Impediments to speaking freely in New Zealand academia

May 28, 2023 • 12:45 pm

The article below, published in NZ’s Stuff magazine, summarizes a big yearly survey taken by the country’s Free Speech Unions (find the big survey here or here, click the FSU icon below, or ask for a pdf). The upshot is that Kiwi academics often have difficulty saying what’s on their mind for fear of ostracism or reprisal—something we’ve long known from hearing academics beef privately, or from the reprisals visited on those who say what’s “politically incorrect”—people like the Satanic Seven (two have since died) who signed the Listener letter in 2021 and got demonized for it.

Click the first screenshot below for the short take-home lesson, or the image below that for the full report. The author of the Stuff piece is the head of the FSU:

So here’s a summary (note that I haven’t compared the data here to that in America, but perhaps some reader should. At any rate, from what I recall the degree of self-censorship is at least as great in NZ as in the U.S.

First, the a list of the questions that were asked (452 people were polled in April):

The FSU report (click to read, or ask me for a pdf).

A summary from Stuff:

The second annual survey on academic freedom by the Free Speech Union is an eye-opening read for those of us who value ideas and solutions being openly debated in Kiwi universities.

. . . Concerningly, this report shows that a majority of academics who responded at five of our eight universities disagreed that they were free to state controversial or unpopular opinions, even though this is one of the specific features of academic freedom as defined in the Education and Training Act 2020.

Across all eight universities, only 46% of academics agreed they felt free to question received wisdom and state controversial and unpopular opinions.

The rest disagreed. Men in particular, (59%), believed they were not free to voice these views.

Claims that those who were more senior (and therefore supposedly more secure) in roles, such as professors, were freer to speak on controversial subjects did not play out.

In fact, only 31% of professors agreed that they were free to state controversial or unpopular opinions. If those who have dedicated their careers to exploring specific subjects feel unfree to voice their views if they are unpopular or controversial, how can these conversations move forward?

Not surprisingly, the degree of self-censorship was correlated with political affiliation: the Left is, of course, on the side of “indigenizing” education in the country, and wokeness sets the agenda for “acceptable” speech:

Problematically, it is clear that the flow of political persuasion mapped almost directly onto whether academics felt free. About two-thirds (64%) of academics who identified as “very left” and 70% of those who identified as “left” felt free to state controversial or unpopular opinions.

It decreased from less than half (46%) of those who are “slightly left” to one-third (34%) of those who are “centrist” down to one-quarter (26%) of those who are “slightly right” to 18% for those who are “right”. No academic who responded as “very right wing” agreed with the statement (admittedly, there was a small sample size for this group).

This, in the context of an academy that we already know has a left-leaning bent (the respondents to our survey reflect this disposition), is frightening for intellectual diversity.

Academics were asked about six specific subjects which might be controversial; a majority of academics felt comfortable discussing only three: religion, politics, and sexual orientation.

The topics that made people most uncomfortable were, as you see above, sex and gender, the Treaty of Waitangi and colonization, and race. Not surprising.

Some 59% of academics did not feel comfortable discussing the Treaty of Waitangi and colonialism, with at least one-third (30%) of academics at every single university feeling “not at all comfortable” (45% of academics from Otago were “not at all comfortable”).

Otago is one of the most Māori-centri unviersities in New Zealand. Finally, Māori self-censor far less than do European descendants, which is also not surprising since Māori are seen as the victims.

Interestingly, Māori academics were much more likely to feel comfortable discussing this issue (54% felt “very comfortable”), while almost two-thirds (61%) of European academics did not feel comfortable (44% “very uncomfortable”).

This is more or less what I expected, but I wonder if the Kiwis themselves think these figures are disturbing (I do). Ideally, except for those who are pathologically shy, academics should at least feel free to broach the topics mentioned above.

The authors drew five themes from the survey. I’ll just mention them in the authors’ words and give their take on one: the Māori-related issues (like the Treaty, or Mātauranga Māori) that are more or less taboo to discuss. We’ve talked about MM before, and the government’s attempt to stick it into the science curriculum as a form of “indigenous science”, so it’s worth a special look.

Academic freedom is under threat and there is a climate of fear
Freedom to do research is constrained by the ability to attract funding, or to do certain types of research
Certain issues are off-limits for debate. [JAC: see below]
Universities themselves are not always upholding academic freedom
Trends in universities reflect wider societal trends

This is what you read under #3:

The survey asked people to say how they comfortable they felt discussing a number of issues at their institution. Many of the comments made related to those topics, with people elaborating on what they perceived as the difficulties in discussing those issues. There were very few comments on issues such as politics, religion or sexual orientation – these were also the issues that fewer people in the main survey said they felt uncomfortable discussing. Comments were more likely to be made about the Treaty of Waitangi and colonialism, race, or sex and gender. There were a few comments on topics not asked about in the survey, such as climate change. Respondents who commented on these issues often described them as being out of bounds or not up for debate. Fear of being misinterpreted or being called racist or phobic, as well as the impacts on job security and promotion mentioned in Theme 1, resulted in many people saying they had decided that it is best to say nothing at all on these topics.

I have the impression that saying anything around race, gender, the Treaty of Waitangi, sexual orientation, or what political structures lead to the best outcomes for society, or what the best outcomes for society are, would be fraught with career danger.

The pressure to be ‘PC’ and ‘woke’ is enormous – and my views are pretty PC and woke! But I feel the most gentle, careful questioning of ideas around issues such as trans rights or mātauranga Māori would result in ostracism by staff and negative feedback from students (at best).

Treaty of Waitangi/biculturalism/Māori/race-related issues featured particularly, in relation to teaching and assessment, course content, research, promotion and general discourse and debate. This was especially the case in institutions that were moving to becoming ‘Te Tiriti-led’. [JAC: “Te Tiriti” refers to the Treaty of Waitanga.]

The greatest challenge to academic freedom relates to Treaty of Waitangi and race issues where there is no ability to speak without dire consequences for academics.

There is definitely a chilling effect on academics when it comes to debate on topics such as colonisation and racism for fear of being labelled racist.

Our university has a host of pre-ordained positions on things, especially Te Tiriti, race, colonialism and rainbow topics. I don’t know what would happen to someone if they spoke out in disagreement with these positions because no one ever does. I think everyone knows not to touch these issues and not to try to explain any nuance or slight disagreement on their part, as we know it will likely end badly.

Many respondents emphasised that their comments should not be seen as dismissing concepts such as mātauranga Māori, or the role of the Treaty in informing the university’s work. However, they wanted to be able to ask questions, discuss and not compromise on quality.

I teach a science and while I am happy to include cultural examples of that science as appropriate, my priority is making sure the students learn the science. I am feeling pressured to include cultural constructs at the expense of the science. I strongly believe in the value of affirmative action and changing our language to be more inclusive. At the moment, I feel excluded from the discussion.

This all jibes pretty well with what I hear from New Zealand academics who write me privately. Of course, you might say that I’m only going to hear from the disaffected ones, but you’d think that I’d also get emails from those who disagree with my opposing the hegemony of Mātauranga Māori in secondary-school science classes. Yet I’ve never heard from one correspondent who disagreed with me about that. In contrast, I get all kinds of comments and emails from creationists who deplore my acceptance and popularization of evolution.

The problem with this self-censorship about the fulminating indigenization of New Zealand is that, even more than minorities do in America, Māori bear the “authority of the sacred victim,” so that opposing initiatives like putting MM in science class is not only going to get you called a racist, but may well get you fired.

Open debate is essential if New Zealand isn’t going to be wokified to death, and taking science down with it; but open debate, particularly on item #3, is precisely what is taboo.

Case in point: in December, 2021, I discussed the demonization of the Satanic Seven by the University of Auckland’s Vice-Chancellor Dawn Freshwater. Freshwater had previously issued a statement explicitly criticizing The Listener letter and its seven signers, but backed off when she realized she was violating academic freedom. She then got all kumbaya-y and said this (bolding is mine):

The debate that initially started as about the relationship between mātauranga Māori and science in the secondary school curriculum in Aotearoa New Zealand has intensified and extended over recent weeks, with a number of overseas commentators adding their opinions.

Unfortunately, the debate has descended into personal attacks, entrenched positions and deliberate misrepresentations of other people’s views, including my own. This important and topical debate deserves better than that.

