I’ve written previously about the shameful behavior of Stanford University Law School (SLS) with respect to a March 9 talk by conservative Appellate Court judge Kyle Duncan. The talk, about the relationship between Duncan’s court and the Supreme Court, was seriously disrupted by the law-school students, who shouted and put up posters and signs in the lecture room. (I consider signs a disruption, but others don’t.) The students had been egged on to protest by a pre-talk email from the Law School’s Associate Dean for Diversity, Equity and Inclusion, Tirien Steinbach, denouncing Duncan and saying how harmful his decisions have been.
When Duncan asked for an administrator to intervene to stop the disruption (four deans, including Steinbach, were sitting there silently), Dean Steinbach got up and read several minutes’ worth of further critique of Duncan’s “harmful” decisions, and while paying lip service to Stanford’s free speech policy, asked the students whether “the juice was worth the squeeze”, i.e., whether free speech was worth the offense and harm inflicted on the students. She also said that the demonstration had been the right thing to do. That pretty much ended the presentation save for some confrontational questions by students and some angry answers by Duncan.
Afterwards, SLC Dean Jenny Martinez sent a letter to the Stanford community apologizing for the demonstration, and then she and Stanford’s President sent a joint letter of apology to Judge Duncan. (Duncan’s behavior itself wasn’t optimal during the talk, either, for then and in interviews afterwards he called the students names, something that detracted from his gravitas. However, I can understand his anger even though I disagree strongly with his legal views.)
When Martinez taught her own SLS class a few days later, she herself was subject to a silent demonstration by her students, who wore black, and there were calls for her to rescind her apology and even to resign.
Yesterday Martinez sent out a very long (10-page) letter to the SLS community disclosing what Stanford had decided to do in light of the disruption, which had brought unfavorable national attention on the school. You can find that letter here, or by clicking on the screenshot below. It’s a pretty good letter that outlines strong reforms for SLS and Stanford in general.
1.) The only downside to the letter is that it begins by emphasizing the hate mail directed to Stanford’s administrators and students, as if they were the victims rather than free speech itself as well as Judge Duncan (I indent excerpts from Martinez’s letter):
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 lawpermits.
It also continually emphasizes Stanford’s “diverse community” and respect for DEI, which isn’t too bad, but of course it was the DEI dean, the conflict between DEI principles and free speech—and the decision by Steinbach and the other attending deans to let “offense” trump free speech— that created this whole mess in the first place.
2.) Much of the letter reads like a court decision, citing all the relevant legal cases and decisions showing that schools like Stanford have free speech but disruption is not part of free speech. (Posters apparently are, though I think I’d be discombobulated if students in the front row were holding up banners and signs.) But it’s a clever way for Martinez to impress on the law students that, indeed, they had acted contrary to settled law.
3.) Glory of glories: Dean Steinbach was disciplined for fomenting the demonstration—something I hoped for but did not expect. She’s been put on leave and apparently being further investigated, so she might be fired. From Martinez’s letter (her emphasis), which also chastises the other deans for not quashing the disruption:
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.”
. . . 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. I do want to express concern over the hateful and threatening messages she has received as a result of viral online and media attention and reiterate that actionable threats that come to our attention will be investigated and addressed as the law permits. Finally, it should be obvious from what I have stated above that at future events, the role of any administrators present will be to ensure that university rules on disruption of events will be followed, and all staff will receive additional training in that regard.
4.) Martinez cites the University of Chicago’s Kalven Report mandating institutional neutrality on political, ideological, and moral matters (except when they affect the University’s mission) to show why administrators should not chill the speech of students—as they did on March 9 with the students who wanted to hear Judge Duncan. I’m very pleased that Stanford (and, increasingly, other schools) are falling in line with the Kalven principles. From Martinez’s letter:
The 1967 Kalven Report of the University of Chicago is not formal policy at Stanford but helps explain why university administrators should avoid exercising their authority in ways that can chill speech. It states:
A university has a great and unique role to play in fostering the development of social and political values in a society. The role is defined by the distinctive mission of theuniversity and defined too by the distinctive characteristics of the university as a community. It is a role for the long term.
The mission of the university is the discovery, improvement, and dissemination of knowledge. Its domain of inquiry and scrutiny includes all aspects and all values of society. A university faithful to its mission will provide enduring challenges to social values, policies, practices, and institutions. By design and by effect, it is the institution which creates discontent with the existing social arrangements and proposes new ones. In brief, a good university, like Socrates, will be upsetting.
The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars. To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community.
5.) Stanford decided not to punish individual students for participating in the demonstration, but to give them some education in freedom of speech. This is fine with me, as the students apparently had not been given such education, because it would be hard to identify individual students who violated Stanford’s free-speech policy, and because the students were also told by Dean Steinbach that their actions were okay. But every college orientation in America needs a unit on freedom of speech:
Second, with respect to the students involved in the protest, several factors lead me to conclude that what is appropriate here is mandatory educational programming for our student body rather than referring specific students for disciplinary sanction (which at Stanford is administered by the central university’s Office of Community Standards and involves a deliberate process including fact-finding and hearings).
. . .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. Needless to say, faculty and students are free to disagree with the material presented in these sessions or with the arguments I have presented in this memorandum – there will be no orthodoxy on this topic either. But I believe further discussion of these topics will both advance our educational mission and help us learn from the errors of the recent past.
6.) Finally, Stanford is going to examine and reform its protocol for dealing with disruption of speakers:
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/researchlearn/ 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.
All in all, this seems a satisfactory resolution to me. I think a nice touch would be to invite Judge Duncan back to give his planned talk; that would not only be gracious (though I doubt he’d agree to come!), but would also test whether the new rules are really in effect.
If you’re interested in the relevant law, or want to see a pretty good letter (which I’m sure Dean Martinez was compelled to write), do read the whole letter. This had to be done so that SLS wouldn’t become the laughing stock of law schools—or lose donor money. But I seriously doubt whether the renegade students will accept what Dean Martinez says. They may behave properly from now on, but the “I’m offended” trope is hard to root out.
ADDENDUM: FIRE has posted a laudatory commentary on Dean Martinez’s letter.