In a 10-page letter to students yesterday, Stanford law school dean Jenny S. Martinez responded further to questions about the disruption of Judge Kyle Duncan’s Federalist Society event two weeks ago. Her response is in three parts: (1) “why I apologized to Judge Duncan, why I stand by that apology, and why the protest violated the university’s policy on disruption”; (2) “how I believe that our commitment to diversity and inclusion means that we must protect the expression of all views” (emphasis in original); and (3) “some of the steps [Stanford] will be taking in the wake of this incident.” She also disclosed that DEI dean Tirien Steinbach “is currently on leave.”
I think that the first two parts of Dean Martinez’s letter are excellent, and I am pleased to present substantial excerpts here. I have a much less rosy view of the third part, in which she concludes that none of the disrupting students should face disciplinary sanction; I will address that third part in a follow-on post (perhaps not for a few days, as I am on the road).
In the first part, Martinez explains how Stanford’s policy that forbids students from disrupting events is consistent with First Amendment principles, which apply against Stanford via California’s Leonard Law. (As a private institution, Stanford has no federal constitutional obligation to protect the free-speech rights of students. The Leonard Law imposes on it a statutory obligation to do so.) Here is one excerpt:
Some students contend that the judge invited the heckling with offensive comments or engagement with protestors. These arguments misunderstand the nature of the disruption policy. The policy would not be meaningful to protect the carrying out of public events and the right of attendees to hear what is said if it applied only when a speaker said things protesters in an audience found agreeable.
In the second part, Martinez argues that Stanford’s “commitment to diversity, equity, and inclusion [DEI] can and should be implemented in ways that are consistent with its commitment to academic freedom and free speech.” At a time when DEI threatens to destroy free speech, it is especially welcome to have her declare that Stanford’s commitment to DEI “actually means that we must protect free expression of all views.” (Emphasis in original.)
Martinez affirms that the “Federalist Society has the same rights of free association that other student organizations at the law school have.” Those who argue for restrictions on the Federalist Society “are demanding action inconsistent not only with freedom of speech but with rights to freedom of association that civil rights lawyers fought hard in the twentieth century to secure”:
To do so would also be inconsistent with the Stanford Statement on Academic Freedom’s requirement that “[e]xpression of the widest range of viewpoints should be encouraged, free from institutional orthodoxy and from internal or external coercion.” Unless we recognize that student members of the Federalist Society and other conservatives have the same right to express their views free of coercion, we cannot live up to this commitment nor can we claim that we are fostering an inclusive environment for all students.
Enforcement of university policies against disruption of speakers is necessary to ensure the expression of a wide range of viewpoints. It also follows from this that when a disruption occurs and the speaker asks for an administrator to help restore order, the administrator who responds should not insert themselves into debate with their own criticism of the speaker’s views and the suggestion that the speaker reconsider whether what they plan to say is worth saying, for that imposes the kind of institutional orthodoxy and coercion that the policy on Academic Freedom precludes. For that reason, I stand by my statement in the apology letter that at the event on March 9, “staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.”
After identifying some of the “many ways to support diversity, equity, and inclusion that are not inconsistent with a commitment to academic freedom,” Martinez forcefully states:
At the same time, 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.
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….
There is temptation to a system in which people holding views perceived by some as harmful or offensive are not allowed to speak, to avoid giving legitimacy to their views or upsetting members of the community, but history teaches us that this is a temptation to be avoided. I can think of no circumstance in which giving those in authority the right to decide what is and is not acceptable content for speech has ended well. Indeed, the power to suppress speech is often very quickly directed towards suppressing the views of marginalized groups…. Thus, I believe that strong protection for freedom of speech is a bedrock principle that ultimately supports diversity, equity, and inclusion and that we must do everything in our power to ensure that it endures. [Underlining added.]