Stanford Law School Dean writes long letter supporting free speech and viewpoint neutrality, puts offending DEI administrator on leave

March 23, 2023 • 11:15 am

I’ve written previously about the shameful behavior of Stanford University Law School (SLS) with respect to a March 9 talk by conservative Appellate Court judge Kyle Duncan. The talk, about the relationship between Duncan’s court and the Supreme Court, was seriously disrupted by the law-school students, who shouted and put up posters and signs in the lecture room. (I consider signs a disruption, but others don’t.)  The students had been egged on to protest by a pre-talk email from the Law School’s Associate Dean for Diversity, Equity and Inclusion, Tirien Steinbach, denouncing Duncan and saying how harmful his decisions have been.

When Duncan asked for an administrator to intervene to stop the disruption (four deans, including Steinbach, were sitting there silently), Dean Steinbach got up and read several minutes’ worth of further critique of Duncan’s “harmful” decisions, and while paying lip service to Stanford’s free speech policy, asked the students whether “the juice was worth the squeeze”, i.e., whether free speech was worth the offense and harm inflicted on the students. She also said that the demonstration had been the right thing to do. That pretty much ended the presentation save for some confrontational questions by students and some angry answers by Duncan.

Afterwards, SLC Dean Jenny Martinez sent a letter to the Stanford community apologizing for the demonstration, and then she and Stanford’s President sent a joint letter of apology to Judge Duncan. (Duncan’s behavior itself wasn’t optimal during the talk, either, for then and in interviews afterwards he called the students names, something that detracted from his gravitas. However, I can understand his anger even though I disagree strongly with his legal views.)

When Martinez taught her own SLS class a few days later, she herself was subject to a silent demonstration by her students, who wore black, and there were calls for her to rescind her apology and even to resign.

Yesterday Martinez sent out a very long (10-page) letter to the SLS community disclosing what Stanford had decided to do in light of the disruption, which had brought unfavorable national attention on the school. You can find that letter here, or by clicking on the screenshot below.  It’s a pretty good letter that outlines strong reforms for SLS and Stanford in general.

The upshot:

1.)  The only downside to the letter is that it begins by emphasizing the hate mail directed to Stanford’s administrators and students, as if they were the victims rather than free speech itself as well as Judge Duncan (I indent excerpts from Martinez’s letter):

As we consider the role of respectful treatment of members of our community, I want to be clear that the hate mail and appalling invective that have been directed at some of our students and law school administrators in the wake of March 9 are of great concern to me. All actionable threats that come to our attention will be investigated and addressed as the lawpermits.

It also continually emphasizes Stanford’s “diverse community” and respect for DEI, which isn’t too bad, but of course it was the DEI dean, the conflict between DEI principles and free speech—and the decision by Steinbach and the other attending deans to let “offense” trump free speech— that created this whole mess in the first place.

2.) Much of the letter reads like a court decision, citing all the relevant legal cases and decisions showing that schools like Stanford have free speech but disruption is not part of free speech. (Posters apparently are, though I think I’d be discombobulated if students in the front row were holding up banners and signs.) But it’s a clever way for Martinez to impress on the law students that, indeed, they had acted contrary to settled law.

3.) Glory of glories: Dean Steinbach was disciplined for fomenting the demonstration—something I hoped for but did not expect.  She’s been put on leave and apparently being further investigated, so she might be fired. From Martinez’s letter (her emphasis), which also chastises the other deans for not quashing the disruption:

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.”

. . . First, Associate Dean Tirien Steinbach is currently on leave. Generally speaking, the university does not comment publicly on pending personnel matters, and so I will not do so at this time. I do want to express concern over the hateful and threatening messages she has received as a result of viral online and media attention and reiterate that actionable threats that come to our attention will be investigated and addressed as the law permits. Finally, it should be obvious from what I have stated above that at future events, the role of any administrators present will be to ensure that university rules on disruption of events will be followed, and all staff will receive additional training in that regard.

4.) Martinez cites the University of Chicago’s Kalven Report mandating institutional neutrality on political, ideological, and moral matters (except when they affect the University’s mission) to show why administrators should not chill the speech of students—as they did on March 9 with the students who wanted to hear Judge Duncan. I’m very pleased that Stanford (and, increasingly, other schools) are falling in line with the Kalven principles. From Martinez’s letter:

The 1967 Kalven Report of the University of Chicago is not formal policy at Stanford but helps explain why university administrators should avoid exercising their authority in ways that can chill speech. It states:

A university has a great and unique role to play in fostering the development of social and political values in a society. The role is defined by the distinctive mission of theuniversity and defined too by the distinctive characteristics of the university as a community. It is a role for the long term.

