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.
ROPER: So now you'd give the Devil benefit of law!
MORE: Yes. What would you do? Cut a great road through the law to get after the Devil?
ROPER: I'd cut down every law in England to do that!
MORE: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
I love the passage, of course, but find it just a bit inapt. The matter here in question isn’t legality, but rather, good practice, particularly in the teaching of the law.
I am wracking my brain to come up with an equally excellent passage that pertains more directly, and in fact invite you to beat me to it.
Alas, we are not Robert Bolt (or Shakespeare, or David Mamet, or Lin Manuel-Miranda) - More than once have I thought "I know just the thing, but it's not quite right"
Quite. So I outsourced the thinking to ChatGPT, and it gave me John Stuart Mill:
“The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”
See the 1966 one with Paul Scoville. One of my favorite scenes is when they're going up river in the royal boats, they pull in to the shore, and the King jumps out of the boat and sinks in mud up to his knees. There's this silence as the entourage watches and holds their breath. Then the King starts laughing, and every one else jumps into the mud and laughs. A fine illustration of what it's like with a capricious and arbitrary total autocrat.
You know this is propaganda by Bolt (and others, as More is a Saint in the Catholic Church) as More was, among other things, an oppressor of non-Catholic religious rights who as Chancellor personally led the prosecution of three Protestants, convicting and burning them? He also is recorded to have said: The Church did not burn people, the state burned them. I'm sticking with John Stuart Mill.
I like your take that “you can tell it’s a good letter because it’ll make everybody mad.” That’s certainly what I’ve seen so far.
It is important context that, as you have noted elsewhere, SLS FedSoc are the same people who last year filed a complaint to try (in vain) to keep a student from graduating because he’d posted a flyer poking fun at them. That is, when a student *did* engage in civil counterspeech — the very thing many people agree the students here should’ve done instead — FedSoc demanded punishment. Counterspeech and the heckler’s veto are equally unacceptable to them. When they get any pushback, be it mild or moblike, to their “own the libs” games, they play the victim and call on the school to make it stop. Those are the actions of bullies and hypocrites, not principled people who actually believe in free speech.
Did that belong in the Dean’s letter? No. But it’s context that she and the rest of the administration need to keep in mind, because they got played by FedSoc in the flyer fiasco, and this time the shouting students got played and the administration got dragged into it. The provocations will surely continue, but she must keep a steady hand on the wheel. I don’t envy her.
Responding to bullshit takes 1000x the energy needed to generate it. That’s not something the Dean was in a position to spell out in her letter; the students will just have to figure it out on their own. Welcome to being a lawyer.
That statement describes the fuzzy definitions of various woke totems proscribed by recent legislation here in Florida. Which books should be banned or statues clothed? It's cancel culture in reverse and it's insidious.
Actually, the ambiguity as a killer of free inquiry is the intention rather than an unintended consequence or side effect of the legislation. Florida does not much value dissenting views.
That was great. I thought it was particularly good how she recognized that the students weren't given fair warning their conduct was unacceptable, indeed were encouraged by an administrator to engage it, so it would be wrong to punish them. I also like the fact she didn't feel the need to rebuke judge Duncan for his behavior. While he was provoked he didn't behave in a great fashion but I appreciate the fact that the dean realizes policing the judge's courtesy isn't her job and doesn't somehow excuse the students' behavior.
P.S. If you care about this sort of thing I think somehow an uncontroversial got changed to "in controversial." (right after the "again this ought not to be controversial"). I don't, since the meaning was clear but I know some ppl like to told so they can fix these things.
I noticed that of course, but on second reading I found "tenant" actually improved the His Holiness' writing if interpreted metaphorically: the belief in question degrades the property, does not pay rent in a timely fashion (depending on who is the landlord in the extended metaphor), is supported by a whole slew of activist organizations, and cannot be evicted without lengthy legal process.