I am calling for a return to a more respectful, open-minded, fact-based exchange of views on the relationship between mātauranga Māori and science, and I am committing the University to action on this.

In the first quarter of 2022 we will be holding a symposium in which the different viewpoints on this issue can be discussed and debated calmly, constructively and respectfully. I envisage a high-quality intellectual discourse with representation from all viewpoints: mātauranga Māori, science, the humanities, Pacific knowledge systems and others.

Well, that debate has never taken place, and there are no signs that it will. Freshwater’s words were just cant: a way of placating those concerned about free expression.

The AAUP rebukes Hamline University for academic mistreatment of a professor

May 24, 2023 • 11:45 am

I’ve discussed “Muhammadgate” at Hamline University quite a few times before, and, at any rate, the details are given in the update below from the American Association of University Professors (AAUP; click on screenshot) and especially in the AAUP’s report here and pdf here.

In short, in June, 2022, an adjunct professor of art history, Erika López Prater, was giving a class on World Art that included two sessions on Muslim art. Those sessions included showing two images of the prophet Muhammad from famous paintings. In one his face was visible, in the other it was blotted out. López Prater had given the students a “trigger warning” in the syllabus and also right before the online class, so they knew what they were going to see, and had the opportunity to leave. (The warning came because some Muslims, but not all, consider showing an image of Muhammad to be blasphemy.) López Prater also vetted the syllabus and its warning to the administration and the chair of the Art and Digital Media department, who had no problem with it.

The class went forward, and shortly thereafter a student, Aram Wedatalla, who was also president of the school’s Muslim Student Association, was outraged, and reported the incident to President Fayneese Miller and Dean Marcela Kostihova. Wedatalla also expressed her dissatisfaction to López Prater.

Read this summary by clicking on the link, but I especially recommend the AAUP report to show you what happened next: a perfect storm of outrage that led to the total violation of López Prater’s academic freedom

This ensued:

1.) López Prater met twice with the dean about the complaints.

2.) Her Department chair suggested that López Prater tender an apology to the student body and her art class. But the apology that she wrote was just for the offense she caused; López Prater deliberately did not apologize for showing the images, which would have been ludicrous given the context.

3.) The University Vice President then issued a fulsome and apologetic statement about the Islamophobia supposedly caused by López Prater’s showing the paintings. It was almost a direct rebuke to the faculty member.

4.) López Prater was informed that she would no longer be teaching in the school. Effectively, as an adjunct, she was fired.

5.) The university held a “community conversation” that was clearly meant to reinforce the dastardly Islamophobia of López Prater. The topic was in fact “Islamophobia,” the panel of students were all black women (Muslims, I suspect), and a professor who tried to speak in defense of López Prater was told to shut up.

6.) The story had now become national news with a New York Times article devoting a front-page story to it on January 8 of this year. Other people wrote in defending López Prater.

7.) The administration, realizing it had embarrassed itself and violated academic freedom, walked back its statements on January 17. The President and Chair issued this statement:

“Hamline University is the epicenter of a public conversation about academic freedom and students with diverse religious beliefs,” the statement began, and “many communications, articles, and opinion pieces . . . have caused us to review and re-examine our actions.” It continued, “Like all organizations, sometimes we misstep. In the interest of hearing from and supporting our Muslim students, language was used that does not reflect our sentiments on academic freedom. Based on all that we have learned, we have determined that our usage of the term ‘Islamophobic’ was therefore flawed.” The statement ends with a retraction: “It was never our intent to suggest that academic freedom is of lower concern or value than our students—care does not ‘supersede’ academic freedom, the two coexist. Faculty have the right to choose what and how they teach.”

8.) “That same day Professor López Prater filed suit against the university in Ramsey County District Court, seeking damages for violations of Minnesota’s Human Rights Act, breach of contract, promissory estoppel, defamation, and “intentional infliction of emotional distress.”

8.) Meanwhile, the regular faculty met and overwhelmingly gave a vote of no confidence to President Miller.

9.) President Miller resigned.

I’ll reproduce just two documents that were part of this kerfuffle. First, López Prater’s “trigger warning” on her syllabus (again, she also gave a verbal one right before class):

I aim to affirm students of all religious observances and beliefs in the content of the course. Additionally, this course will introduce students to several religious traditions and the visual cultures they have produced historically. This includes showing and discussing both representational and non-representational depictions of holy figures (for example, the Prophet Muhammad, Jesus Christ, and the Buddha). If you have any questions or concerns about either missing class for a religious observance or the visual content that will be presented, please do not hesitate to contact me.

That’s pretty good, right? Nobody could object to being blindsided by being shown the two paintings, which I reproduce here.

And here is the damning statement that the school’s Vice President issued, which was then shared with the student body by the Dean of Students:

Several weeks ago, Hamline administration was made aware of an incident that occurred in an online class. Certain actions taken in that class were undeniably inconsiderate, disrespectful, and Islamophobic. While the intent behind these actions may not have been to cause harm, it came at the expense of Hamline’s Muslim community members. While much work has been done to address the issue in question since it occurred, the act itself was unacceptable. . . . I want to make clear: isolated incidents such as we have seen define neither Hamline nor its ethos. They clearly do not meet community standards or expectations for behavior. We will utilize all means at our disposal, up to and including the conduct process, to ensure the emotional health, security, and well-being of all members of our community.

It makes my blood boil to read this even now. There was NO Islamophobia, no disrespect, no harm, and certainly lots of consideration. This, more than anything else, I think, brought down the AAUP’s wrath on Hamline.

Oh, one other comment. The reports says this, which may account for why the school’s reaction was so strong:

In 2019, a new strategic plan set a goal of increasing enrollment by diversifying the demographic makeup of the student body and improving student retention. According to faculty members who worked on the plan, an unstated goal was to recruit more students from the growing population of East African Muslims in the Twin Cities.

What did the AAUP do about this? I haven’t read the longer pdf file of the report, but I’m not sure that the AAUP can really do anything to Hamline University save censure and embarrass it. Further, the faculty have already spoken in opposition to the President, Dean’s, and Chair’s mishigass, and the President is toast. Nevertheless, the AAUP’s judgment will stand as a warning to other schools. The last half of the report censures Hamline for doing these things:

a. Retracting López Prater’s teaching assignments.

b. Not affording López Prater academic due process. There was no formal procedure used to assess what she did before they got rid of her.

c. Denying López Prater her academic freedom to teach what she wanted (courts have ruled that so long as material like these pictures serve a didactic purpose, they are protected by academic freedom.

d. Relying largely on part-time appointments, meaning that faculty like López Prater get low pay, not many benefits, and huge workloads. This practice is increasing in American Universities, and it must stop, as it’s a form of indentured servitude.

e. Not creating a climate of academic freedom at the school. As the AAUP report notes:

The implications for academic freedom in art and art history of the events recounted in this report are clear. If a Muslim student can prevent the display of an image of the Prophet Muhammad, why cannot an evangelical Christian student seek to censor a work like the controversial Piss Christ by Andres Serrano or a devout Hindu student object to studying the work of Indian artist M. F. Husain? But art history is not the only field of study potentially at risk. Indeed, as Professor López Prater wrote the committee, “My situation presents a slippery slope not only for the discipline of art history, but for all of academia.”

They do praise the University’s governing board for acting rapidly and forcing the University to retract the charge of Islamophobia. They probably also asked Miller to resign, though it’s not clear.

Finally, the AAUP made a number of conclusions and recommendations, which I’ll put below the fold as this is getting too long. Click “read more” below to see them:

Continue reading “The AAUP rebukes Hamline University for academic mistreatment of a professor” →

Déjà Vu: S.F. State University investigates professor for showing Muhammad picture in class

April 7, 2023 • 12:30 pm

Both FIRE and The Chronicle of Higher Education report that, mirabile dictu, yet another professor is in trouble for showing a picture of Muhammad—this time at San Francisco State University (SFSU). He hasn’t been fired, but he’s under investigation. FIRE is of course campaigning to nip this in the bud, and so they have both a blog post about it as well as a four-page letter they sebnt to SFSU letting them know that they’re violating the professor’s academic freedom and that even investigating him is chilling speech and violates the First Amendment (SFSU is a public school).