The mission of the university is the discovery, improvement, and dissemination of knowledge. Its domain of inquiry and scrutiny includes all aspects and all values of society. A university faithful to its mission will provide enduring challenges to social values, policies, practices, and institutions. By design and by effect, it is the institution which creates discontent with the existing social arrangements and proposes new ones. In brief, a good university, like Socrates, will be upsetting.

The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars. To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community.

5.)  Stanford decided not to punish individual students for participating in the demonstration, but to give them some education in freedom of speech. This is fine with me, as the students apparently had not been given such education, because it would be hard to identify individual students who violated Stanford’s free-speech policy, and because the students were also told by Dean Steinbach that their actions were okay. But every college orientation in America needs a unit on freedom of speech:

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. But I believe further discussion of these topics will both advance our educational mission and help us learn from the errors of the recent past.

6.) Finally, Stanford is going to examine and reform its protocol for dealing with disruption of speakers:

In addition, a more detailed and explicit policy with clear protocols for dealing with disruptions would better protect the rights of speakers and also those who wish to exercise their right to protest within permissible bounds, and is something we will seek to adopt and educate students and staff on going forward. Cf., e.g., UC Hastings [now UC College of the Law San Francisco] Event Policy: Student Organization Support Protocol; Permissible Forms of Protest (Adopted October 1, 2022), available at uc-hastings-event-policy-adopted-october-1-2022. Doing so will bring greater clarity and certainty about future enforcement of the policy, including through disciplinary sanctions as appropriate.

All in all, this seems a satisfactory resolution to me.  I think a nice touch would be to invite Judge Duncan back to give his planned talk; that would not only be gracious (though I doubt he’d agree to come!), but would also test whether the new rules are really in effect.

If you’re interested in the relevant law, or want to see a pretty good letter (which I’m sure Dean Martinez was compelled to write), do read the whole letter. This had to be done so that SLS wouldn’t become the laughing stock of law schools—or lose donor money. But I seriously doubt whether the renegade students will accept what Dean Martinez says. They may behave properly from now on, but the “I’m offended” trope is hard to root out.

ADDENDUM:  FIRE has posted a laudatory commentary on Dean Martinez’s letter.

h/t: Dorian and several readers

18 thoughts on “Stanford Law School Dean writes long letter supporting free speech and viewpoint neutrality, puts offending DEI administrator on leave

  1. Dean Steinbach’s actions were consistent with the role of the DEI bureaucracy, which is perfectly well understood by everybody: it is to enforce the reign of DEI Virtue on campus. Any other goals—such as things related to the search for and dissemination of knowledge—are just, as she says, not worth the squeeze. When she leaves Stanford, we can look forward to her moving up to a Vice-Provostship or even higher office at some other institution in the category of Oberlin, Hamline, etc. etc..

    1. Sadly, I think that you are correct on both counts—the DEI mission and the promotions to higher platforms for disservice.

  2. Well, those developments seem like good developments. But the half day struggle session on free speech won’t sway the revolutionaries. They might even disrupt it! Honestly, I don’t know what one can do about them.

    1. RE: “Honestly, I don’t know what one can do about them [the revolutionaries].”
      What to do is simple. First, you make sure that the institution’s policy is well known by everybody. Then, if people violate it, you discipline them (suspension, firing, etc.).

  3. I didn’t read the Stanford letter, just your highlights. This seems like a good resolution. The “mandatory educational programming” seems like an idea that should become universal—meaning something that *all* institutions of higher education adopt.

    Regarding this phrase from the letter:

    “a more detailed and explicit policy with clear protocols for dealing with disruptions would better protect the rights of speakers and also those who wish to exercise their right to protest within permissible bounds.” …

    It will be interesting to read what they come up with or what else is out there regarding such a protocol. Perhaps a standardized statement can be formulated that can be applied universally across colleges and universities. My guess is that the “Stanford problem” is one that is occurring broadly and that administrators are tearing their hair out to find a solution before having to deal with their own crises. If a standard protocol can be devised, I’d bet that it would be broadly adopted. The timing for such a standard cannot be better.

    1. A brief follow-up. I just read the report of a task force on freedom of speech at Virginia Tech (where I taught from 1983-1995). It looks like a very sensible, if broad, statement about protecting freedom of speech, including uncomfortable speech. While not explicitly covering behavior at talks and lectures, it implies that the university has the authority to endorse standards of conduct at such venues.

      Read about it here:

      As I mention above, my guess is that many universities are trying to get ahead of the problem before it blows up into a scandal.