That particular malapropism is so common, at least on the Internet and particularly on Substack, that I wonder if it has somehow wormed its pernicious way into autocomplete and/or autocorrect, to say nothing of not being caught by the grammatical/semantic checkers present in a few authoring software packages.
Thank you for this post and going through the Dean’s comments section by section. Excellent. You do such a fantastic job of explaining legal stuff to those of us whose brains don’t work that way (engineer here!).I have a hundred basic questions about the law; maybe someday, you can do a open call for questions!
If I have a quibble, and it is a minor one, it is that many of the insulting and scatological things that the students said while they were protesting were not objectionable simply because they were part of an attempt to silence the judge, but because they were breaches of decorum and acceptable behavior in themselves.
For instance, the student who asked the judge “Why can’t you find the clitoris“ could not possibly have been in any doubt about whether that was an acceptable question to be asking an invited speaker. Even if the students were arguably confused as to whether disrupting the event was permissible, they they knew damn well that some of the things they were saying were not appropriate for the venue, and that transgression should be punished just as if they had yelled the same thing at a professor.
While I am untroubled by the concept of punishment for aural disruption of an event, your proposal to punish speech that is merely off topic or vulgar is a very bad one, and would be grossly abused to retaliate against people participating in a wide variety of public meetings. I would deem such punishment unconstitutional. The remedy for off topic speech should be limited to losing one's place in line.
I’m not saying they should be arrested, or that the government should intervene in any way. I’m saying that if you yelled vulgar things at a professor during class, at the very least your law school would make you apologize, with a threat of more severe consequences if you continued.
The same should apply to an outside speaker. Note that I’m not talking about merely “off topic” or even insulting questions. It’s the mixture of both with the added scatological element that would make an outburst eligible. There should be small but real consequences for asking a visiting speaker “Why can’t you find the clitoris?”, and bigger consequences if it’s a pattern of behavior.
Asking “Why do you hate gay people?” or “How is a raven like a writing desk?” would at worst lose you your question slot.
An anti-LGBTQ bigot was on the Purdue University campus this past week.
While there was much hubbub about his presence, he was able to offer his inanity to many hundreds of people.
Meanwhile, as dozens of protestors stood outside the venue of bigotry, a larger number of people than the bigot's attendees attended a Drag Queen event at the campus theatre.
Now that's what I call a civil reaction to a speaker one wants to protest.
These last two posts were excellent, Ken (I know the first one was harsh, but we like that once in a while, don't we?). I thought Dean Martinez's letter was incredibly well done, and speaks well for the leadership (overall) at Stanford Law (or at least her leadership). I really think it hit all the right notes, and I think her approach to whether or not the students would receive discipline was well-thought out and understands that these students, as smart as they may be, are still students. That doesn't mean they shouldn't be held accountable for their behavior, but a warning and education in this specific topic is the better first step (because next time those students who receive the training have no excuse or defense to whatever discipline they receive). The point of the school, of course, is not to discipline students, but to educate them. And Dean Martinez's approach recognizes exactly that.
Interesting as always, but I think it overlooks an important concept: there is always a difference between the Law, and all other consequences. (And not just because the Law, uppercase, can't handle everything that happens, but also because people are just people.) There has always been a space between Law and general consequences (e.g., the proverbial punch to the face), called Getting Away with It.
Not that I would expect you to ignore a tiny stone if it gets in your teeth or anything like that, but the scale of what you can get away with varies for the parties in these kinds of disputes. I may be biased by lack of research on the subject, but it seems apparent that this era is strongly marked by various sides trying to find out just how much they can get away with--and expanding that to include violent or nearly violent pushback (also known as threats). It's a crazy time.
The answer? As pushback grows, a sane society will do the same, even if just to keep things from toppling over (but of course, things can always topple if they get too top heavy). In this environment, I do not think that better regulations is useful, sane, or effective. It's a same old same old, of applying decorous policy to a fistfight. It's not everywhere, but the fashion is to play not just outside the rules, but in spite of the rules and as far as past them as you can get without loss of limb. (We're at Jingoism, I'm saying.)