Here’s the backstory from the Chronicle (the “Muhammadgate” incident is at the very end, part of a longer article about academic freedom).

Maziar Behrooz, an associate professor of history at San Francisco State University, does not yet know what a teaching decision he made might cost him.

In the fall of 2022, Behrooz was teaching the history of the Islamic world between 500 and 1700 and showed a drawing of the Prophet Muhammad. He’s taught the course, and the image, for years. One student, a devout Muslim, strongly objected, outside of class. His main point, Behrooz told The Chronicle, was that it’s not permissible for an image of the Prophet Muhammad to be shown in any shape or form.

“This is the first time that this has happened,” Behrooz said. “I was not prepared for somebody to be offended, in a secular university, talking about history rather than religion.”

Behrooz said he told the student that, as the professor, he is the one who decides what’s shown in class. The student then complained to Behrooz’s department chair, who broached the issue with the professor, according to Behrooz. He said he explained to his chair that the student’s view is not uniform among all Muslims. The type of drawing he shows in class can be bought at markets in Tehran near holy shrines. Many Shiite Muslims have such drawings on walls in their homes, said Behrooz, who was born in Tehran and has written books on Iran’s political history.

The student also apparently complained to “authorities higher up” at the university, according to Behrooz. The professor said the institution’s office of Equity Programs & Compliance informed him in March that it would investigate the incident and asked him to attend a Zoom meeting.

A staff member in the vice president’s office at San Francisco State told The Chronicle in an email that she could not comment on specific reports or investigations. She instead described the process for assessing reports of potential misconduct. An investigator meets with the complainant to gather information and discuss options, she said. If it’s decided the conduct could violate the California State University nondiscrimination policy, an investigation begins, and both parties are notified.

The Zoom meeting is slated for early April. Behrooz said he’s not overly worried, though he thinks an investigation by this office — which fields reports of harassment and discrimination — is unnecessary. He’s not sure what the inquiry portends. “How it goes from here is anybody’s guess,” he said.

FIRE’s letter is very good, with all the legal citations and bells and whistles, implying that the investigation should end tout suite and requesting that SFSU should respond by April 13. I sense a lawsuit in the offing, and if SFSU doesn’t stop this investigation, they’ll be in a Hamline-University-like situation where they’ll get negative national publicity and a fat lawsuit filed against them by Dr. Behrooz. Remember, even an investigation for charges that don’t carry weight, as these don’t, serves to chill speech and is a form of punishment.

It looks like Behrooz is going to at least accede to giving trigger warnings, but he doesn’t seem sufficiently angry! From the Chronicle:

In the meantime, Behrooz is thinking through what, if anything, he should change about his teaching. As a principle, he said he doesn’t think religious groups, or students, should decide how an instructor teaches a course at a secular institution. “But one has to also take into consideration, I think, the sensitivities of some religious people, be it Muslim or otherwise.”

Should he talk about the drawing without showing it? Should he still show it, as he’s done for years? Or, should he offer a compromise — warn students that the image is offensive to some and perhaps allow them to leave the class and come back?

He hasn’t decided, but he’s considering the compromise.

Finally, if you want to send either a boilerplate message to SFSU objecting to this stuff, or confect your own letter (I did the latter), just go to this site (bottom of page) and fill in the form. I wrote my own short letter, which follows. Feel free to appropriate from it if you wish.

Subject: End Investigation into History Professor ImmediatelyDear President Lynn Mahoney (show details)

I understand that your university is investigating Professor Maziar Behrooz for showing a picture of Muhammad in a class about Muslim history. One student objected because some sects of Muslims consider this forbidden, and now SF State is investigating Behrooz.

I taught on the faculty of the University of Chicago for 36 years, and, unlike you, this university understands the meaning of the First Amendment and of academic freedom. Even investigating this didactic and proper use of the picture is itself a violation of the First Amendment, for it acts to chill speech.

I urge you to not go the way of Hamline University and try to punish this professor, for you will end up like they did: a national laughingstock and an academic embarrassment. Please stop this baseless investigation now.

sincerely,

Jerry Coyne

In a punitive decision, two federal appellate-court judges decide to no longer hire clerks from Stanford Law School

April 3, 2023 • 9:15 am

James C. Ho is a Trump-appointed federal judge on the Fifth Circuit of the U.S. Court of Appeals. That means he’s a conservative judge on the most conservative federal appellate court; further, this story was reported by a conservative website, the Free Beacon. If you want to ignore it because of that, that’s your problem, for what’s important is whether the issues adduced are worth discussing, not who raises them.

The other person mentioned here, who’s adhering to Ho’s decision, is Judge Elizabeth Branch. She’s Ho’s equivalent—and also appointed by Trump—for the Eleventh Circuit, a southern circuit court comprising Alabama, Florida, and Georgia. Last year both Ho and Branch announced they were no longer hiring clerks from Yale Law School:

Ho and Branch, who introduced Ho at the Texas Review event, are 2 of 14 federal judges boycotting Yale Law School over a rash of high-profile free speech scandals, including an incident last March in which hundreds of students disrupted Kristen Waggoner, a religious liberty lawyer who has won several cases at the Supreme Court.

Why I’m presenting this is not because I agree with these Judges, even in the decision I’m mentioning, but to make the point that if a school creates and emphasizes a policy promoting free expression, and prohibits disruption of speech, then unless it penalizes the disruptions, the law is toothless. A policy without sanctions is not a policy at all.

And so, below, you can see Ho’s explanation for his decision:

The letter to which Ho refers below was one I highlighted recently; it was from Stanford Law School (SLS) Dean Jenny Martinez to the SLS community about the disruption that occurred when SLS students effectively deplatformed a visiting conservative judge, Kyle Duncan. You can read Martinez’s letter here. It highlighted Stanford’s commitment to free speech, said that “enforcement of university policies against disruption of speakers is necessary to ensure the expression of a wide range of viewpoints,” and announced that DEI Dean Tirien Steinbach, who contributed to the disruption in several ways, had been put on leave.

At the time I thought it was a good letter, and though the disruptive students should have been disciplined (as they would be at my university), Martinez didn’t do so because they couldn’t be easily identified. I let that go, but after reading Ho’s remarks, I do think that any student who violates a school’s free-speech policy in this way should be disciplined. At Chicago, I believe, they are first given a warning, and then expelled or suspended if they commit a second offense.

I’ll indent Ho’s words, taken from an address he gave on April 1 to the annual meeting of the Texas Review of Law & Politics

I’m a graduate of Stanford University and the University of Chicago. As we consider recent events, I wonder if my first alma mater has a lot to learn from my second.

The University of Chicago has long been a national leader when it comes to freedom of speech in higher education.

One former President of the University of Chicago put it this way: “Education is not intended to make people comfortable—it’s meant to make them think.”

But law schools today are turning this upside down. At some law schools, education is more about making students comfortable—at the expense of making them think.

. . .Here’s the good news. This problem should be easy to solve. Most universities already have rules in place ensuring freedom of speech and prohibiting disruptions.

The problem is that these rules aren’t enforced. Students disrupt without consequence. Administrators tolerate or even encourage the chaos.

It’s not because most students or faculty support these tactics. When I visit law schools, I’m always told it’s just a small fraction of students who practice intolerance. But the majority tolerates it, because faculty members don’t want to be controversial. And students just want to graduate, get a job, and move on with their lives.

But I want to draw a sharp distinction between students being afraid and faculty being afraid.

Students are just starting their lives. They don’t want to end their careers before they even begin.

We shouldn’t be putting it on the students to police other students. It should be on the grown-ups to lead, to teach, and, where necessary, to punish.

But the grown-ups are scared to do anything. We’re the opposite of the Greatest Generation. We’re leaving our country worse off, not better, for the next generation.

. . . .I go back to my alma mater, the University of Chicago. A few years ago, the law school held an event featuring a professor who favors anti-boycott laws to protect the State of Israel. Before the event, the law school reminded students of its free speech policy.

But one law student thought he found a clever loophole. Rather than disrupt the event himself, he recruited others to campus to disrupt the event.

Well, my law school was not impressed. Chicago suspended the law student for the rest of the year—and told him that he’d have to re-apply for admission if he ever wanted to come back.

