Stanford Law Responds Appropriately, If Belatedly, To Judge Duncan Fiasco
Measured Decisions Rarely Please Anyone
Last time I indulged myself in some spleen-venting over Fifth Circuit Judge Kyle Duncan’s visit to Stanford Law School and the ensuing tumult. I was unkind and uncharitable to everyone, as was suggested to be by friends, colleagues, students, and a federal appellate judge. Look, I am what it says on the label.
I retract nothing, but I will admit to being pleasantly surprised by a mature, forceful, principled response to the events from Stanford Law School Dean Jenny Martinez. Dean Martinez’ response has one of the key hallmarks of a tough but sound decision — it’s going to make almost everybody mad. It’s the right call; here’s why.
Threats Are Unacceptable
Right out of the gate, Dean Martinez tells us she’s not going to put up with the dregs of internet culture:
As we consider the role of respectful treatment of members of our community, I want to be clear that the hate mail and appalling invective that have been directed at some of our students and law school administrators in the wake of March 9 are of great concern to me. All actionable threats that come to our attention will be investigated and addressed as the law permits.
Too many people indulge in internet-style threats to people involved in public controversies. When these threats cross in to the territory of plausible true threats outside the protection of the First Amendment, they should be reported, their utterers investigated, and their lives and prospects adjusted accordingly. The culture of threatening everyone who annoys us is poisonous and indefensible. Legally curb-stomping the lives and futures of more of these misfits, pour encourager les autres, is sound policy. Naturally they should enjoy a vigorous, experienced First Amendment defense at public expense. But if you’re one of the people who do that, you should suffer.
Leaders Should Stand Their Ground
Dean Martinez says:
In the message below, I respond below to many of the questions I continue to receive about why I apologized to Judge Duncan, why I stand by that apology, and why the protest violated the university’s policy on disruption.
Good. The apology was appropriate, particularly because a Stanford administrator played an appalling role in the event. Many Stanford Law students protested Dean Martinez’ decision to apologize. That was their right. Being a leader means making unpopular decisions. Dean Martinez was right and the students were wrong (in many ways, not the least of which was believing they had a First Amendment right to disrupt a speech). She didn’t cave. Good for her.
Stop Whining About Free Speech While Pretending To Venerate It, Please
There’s something else here that’s important and speaks well of Dean Martinez. The students who protested her wore black, wore masks, silently lined the halls, and taped fliers to the whiteboard in her classroom. Many on the right reacted — to use a demeaning and loaded term with deliberation and extreme prejudice — hysterically. The students’ protest was condemned as threatening and intimidating, the fliers decried as “vandalism,” and the students otherwise portrayed as out-of-control thugs. Meaningfully, Dean Martinez does not indulge in a scintilla of this nonsense. Her defense of her actions is admirably free of self-pity and demonstrates an adult level of endurance for criticism that the right-wing criticism of the students largely lacks. The silent student protest was a classic, effective, evocative, and occasion-appropriate response to what the students saw as unfair criticism of their speech. The fact that their feelings were, to be honest with them, dumb and wrong does not make their mode of protest inappropriate. Rightward hysterics, grow a spine, or ask Dean Martinez to lend you hers.
The Law Matters Even At Fancy Law Schools
Dean Martinez’ letter includes a lengthy, thoughtful, nuanced, and citation-rich analysis of the limits on the students’ imagined right to disrupt other people’s speech. It begins:
Second, while the First Amendment is designed to protect speech from government restriction, and therefore is not directly applicable to Stanford as a private institution, California’s Leonard Law, Cal. Educ. Code § 94367, prohibits private colleges from making or enforcing rules subjecting students to discipline on the basis of speech that would be protected by the First Amendment or California Constitution if regulated by a public university. Some students have argued that the disruptive protest of the event was itself constitutionally protected speech. Of course, protests are in some instances protected by the First Amendment, but the First Amendment does not give protestors a “heckler’s veto.” As First Amendment scholar Dean Erwin Chemerinsky has written, “Freedom of speech does not protect a right to shout down others so they cannot be heard.” Erwin Chemerinsky & Howard Gillman, Free speech doesn’t mean hecklers get to shut down campus debate, WASH. POST (Mar. 24, 2022), https://www.washingtonpost.com/opinions/2022/03/24/free- speech-doesnt-mean-hecklers-get-shut-down-campus-debate/.