The elevated levels of confrontation do and don't remind me of the 60s, when I was heavily appalled by the response of authority to student activists (and of course if one digs into it, racism was also a big factor at the time, but better disguised, maybe?). At least for me, it is common sense as to who is the aggressor (inclusive) and who is the victim (reactive). I don't think it is wrong for a victim to fight back, is what I'm saying, and the more the right antagonizes, the greater the violence it will instigate.
Right and Wrong, as we know, are only partially coupled to the law; laws get passed and policies harden that deliberately hurt, disenfranchise, even kill people (right-to-work, for example, or the Supreme Court's police-related decisions that basically are enabling for excessive force).
To the average citizen, the law is alien, quite often the enemy. Expecting respect for law is especially too much when you live in a time like today, or the 60s that I sharpened my anti-establishment teeth on. This doesn't meant that I get your position, but what it looks like from here is a reflexive belief that the law can be effective. I suppose, technically, it can, but in practice, it's deeply flawed, even to the point of lawlessness. Complex, perverse, etc. but: not everyone bears the same burdens of inequality with the law, and between those who ignore it (my interpretation of the Right) and those who flaunt it (oops, money again!), and those who suffer under the heel of it. respect for law is necessarily hard to come by, and anyone working within that framework can be most effective when they recognize that weakness in the system.
Now, that's something of a diatribe, and very reactionary, not not at all rigorous. Not to mention one-sided. Granted. But having been in the trenches, having had to hide from The Law because they were acting completely outside of both law and civilization, the human element seems to me to trump the law at every f'ing turn. Where, and how do we deal with that? (Not that I think there's an answer to hand.) In short: what does a powerless person do when the law fails, maybe violently, maybe silently?
Easily trolled students in a university are easy targets. The slightest provocation often yields a Pavlovian reaction, and the free speech warriors (rightly) descend on them.
Laser sharp focus.
The supposedly powerless are doing what they can: breaking the norms and the law.
So what should be the penalty? Destruction of their careers? Suspension? Ban from participation in talks?
What do we do with others who indulge in civil disobedience?
Maybe the enhanced focus on students heckling shut a speech is a tad much, even as I understand why it is justified to lawyers who see future exponents of their profession disgrace it.
It's a broader problem than that, obviously. Far more insidious when carried out by the State. Yet relatively few focus on those. Their prerogative of course. Personally, I find the wave of book bans sweeping through the nation far more grievous, but that's just me. That's what creates despair among the powerless and so-called powerless.
The powerless eventually lash out, often irrationally, and no principled stand by an administrator is going to address that. Address the root causes or punish the offenders.
I wonder this about the protesting students claiming to be “powerless”--is a person admitted to an elite school like this actually “powerless”? I would think a student at Stanford Law School is more like soon-to-be powerful, and already more than somewhat “elite,” whatever their race or sex/gender orientation, at least compared to the majority of people.
I think that the powerful always consider themself powerless, or at the very least, insufficiently powerful. It may even be what drives them to power in the first place, although more likely just part of that.
"There has always been a space between Law and general consequences (e.g., the proverbial punch to the face), called Getting Away with It."
And there always will be - in a very real sense, Laws and computer programs are the same thing. Which is to say, they are both instructions for behaviour based on the expression of a finite set of rules. Both Godel and Turing proved, in slightly different ways, that no matter how many rules you have, it is in general always possible to come up with a situation that can't be handled by them. You can introduce a new rule to handle that situation, but then that creates another situation that can't be handled. There will *always* be people that Get Away With It.
Not to mention that for must of us, we don't really memorize the rules at all. We use Common Sense, or think we do, but that's a whole other hornet's nest of assumptions...
This was a fascinating read, and the comments were equally fascinating. I feel like I learned a lot, and still have a lot to think about.
One thing shocked me but maybe i misunderstood it: "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."
