Thoughts on Dean Martinez's response to the Stanford shout-down

Bill has written a fine post about Jenny Martinez’s memorandum about the shouting down of Judge Kyle Duncan at Stanford Law School. I agree generally with Bill’s favorable assessment of the law school dean’s memo, but want to add a few thoughts.

First, Martinez’s rationale for not punishing at least some of the shouters isn’t persuasive, in my opinion. Her first reason was that you can’t lawfully punish students for engaging in protected speech, and the line between that speech and unprotected speech — which can be punished — isn’t very clear.

Right. But although the exact location of the line may be unclear, some protesters clearly crossed it, as Martinez appears to acknowledge.

Thus, the dean could have punished clear violations while letting borderline cases go unpunished. Her rationale for not doing this — that punishing only clear violations would signal that borderline disruptions aren’t so bad — seems so weak as to be pretextual, inasmuch as she is now signaling that even the worst violations aren’t so bad.

Martinez also reasoned that the students received no warning at the event that they might be punished. She blamed Tirien Steinbach the DEI dean for this and for saying to the mob “I’m glad this is going on.”

But Martinez didn’t claim that a warning is a prerequisite for punishing students who shout down speakers, nor should these students — adults all — have needed to be warned. Indeed, Martinez acknowledged that a warning isn’t required and added that, in any case, students had been warned against disrupting the event in an email sent the day of Judge Duncan’s appearance.

Accordingly, I believe Martinez should have disciplined the most disruptive students. I’m not saying they should have been expelled, but at a minimum they should have had gone on probation with some privileges lost (my disruptive protest as an undergrad got me suspended from the debate team), and some perhaps should have been suspended from Stanford for a term.

Nonetheless, I don’t think Martinez’s decision not to punish students is outside the bounds of reasonableness. But now — having let all the offenders off the hook via the elegant solution of, in effect, blaming the DEI dean for their sins — it seems to me that Martinez must fire that dean.

Will she? That remains to be seen. As of now, the DEI dean has only been suspended.

In making her decision, Martinez need not worry about the DEI dean’s future. If fired, she will become a martyr and likely end up very well compensated somewhere in universe of the DEI boondoggle.

Second, Stanford law school should consider whether, or to what extent, it is to blame for the DEI dean’s actions, as well as those of the law students. Was this dean’s hire negligent? Once hired, were there signs she didn’t share the school’s stated commitment to the free exchange of ideas? Was their something about the law school milieu that made the dean think her conduct during Judge Duncan’s appearance was acceptable?

And what kind of education are Stanford law students receiving that makes them believe it’s okay to shout down speakers? Martinez will now require students to undergo “free speech training.” Shouldn’t the value of free speech, properly understood, have already been inculcated as part of the law school’s culture?

It was when Bill and I attended the law school during a period — the early 1970s —that probably was more politically tumultuous than the present time. For example, professor John Kaplan, who at the time was left-of-center politically, delighted in challenging the prejudices of radical students during his criminal law class.

Some rads didn’t like it — I did — but no one ever shouted him down or, to my knowledge, complained during this era. (If anyone did complain, it had no effect.) We understood that this was a useful part of our legal training.

In sum, I think Stanford law school needs to do some soul searching. The good news is that, as Bill says, there’s a lot to like in Jenny Martinez’s letter, and therefore reason to hope she’s willing and able to do that searching.