Is it impossible to disagree with any of Dean Martinez’ analysis? No. But I’ve never seen a single shouting-down advocate offer a coherent legal defense — only political defenses.
In analyzing First Amendment rights, the law matters. I think Dean Martinez is right on the law. Moreover, I think she’s bringing the rule of law to bear on a legal issue, which is what a Dean of a law school talking to law students about law should do. You can nudge me when one of the students defending shouting down offers a plausible contrary legal analysis but I shan’t hold my breath.
The point of Dean Martinez’ analysis is that people have a right to invite speakers and listen to them and those speakers so invited have a right to speak and you’re violating other people’s rights if you imagine you have a right to stop them. This does not make you a victim; you retain a vast array of means of protest (as the students’ effective, evocative, attention-attracting protest of Dean Martinez’ apology shows.)
On the other hand, Dean Martinez is to be commended for not overreaching. She makes it clear that the shouting down was excessive because of the specific context — an invited speech to a group — and that in other contexts (a political rally in the open, for instance) it might be defensible. It’s clear that she’s not going to follow demands to impose some sort of rigid civility code against protestors, which is correct.
Dean Martinez Speaks Heresy
Dean Martinez continues:
The university’s commitment to diversity, equity, and inclusion can and should be implemented in ways that are consistent with its commitment to academic freedom and free speech. See Marc Tessier-Lavigne and Persis Drell, Advancing free speech and inclusion, (Nov. 11, 2017), https://quadblog.stanford.edu/2017/11/07/advancing-free-speech-and- inclusion/. Indeed, for the reasons explained below, I believe that the commitment to diversity, equity, and inclusion actually means that we must protect free expression of all views.
This ought not be a bold statement, but it is. I have not fallen for the Tucker-Carlson-style hysteria that diversity, equity, and inclusion spells the doom of Western Civilization. A substantial portion of the response to DEI is bad faith reactionary hysteria. But there is a sentiment in some academic circles that DEI concerns trump all other academic concerns and values. It doesn’t. That’s not a serious proposition. This — a straightforward statement that DEI is one value among others and not supreme — is the right way to handle it. This will not satisfy the Right, which wants a garment-rending show of contrition.
The Federalist Society has the same rights of free association that other student organizations at the law school have. Students calling for the law school administration to restrict the organization or the speakers it can bring to campus are demanding action inconsistent not only with freedom of speech but with rights to freedom of association that civil rights lawyers fought hard in the twentieth century to secure.
Again, this ought not be a strikingly brave statement, but it is. “People we hate, whose views we abhor, whose aims are inimical to us are entitled to free speech” is never a secure view, never in controversial, and always an uphill battle, even though we like to pretend that Americans are exceptionally devoted to free speech. The notion that FedSoc should be entitled to free speech and free association is, in fact, a very controversial concept in academia. But then, so is the view that academia should tolerate communists, or DEI advocates, or trans advocates. It‘s required to let people who feel that way speak. But it’s not required to take them seriously or yield to their desire to dictate who speaks and who doesn’t. They’re wrong.
Dean Martinez very directly rejects a key tenet of this belief system:
Some students might feel that some points should not be up for argument and therefore that they should not bear the responsibility of arguing them (or even hearing arguments about them), but however appealing that position might be in some other context, it is incompatible with the training that must be delivered in a law school.
This is obviously true but also controversial, bizarrely.
Note that Dean Martinez does not insult anyone’s intelligence with a defense of FedSoc’s prominence or history, or an appeal to why people should respect or like them. That’s not the point. Tolerating the speech of people because you like or respect them isn’t academic freedom. Personally, I like and respect many people affiliated with FedSoc, even though I increasingly see the organization as a force for evil in American life and a plausible vanguard for a dark period of totalitarianism, ignorance, and bigotry. I wouldn’t go to a FedSoc event because I can clearly imagine my grandkids cringing in horror that I did so 30 years down the path they’re following. But I don’t crave the power to decide if they speak and I don’t trust or respect anyone who craves that power.