Is this serious? It's framed seriously and even doubles down from a prior statement. But how can it be serious? Cops believe they can dictate who can and can't speak/listen. Politicians damn sure do. School boards. Teachers. Managers. Corporations. People on social media. I'm sure there is a subset of Americans who doesn't feel that they can dictate such things, but if they're the only ones allowed to be employed, we aren't going to have much of a society. But maybe I'm taking hyperbole too literally.
These are people training to be lawyers at one of the top 3 law schools in the county (Yale and Harvard being the other). Their field work is the closest it comes to defining the scope of first amendment protection for the rest of us. Yea, they should be unemployable if, after 20+ years of privilege and education, their reaction is to shut down speech.
Thanks for another clear post on this matter. Obviously, Dean Martinez deserves the plaudits here, but you were out front in your original post, and this annotated abstract of her very long letter is a fine service.
One of the things I most like about Martinez's letter is her reminder that DEI is not correctly reduced to the caricature that some (not all) progressives encourage and that conservatives like to describe, one that tends to limit diversity to issues of descriptive characteristics, such as race and gender, views equity as a formulaic distribution of goods based on identity categories, and measures inclusion according to magnitudes of reported negative feelings.
There is a constructive and socially promising framework for DEI that applies diversity to all identities and expressions of ideas (within the range protected by First Amendment law); views equity in terms of the imperative to equally equip people to achieve success based on combinations of their abilities, individual needs (which may in part be products of systemic forces), and motivation; and approaches inclusion by nurturing patterns of conduct that treat every individual as a uniquely valuable member of the community.
Those ideals are abstract, but they can guide communities in discovering the specifics that apply to their particular circumstances. This form of DEI, it seems to me, is in tension with social approaches that highlight identity, intersectionality, and models of oppressor/oppressed dualism, but I think those approaches have their own contributions to offer. The difficult goal would be to recognize the tension between the two approaches and negotiate it with social creativity for which tolerant speech (and listening) behavior is essential.
I swear that some of us just want to go to work, do our work within the narrow confines of what is our professional remit, not have to hear a bunch of bullshit completely unrelated to the scope of our work, and then go home and not think about work until it's time to go to work again
I have yet to work in an office that didn’t have at least one person whose entire purpose seemed to be generating “a bunch of bullshit completely unrelated to the scope of our work”.
There is an interpretation of the original Star Trek where a big part of the reason it was so attractive to people like you and me was that it depicted an office in which everyone was on mission. No one was shirking, no one was backbiting, and no one was politicking for advancement. Would that people in the real world were as sensible.
> 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 see what you're saying, but I would amend this to "...students ought to be unemployable *while* the believe...". These are students; their education is self-evidently incomplete (as Dean Martinez has clearly realized and which she is planning to remediate). Having done something stupid in the past does not indicate a permanent, irredeemable personality defect, and it's important to emphasize this fact. Like what you said earlier about not penalizing the students as students, if your claim is that someone needs to change, you need to at least allow for the possibility that they will change.
I don't think you were actually arguing that taking part in this protest should permanently mark these students in particular as unemployable outcasts - I take it to be a comment on a Stanford Law degree as a certificate of competence - but it's important to emphasize that people in a free society will make errors and can nevertheless learn, grow, and make valuable contributions to that society.
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.
ROPER: So now you'd give the Devil benefit of law!
MORE: Yes. What would you do? Cut a great road through the law to get after the Devil?
ROPER: I'd cut down every law in England to do that!
MORE: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
I love the passage, of course, but find it just a bit inapt. The matter here in question isn’t legality, but rather, good practice, particularly in the teaching of the law.
I am wracking my brain to come up with an equally excellent passage that pertains more directly, and in fact invite you to beat me to it.
Alas, we are not Robert Bolt (or Shakespeare, or David Mamet, or Lin Manuel-Miranda) - More than once have I thought "I know just the thing, but it's not quite right"
Quite. So I outsourced the thinking to ChatGPT, and it gave me John Stuart Mill:
“The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”
Robert Bolt does have a nice turn of phrase, doesn't he? That play (and movie, at least the 1966 version) is awesome.
