When Deans Shake

There’s a law school at Leland Stanford Junior University, and it’s decided to give Yale a run for its money as the school least capable of teaching its students the virtue of humility. The debacle began with Judge Kyle Duncan being invited for a lunchtime presentation by the Federalist Society and ended with Judge Duncan leaving the room. What happened in between, and then some, is laid out by David Lat.

As I first learned via this detailed Twitter thread and subsequent Bench Memos post by Ed Whelan, yesterday Judge Kyle Duncan of the Fifth Circuit was the subject of a highly disruptive protest when he spoke at Stanford Law School. I have received extensive information about the event from multiple sources at or affiliated with SLS, as well as Judge Duncan himself, whom I interviewed by phone, and I’ll share it with you now. I also reached out to Stanford Law, but have not yet heard back; I will update this story (or write a new one) if and when I do. [UPDATE (10:49 p.m.): I would note, however, that Dean Jenny Martinez issued a school-wide message about the protest, which I have posted near the end of this story; I’m guessing she crafted it with the knowledge that it would be published, as I and others have done.]

Lat does an excellent job of both providing the factual backdrop as well as providing the views of the participant, including both Judge Duncan and Stanford students. As I have nothing to add to his recitation, I defer to David and urge you to read his post now.

The fact that the protesters not only failed to see any problem with their actions, but believed that they were absolutely right to behave as they did, is one issue. That Tirien Angela Steinbach, the Associate Dean for Diversity, Equity & Inclusion (putting aside the fact that such a position exists) not only failed to perform her responsibility in upholding the school’s free speech policy, but supported its violation and attacked a speaker, may reflect only her personal failings rather than the administration’s.

But after the debacle was over, and widely spread in the legal community, the dean of the law school, Jenny Martinez, sent out an email, knowing that it, too, would be for public consumption. David provides the content.

Dear SLS –

Most of you have likely heard about an event on March 9, 2023 at the Stanford Law School hosted by the chapter of the Federalist Society and featuring Judge Kyle Duncan of the United States Court of Appeals for the Fifth Circuit.  A video of a small portion of the event has been circulating online.

The law school advised students who announced that they planned to protest the event of university standards and policies on freedom of speech, including the specific university policy prohibiting disruption of a public event. It is a violation of the disruption policy to “prevent the effective carrying out” of a “public event.” Heckling and other forms of interruption that prevent a speaker from making or completing a presentation are inconsistent with the policy. Consistent with our practice, protesting students are provided alternative spaces to voice their opinions freely. While students in the room may do things such as quietly hold signs or ask pointed questions during question and answer periods, they may not do so in a way that disrupts the event or prevents the speaker from delivering their remarks.

In the past few years, we have had a number of events with controversial speakers proceed without incident.  Other than someone who hoped to create a meltdown for the cameras to capture, no one can be happy about what happened yesterday. In this instance, tempers flared along multiple dimensions. In such situations, an optimal outcome involves de-escalation that allows the speaker to proceed and for counter-speech to occur in an alternative location or in ways that are non-disruptive. However well-intentioned, attempts at managing the room in this instance went awry.  The way this event unfolded was not aligned with our institutional commitment to freedom of speech.

The school is reviewing what transpired and will work to ensure protocols are in place so that disruptions of this nature do not occur again, and is committed to the conduct of events on terms that are consistent with the disruption policy and the principles of free speech and critical inquiry they support. Freedom of speech is a bedrock principle for the law school, the university, and a democratic society, and we can and must do better to ensure that it continues even in polarized times.

Sincerely,

Jenny Martinez

After posting the letter, David offers his “hot take,” with the caveat that he may later have a cooler take.

My hot take (subject to revision upon further reflection): a solid message. I appreciate Dean Martinez acknowledging that (1) “[h]eckling and other forms of interruption that prevent a speaker from making or completing a presentation are inconsistent with [university] policy”; (2) “[h]owever well-intentioned, attempts at managing the room in this instance went awry”; and (3) “[t]he way this event unfolded was not aligned with our institutional commitment to freedom of speech.” I predict she will adapt this school-wide email to respond to the powerful letter that the Foundation for Individual Rights and Expression just sent to Stanford Law, expressing its deep concern over the Duncan protest.

I am very interested in seeing what Stanford Law’s “review” of the incident uncovers, whether it results in any policy changes (similar to those implemented at Yale Law), and whether Dean Steinbach faces any consequences for her attempt to manage the room that “went awry.” So stay tuned. This is my first story about Stanford Law School, but I suspect, sadly, that it won’t be my last.

It’s possible that Dean Martinez will later send another email to the student body including a stinging rebuke for their “inappropriate conduct.” It’s possible that Dean Steinbach will suffer some consequence for not only her gross failure to perform her duty, but her choice to empower violation of school policy. And it’s possible that some student who engaged in offensive conduct toward either Judge Duncan or their fellow students, will be sternly admonished. But I wouldn’t bet on it.

David views Dean Martinez’s letter as far more positive than I do. I see the same old empty platitudinous crap that goes nowhere. At the presentation, Dean Steinbach shook with passionate fury. In the email, Dean Martinez just shook, using the words she’s supposed to use without actually doing anything. If the students feared consequences, perhaps they wouldn’t have acted. But they have no fear. They know they can make the dean shake, quiver with fear at the thought of being the next dean to be canceled.

There is a pervasive belief by law students within schools and carried with them after they leave that they are entitled to act in whatever way they, in their most passionately entitled way, decide is “right.” And as reflected by Dean Steinbach’s massive and outrageous failings, this unwarranted arrogance is bolstered by the “grown ups in the room.” If these children are ever to become lawyers, they will need to grasp that their clients’ interests come before their own. This is a lesson in humility, a lesson not being taught at Leland Stanford Junior university law school. Until they learn this lesson, they have no place in the legal profession.