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Paul L. Caron
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Thursday, March 23, 2023

Dean Martinez's 10-Page Letter To The Stanford Community About The Disruption Of Judge Duncan's Speech

Update: 

Dean Jenny Martinez sent a 10-page letter to the Stanford community yesterday:

Stanford Law (2022)As my message to you last week indicated, I had hoped to wait until after final exams concluded at the end of this week to offer any further comments on the disruption of Judge Kyle Duncan’s speech at a student Federalist Society event on March 9, 2023, and the school’s response to that disruption. However, continuing outside attention to these events, as well as the volume of hateful and even threatening messages directed at members of our community, have led me to conclude that a more immediate statement is necessary.

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 law permits.

In the message below, I respond below to many of the questions I continue to receive about why I apologized to Judge Duncan, why I stand by that apology, and why the protest violated the university’s policy on disruption. I articulate how I believe our commitment to diversity and inclusion means that we must protect the expression of all views. And, I outline some of the steps the school will be taking in the wake of this incident, including the adoption of clearer protocols for managing disruptions and educational programming on free speech and norms of the legal profession.

This message is unusually lengthy; because we are a law school and these issues are core to our educational mission, I explain some of my reasoning in quite a bit more detail than I would for a general audience. I also recognize that what I share below will not please everyone. While some of you may disagree with my views, I look forward to continuing the conversation about how we can create a learning environment that both respects freedom of speech and ensures that we support all of our diverse community members on their path to becoming lawyers.

I. Academic Freedom, Free Speech, and Protests on University Campuses: Protest
is Allowed but Disruption is Not Allowed ...

II. Academic Freedom, Free Speech, DEI, and the Role of University Administrators ...

III. Next Steps
In closing, I will address some issues that have been the subject of many inquiries from inside and outside the university2, and then I will discuss what steps the law school is taking to ensure that these events are not repeated.

2 A recording of the event was ordered in advance from the law school’s audiovisual services department by the Federalist Society student organizers, who agreed to pay the standard fee for such a recording. It took several days after the event for the students to turn in a copy signed by Judge Duncan of the standard speaker release required by the school for all guest speakers being recorded. That has now been received and the recording is being released to the students who ordered it. Because of the public nature of the event, students in the room did not have a reasonable expectation of privacy and there are many cell phone recordings as well as an audio recording of the event already circulating. Given the vitriolic and threatening emails and social media postings that have been directed at students based on the viral spread of online stories about this event, however, we have determined that protection of those students from threats in the current environment suggests that blurring the faces of students in the audience who appear on camera in the video is appropriate for the release of the official video at this time (given the camera angle focused on the podium, most of the audience is not visible and the blurring occurs only at two short passages at minutes 21:00 and 28:45 in the recording). Although the students are identifiable in cell phone videos and photos circulating online, given that the license for use of this recording belongs to the University itself for “educational purposes” pursuant to the standard speaker release, we believe that the university’s relation to its students makes the blurring of faces appropriate.

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.

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. ... As I have already explained at length above, the disruptive conduct of many students at the event was not protected by the First Amendment. There were easily a hundred students in the room, however, and some individual students crossed the line into disruptive heckling while others engaged in constitutionally protected non-disruptive protest, such as holding signs or asking pointed questions. Even if we could come up with a fair process for identifying and distinguishing between the two categories of students consistent with First Amendment values, the particular circumstances of this event raise additional concerns. Given the sometimes uncertain boundary between permissible audience reactions and impermissible disruptions at an event, “a warning and a request that defendants curtail their conduct” before proceeding to sanction can in some circumstances be important in preventing a constitutionally impermissible chilling effect on speech. In re Kay, 464 P.2d at 152. Such an onsite warning might not be required in all cases, and students had been generally informed of the policy against disruptions (including by schoolwide email the morning of the event). In this instance, however, the failure by administrators in the room to timely administer clear and specific warnings and instead to send conflicting signals about whether what was happening was acceptable or not (and indeed at one point to seemingly endorse the disruptions that had occurred up to that point by saying “I look out and say I’m glad this is going on here”) is part of what created the problem in the room and renders disciplinary sanction in these particular circumstances problematic. ...

[T]he 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. In addition, the faculty committee I have constituted will solicit feedback from the faculty, students, and members of the bar including our alumni, and it will make further recommendations on how to improve constructive and inclusive discourse at the law school. More details on this committee will follow.

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). Doing so will bring greater clarity and certainty about future enforcement of the policy, including through disciplinary sanctions as appropriate.

I also recognize that the protest originally grew out of a desire by students to bring greater attention to discussion of LGBTQ+ rights in the current legal environment. I have spoken with faculty whose scholarship and teaching gives them relevant expertise, and who will work with students to plan events in spring quarter to substantively engage on this topic. Such programming, rather than disruptive protests, better advances students’ education as lawyers and advocates.

I recognize that the course I have chosen will not please everyone, not least of which those who have demanded that I retract my apology to Judge Duncan and those who have demanded that students be immediately expelled. But this is the course I believe best furthers our obligations as legal educators, charged with training future lawyers and preparing them to participate in a profession that undergirds the very fabric of our democracy and the rule of law.

Brian Leiter (Chicago), Stanford Law Dean Martinez's Letter to the SLS Community About the Disruption of Judge Duncan's Talk:

It's a very methodical and substantial letter, worth reading by Deans and other academic administrators faced with situations like this.