I have somehow never seen A Man for All Seasons and I need to remedy that. Thank you for the reminder!
Do so immediately. Beautifully photographed, scene-decorated, and acted.
See the 1966 one with Paul Scoville. One of my favorite scenes is when they're going up river in the royal boats, they pull in to the shore, and the King jumps out of the boat and sinks in mud up to his knees. There's this silence as the entourage watches and holds their breath. Then the King starts laughing, and every one else jumps into the mud and laughs. A fine illustration of what it's like with a capricious and arbitrary total autocrat.
You know this is propaganda by Bolt (and others, as More is a Saint in the Catholic Church) as More was, among other things, an oppressor of non-Catholic religious rights who as Chancellor personally led the prosecution of three Protestants, convicting and burning them? He also is recorded to have said: The Church did not burn people, the state burned them. I'm sticking with John Stuart Mill.
But burnings by protestants was OK?
Did I say that? Are you implying that it was okay for Moore to burn Protestants since Protestants burned Catholics? Classic whataboutism.
Classic Catholic bashing
Wow. That's an apt comment. Well done.
Thank you for quoting "A Man For All Seasons" --- I like to do so when persons are grasping for political power that will eventually turn badly.
I like your take that “you can tell it’s a good letter because it’ll make everybody mad.” That’s certainly what I’ve seen so far.
It is important context that, as you have noted elsewhere, SLS FedSoc are the same people who last year filed a complaint to try (in vain) to keep a student from graduating because he’d posted a flyer poking fun at them. That is, when a student *did* engage in civil counterspeech — the very thing many people agree the students here should’ve done instead — FedSoc demanded punishment. Counterspeech and the heckler’s veto are equally unacceptable to them. When they get any pushback, be it mild or moblike, to their “own the libs” games, they play the victim and call on the school to make it stop. Those are the actions of bullies and hypocrites, not principled people who actually believe in free speech.
Did that belong in the Dean’s letter? No. But it’s context that she and the rest of the administration need to keep in mind, because they got played by FedSoc in the flyer fiasco, and this time the shouting students got played and the administration got dragged into it. The provocations will surely continue, but she must keep a steady hand on the wheel. I don’t envy her.
Responding to bullshit takes 1000x the energy needed to generate it. That’s not something the Dean was in a position to spell out in her letter; the students will just have to figure it out on their own. Welcome to being a lawyer.
Welcome to being a decent member of polite society, rather.
Ambiguity kills free speech,"
That statement describes the fuzzy definitions of various woke totems proscribed by recent legislation here in Florida. Which books should be banned or statues clothed? It's cancel culture in reverse and it's insidious.
Actually, the ambiguity as a killer of free inquiry is the intention rather than an unintended consequence or side effect of the legislation. Florida does not much value dissenting views.
That was great. I thought it was particularly good how she recognized that the students weren't given fair warning their conduct was unacceptable, indeed were encouraged by an administrator to engage it, so it would be wrong to punish them. I also like the fact she didn't feel the need to rebuke judge Duncan for his behavior. While he was provoked he didn't behave in a great fashion but I appreciate the fact that the dean realizes policing the judge's courtesy isn't her job and doesn't somehow excuse the students' behavior.
P.S. If you care about this sort of thing I think somehow an uncontroversial got changed to "in controversial." (right after the "again this ought not to be controversial"). I don't, since the meaning was clear but I know some ppl like to told so they can fix these things.
Also, if you're accepting typos: "tenet of this belief system", not "tenant".
I noticed that of course, but on second reading I found "tenant" actually improved the His Holiness' writing if interpreted metaphorically: the belief in question degrades the property, does not pay rent in a timely fashion (depending on who is the landlord in the extended metaphor), is supported by a whole slew of activist organizations, and cannot be evicted without lengthy legal process.