And guess what: Chicago hasn’t experienced a disruption ever since.

Well, we have had at least two disruptions since, one is described here, and another forced the speaker to deliver her talk online instead of live. But let’s go on with Judge Ho:

The point is that law schools know what their options are. They know they can suspend or expel students for engaging in disruptive tactics. They know they can issue a negative report on a student’s character and fitness to state bar officials. They know it because schools have done it.

Second, at a minimum, law schools should identify disruptive students, so that future employers will know who they’re hiring.

Schools issue grades and graduation honors to help employers separate wheat from chaff. Likewise, schools should inform employers if they’re at risk of injecting potentially disruptive forces into their organizations.

Without that information, employers won’t know if the person they’re hiring is in one category or another. Now, some employers may be okay with that. But others may not be. No one is required to hire students who aren’t taught to live under the rule of law.

Third, it’s not enough to just promise freedom of speech. The Soviet Constitution promised free speech, too. But it was just words on paper—what our Founders called a “parchment promise.”

Our Founders taught us that it’s not enough to just promise certain rights. You need to establish a structure of government to ensure that your rights will be protected.

And here’s Ho’s beef. I’ve highlighted the money quote:

. . . .These three elements are plainly missing at Stanford Law School. Just look at the ten-page letter that was recently issued by the Dean. I know that letter has been praised by some people for standing up for free speech. I don’t share that view.

I’ll agree that there are some good words in that letter. But they’re just words. How do we know if those words are sincere—and not merely strategic? Because there’s good reason to be suspicious.

Remember, this wasn’t the Dean’s first reaction to recent events. Her first reaction was to defend the administrators as “well intentioned.”

So at best, this is a dramatic change of heart. Should we believe it?

Well, here’s the problem: The words in that letter are not accompanied by concrete actions. Because it imposes zero consequences on anyone. It doesn’t even say whether there will be consequences if there’s a disruption in the future.

Look, I get that no one wants to be vindictive. I believe in redemption and grace. But we’re not talking about good faith mistakes here.

Is it really that close of a call—whether it’s okay to call for someone to be raped? Do these future leaders really not have fair notice that they shouldn’t ridicule a judge’s sex life?

I’m all for second chances. But I’m not a schmuck.

This shouldn’t be difficult to understand. Rules need to be enforced. Violations must have consequences. You don’t need a fancy law degree to understand this. Anyone who’s ever been a parent understands this. Heck, anyone who’s ever been a kid understands this. Kids don’t obey parents who don’t back up their words with consequences.

. . .The real problem in the academy is not disruption—but discrimination. Rampant, blatant discrimination against disfavored viewpoints. Against students, faculty, and anyone else who dares to voice a view that may be mainstream across America—but contrary to the views of cultural elites.

Moreover, let’s just say it: The viewpoint discrimination we most often see in the academy today is discrimination against religious conservatives. Just look at which viewpoints are targeted most frequently at speaker events—and excluded most vigorously from faculty appointments.

Unless we take action to solve the real problem—discrimination, not disruption—all we’re doing is giving speeches.

. . .So what do we do about it? Well, ask yourself this: What do elite law schools do when they conclude that institutions are failing them? Yale recently called for a boycott of the U.S. News and World Report. And numerous schools have followed suit. Well, imagine that every judge who says they’re opposed to discrimination at Yale and Stanford takes the same path. Imagine they decide that, until the discrimination stops, they will no longer hire from those schools in the future. How quickly do we think those schools would stop discriminating then?

So Lisa and I have made a decision. We will not hire any student who chooses to attend Stanford Law School in the future.

And so Ho’s and Branch’s blacklist now include both Yale and Stanford. Is it fair to refuse to hire clerks from either of those law schools? I think this is a toss-up, but tend to come down against Ho and Branch. If a good student, and one without a record of disruption, applies to be a clerk, he or she shouldn’t be refused simply because they went to a woke law school. This is punishing the student for what the school does. (On the other hand, I can see that if this policy was exercised widely, it would give law schools an impetus to quell disruptions.) Further, because SLS and Yale are liberal law schools, a few conservative judges refusing to take any students further punishes the conservative students and does nothing to change school policy.

But although the “not hiring” tactics are likely to be completely ineffectual, I agree with the general message Ho and Branch are conveying: students should not only be educated in First Amendment Principles, but also punished if they violate a school’s own free speech principles. And yes, it would be good if universities and law schools had greater ideological diversity. This is particularly true in law schools, for unless you hear arguments from the conservative side, how are you going to argue effectively before conservative judges in the future?

Finally, schools should punish students who violate free-speech principles by deplatforming or disrupting speeches. One offense is sufficient to call a student in and tell them, “don’t do it again.” If they do do it again, punish them more severely, and put it on their records. I’m all for second chances. But I’m not a schmuck.

h/t: T.m.

Stanford Law School’s DEI Dean, currently on leave, argues that DEI and free speech can coexist

March 24, 2023 • 9:45 am

The DEI Dean of Stanford Law School (SLS), Tirien Steinbach, is now on leave from the University after helping escalate a disruption between law-school students and a visiting Appellate Court Judge, Kyle Duncan, invited by Stanford’s Federalist Society to talk about the relationship between his court and the Supreme Court. It’s not clear whether Steinbach voluntarily took a leave, was forced to take a leave, or whether she’ll be fired (they’re pondering that now). No matter what, she is in trouble. The President of Stanford and the Dean of SLS, apologizing to Duncan, singled out Steinbach’s confrontational approach to the judge, and SLS Dean Jenny Martinez’s letter, sent yesterday to the SLS community, said this (her emphasis):

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.

It’s clear from all the apologies and SLS correspondence that Dean Steinbach’s actions were regarded as disruptive and not conciliatory. (There’s also a swipe at the three other Deans in the room who did nothing.) But in a new op-ed in the Wall Street Journal (what a weird place to publish this!), Dean Steinbach tries to justify her actions by arguing that diversity and free speech can coexist at Stanford. And that’s true, so long as free speech is given primacy. What cannot coexist is the current form of DEI initiatives, such as those represented by Steinbach, and freedom of speech, for free speech is perceived by many in the DEI community as offensive and harmful. Regardless of what she says, Dean Steinbach was not trying to harmonize DEI (represented by the upset students) with free speech; she was trying to be divisive.

In this op-ed, as in her remarks to Judge Duncan when he asked for an administrator to cool the disruption, she waffles—indeed, I see her remarks as deliberately disingenuous. She says she’s in favor of free speech, but then asks, as she did during Duncan’s talk, whether “the juice is worth the squeeze”. What she means is that we must ponder whether free speech policy produces results that we’re happy with. That totally undercuts her claimed defense of Stanford’s policy. Remember, too, that the morning before Duncan spoke, Steinbach sent an email to the SLS community that started this way (read the full text here):

Today, Federal Judge Kyle Duncan (Fifth Circuit) will be speaking at an event on the topic of The Fifth Circuit in Conversation with the Supreme Court: Covid, Guns and Twitter. While Judge Duncan is not expected to present on his views, advocacy or judicial decisions related directly to LGBTQ+ civil rights, this is an area of law for which he is well known. Numerous senators, advocacy groups, think tanks, and judicial accountability groups opposed Kyle Duncan’s nomination to the bench because of his legal advocacy (and public statements) regarding marriage equality, and transgender, voting, reproductive, and immigrants’ rights. However, he was confirmed in 2018. He has been invited to speak at SLS by the student chapter of the Federalist Society.

Yes, the topic was not about Duncan’s own legal decisions and views, but on this: ““The Fifth Circuit in Conversation with the Supreme Court: Covid, guns, and Twitter.” Nevertheless, Steinbach could not restrain herself from criticizing Duncan’s political views and giving copious links. This email was one of several elements that brought a mob of SLS students together to disrupt Duncan’s talk.

Now, like Lucy, Steinbach has some “‘splaining to do,” and you can read that ‘splaining below. Click the screenshot to read:

As you can see from the title, she’s trying to hold two opposing positions at once: that free speech and diversity can coexist, and whether full-on free speech is really worth the reasons it’s become policy. Her entire whole post is a whitewash of what she did (and does not mentioning her inciting email). So she claims to favor free speech:

I supported the administration’s decision not to cancel the event or move it to video, as it would censor or limit the free speech of Judge Duncan and the students who invited him. Instead, the administration and I welcomed Judge Duncan to speak while supporting the right of students to protest within the bounds of university policy.