Administrators’ Role Is Not To Congratulate You For Your Views
Dean Martinez is forthright that when it comes to students shouting down speakers, an administrator’s role is to stop them, not pamper them:
Enforcement of university policies against disruption of speakers is necessary to ensure the expression of a wide range of viewpoints. It also follows from this that when a disruption occurs and the speaker asks for an administrator to help restore order, the administrator who responds should not insert themselves into debate with their own criticism of the speaker’s views and the suggestion that the speaker reconsider whether what they plan to say is worth saying, for that imposes the kind of institutional orthodoxy and coercion that the policy on Academic Freedom precludes. For that reason, I stand by my statement in the apology letter that at the event on March 9, “staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.”
Again, this shouldn’t be a big deal, but it is. The prevailing academic posture towards shouting-down students resembles an over-indulgent parent to a monstrous toddler: “sweetie, if you don’t stop hitting the dog with a stick and use your words about your feelings, I’m going to have to give your four more warnings.” Here, the Dean draws the line: the administration should enforce rules, not congratulate students for wanting to break them. Good.
Administrators’ Role Is Not Political
Dean Martinez resists pressure to be overtly political. This pressure comes from every direction. We’re in the midst of a pendulum-swing to the right, under which it would be fashionable pandering to scorn values like diversity and inclusion. Some academics are riding the pendulum to become a sort of banal Bill-Maher-style cultural critic. Dean Martinez doesn’t, she expressly defends them and their prominence as values and areas of academic inquiry:
Moreover, there are many ways to support diversity, equity, and inclusion that are not inconsistent with a commitment to academic freedom. For example, as an educational institution dedicated to training future lawyers, we support diversity, equity, and inclusion by encouraging thoughtful and critical discourse about the law and legal system, by training students to offer substantive critiques of injustice that they encounter, by teaching future lawyers how to marshal evidence that supports their point of view and how to make arguments that convince others. We support diversity, equity, and inclusion when we encourage people in our community to reconsider their own assumptions and potential biases. We support diversity, equity, and inclusion when we encourage students to connect with and see one another as people. We support diversity, equity, and inclusion when we teach each and every one of our students how to be the best possible lawyer they can be, and take those skills of advocacy out into the world.
On the other hand, Dean Martinez correctly and forthrightly announces that it’s not her job to say political things to make students happy, and that she’s not going to play the we-demand-you-announce-your-politically-acceptable-positions game:
At the same time, I want to set expectations clearly going forward: our commitment to diversity, equity, and inclusion is not going to take the form of having the school administration announce institutional positions on a wide range of current social and political issues, make frequent institutional statements about current news events, or exclude or condemn speakers who hold views on social and political issues with whom some or even many in our community disagree. I believe that focus on these types of actions as the hallmark of an “inclusive” environment can lead to creating and enforcing an institutional orthodoxy that is not only at odds with our core commitment to academic freedom, but also that would create an echo chamber that ill prepares students to go out into and act as effective advocates in a society that disagrees about many important issues.
Everyone Gets Due Process
Dean Martinez announces that Dean Tirien Steinbach, who made the appalling comments during Judge Duncan’s speech, is “on leave”:
First, Associate Dean Tirien Steinbach is currently on leave. Generally speaking, the university does not comment publicly on pending personnel matters, and so I will not do so at this time.
You will see many unserious people furious at this, demanding an immediate public firing. Nonsense. Schools are slow to fire administrators, as they probably ought to be in times of controversy. Dean Steinbach is probably enjoying the same due process that anyone else would get, and not being fired instantly to satisfy the emotional needs of angry critics. She ought to face consequences, because her behavior is unacceptable. The consequences ought to follow due process, ought to be proportional and comparable to what other people have faced for similar misconduct, and ought to be levied in cold blood, not hot blood.
Everyone’s Speech Matters
Dean Martinez enrages a substantial (I won’t say “serious”) segment of the Right by refusing to expel or otherwise discipline the students who disrupted Judge Duncan’s speech. This is appropriate. As Dean Martinez points out, a Stanford administrator expressly encouraged their behavior. Dean Martinez doesn’t say — and in my view ought to — that their behavior has been tolerated and even encouraged by the administration in the past. Under those circumstances, though it is right and fit for Stanford to get serious about enforcing rules, it’s not just to spring that decision on these particular students. Put another way, it’s a sound and appropriate exercise of prosecutorial discretion to tell people “we will no longer tolerate this behavior” and give them a chance to obey rather than abruptly making examples of some people for not following a previously unenforced rule. That’s especially true because we are talking about an array of conduct that includes protected speech, even though it also extends to unprotected disruption.
