The Aftermath at Stanford Law

Dean Martinez steps up, but will need to step up more.

We’ve been waiting to see what Stanford Law Dean Jenny Martinez would do in response to the Brownshirt shouting down of Judge Kyle Duncan, abetted and encouraged by Associate Dean for DEI Tirien Steinbach. Dean Martinez announced her decision today in this detailed letter, summarized by National Review here. The gist of it is this: Steinbach has been put on leave but not, at least for the moment, fired. The letter does not spell out her future at Stanford. No student will be disciplined, in part because, Dean Martinez says, it would be difficult to distinguish specific acts that violated Stanford’s no-disruption policy from those that fell just short; and because Steinbach and other administrators present at the event sent mixed messages about whether what was happening was or was not acceptable.

The letter explains and stands by Dean Martinez’ apology to Judge Duncan, in answer to the many students who opposed it and urged that it be withdrawn by, among other things, forming an intimidating gauntlet that Dean Martinez had to pass through going to and from her constitutional law class. It does not, however, apologize to the Federalist Society student chapter that invited Judge Duncan, nor to the students who came in good faith to the event but were not able to hear Duncan’s talk because of the constant and sometimes obscene shouts that made it impossible for him to complete (or, really, even to start). In my view, these are significant omissions.

Still, there are aspects to the letter that are both important and, given Dean Martinez’s prominent position in a hotbed of Left/Woke agitation, courageous. I thought this paragraph, explaining why sympathy for DEI must support, not oppose, free speech — in particular in those preparing for a career in law — was particularly persuasive and insightful:

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 the best exposition I have ever seen of what should be an obvious truth: If you want to be a lawyer, you have to learn to think about positions you dislike or even detest, not just shout them down. Shouting down doesn’t work in negotiation, which lawyers do all the time, and it certainly doesn’t work in court. It does the opposite: It just shows that you’re a juvenile jerk. And there’s this too: It’s often thought to be “the highest calling of the profession” zealously to represent even the most despised client. (N.B.: Donald Trump and anyone involved with January 6 are the exceptions). Remember how the Left lionizes lawyers who represent and, for months or years, stand beside mass-murdering terrorists? Because “this is who we are”? But a bunch of “elite” law students can’t so much as be still for 45 minutes while a United States Circuit Judge talks about how issues percolate up from his Court to the Supreme Court?

Law is a mediating device for difference. It therefore reflects all the heat of controversy, all the pain and suffering, and all the deeply felt moral urgency of our differences in position, power, and cherished principles. Knowing all of this, I believe we cannot function as a law school from the premise that appears to have animated the disruption of Judge Duncan’s remarks -- that speakers, texts, or ideas believed by some to be harmful inflict a new impermissible harm justifying a heckler’s veto simply because they are present on this campus, raised in legally protected speech, and made an object of inquiry. Naming perceived harm, exploring it, and debating solutions with people who disagree about the nature and fact of the harm or the correct solutions are the very essence of legal work. Lively, candid, civil, and evidence-based discourse in disagreement is not just positive for our community, constituted as it is in difference, it is a professional duty. Observance of this duty matters most, not least, when we are convinced that others haven’t.

May God be praised that Stanford has a Dean who understands what law and legal education — indeed, liberal education at all — are actually about.

So what happens now? I suggested here that the Law School invite the Federalist Society to host a daylong event about “Free Speech and Its Adversaries.” Dean Martinez didn’t go for that, but there will be something with significant similarities (emphasis in original).

[T]he 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….

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.

One caveat. Dean Martinez needs to be aware that the Brownshirts are not going to take discussion and free debate lying down. I expect dozens of masked, menacing “students” to show up at the half-day session in the spring quarter. I don’t know what they’ll do. It will be loud and vulgar street theater at best and a full blown riot at worst. Dean Martinez needs clearly to announce that the Brownshirt dog has had his one bite; that disruptions in whatever form will promptly be put to an end; and that the disrupters will be identified and held to account.

All-in-all, Dean Martinez did not go far enough in my view, but her response, taken in the context in which she operates, was both apt and important — important for Stanford and resonant for beyond.