What Stanford Law’s DEI Dean Got Wrong

What Stanford Law’s DEI Dean Got Wrong

This is an edition of Up for Debate, a newsletter by Conor Friedersdorf. On Wednesdays, he rounds up timely conversations and solicits reader responses to one thought-provoking question. Later, he publishes some thoughtful replies. Sign up for the newsletter here.

Question of the Week

I was overwhelmed by your responses to last week’s question on cars! So for now, I’m going to hold off on a new question and promise to send out your excellent thoughts in the next newsletter. Meanwhile, I welcome your correspondence if you have suggestions for future questions, thoughts on what is below, or anything on a subject you’re confident I’ll never ask about.

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Conversations of Note

Last week, the federal judge Kyle Duncan traveled to the highly ranked law school at Stanford University. He intended to deliver a prepared speech on controversial cases in his circuit that present difficult issues because, as he told David Lat, “the Supreme Court’s jurisprudence on them is in flux.” Despite various disagreements with Duncan’s political and jurisprudential views, I’d value attending such a speech: It would be an extraordinary opportunity to gain insight into how a jurist with a lifetime appointment to the U.S. Court of Appeals for the Fifth Circuit thinks about upcoming cases and to pose probing questions that could clarify or perhaps even change his thinking. I’d listen even more carefully if I hoped to one day overturn one of his precedents as a lawyer.

But that’s not how the event was understood by a large group of progressive student protesters or by Tirien Steinbach, Stanford Law’s associate dean for diversity, equity and inclusion. As the event began, roughly 100 student protesters who object to many of Duncan’s views and rulings stood in a line outside the event “to boo those who entered,” Lat reported, “with some students calling out individual classmates—e.g., ‘Shame, John Smith’—à la Cersei’s Walk of Atonement on Game of Thrones.” Then the protesters disrupted the event so severely that the judge was unable to continue his remarks. For a long time, administrators stood by without intervening. Finally, Steinbach asked everyone to quiet down and granted that Stanford’s commitment to free speech would be threatened by shutting down an invited speaker. But she also expressed doubt that holding the event was “worth the pain” and “the division that this causes” and mused that maybe free-speech values should be reconsidered.

In most “deplatforming” debates, the illiberal side argues that giving a speaker a platform gives them more power to do harm. This controversy is distinguishable in part because the judge in question will have exactly the same lifetime appointment and his rulings will carry exactly the same force of law whether or not he ever speaks at Stanford or any other law school.

The mere fact that he was invited to speak on campus was the issue.

In a post at The Popehat Report, the attorney and First Amendment expert Ken White offers scathing critiques of the Federalist Society, Judge Duncan, and the students who stopped the event:

Students think that they should be able to dictate which speakers their peers invite, who can speak, what they can say, and who can listen. They’re not satisfied with the most free-speech-exceptionalist system in the world that lets them respond to speech by assembling, protesting, and reviling people of authority like Judge Duncan. They demand the right not just to speak, but to control the speech of others. That’s straight-up thuggish, an aspiration born of a fascist soul. These are law students. They are training to express themselves for a living. If their view is “we can’t respond to awful speech, we can only stop it from happening,” then they’re going to be terrible lawyers.

They believe they discovered the plea “yes, but what you don’t understand is that this speech is really bad.” They believe that they are so self-evidently right, good, trustworthy, and noble that it’s obvious that we should let them decide who talks and who doesn’t. And they are too hubris-swollen — not too stupid, but too drunk with self-righteousness — to see that exceptions to free speech have always been used most harmfully against the powerless … They’re too full of themselves to see that “let a crowd decide who is allowed to speak” is a horrific norm to promote with grotesque historic resonance.

White’s focus on freedom of speech is appropriate, especially given this is happening at a university in California, where a long-standing state law compels nonreligious, private institutions of higher education to comply with governmental free-speech laws.

But I want to talk about a different passage in White’s post:

Stanford students set out to protest the deliberately provocative invitation of Judge Duncan. They started great, modeling the variety of means available to them. They put up fliers denouncing Judge Duncan and FedSoc, they led a vigorous protest in the halls, they arrived at the speech with suitably blunt signs about Judge Duncan. Now, critics will fault them for even this, tone-policing their messages or suggesting that they ought to just sit down and have a Platonic dialogue with Judge Duncan or portraying the FedSoc members as victims of callout culture and shunning. That’s all bullshit. The protesting students’ rights and interests are neither inferior to nor superior to the interests of the FedSoc and Judge Duncan. Policing the civility of the response to speech and not speech itself is incoherent nonsense.