As a member of the Stanford Law School administration—and as a lawyer—I believe that we should strive for authentic free speech. We must strive for an environment in which we meet speech—even that with which we strongly disagree—with more speech, not censorship.

I wonder what she means by “authentic” free speech. Is there “inauthentic” free speech? I think she’s implying here that Duncan’s views, if promulgated, would not be “authentic free speech”, because they would be harmful (see below).

Then she claims that she stepped up to the podium to “de-escalate the situation”, another lie:

As soon as Judge Duncan entered the room, a verbal sparring match began to take place between the judge and the protesters. By the time Judge Duncan asked for an administrator to intervene, tempers in the room were heated on both sides.

I stepped up to the podium to deploy the de-escalation techniques in which I have been trained, which include getting the parties to look past conflict and see each other as people. My intention wasn’t to confront Judge Duncan or the protesters but to give voice to the students so that they could stop shouting and engage in respectful dialogue. I wanted Judge Duncan to understand why some students were protesting his presence on campus and for the students to understand why it was important that the judge be not only allowed but welcomed to speak.

First, the verbal sparring match was initiated by the students, not by Duncan, though he did react angrily later. Second, her job was to de-escalate, not lecture Judge Duncan about why some students were protesting his presence on campus. What she wanted to do was express her own views about Duncan, not educate him on why the students didn’t like him. Her claim here is yet another lie. I wonder where she learned her de-escalation techniques—from Donald Trump?

Steinbach then explains what she meant by asking whether “the juice was worth the squeeze,” saying it refers to “the responsibility that comes with freedom of speech,” which really means “the responsibility not to offend the SLS students.”

Finally, and most disingenuously, she claims that what happened during the lecture is a “microcosm of how polarized our society has become”, which she decries. Yet she herself is largely responsible for the polarization accompanying Duncan’s talk! Finally, she ends this way:

Diversity, equity and inclusion plans must have clear goals that lead to greater inclusion and belonging for all community members. How we strike a balance between free speech and diversity, equity and inclusion is worthy of serious, thoughtful and civil discussion. Free speech and diversity, equity and inclusion are means to an end, and one that I think many people can actually agree on: to live in a country with liberty and justice for all its people.

God bless America! Note that there is no “balance” to be struck between free speech and DEI. Free speech at Stanford and at all public universities is NON-NEGOTIABLE; it is not to be quashed or officially tempered so it comports with DEI. Yes, I do advocate civility, and trying to use free speech to create discussion and understanding, but if I have something to say about DEI that I consider worthy of discussion, yet others find it offensive, that’s too damn bad. Free speech trumps offense, non-physical “harm” and the hurt feelings of students.

If you want to see Steinbach’s lecture to Judge Duncan, follow the links from this piece in the Chronicle of Higher Education, called “Stanford Law’s diversity dean is ‘on leave’ as controversy boils over a disrupted speech.”

The scene featuring Steinbach and Duncan — captured on video and audio — has been thoroughly scrutinized within and outside of higher ed for two weeks.

Watch and listen to the event itself, or you can read a transcript of Steinbach’s remarks at a link I’ve put below. First, a video of Dean Steinbach’s Moment of Glory:

Video:

You can read Steinbach’s remarks here (at FIRE).

To be sure, she does tell the students that SLS has free speech and that she’s in favor of giving Duncan space to finish his remarks. Then she chews the judge out in a way guaranteed to ensure that doesn’t happen. I’ve put that bit of Steinbach’s speech below the fold at the bottom.

If you read the comments after her piece at the SWJ, you’ll see that most of the readers aren’t buying Steinbach’s apologia. Here are four:

This would have been a thoughtful response if the video wasn’t in complete contradiction of what you wrote. This is all an attempt to cover the reprehensible and embarrassing behavior you exhibited, but it fails to do so and actually makes you look worse.

How about simply apologizing for your behavior instead of attempting to justify it.

Well said. I couldn’t believe what I was reading. This piece clearly wasn’t written by the same person who was at the event. Nice try.

Well said. Walter Middy couldn’t have recounted a better telling of the story than the Dean.

The hubris of today’s progressives is absolutely staggering. They believe they are so much smarter than everyone else that they can simply re-tell a story in their words and everyone—even those who saw the whole thing—will simply adopt their bent perspective on the world, event, etc.

This woman was no leader in de-escalating the situation; her intervention was a disgrace.

The students’ actions were a disgrace.

Stanford should be absolutely ashamed of this incident.

Belligerent, misbehaved children….

How we strike a balance between free speech and diversity, equity and inclusion is worthy of serious, thoughtful and civil discussion.

Ms. Steinbach resorts to the moral equivalence argument, typical of the left. It doesn’t wash. There is either free speech or there isn’t. No “balance” needs to be made. The students denied Judge Duncan his right to free speech and their tactics were rude and crude. And Ms. Steinbach caved in to the mob.

Finally, the lesson of this post is twofold:

1.) Free speech is not always compatible with DEI or its initiatives. When they conflict, free speech should win

2.) Dean Steinbach is desperate to put a good face on her remarks by claiming that DEI and “authentic” free speech—whatever that is—are compatible. But all she does is get herself into a bigger muddle. Her best policy would have been to apologize for what she did. Now that would have flummoxed the SLS students!

Below the fold I’ve put a transcript of the place where Steinbach lectures judge Duncan. Click “continue reading” to see her word:

Continue reading “Stanford Law School’s DEI Dean, currently on leave, argues that DEI and free speech can coexist” →

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 https://www.thefire.org/researchlearn/ 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

Stanford Law School tries to succor Federalist Society by sending its members into the jaws of lions

March 13, 2023 • 12:00 pm

Get a load of this. Although Stanford University Law School is trying to make amends for the shameful display put on by its students last week, they continue to stick their feet deeper into the mud.

Yesterday I reported on the execrable deplatforming of Fifth Circuit federal appellate Judge Kyle Duncan during his scheduled talk at Stanford Law School (SLS). Students, outraged that a conservative judge should be given any platform, interrupted the Judge so persistently and loudly that he was forced to stop his speech. (His topic was the relationship between his court and the Supreme Court.)

The students had been egged on by Tirien Steinbach, the Law School’s Associate Dean for Diversity, Equity & Inclusion. Before Judge Duncan’s talk, she sent an email to the students explaining why Duncan was an oppressor And then when Duncan asked for faculty help in quelling the in-class demonstration, Steinbach stood up and read nine minutes of prepared remarks to Duncan explaining how awful and hurtful he was and how, perhaps, Stanford’s policy of free speech wasn’t so great after all because it caused “harm”. As she suggested, perhaps the “juice wasn’t worth the squeeze.” Steinbach’s method of promoting harmony apparently involves setting groups against each other.

In a “mistakes-were-made” brand of email to the Stanford community, SLS Dean Jenny Martinez apologized for the incident without placing blame on anyone. But the next day, Martinez and Stanford President Marc Tessier-Lavigne sent a joint apology to Judge Duncan promising that an incident like this would never happen again. Here’s that email:

Dear Judge Duncan,

We write to apologize for the disruption of your recent speech at Stanford Law School. As has already been communicated to our community, what happened was inconsistent with our policies on free speech, and we are very sorry about the experience you had while visiting our campus.

We are very clear with our students that, given our commitment to free expression, if there are speakers they disagree with, they are welcome to exercise their right to protest but not to disrupt the proceedings. Our disruption policy states that students are not allowed to “prevent the effective carrying out” of a “public event” whether by heckling or other forms of interruption.

In addition, 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.

We are taking steps to ensure that something like this does not happen again. 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.

With our sincerest apologies again,
Marc Tessier-Lavigne, Ph.D.[,] President and Bing Presidential Professor
Jenny Martinez[,] Richard E. Lang Professor of Law & Dean of Stanford Law School

In the penultimate paragraph, they clearly place some of the blame on diversity dean Steinbach for inciting the disruption. Will they discipline her, or at least tell her to lay off the incitement; and will Stanford discipline any of the disruptive students? I’d bet money they won’t. And, of course, a policy that isn’t enforced is not a policy at all.