That particular malapropism is so common, at least on the Internet and particularly on Substack, that I wonder if it has somehow wormed its pernicious way into autocomplete and/or autocorrect, to say nothing of not being caught by the grammatical/semantic checkers present in a few authoring software packages.
OMG, you are ok? I was so worried
Thank you for this post and going through the Dean’s comments section by section. Excellent. You do such a fantastic job of explaining legal stuff to those of us whose brains don’t work that way (engineer here!).I have a hundred basic questions about the law; maybe someday, you can do a open call for questions!
@Ginger G -- I heartily agree! @KenWhite does a terrific job of explaining the legal deets.
Amen to most of that.
If I have a quibble, and it is a minor one, it is that many of the insulting and scatological things that the students said while they were protesting were not objectionable simply because they were part of an attempt to silence the judge, but because they were breaches of decorum and acceptable behavior in themselves.
For instance, the student who asked the judge “Why can’t you find the clitoris“ could not possibly have been in any doubt about whether that was an acceptable question to be asking an invited speaker. Even if the students were arguably confused as to whether disrupting the event was permissible, they they knew damn well that some of the things they were saying were not appropriate for the venue, and that transgression should be punished just as if they had yelled the same thing at a professor.
While I am untroubled by the concept of punishment for aural disruption of an event, your proposal to punish speech that is merely off topic or vulgar is a very bad one, and would be grossly abused to retaliate against people participating in a wide variety of public meetings. I would deem such punishment unconstitutional. The remedy for off topic speech should be limited to losing one's place in line.
I’m not saying they should be arrested, or that the government should intervene in any way. I’m saying that if you yelled vulgar things at a professor during class, at the very least your law school would make you apologize, with a threat of more severe consequences if you continued.
The same should apply to an outside speaker. Note that I’m not talking about merely “off topic” or even insulting questions. It’s the mixture of both with the added scatological element that would make an outburst eligible. There should be small but real consequences for asking a visiting speaker “Why can’t you find the clitoris?”, and bigger consequences if it’s a pattern of behavior.
Asking “Why do you hate gay people?” or “How is a raven like a writing desk?” would at worst lose you your question slot.
Thanks, Ken.
An anti-LGBTQ bigot was on the Purdue University campus this past week.
While there was much hubbub about his presence, he was able to offer his inanity to many hundreds of people.
Meanwhile, as dozens of protestors stood outside the venue of bigotry, a larger number of people than the bigot's attendees attended a Drag Queen event at the campus theatre.
Now that's what I call a civil reaction to a speaker one wants to protest.
So civil that one can confuse it for no reaction.
Predictably very few have even heard about it, let alone blogged about it.
These last two posts were excellent, Ken (I know the first one was harsh, but we like that once in a while, don't we?). I thought Dean Martinez's letter was incredibly well done, and speaks well for the leadership (overall) at Stanford Law (or at least her leadership). I really think it hit all the right notes, and I think her approach to whether or not the students would receive discipline was well-thought out and understands that these students, as smart as they may be, are still students. That doesn't mean they shouldn't be held accountable for their behavior, but a warning and education in this specific topic is the better first step (because next time those students who receive the training have no excuse or defense to whatever discipline they receive). The point of the school, of course, is not to discipline students, but to educate them. And Dean Martinez's approach recognizes exactly that.
Interesting as always, but I think it overlooks an important concept: there is always a difference between the Law, and all other consequences. (And not just because the Law, uppercase, can't handle everything that happens, but also because people are just people.) There has always been a space between Law and general consequences (e.g., the proverbial punch to the face), called Getting Away with It.
Not that I would expect you to ignore a tiny stone if it gets in your teeth or anything like that, but the scale of what you can get away with varies for the parties in these kinds of disputes. I may be biased by lack of research on the subject, but it seems apparent that this era is strongly marked by various sides trying to find out just how much they can get away with--and expanding that to include violent or nearly violent pushback (also known as threats). It's a crazy time.
