Talk is Cheap, Dean Martinez

It’s not that I’ve argued (or implied, for those unconstrained by reality) that the students who engaged in mob action to silence intemperate Judge Kyle Duncan should be “punished.” But I have argued that there must be consequences for what happened there. It’s not enough that they be sternly admonished, and if they do it again, be even more sternly admonished.

At some point, and that point is usually obvious early on, students realize that the rules are malarkey and the worst that comes of violating the rules is they have to suffer an anti-tummy rub. Granted, the lack of validation is routinely considered deleterious harm by children these days, but they’ll survive with or without puppies and Play Doh. Plus, they get to call themselves “survivors” and all their friends and allies send them thoughts and prayers.

So what “consequences” did Dean Jenny Martinez impose? She sent an “occasionally blistering” ten-page letter that thrilled the cockles of academic hearts.

Some might be disappointed that no students will be penalized for their misbehavior. But I think the letter is a much greater victory for academic values than if Martinez had stayed silent and meted out relatively small penalties to the most egregious perpetrators, which is almost certainly the maximum that would have been done.

Were there any options other than penalizing a few of the most egregious perpetrating students with relatively small penalties or silence? One consequences was being required to read the ten-page letter from the dean. I know how much suffering I endured, but the academic compulsion to use as many words as possible is a disease without a cure.

But another consequence is buried in the letter.

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.

Being forced to sit through a mandatory half-day session may violate the Eighth Amendment, depending on the speakers, which is particularly disturbing for those students who didn’t participate in the child crusade. Then again, there are the questions about why a law school needs to hold a special mandatory session to teach its students law. I’ve been informed by law students at Stanford that they don’t cover free speech in their required Con Law course, held for one quarter and any advanced courses are electives since who needs to know such things to graduate law school, right?

But even then, the dean makes clear that this doesn’t mean the dean, the academics, the invited speakers (whoever they might be) the courts or the philosophers are right. More importantly, “needless to say…students are free to disagree.” Are they? If so, what’s the point? Are they required to adhere to the law school policy that they cannot exercise the heckler’s veto to shut down speakers with whom they disagree, or else?

Or else what? Will Dean Martinez write a 15-page letter next time?

It’s hard to blame students for indulging their childish impulses when the adults in their world support them for doing so. To her credit, Dean Martinez included words that strongly expressed support for free speech and tolerating speakers who they abhor, even though at the end she threw them a tummy rub by promising to put together a more appealing counter-program.

I also recognize that the protest originally grew out of a desire by students to bring greater
attention to discussion of LGBTQ+ rights in the current legal environment. I have spoken
with faculty whose scholarship and teaching gives them relevant expertise, and who will
work with students to plan events in spring quarter to substantively engage on this topic.
Such programming, rather than disruptive protests, better advances students’ education as
lawyers and advocates.

Does such programming “better advance students’ education as lawyers and advocates,” or is that just another indulgence to soothe their outrage at not getting a pink balloon for violating school policy and shouting down a circuit judge? As David French argues, the lesson here “undermines the very profession they seek to join.”

It’s a particularly important topic for aspiring litigators, many of whom will argue cases in front of judges like Duncan, one of the hundreds of Republican-appointed originalists who account for a high percentage of the federal judiciary. After all, a lawyer’s job is to try to win over judges, no matter who appointed them and no matter their ideology.

Dean Martinez’s letter was lauded by most academics, for whom words are their only currency. Outside the academy, we say talk is cheap. Stanford has failed these students and this letter does little to correct its failure. There needs to be consequences.