back against some of this stuff.

And he wouldn’t be doing anything that President Biden hasn’t already done where Medicaid is like offering doctors bonuses if they do anti-racism plans. Well, you could just tell Medicaid to not do that. You don’t even have to pass a law. That’s an administrative state thing. So there’s lots of levers you can pull. And I think the last thing I’ll say on this is you need a competent staff of conservative technocrats who know how to pull the levers.

And in some ways, I think that’s the biggest challenge. Say what you will about liberals, they generally understand how policy and government works and the people who are most likely to staff these bureaucracies, they just, they happen to be liberal.

So if you want to do something about the direction these bureaucracies have all gone in, you need there to be conservatives who aren’t just, say political theorists. Look, I love political theory. I did a lot of philosophy in college. It’s great, but it just doesn’t give you the technocratic expertise to manage or reform an agency like the CDC. Public health programs may all suck, but you do need there to be public health departments. And if all the people in the public health departments are really woke, you’re not going to solve the problem.

So I think that part of the real challenge here is getting a critical mass of smart conservatives to learn how to be administrators of say a public health agency so that within public health, the agencies are just less dominated by wokes. And I think that if there was more of that ideological parody, you would see the institutions behave in a more defensible and mostly neutral way.

Mr. Jekielek: Well, so a couple of things. One is, I’m thinking of some of the very interesting work that Russ Vought did at the Office of Budget Management under the Trump administration, and people like that who can understand some of the levers so to speak. But the other thing is, I mean, just conservatives generally are much less inclined to want to be in bureaucracy, I think. It’s just a kind of a-

Mr. Sibarium: Yes, I think that is true. And I think that’s a problem. I mean, part of that may be a contingent feature of American conservatism. Like in Europe, I don’t think that aversion is there to the same degree because their European conservatism just for a long time has been more comfortable with the state. And American conservatism, just I think intrinsically has a just knee-jerk discomfort with statism.

That’s positive in many ways. It does put the break on certain kinds of disastrous status policies, but in other ways, I think it can be an obstacle. And at this point, look, the problem is that the smartest conservatives in DC who I know, a few of them are on the hill. A few of them work at think tanks, but a lot of them either are just doing something that makes them money, or they’re doing something like political theory, like getting a PhD. And that’s great, but political theory, PhDs rarely end up making policy or staffing, or staffing the administrative state. It’s just not very common.

Mr. Jekielek: Aaron, this has been a fascinating conversation. Any final thoughts?

Mr. Sibarium: Yes. So the thing I would want to leave people with is that we often think of wokeness, Neo Marxism, the successor ideology, whatever you want to call it as a mind virus that just reproduces itself autonomously in these institutions has a logic of its own. And that maybe won’t be defeated with rational argument, but will be defeated if enough people just have the courage to stand up to it or just develop a spine. You hear that a lot.

And the reality, I think is that, think about the way a virus takes over. There have to be things about the virus that allow it to enter the cells. But there are also things about the cells that make it possible for the virus to enter. Coronavirus, for example, has the spike protein, and the reason it can infect you is because in your nose, you have this protein receptor. And if you didn’t have that receptor, you wouldn’t be able to be infected with COVID.

And I think that’s the way to think about woke capture of institutions. There are maybe features of these ideas, the fact that they appeal to our sense of black and white, moral crusade, people like moral crusades. They tug at people’s heartstrings about race. There’s things about the ideas that do make them potent, but there’s also things about the institutions that make it easier for these kinds of potent moral ideas to enter. I think one of those things is this legal asymmetry, as I’ve said, where institutions are legally liable for allowing certain kinds of discrimination and harassment, but not for stifling free speech. I think another perhaps more abstract, but important thing is that just bureaucracies by design, they have to make people in the bureaucracy and they have to make social reality legible, right.

They have to be able to quantify racism. And that means that there is always a push to reconceptualize racism as a matter of outcomes, not intent, right. Bureaucracies can’t really judge what’s in someone’s heart, but they can totally measure what percentage of Asians, white, Blacks are in bureaucracy. And so just if you’re … this idea that racist policy is any policy that produces racial disparities. That’s the Ibram Kendi formulation.

That’s a very convenient thing for bureaucracies to believe, bureaucracies that have been tasked with adjudicating racism, partly of their own free will. And partly from outside forces that have forced them to do this, civil rights statutes, what have you. When you’re in that situation, I think there’s just a tendency to glom onto ideologies that justify what you’re already going to have to do in practice, which is bean count.

The easiest way for bureaucracy to show that it’s pursuing racial equity is to increase these quantifiable diversity metrics. And so you’ve come up with an ideology that says that those diversity metrics are what matters. So those are just a few of the ways in which bureaucratic structure can influence an agency or organization’s susceptibility to woke politics. And so what I would hope is that people who oppose woke capture of institutions will think less about … spend less time writing these Jeremiahs against wokeness and dismantling it as an ideology, but work on dismantling it as a bureaucratic phenomenon and work on changing the institutional levers that have allowed it to gain power. I think that’s really the key.

Mr. Jekielek: Well, Aaron Sibarium, it’s such a pleasure to have you on the show.

Mr. Sibarium: Yeah. Thank you for having me. This was great.

Mr. Jekielek: Thank you all for joining Aaron Sibarium and me for this episode of American thought Leaders. I’m your host Jan Jekielek. Try a 14 day free trial of Epoch TV at ept.ms/freetrialjan.

This interview has been edited for clarity and brevity.

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