The answer? As pushback grows, a sane society will do the same, even if just to keep things from toppling over (but of course, things can always topple if they get too top heavy). In this environment, I do not think that better regulations is useful, sane, or effective. It's a same old same old, of applying decorous policy to a fistfight. It's not everywhere, but the fashion is to play not just outside the rules, but in spite of the rules and as far as past them as you can get without loss of limb. (We're at Jingoism, I'm saying.)
The elevated levels of confrontation do and don't remind me of the 60s, when I was heavily appalled by the response of authority to student activists (and of course if one digs into it, racism was also a big factor at the time, but better disguised, maybe?). At least for me, it is common sense as to who is the aggressor (inclusive) and who is the victim (reactive). I don't think it is wrong for a victim to fight back, is what I'm saying, and the more the right antagonizes, the greater the violence it will instigate.
Right and Wrong, as we know, are only partially coupled to the law; laws get passed and policies harden that deliberately hurt, disenfranchise, even kill people (right-to-work, for example, or the Supreme Court's police-related decisions that basically are enabling for excessive force).
To the average citizen, the law is alien, quite often the enemy. Expecting respect for law is especially too much when you live in a time like today, or the 60s that I sharpened my anti-establishment teeth on. This doesn't meant that I get your position, but what it looks like from here is a reflexive belief that the law can be effective. I suppose, technically, it can, but in practice, it's deeply flawed, even to the point of lawlessness. Complex, perverse, etc. but: not everyone bears the same burdens of inequality with the law, and between those who ignore it (my interpretation of the Right) and those who flaunt it (oops, money again!), and those who suffer under the heel of it. respect for law is necessarily hard to come by, and anyone working within that framework can be most effective when they recognize that weakness in the system.
Now, that's something of a diatribe, and very reactionary, not not at all rigorous. Not to mention one-sided. Granted. But having been in the trenches, having had to hide from The Law because they were acting completely outside of both law and civilization, the human element seems to me to trump the law at every f'ing turn. Where, and how do we deal with that? (Not that I think there's an answer to hand.) In short: what does a powerless person do when the law fails, maybe violently, maybe silently?
Easily trolled students in a university are easy targets. The slightest provocation often yields a Pavlovian reaction, and the free speech warriors (rightly) descend on them.
Laser sharp focus.
The supposedly powerless are doing what they can: breaking the norms and the law.
So what should be the penalty? Destruction of their careers? Suspension? Ban from participation in talks?
What do we do with others who indulge in civil disobedience?
Maybe the enhanced focus on students heckling shut a speech is a tad much, even as I understand why it is justified to lawyers who see future exponents of their profession disgrace it.
It's a broader problem than that, obviously. Far more insidious when carried out by the State. Yet relatively few focus on those. Their prerogative of course. Personally, I find the wave of book bans sweeping through the nation far more grievous, but that's just me. That's what creates despair among the powerless and so-called powerless.
The powerless eventually lash out, often irrationally, and no principled stand by an administrator is going to address that. Address the root causes or punish the offenders.
I wonder this about the protesting students claiming to be “powerless”--is a person admitted to an elite school like this actually “powerless”? I would think a student at Stanford Law School is more like soon-to-be powerful, and already more than somewhat “elite,” whatever their race or sex/gender orientation, at least compared to the majority of people.
I think that the powerful always consider themself powerless, or at the very least, insufficiently powerful. It may even be what drives them to power in the first place, although more likely just part of that.
Not college... but Law School students. At a top 3 school. Training to be lawyers. This was embarrassing.
"There has always been a space between Law and general consequences (e.g., the proverbial punch to the face), called Getting Away with It."
And there always will be - in a very real sense, Laws and computer programs are the same thing. Which is to say, they are both instructions for behaviour based on the expression of a finite set of rules. Both Godel and Turing proved, in slightly different ways, that no matter how many rules you have, it is in general always possible to come up with a situation that can't be handled by them. You can introduce a new rule to handle that situation, but then that creates another situation that can't be handled. There will *always* be people that Get Away With It.