If Stanford were real mensches, they would invite Duncan back to deliver the talk he prepared, and ensure that the event would be peaceful. That won’t happen, either.

But in a really hamhanded gesture, Jeanne Merino, the SLS Associate Acting Dean of Students, “reached out” to the Federalist Society, which had invited Duncan, and offered them University sources of succor. What’s unbelievable is that one of the sources suggested was Steinbach, the diversity dean who escalated the whole affair. They also offered help from the other two deans (and Merino herself), all of whom had been in the classroom and did nothing to stop the demonstration. You can read Merino’s email here.

Here’s part of it (second bolding is mine)

2. Connection with OSA, DEI, Levin Center: Please reach out to any of us here at SLS if you would like support or would like to process last week’s events: a. OSA (Jeanne Merino, jmerino@law.stanford.edu, Holly Parrish, hparrish@law.stanford.edu, John Dalton jwdalton@law.stanford.edu, and Megan Brown, mybrown@law.stanford.edu), b. DEI (Tirien Steinbach, tsteinbach@law.stanford.edu) c. Levin Center (Diane Chin, dchin@law.stanford.edu; Anna Wang, annawang@law.stanford.edu).

Apparently, besides Conflagator Steinbach herself, Merino, as well as Associate Director of Student Affairs Holly Parrish and Student Affairs Program Coordinator Megan Brown, were all in the room—and did nothing— as the demonstration unfolded. But to suggest that the Federalist Society should reach out to Dean Steinbach for comfort (not to mention to the other three as well) is like suggesting that the Roadrunner reach out for help to Wile E. Coyote.

Stanford has affirmed in writing that the juice (a climate conducive to learning) is indeed worth the squeeze (the school’s free-speech policy). The real question is whether the juice is worth the squeeze of having a diversity dean who’s out of control.

These days, Stanford Law School (and its East Coast counterpart Yale Law School) are like a pair of cross-country soap operas. But it’s important to see that this kind of thing is inevitable so long as you claim that DEI programs are in complete harmony with free speech policies. As Steely Dan sang, “Only a fool would say that.”

Entitled Stanford Law students, egged on by DEI dean, demolish the free speech of a visiting judge

March 12, 2023 • 9:45 am

A bunch of students at Stanford Law school, egged on by a DEI dean, managed to shut down a talk by Judge Kyle Duncan, who’s on the Court of Appeals of the Fifth Circuit. That’s one of the 13 appellate courts of last resort before the final one: the U.S. Supreme Court. The Fifth, headquartered in the southern United States, is known for the conservative tenor of its decisions, and nearly all its judges were appointed by Republicans.

Stanford Law School, on the other hand, is known as Left-wing, indeed, in many ways it’s woke. Ergo there was bound to be trouble when the student branch of the Federalist Society, a conservative legal organization, invited Kyle Duncan to speak on a topic one would think would interest SLS students: “The Fifth Circuit in Conversation with the Supreme Court: Covid, guns, and Twitter.” It’s not often law students get to hear an appellate court judge discuss interactions with the Supreme Court (justices tend to keep their views private), so this would be something I’d want to hear, too.

The SLS student didn’t. They are incurious about views contrary to their own, and showed it.

First, a poster appeared, produced by SLS students, showing all the officers of the school’s Federalist Society. It’s a way of doxing them, but it’s legal. Still, it was meant to intimidate them by urging other students to demonize them.

Below is another one indicting Judge Duncan (not all the accusations are accurate, and of course “fought” really means “ruled on the issue”). It is true, however, that he’s a conservative justice, and was appointed by Trump. That alone makes him anathema to most SLS students.

Finally, the talk was further attacked in advance in an email sent to the students by Tirien Steinbach, the Law School’s Associate Dean for Diversity, Equity & Inclusion. You can see that email, and a pretty balanced summary of all the issues and events around Duncan’s visit, in the Substack article below by David Lat, a legal journalist who also leans to the right. (He does, however, call out Judge Duncan for his own juvenile behavior during the Q&A session.)

Click to read:

Lat reproduces Steinbach’s email, which is too long to repeat here. It does, however, throw gasoline on the fire. At the same time she assures students that Stanford favors free speech, she also reminds them how odious Judge Duncan is:

While Judge Duncan is not expected to present on his views, advocacy or judicial decisions related directly to LGBTQ+ civil rights, this is an area of law for which he is well known. Numerous senators, advocacy groups, think tanks, and judicial accountability groups opposed Kyle Duncan’s nomination to the bench because of his legal advocacy (and public statements) regarding marriage equality, and transgender, voting, reproductive, and immigrants’ rights. However, he was confirmed in 2018. He has been invited to speak at SLS by the student chapter of the Federalist Society.

A coalition of SLS students have expressed their upset and outrage over Judge Duncan’s invitation to speak at SLS. 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.

And while she reminds students that SLS will not censor Judge Duncan, that’s exactly what happened. Far more students showed up to protest Duncan’s appearance than to listen to him. They held up signs and, as Duncan began to speak, repeatedly interrupted him and shouted him down.

Below: one tweet from Aaron Sibarium’s twitter thread, showing a protest sign (“Duncan can’t find the clit”, presumably referring to his stand on abortion) and some of the student reaction.

Each time Duncan began to speak, the protesters would heckle him with insults, shouting things like "scumbag!" and "you’re a liar!"

The din became so loud that Duncan asked for an administrator to keep order, according to video of the event.

— Aaron Sibarium (@aaronsibarium) March 11, 2023

Unfortunately, when Duncan asked the SLS administrators to restore order (three were in attendance), the one who stepped in was DEI dean Steinbach, who proceeded not to restore order, but to lecture Duncan for nine minutes about how he was causing “harm” to the students. She also questioned whether Stanford’s free-speech policy wasn’t itself harmful—whether “the juice was worth the squeeze”. Apparently Steinbach had prepared written remarks for such an occasion, anticipating that she’d get to chew out the Judge.

Steinbach’s patronizing lecture to Duncan can be seen below in the Twitter thread by legal writer Ed Whelan that begins here. See below, or you can watch Steinbach’s remarks on Vimeo.

Here's video of Stanford DEI dean Steinbach's remarks slamming Judge Duncan and setting forth university policy on free speech while calling its soundness into question and stating that it might need to be reconsidered. /8https://t.co/PrfovwmMYj

— Ed Whelan (@EdWhelanEPPC) March 10, 2023

As Lat recounts, Duncan’s talk ended without students being able to listen:

As you can see from the video, about half of the protestors eventually left at the direction of a student protest leader, with one of them charmingly calling the judge “scum” as she walked out. Yet the heckling continued, and still the administrators did nothing to intervene. Eventually, the student-relations representative tried to intervene once it had become clear that the event was out of control—but Judge Duncan then criticized him, telling him that he should have acted sooner.

Not getting traction trying to give a speech, Judge Duncan moved on to the question-and-answer session, and the protestors quieted down enough to ask a few questions. The questions—and answers—were generally contemptuous. As the judge put it to me, while he’s usually happy to answer questions when he speaks at law schools, the questions he received at Stanford were not asked in good faith; in his words, they were of the “how many people have you killed” or “how many times did you beat your wife last week” variety.

According to Lat, Duncan himself lost his cool and responded angrily to the students:

After around ten minutes of trying to give his remarks, Judge Duncan became angry, departed from his prepared remarks, and laced into the hecklers. He called the students “juvenile idiots” and said he couldn’t believe the “blatant disrespect” he was being shown after being invited to speak. He said that the “prisoners were now running the asylum,” which led to a loud round of boos. His pushback riled up the protesters even more.

I can understand Duncan’s anger, but a federal judge should be able to restrain his temper under fire.

Duncan has remained angry in later interviews, “saying that the protesters behaved like ‘dogs**t’ and that Dean Steinbach should be fired.” At the very least, I think Steinbach’s behavior was execrable—far, worse than the Judge’s, and she should be disciplined if not fired. She knew full well what her actions would cause, for she’d prepared remarks for that very occurrence.