That passage elides the distinction between two different claims, one about the need to afford the same rights to speech and counterspeech, and the other about whether it ever makes sense to criticize tone or comportment or style or even substance. Were the students within their rights to chant “Shame!” at classmates for merely showing up to listen to an invited speaker? Yes. Was that an intelligent exercise of their rights to free expression? No. If they posted signs saying “Fuck Judge Duncan” in the halls tomorrow, would I defend the signs on free-speech grounds? Yes. Do I find it prudent for law students to choose modes of discourse that disadvantage brilliant legal reasoning in favor of the skill set of Andrew Dice Clay? No.

Blunt criticism can be valuable.

But it is not bullshit to advance the proposition that bad ideas are better met with logical, substantive pushback, whatever its tone, than mere shaming or empty invective; in law schools, we should prefer modes of discourse that advantage people who use careful, internally consistent arguments, not the slinging of shameless zingers, a mode that most advantages Donald Trump. If you’re ever on trial, do you want a legal system that finds you guilty or not guilty based on a careful adjudication of the facts or based on which lawyer can be most profane or scathing? The seeming failure of the Stanford protesters to think more than two steps ahead about the norms they’re embracing and the world those norms would create is striking.

I’ll give you an even clearer example.

The law school’s dean, Jenny Martinez, later apologized to Judge Duncan. Martinez also sent an email to law-school students in which she wrote that “the way this event unfolded was not aligned with our institutional commitment to freedom of speech.”

More specifically, she wrote:

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 … 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 … 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.

Student activists could have responded to the apology that Martinez sent with an incisive brief that went point by point through her assertions, bringing to bear the strongest possible counterarguments, whatever those are.

Here is what they did instead, according to reporting by Aaron Sibarium:

Hundreds of Stanford student activists on Monday lined the hallways to protest the law school’s dean, Jenny Martinez, for apologizing to Fifth Circuit appellate judge Kyle Duncan, whom the activists shouted down last week … When Martinez’s class adjourned on Monday, the protesters, dressed in black and wearing face masks that read “counter-speech is free speech,” stared silently at Martinez as she exited her first-year constitutional law class at 11:00 a.m., according to five students who witnessed the episode.

The student protesters, who formed a human corridor from Martinez’s classroom to the building’s exit, comprised nearly a third of the law school, the students told the Washington Free Beacon. The majority of Martinez’s class—approximately 50 out of the 60 enrolled—participated in the protest themselves, two students in the class said. The few who didn’t join the protesters received the same stare down as their professor as they hurried through the makeshift walk of shame …  Another student in the class, who likewise declined to protest, said the spectacle was a surreal experience … “The protesters were silent, staring from behind their masks at everyone who chose not to protest, including the dean.”

Today, most Americans would, I think, reflexively regard that tactic as creepy.

Question for the class: If accepted more widely, would the tactic––organizing hundreds of people to stand in masks outside professors’ classes to shame them for their ideas, forcing them and their students to exit through a gauntlet––tend to advantage liberals or authoritarians?

Ideas That Disempower

Steinbach’s missteps began before the event, when the DEI dean sent an email to students that included this passage:

For some members of our community, Judge Duncan, during his time as an attorney and judge, has “repeatedly and proudly threatened healthcare and basic rights for marginalized communities, including LGBTQ+ people, Native Americans, immigrants, prisoners, Black voters, and women,” and his presence on campus represents a significant hit to their sense of belonging.

Is that what his presence on campus represented?

The passage ill-serves Stanford’s law students: Steinbach validates the falsehood that the mere presence of a federal judge at a law school bears on whether any student belongs there—as if his physical proximity to the campus pollutes its purity, or as if his speaking there, at the invitation of a group that represents a small minority of students, somehow signifies Stanford Law School’s endorsement of the jurist’s moral character, political values, or jurisprudence. In reality, Stanford hosts many such events due to their obvious educational value: It is vital for lawyers to understand how judges think, perhaps wrongheaded judges most of all!

Instead of validating a faulty premise that all but guarantees some students will continue to feel a “sense” that they don’t belong—even though they do in fact belong—the DEI dean ought to have reminded students that they were officially admitted by Stanford Law as many others were rejected, and that so long as they are enrolled, no outside speaker has any power to change that they belong. In addition to being true, this approach has the virtue of empowering students, rather than validating doubts that leave them at the mercy of any outside speaker with whom they disagree about abortion, voting rights, immigration, or any other issue.

At the event, when ostensibly urging student protesters to quiet down, the DEI dean said this to the judge:

I have to ask myself and I’m not a cynic to ask this: Is the juice worth the squeeze? Is this worth it? … For many people in this law school … your advocacy, your opinions from the bench, land as absolute disenfranchisement of their rights … I mean is it worth the pain that this causes and the division that this causes? Do you have something so incredibly important to say about Twitter and guns and COVID that that is worth this impact on the division of these people who have sat next to each other for years, who are going through what is the battle of law school together, so that they can go out into the world and be advocates?