Not to mention that for must of us, we don't really memorize the rules at all. We use Common Sense, or think we do, but that's a whole other hornet's nest of assumptions...
This was a fascinating read, and the comments were equally fascinating. I feel like I learned a lot, and still have a lot to think about.
One thing shocked me but maybe i misunderstood it: "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."
Is this serious? It's framed seriously and even doubles down from a prior statement. But how can it be serious? Cops believe they can dictate who can and can't speak/listen. Politicians damn sure do. School boards. Teachers. Managers. Corporations. People on social media. I'm sure there is a subset of Americans who doesn't feel that they can dictate such things, but if they're the only ones allowed to be employed, we aren't going to have much of a society. But maybe I'm taking hyperbole too literally.
These are people training to be lawyers at one of the top 3 law schools in the county (Yale and Harvard being the other). Their field work is the closest it comes to defining the scope of first amendment protection for the rest of us. Yea, they should be unemployable if, after 20+ years of privilege and education, their reaction is to shut down speech.
Thanks for another clear post on this matter. Obviously, Dean Martinez deserves the plaudits here, but you were out front in your original post, and this annotated abstract of her very long letter is a fine service.
One of the things I most like about Martinez's letter is her reminder that DEI is not correctly reduced to the caricature that some (not all) progressives encourage and that conservatives like to describe, one that tends to limit diversity to issues of descriptive characteristics, such as race and gender, views equity as a formulaic distribution of goods based on identity categories, and measures inclusion according to magnitudes of reported negative feelings.
There is a constructive and socially promising framework for DEI that applies diversity to all identities and expressions of ideas (within the range protected by First Amendment law); views equity in terms of the imperative to equally equip people to achieve success based on combinations of their abilities, individual needs (which may in part be products of systemic forces), and motivation; and approaches inclusion by nurturing patterns of conduct that treat every individual as a uniquely valuable member of the community.
Those ideals are abstract, but they can guide communities in discovering the specifics that apply to their particular circumstances. This form of DEI, it seems to me, is in tension with social approaches that highlight identity, intersectionality, and models of oppressor/oppressed dualism, but I think those approaches have their own contributions to offer. The difficult goal would be to recognize the tension between the two approaches and negotiate it with social creativity for which tolerant speech (and listening) behavior is essential.
I guess I'm not part of "almost everybody"? Everything seems reasonable and proportional and designed to mitigate or entirely avert future problems.
Not sure what I ought to be mad about.
Your team didn’t win.
No one likes a tie.
I swear that some of us just want to go to work, do our work within the narrow confines of what is our professional remit, not have to hear a bunch of bullshit completely unrelated to the scope of our work, and then go home and not think about work until it's time to go to work again
I have yet to work in an office that didn’t have at least one person whose entire purpose seemed to be generating “a bunch of bullshit completely unrelated to the scope of our work”.
There is an interpretation of the original Star Trek where a big part of the reason it was so attractive to people like you and me was that it depicted an office in which everyone was on mission. No one was shirking, no one was backbiting, and no one was politicking for advancement. Would that people in the real world were as sensible.
When I took over my current team, I had one of those. She later chose to leave, maybe unconvinced that I shared her fervor for the other stuff. Sad!
Well said (by Dean Martinez, and by our host).
> 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 see what you're saying, but I would amend this to "...students ought to be unemployable *while* the believe...". These are students; their education is self-evidently incomplete (as Dean Martinez has clearly realized and which she is planning to remediate). Having done something stupid in the past does not indicate a permanent, irredeemable personality defect, and it's important to emphasize this fact. Like what you said earlier about not penalizing the students as students, if your claim is that someone needs to change, you need to at least allow for the possibility that they will change.
I don't think you were actually arguing that taking part in this protest should permanently mark these students in particular as unemployable outcasts - I take it to be a comment on a Stanford Law degree as a certificate of competence - but it's important to emphasize that people in a free society will make errors and can nevertheless learn, grow, and make valuable contributions to that society.