The next day, Jenny Martinez, Dean of the SLS, wrote an email to the community saying, in effect, that “mistakes were made”, and that Judge Duncan should have been allowed to speak. But she made no mention of DEI Dean Steinbach’s role in the whole thing. Lat reproduces Martinez’s email in his Substack post,

I found Martinez’s “apology” okay but insufficient, and I emailed her directly (copying it to Stanford’s President), saying that at the very least Steinbach deserved a reprimand. It is not the purpose of a DEI dean to create even more division and disunity, and Steinbach, who should have behaved more professionally, acted like a frothing ideologue. “Harm” indeed! Can we replace this “harm” word for what it really means in these situations: “offense”?

FIRE also wrote a letter to Stanford’s President about the treatment of Duncan; here’s a bit:

In the video, Dean Steinbach—who ostensibly was brought into the event to restore calm, and arguably did so—repeatedly praised the hecklers and accused the speaker of “harm.” She also muses about whether, in regard to Stanford’s permissive free expression policies, the “juice is worth the squeeze.” She suggests the university “might need to reconsider these policies” to prevent speakers like Duncan from sharing their views on campus in the future because they may upset some students.

. . . When the university allows speakers like Judge Duncan to be silenced, it sends the message to all in the Stanford community that those who engage in unlawful, disruptive conduct have the power to dictate which voices and views may be heard on campus. If reports about last night’s disruption are accurate, Stanford must take immediate steps to reaffirm its commitment to expressive rights for all. Failure to do so quickly and clearly will be to Stanford’s lasting shame.

Yesterday, both Stanford’s President, Marc Tessier-Lavigne and SLS Dean Martinez personally apologized in a joint letter to Judge Duncan. Eugene Volokh posts those apologies here. It’s a good letter, and does refer indirectly to DEI Dean Steinbach. They also promise to do better. I’ll believe it when I see it. From the letter:

We are very clear with our students that, given our commitment to free expression, if there are speakers they disagree with, they are welcome to exercise their right to protest but not to disrupt the proceedings. Our disruption policy states that students are not allowed to “prevent the effective carrying out” of a “public event” whether by heckling or other forms of interruption.

In addition, 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.

The only person that last paragraph could refer to is Dean Steinbach.

So that’s the story, and it’s been all over the media—the Right-wing media, mostly, for it’s not in the Left-wing media’s interest to show bad behavior of those on its end of the ideological spectrum.

The Big Lesson: As Christopher Hitchens observed in his marvelous talk in Toronto on free speech, if people have an opinion that is grossly different from the “prevailing wisdom,” that makes it even more urgent to not only allow those persons to speak, but to listen to them. Judge Duncan should have been listened to quietly (I also don’t think signs should be allowed in the lecture room, as they are designed to discombobulate the speaker), and the post talk questions, if confrontational, should at least have been polite.

But it’s not just the fault of the Stanford Law students, for their school apparently failed to instill in them the meaning of the First Amendment and how it should be respected on a campus. I’d suggest to Dean Martinez that a first-year’s orientation at SLS should include a unit on freedom of speech.

***************

UPDATE: A new article in The Stanford Review, the university’s conservative newspaper. Click to read:

An excerpt:

Stanford’s apology to Duncan stated the obvious: this shouldn’t have happened. Judge Duncan graciously accepted the apology. In doing so, he reiterated that he never should have been shouted down in the first place and that staff members who should have enforced university policies failed to do so. He reiterated how poor the behavior of Steinbach was, stating that “the administrators’ behavior was completely at odds with the law school’s mission of training future members of the bench and bar.” The apology also said that Stanford would take steps to ensure this does not happen again. However, it is unclear what Stanford plans to do to prevent such disruption in the future. Firing Dean Steinbach is a good start.

The university’s apology will be completely meaningless unless concrete actions are taken to rid the administration of anti-speech zealots

They’re right: unless there is action, all we have is meaningless words. I am not a “cancel culture” advocate who normally calls for somebody who makes a misstep to be fired. But what Dean Steinbach did wasn’t a misstep: it was a deliberately planned and timed provocation to push back on Stanford’s free speech policy and prevent the students from hearing “offensive” speech like that proferred by Judge Duncan. This was not a misstep but sabotage of Stanford’s policies, and, upon reflection, I think they should give Dean Steinbach her walking papers.

Vanderbilt responds to the Michigan State shooting by sending its own community students a message written using ChatGPT

February 19, 2023 • 9:20 am

ChatGPT, the bot site that automatically produces prose, is back in the news again, but not in a humorous way and not as an example of students cheating. Rather, the University got the bot to write an official message from a university to its students.

As the Vanderbilt Hustler reports (the student newspaper of Vanderbilt University), the bot was used to write a message of consolation to the students after the Michigan State University shooting on February 13 that killed three. The robot message was then sent to students by the school’s EDI office (“Equity, Diversity, and Inclusion”).

“Peabody” is Vanderbilt’s College of Education and Human Development. Click below to read about the mistake—which I assume it was.

Here’s the entire email, which reveals the very source of its prose at the bottom, though it was said to be “paraphrased” (I’ve put a red box around the bot bit as well as the endless promotion of inclusivity and diversity as well as the call to examine our biases):

From the newspaper:

A note at the bottom of a Feb. 16 email from the Peabody Office of Equity, Diversity and Inclusion regarding the recent shooting at Michigan State University stated that the message had been written using ChatGPT, an AI text generator. [Note that the newspaper gives only the last paragraph of the full email.]

Associate Dean for Equity, Diversity and Inclusion Nicole Joseph sent a follow-up, apology email to the Peabody community on Feb. 17 at 6:30 p.m. CST. She stated using ChatGPT to write the initial email was “poor judgment.”

“While we believe in the message of inclusivity expressed in the email, using ChatGPT to generate communications on behalf of our community in a time of sorrow and in response to a tragedy contradicts the values that characterize Peabody College,” the follow-up email reads. “As with all new technologies that affect higher education, this moment gives us all an opportunity to reflect on what we know and what we still must learn about AI.”

The only justification for that email is that at least it cites sources, which of course college students are suppose to do. It even gives the ChatGPT message as a “personal communication,” though a “robotic communication” would have been more appropriate. The paper beefs that there was only one “incident” and not “multiple” shootings, though I can’t be bothered about that.

I suspect what happened is that some semi-literate functionary decided to produce a model email using ChatGPT rather than express his/her own sentiments. But then, god almighty, the functionary was honest enough to send it out saying where it came from.

The reaction of the students was typical, and similar to mine:

Laith Kayat, a senior, is from Michigan, and his younger sister attends MSU. He stated that the EDI Office’s use of ChatGPT in drafting its email is “disgusting.”

“There is a sick and twisted irony to making a computer write your message about community and togetherness because you can’t be bothered to reflect on it yourself,” Kayat said. “[Administrators] only care about perception and their institutional politics of saving face.”

That’s a good statement. Here’s another:

Senior Jackson Davis, a Peabody undergraduate, said he was disappointed that the EDI Office allegedly used ChatGPT to write its response to the shooting. He stated that doing so is in line with actions by university administrations nationwide.

“They release milquetoast, mealymouthed statements that really say nothing whenever an issue arises on or off campus with real political and moral stakes,” Davis said. “I consider this more of a mask-off moment than any sort of revelation about the disingenuous nature of academic bureaucracy.”

I’m not sure what “moral and political stakes” that Mr. Davis wanted highlighted here. A simple, humane message that expresses sorrow and empathy without politics would, I think, have been appropriate. And they should have left out all the “inclusivity and diversity” stuff, which strikes me as superfluous and off message. Statements about gun control and the like (an initiative that, as you know, I strongly approve of) are debatable statements that do not belong in official communiques, and you’d never see such a thing coming out of the University of Chicago, which maintains institutional neutrality on such issues, though against considerable pressure from faculty and students to make the college take sides on issues.

But to me, the most striking thing about the message above is that it seems to be using the tragedy as an excuse to flaunt the University’s virtue of promoting not only diversity, but “inclusivity”, mentioning that term, or “inclusive,” four times in a very short email. So beyond the heartlessness and lack of empathy involved in turning to ChatGPT, the email is doubly offensive because it’s touting DEI (or EDI) principles more than it is reaching out to people. And there’s not even a single word about showing empathy for the families and loved ones of those who were murdered.

I can ask only “what kind of tendentious mushbrains would put together a message like this?” They are taking advantage of a tragedy to promote a Social Justice agenda. This is the fruit of institutionalized DEI offices.

