The letter that Stanford Law School Dean Jenny Martinez issued last week in response to the disruption of U.S. Court of Appeals for the Fifth Circuit Judge Kyle Duncan's speech is the best exposition of free speech values that we've seen from a prominent university official in this contentious period of degraded campus culture. Martinez's letter deserves the accolades it has gotten, especially where she outlines why "our commitment to diversity and inclusion means that we must protect the expression of all views." One paragraph stands out and merits full quotation:
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. 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. Law students are entering a profession in which their job is to make arguments on behalf of clients whose very lives may depend on their professional skill. Just as doctors in training must learn to face suffering and death and respond in their professional role, lawyers in training must learn to confront injustice or views they don't agree with and respond as attorneys.
That's great—it's a good start to get those strong words on paper—but it's not enough. The prescribed lack of consequences for the individual vile disrupters, and the requirement instead of training for all law students, doesn't sit well with anyone who cares about reversing the illiberal takeover of higher education. The Stanford shutdown is the single worst manifestation of that trend to date—not necessarily because it involved a federal appellate judge, but because the law school officials in attendance did nothing to stop the disruption, and DEI Associate Dean Tirien Steinbach (who is mercifully now on leave) berated the speaker in preprepared remarks.
In explaining the lack of consequences for the student disrupters, Dean Martinez wrote that it is hard to "come up with a fair process for identifying and distinguishing" between students who "crossed the line into disruptive heckling" and those "engaged in constitutionally protected non-disruptive protest." If we didn't have video of the incident, that might make sense. But we have video! An investigation by Stanford's Office of Community Standards (which administers student discipline) could easily do the relevant fact-finding. Some student disrupters would escape punishment, but that is no excuse to let everyone off the hook.
Martinez also wrote in her letter that Stanford Law School administrators' failure to warn the student disrupters of potential sanction, and indeed Steinbach's encouragement, sent "conflicting signals." But that contradicts the letter's preceding statement: "Such an onsite warning might not be required in all cases, and students had been generally informed of the policy against disruptions (including by schoolwide email the morning of the event)."
Moreover, Stanford's policy is clear, and doesn't require lawyerly parsing: "It is a violation of University policy for a member of the faculty, staff, or student body to: (1) Prevent or disrupt the effective carrying out of a University function or approved activity, such as lectures, meetings, interviews, ceremonies, the conduct of University business in a University office, and public events." Indeed, any student who doesn't know that it's not acceptable to shout down a judge (or any speaker) doesn't belong in college, let alone law school.
Martinez then writes that "focusing solely on punishing those who engaged in unprotected disruptions such as noisy shouting during the lecture would leave perversely unaddressed the students whose speech was perhaps constitutionally protected but well outside the norms of civil discourse." So the dean of a major law school thinks we shouldn't punish actual rule-breakers because we can't also punish those who merely violate the more amorphous "norms of civil discourse that we hope to cultivate in a professional school." That makes no sense!
Why can't Stanford Law School punish rule-breakers—after a fair investigation and hearing, of course—while also giving mere norm-breakers a stern talking-to or remedial training? Instead, the entire law school will have to endure a mandatory session on "freedom of speech and the norms of the legal profession."
That kind of free speech and professional norms training is actually a wonderful idea for incoming first-year law students, but here it comes off as collective punishment of the student body—including the very Federalist Society students who invited Judge Duncan to speak—for the misdeeds of the raucous, illiberal minority.
Clearly, we need more exogenous shocks to the system. For example, Sen. Ted Cruz (R-TX) has asked the State Bar of Texas to review the "character and fitness" of bar applicants from Stanford. Good: All state bars should scrutinize the admission of those who—as 20- and 30-somethings, not children—openly defy the standards of the legal profession. Maybe Judges Jim Ho (of the U.S. Court of Appeals for the Fifth Circuit) and Lisa Branch (of the U.S. Court of Appeals for the 11th Circuit) should extend their boycott of Yale for clerkship hiring to Stanford. And that's not to mention pressure from Stanford Law School alumni and donors, too.
For that matter, law firms and corporate legal departments should consider whether someone who shouts "We hope your daughters get raped!" merits employment. To quote a now-infamous phrase from Associate Dean Steinbach, "Is the juice worth the squeeze?"
Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and author of Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court. He also writes "Shapiro's Gavel" on Substack, where he recently posted his testimony for a Wednesday morning congressional hearing about campus free speech.
The views expressed in this article are the writer's own.