And this is the division this has caused.

When I say “Is the juice worth the squeeze?” that’s what I’m asking. Is this worth it? And I hope so, and I’ll stay for your remarks to see, because I do want to know your perspective. I am not, you know, in the business of wanting to either shut down speech, because I do know that if they come for this group today, they will come for the group that I am part of tomorrow. I do believe that. And I understand why people feel like the harm is so great that we might need to reconsider those policies. And luckily they’re in a school where they can learn the advocacy skills to advocate for those changes.

Of course the educational value of a federal judge outlining his thinking on matters likely to come before him is worth the subjective upset it causes a subset of law students acculturated to feel harmed by the physical presence of people whose jurisprudential values they hold in contempt. Indeed, the educational value might be greatest for the most upset students if the administrators at Stanford stopped indulging their catastrophizing and started showing them that they are perfectly capable of engaging substantively with any and all viewpoints.

Because that’s part of the job of lawyers! If they can’t handle being on the same college campus as a judge whose views they hold in contempt without experiencing harm, how are they supposed to excel before, say, a judge who sent one of their innocent clients to prison, or to represent a rapist as a public defender, or to sway a Supreme Court justice who isn’t totally convinced that torture is wrong? To be good lawyers, they must understand the legal arguments on all sides of issues, particularly the issues that they care about most, and especially when the arguments in question are advanced by someone who decides federal cases.

Silicon Valley and the Collapse of SVB

At The Atlantic, Derek Thompson writes:

Something I’ve always liked about the founders, venture capitalists, and tech evangelists that I’ve met over the years is their disposition toward technology as a lever for progress. They tend to see the world as a set of solvable problems, and I’d like to think that I generally share that attitude. But this techno-optimist mindset can tip into a conviction that tradition is a synonym for inefficiency and that every institution’s age is a measure of its incompetence. One cannot ignore the irony that tech has spent years blasting the slow and stodgy government systems of the 20th century only to cry out, in times of need, for the Fed, the Treasury, and the FDIC to save the day—three institutions with a collective age of several hundred years.

I am still “long” on American invention and innovation, which is a way of saying that I’m long on Silicon Valley as a place and as an idea. But we are still learning exactly how much of this industry’s genius was a mere LIRP, or low-interest-rate phenomenon. The answer from the past 100 hours is that it’s more than I feared. As the saying goes, kind of: When the interest-rate tide goes out, you see who’s been LIRPing naked.

The Cost of Phoning Home

Christie Thompson lays out the case for making it cheaper for prisoners to call their families:

A phone call from prison is more than just a phone call — it’s one of the few remaining tethers to the outside world. Studies show strong family connections for prisoners can reduce the chance they will end up behind bars again, and even improve outcomes for kids with incarcerated parents. But the high cost of prison calls forces many low-income families to choose between talking with their loved ones or paying other bills.

A growing movement across the country aims to ease that burden — in some cases, $3 for a 15-minute call from jail — if not covering the cost of calls entirely.

This week, Colorado lawmakers advanced a bill that would make all state prison calls free. Family members testified to spending thousands of dollars on calls and going into significant debt. Worth Rises, a group pushing for free prison phone calls across the country, estimates Coloradans spend nearly $9 million a year to talk to relatives in prison. And according to a report from the nonprofit Ella Baker Center for Human Rights, women disproportionately bear this financial burden — they make up 87% of family members paying for phone calls and visits.

Provocation of the Week

At the conclusion of a fascinating essay on the drinking fountain, Shannon Mattern makes the case that the familiar devices touch so many parts of civilization that they can help us understand it:

Drinking fountains are seemingly modest, even innocuous urban amenities that nonetheless require the coordination — and, ideally, the approbation — of myriad administrative stakeholders, from parks departments to public art commissions, from water and sewer to landscape maintenance to homeless services. Whether made from Aberdeen granite or stainless steel, whether ensconced in a leafy urban park or tucked into a nook in the local library, the drinking fountain constitutes a nexus of civic infrastructures and economies and ecosystems. And as media scholar Joanna Zylinska has argued, water infrastructures are particularly potent means of thinking through politics. “At a time when lofty yet disembodied notions of democracy and freedom are running thin,” she writes, “we need to work on developing more grounded and more fluid modes of political thinking and action, modes that take our relations with the environment seriously … Perceiving water as the elemental medium, before it is turned into a resource, an industrial product, or a background to modern economies, needs to be the first step on this journey.” Grounded, embodied, and anything but lofty, the drinking fountain reveals much about the charged politics of public spaces, and about the public things that, again to quote Bonnie Honig, “furnish the world of democratic life.”

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