Chronicle: DEI erodes academic freedom

February 7, 2023 • 9:45 am

For a while I’ve been making the obvious point that free speech (or academic freedom) and “inclusivity” don’t always go hand in hand. In fact, that’s exactly what you should expect, for free speech and academic freedom guarantee that some people will be offended, and the offended are clearly not “included.” Likewise, the compelled speech inherent in today’s versions of DEI is incompatible with freedom of speech and with academic freedom. This is why the phrase “inclusive excellence”, which we see everywhere these days, is an oxymoron. “Excellence” is having academic freedom and freedom of speech.

Yet it’s taboo to mention this conflict, and universities and academics blithely float the notion of “inclusive excellence”. The recent incident at Hamline University, in which instructor Erika López Prater was fired for showing an ancient painting of Muhammad (with his face clearly in view) to her art history class, shows this tension clearly. López Prater was simply exercising her academic freedom, teaching what she thought was important in the history of Islamic art. Yet after Muslim students raised an uproar, saying that they had been “excluded” (as well as offended), the teacher was let go. López Prater jas filed a lawsuit, and she’ll either win that or will receive a generous settlement. Hamline has fallen into disrepute, a nationally notorious example of abrogating academic freedom; and the faculty has called for its president to resign.

We have other examples of professors fired for giving offense, but you can consult FIRE to read about them.

Now there are some construals of DEI that aren’t in potential conflict with academic freedom and free speech, but those aren’t the ones that universities are pushing. If “diversity” means “diversity of ideas”, if the “E” stood for “equality of treatment” rather than “equity” (proportional representation), and if “inclusion” meant “a university and workspace free from personal harassment,” then DEI would be okay, and wouldn’t conflict with any other freedoms. But of course that’s not what universities mean by DEI, as the authors note below.

But I digress: here’s an article by Anna Khalid (“an associate professor of history at Carleton College and host of the podcast Banished“) and Jeffrey Snyder (” associate professor in the department of educational studies at Carleton College”), who decided to say what nobody else dare. What surprises me is that it’s in The Chronicle of Higher Education. Click to read:

In fact, the authors use the Hamline case, which I’ve discussed in detail, to outline the incompatibility of DEI and academic freedom.

Here’s the authors’ evidence for the ubiquity of the false claim that DEI and lack of offense are totally compatible:

The assertion that inclusion and academic freedom are not in tension is an article of faith for many of those dedicated to promoting campus inclusion. In 2018, the Harvard University Task Force on Inclusion and Belonging released an 82-page report stating that the “values of academic freedom and inclusion and belonging provide each other with synergistic and mutual reinforcement.” According to this report, the two should not be conceived of as “distinct values that must be accommodated to each other” or, worse still, as “antagonistic goals.” This view is central to the frameworks advanced in books such as Ulrich Baer’s What Snowflakes Get Right: Free Speech, Truth, and Equality on Campus, John Palfrey’s Safe Spaces, Brave Spaces: Diversity and Free Expression in Education andSigal Ben-Porath’s Cancel Wars: How Universities Can Foster Free Speech, Promote Inclusion, and Renew Democracy.

And here’s the going version of DEI, which the authors call “DEI Inc.”:

DEI Inc. is a logic, a lingo, and a set of administrative policies and practices. The logic is as follows: Education is a product, students are consumers, and campus diversity is a customer -service issue that needs to be administered from the top down. (“Chief diversity officers,” according to an article in Diversity Officer Magazine,“are best defined as ‘change-management specialists.’”) DEI Inc. purveys asafety-and-security model of learning that is highly attuned to harm and that conflates respect for minority students with unwavering affirmation and validation.

Lived experience, the intent-impact gap, microaggressions, trigger warnings, inclusive excellence. You know the language of DEI Inc. when you hear it. It’s a combination of management-consultant buzzwords, social justice slogans, and “therapy speak.” The standard package of DEI Inc. administrative “initiatives” should be familiar too, from antiracism trainings to bias -response teamsand mandatory diversity statements for hiring and promotion.

You can see that saying anything that contradicts this notion, for example criticizing Kendi’s claim that what is not “antiracist” is supporting racism, will cause offense.

Here’s how Hamline stated explicitly that academic freedom could cause “harm”—harm because it violated the rules of DEI Inc.

In December, President Miller and David Everett [Associate Vice President for Inclusive Excellence] sent an open letter to the campus asserting that “appreciation of religious and other differences should supersede when we know that what we teach will cause harm,”and in particular “respect for the observant Muslim students in that classroom should have superseded academic freedom.” After the news made national and international headlines, Miller doubled down, explaining that her decisions were guided by “prioritizing the well-being of our students,” especially by“minimizing harm.”

Miller’s comments at least had the virtue of offering an honest diagnosis of the tension between academic freedom and inclusion. This tension has only ratcheted up in recent years, as colleges make grand promises to create “environments in which any individual or group feels welcomed, respected, supported, and valued.” With institutions promoting such an expansive definition of “inclusion,” we shouldn’t be surprised when they become ensnared in their own rhetoric and policies. How will DEI administrators respond when a Chinese national complains that a political-science discussion about the persecution of Uyghurs is “harmful anti-Chinese propaganda”?Or when a Christian evangelical says her faith was insulted in a contemporary art class after seeing a Robert Mapplethorpe photograph of two men kissing? The permutations are endless and, for professors who teach sensitive or controversial material, alarming.

There’s the old trope of “harm” again, which really means “offense”. And can you imagine this fracas occurring if, say, López Prater offended fundamentalist Jews (perhaps by showing a meal containing dairy and meat) or Christians (perhaps by showing Andres Serrano’s “Piss Christ“)? I can’t. It’s Muslims who have the leverage to get a professor fired, for, unlike Christians and Jews, they are perceived as victims because they’re also perceived as people of color. DEI is not meant for Christians and Jews. But that’s really irrelevant: the point is that if your legitimate teaching in the classroom offends students, then it’s too bad for them. Art, of course, is particularly prone to this because a lot of art is designed to shock, offend, or shake people out of their complacency.

Firing someone for violating academic freedom abrogates a number of university regulations in schools that avow academic freedom, and can violate the law in government-funded schools and state schools. The AAUP states this explicitly:

The American Association of University Professors clearly states that students do not have the right to shield even their “most cherished beliefs” from challenge or scrutiny:

Ideas that are germane to a subject under discussion in a classroom cannot be censored because a student with particular religious or political beliefs might be offended. Instruction cannot proceed in the atmosphere of fear that would be produced were a teacher to become subject to administrative sanction based upon the idiosyncratic reaction of one or more students. This would create a classroom environment inimical to the free and vigorous exchange of ideas necessary for teaching and learning in higher education.

Khalid and Snyder also point out that it’s not just the Woke who try to overturn academic freedom because it causes offense. “Anti-CRT laws”, now being passed by right-wingers throughout the South, restrict a teacher’s right to teach about race and gender if that teaching makes “any individual. . . feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.” That’s a recipe for disaster, and I oppose such laws.

But let’s be clear. A teacher doesn’t have the right to teach anything in their classroom, especially in secondary schools. You can’t teach creationism, for instance, as it violates the First Amendment. And you can’t just go nuts and teach crazy stuff, for schools have prescribed lesson plans and material that must be covered. But if what you’re teaching fits well into your curriculum, and isn’t just a political or ideological harangue with no didactic purpose, they should leave you alone.

At the end, the authors call for a vigorous defense of academic freedom (that also goes for freedom of speech, which is not identical but related) and bring up the University of Chicago:

When institutions proclaim that academic freedom and inclusion coexist in a kind of synergistic harmony, they are trafficking in PR-driven wishful thinking. In the hardest cases, there is no way of upholding an “all are welcome here” brand of inclusion while simultaneously defending academic freedom. Instead, we should turn to the wise words of Hanna Holborn Gray, former president of the University of Chicago: “Education should not be intended to make people comfortable, it is meant to make them think.”

I should put that as the tagline on all of my emails!

Here’s “Piss Christ” (1987) a photo of a crucifix submerged in a beaker of the photographer’s urine. For many it’s a highly regarded work of art, for others an egregious and blasphemous offense.

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