  4. I think a nice touch would be to invite Judge Duncan back to give his planned talk; that would not only be gracious (though I doubt he’d agree to come!) …

    Yeah, I doubt Judge Duncan has much interest in a return engagement. Do-overs are about as appealing as putting on wet swim trunks. Pretty sure Bill Buckner didn’t relish a return to Shea Stadium, that George Foreman never wanted another bout in Zaire, and that Soapy Sam Wilberforce wasn’t gung-ho to get back to the Oxford Museum.

    1. Yeah Ken. And I think that the judge was doing Stanford a favor by taking at least two days out of his life to travel to Palo Alto and back to Louisiana; speaking to a law school audience would not be a great cv enhancer for someone at his level in the profession. I think the written apology is great, particularly because it points to specific actions that the school is taking as a result of the debacle.

  5. Am I the only one who thinks that the recent Stanford Business School forum on academic freedom helped ready the full Stanford administration for this eventuality? I think that giving visibility to what the administrative micro-fiefdoms do that contradict the mission of the university is critical to bringing rational responses and properly defining prima donna structures like DEI’s function in the context of a university. Now if something could be done regarding major sport scholarship athletics.

  6. I wasn’t sure what to write in a comment about this – my gut said this was a “good” thing, but it is still depressing that peoples’ jobs or other daily life is subject to some ill effects.

    So the thing I’d perhaps say is that .. hmm.. the good thing is the ideological bubble has a pinprick in it. Everyone should be able to breathe easier, not just only one set of participants in the marketplace of ideas, but all of them – and the ideas of which none can be a perfect incarnation of thought delivered in pure form to us mortals….

    the quote (in translation) that comes to mind :

    “Out of the crooked timber of humanity, no straight thing was ever made.”

    -Immanuel Kant


  7. ^^^ooo, let me add one more bonus Kant quote (to my comment which hasn’t appeared yet) :

    “Religion is too important a matter to its devotees to be a subject of ridicule. If they indulge in absurdities, they are to be pitied rather than ridiculed.”

    -Immanuel Kant

    A lecture at Königsberg (1775), as quoted in A New Dictionary of Quotations on Historical Principles from Ancient and Modern Sources (1946) by H. L. Mencken, p. 1017

  8. I applaud Stanford for its resolution of this case. It has taken speedy action, in contrast to McGill which, so far as has been reported, has done nothing about the disruption there where there was evidence of menace if not actual violence.

    As for the students, they were identified with names and photos by the Washington Free Beacon. I’m sure Dean Martinez knows exactly who they are — it’s a small law school. It would be straightforward for her to call them individually into her office for a friendly chat about the consequences of a repeat adventure, which could include expulsion. It might not be possible to make anything more serious stick given that the DEI Dean seems to have egged on the disruption before and after the fact. The students could claim in any official academic discipline tribunal they were never told that disrupting invited speakers on university property was against the rules.

    As for Judge Duncan, the knock against him by the trans activists — which is what this Stanford protest seems to have been mostly about — is that he is not sympathetic to their ideology. The charge that he “misgendered” a litigant (gasp!!) is bandied about but at most this is an example of incivility. In the majority judgement in question he describes how accepting a litigant’s choice of pronouns could indicate bias on the part of a judge: If the dispute is all about whether a male-bodied person is “really” a woman as the person claims, then for the judge to be required to refer to that person as she/her even out of civility could give the appearance of bias. Sticking to the convention of using he/him for a male-bodied person at least until the case is decided seems prudent to me. And of course there are many possible pronouns that a litigant might demand to be referred to as. includes the dissenting opinion.

  9. It’s great that SLS is standing up to the activists and taking sensible steps to defend free speech.

    I just came across this article from the Daily Mail about the case of a paedophile offender that supposedly triggered the SLS students’ protest against Duncan:

    1. Thanks for this info JezGrove. This story just became elevated from a badly controlled preschool fracas to high farce. Better than coffee to start my day.

    2. The case of this offender is the same one I cited above, taken from a reference on Judge Duncan’s Wiki page. It wasn’t clear to me from the text of the judgement that Judge Duncan himself refused to allow the felon to change his name on arrest documents. (He had affirmed his female gender after his repeat conviction as a child-related sex offender.). His petition to change his arrest name was denied by a lower court and his appeal to Judge Duncan’s court was “vacated.” I don’t know what the judge said orally during the hearing.

      So it’s not clear to me from the Daily Mail article if Judge Duncan was guilty of both misgendering and dead-naming. or only the former. (To use American terms, misgendering is viewed as a misdemeanour in the trans world. Dead-naming is a felony.)

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