Instead, Dean Martinez announces remedial education, something that the students need but will absolutely infuriate them:
Accordingly, as one first step the law school will be holding a mandatory half-day session in spring quarter for all students on the topic of freedom of speech and the norms of the legal profession. A faculty committee will plan the session and invite speakers representing a range of viewpoints.
Moreover, Dean Martinez announces that the school will create more clear and explicit policies about what conduct crosses the line into impermissible disruption:
In addition, a more detailed and explicit policy with clear protocols for dealing with disruptions would better protect the rights of speakers and also those who wish to exercise their right to protest within permissible bounds, and is something we will seek to adopt and educate students and staff on going forward. Cf., e.g., UC Hastings [now UC College of the Law San Francisco] Event Policy: Student Organization Support Protocol; Permissible Forms of Protest (Adopted October 1, 2022), available at https://www.thefire.org/research- learn/uc-hastings-event-policy-adopted-october-1-2022. Doing so will bring greater clarity and certainty about future enforcement of the policy, including through disciplinary sanctions as appropriate.
This is absolutely right and we should applaud it. Vague and ambiguous policies about speech violate the First Amendment. Ambiguity kills free speech. A clear, explicit, detailed policy, followed by training, is the right way to go here if your interest is genuinely protecting robust free speech.
Note that Dean Martinez is absolutely not buying into the right-wing narrative that the only legitimate way to dispute someone like Judge Duncan is with elevated discourse during Q&A. She clearly endorses protests and things like holding signs with vivid messages. She’s not going to enact a contrived civility code. She’s just not going to tolerate people appointing themselves king over who can talk and who can listen.
Dean Martinez Isn’t Interested In Your Thirst For Retribution
Some people criticized me for saying that Stanford Law students ought to be unemployable if they believe they have the right to dictate who can and can’t speak and who can and can’t listen. I stand by that sentiment, and wouldn’t hire such a person, and wouldn’t want to associate with them.
Dean Martinez, to her credit, isn’t interested in retribution. As part of her letter, she declines to release unedited video that would serve to identify all of the students who shouted down Judge Duncan. The school is releasing a version with blurred faces. That likely doesn’t matter in the long run, because the video is available on the internet. But it shows that the school is uninterested in being the instrument of vengeance — again, the school’s actions are not calculated to serve anyone else’s emotional needs. That’s probably the right call. If I want to shun shouting-down students I can do so with minimal effort. It’s not the school’s role to make it easy for me. It’s not the school’s role to punish its students via internet infamy, which would be imposed by people who no doubt under other circumstances decry “cancel culture.”
Dean Martinez’ letter is thoughtful, brave, and right. I can find little fault in it. But what will the response be? In modern academia, can a Dean take this stance? Or is it too counter-cultural? I’m not sure. Watch for the response of the faculty and students. Watch, in particular, whether that response articulates disagreement with fundamental concepts of what a university should be.
I thought your original piece was spot on and this is as good or even better. As a socially liberal lawyer, I am really disappointed in the law students and even more so in the Dean of DEI for trying to shut down the Judge’s speech - even though I think that thenJudge and a few others like him are not qualified to be on the bench, but that’s a whole ‘ nother argument. In this case I do think this guy was invited partly to bait the students and provoke the reaction he got in furtherance of the victim hood card frequently being played by the right. But that still doesn’t give the students the right to censor him- two wrongs don’t make a right and his behaviors doesn’t legitimize theirs.
Ken White is simply one of the best we have on the First Amendment.
He's crystal clear on the crucial distinction between preventing or punishing speech, and harshly or rudely criticizing it on the other hand. The position of the boundary is the point. He also discussed a principle of evenhandedness, where neither side (right or left) is allowed to gain an advantage by declaring a different boundary depending on who you are.
These principles seem obvious, but it's the application that counts. He does us a service -- he shows in careful detail how they apply in a complex, concrete, emotional situation like the Stanford incident. He quickly discovers that the speech claims of both sides are bossy, hypocritical, and garbled. Thus the previous post trashed both sides.
What else can you do? They're execrable and make no sense.
But -- hot as he runs, he does it with a precision laser. Never lose focus, avoid collateral damage. You can't turn up the laser to full strength until you have exactly the right target.