David Bernstein (George Mason), Stanford Law Dean Jennifer Martinez's Excellent Defense of Free Speech and Civility:

After a more ambiguous initial reaction to student disruption of Judge Kyle Duncan's speech, sponsored by the Stanford Federalist Society, Dean Jennifer Martinez has issued a passionate, well-argued, and occasionally blistering letter explaining why the students behaved inappropriately, and expressing the view that Stanford's "commitment to diversity and inclusion means that we must protect the expression of all views."

Some might be disappointed that no students will be penalized for their misbehavior. But I think the letter is a much greater victory for academic values than if Martinez had stayed silent and meted out relatively small penalties to the most egregious perpetrators, which is almost certainly the maximum that would have been done.

However, I think some additional soul-searching at Stanford is in order. Dean Martinez and her faculty should ask themselves why students at Stanford felt it appropriate to disrupt Judge Duncan's speech. Surely some of it is a product of illiberal trends in elite academia more generally. Some of it, though, surely has to do with the fact that Stanford Law is virtually a left-wing monoculture.

On a faculty of over sixty, Stanford has exactly one faculty member known to be right-of-center politically, Michael McConnell, compared to dozens on the left. ... [I]f Dean Martinez really wants to promote a culture of civil discourse at Stanford, she could build on her letter by urging not just that invited guests not be shouted down, but that right-of-center voices be part of daily academic life at Stanford.

Stephen Sachs (Harvard), Stanford Dean's Letter and Limited-Purpose Institutions:

To second an important point made in Dean Martinez's new letter (discussed in David Bernstein's post below): law schools, like other institutions, sometimes have good moral reasons to stay silent on important moral questions. ...

The more that we disagree, the more that we need limited-purpose institutions, in which people can come together on discrete issues notwithstanding their disagreements on others. That kind of neutrality isn't moral indifference; it's moral commitment to achieving the institution's goals. As I argued in 2020:

Some of those people might have been surprised at political spam from their expense reporting company. . . . And a few customers have dropped Expensify since, protesting the misuse of their email lists. But whatever happens to Expensify, the episode reminded me of a passage by Yuval Levin, on treating institutions as platforms:

We now think of institutions less as formative and more as performative, less as molds of our character and behavior, and more as platforms for us to stand on and be seen. And so for one arena to another in American life, we see people using institutions as stages, as a way to raise their profile or build their brand. And those kinds of institutions become much harder to trust.

Institutions get weaker as their purposes expand. Once every #brand has had to pick a side on Kashmir or the filioque clause, no one can tell them apart. Whatever makes Expensify distinct, whatever unique contribution it offers—saving time and money! making employees' lives easier!—seems pale and wan next to the great causes of the day.

But the great advantage of limited-purpose institutions is that they let us achieve their limited purposes while still disagreeing on other things. Everyone gets this instinctively when it comes to "Sir, this is a Wendy's." Sometimes mundane things like lunch take precedence over great moral conflicts: not because the conflicts are unimportant, but because we shouldn't hold up the drive-thru line until the great conflicts are resolved. It's precisely when the issues are important—and divisive—that we need limited-purpose institutions most.

FIRE, Stanford Law School Dean Makes Powerful Commitment to Free Expression After Shout-Down Controversy:

Jenny Martinez’s 10-page tour de force on free speech in higher ed addresses the backlash and paves a path forward. Time will tell if Stanford Law students will take it. ...

We’re particularly glad that Stanford Law plans to educate its students and faculty about First Amendment law and free speech culture. We’re happy to assist Stanford — and all universities — in providing relevant instructional materials on all things free expression.

Jonathan Turley (George Washington), Stanford Orders Mandatory Free Speech Sessions for the Law School But Will Not Hold Students Accountable for Disrupting Judge’s Remarks:

The letter ... is a commendable and compelling defense of free speech values. Martinez reaffirms what many of us have said: students exercise their free speech in protesting outside of an event, but cannot go inside an event to disrupt it. She denounced the students for denying the free speech rights of others.

The problem is this statement:

“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. 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.”

It is a bit curious to require the victims of this disruption to attend mandatory free-speech sessions with those who denied their exercise of free speech.

The fact is that, as Martinez notes, the law school was already committed to free speech values and barred the disruption of such events. These students chose to ignore those rules because they knew that they would not be held accountable. They stopped the exercise of free speech because they believed that they had the license to do so. They even complained about their names being mentioned in an article after a campaign to name and shame conservative students. They failed to see why they should bear any consequences for stopping others from hearing views that they oppose.

Absent real accountability for these disruptions, they will continue. The hard part for administrators is not to embrace values that define higher education, but to defend those values in real terms. It is not popular or easy. However, Martinez just gave these students a pass after cancelling the remarks of a federal appellate judge and openly defying protections for free speech. That will convey a message of its own — a message at odds with the fine sentiments contained in this letter.

National Review Editorial, Stanford Law Draws Line on Disrupting Campus Speech:

Dean Martinez’s memorandum is substantively superb on the merits. She does not cheapen Stanford’s position by merely offering a grudging, technical, or purely legalistic defense of the rights of the Federalist Society to invite unpopular speakers and have their ideas heard. Rather cleverly, she turns the “DEI mission” of inclusion around exactly where it should be aimed — namely, back upon its weaponizers — and states outright that conservatives at the law school are every bit as deserving of inclusion as anyone else. ...

That said, her case against disciplining any of the students involved is less impressive. It is true, as she notes, that it may be difficult to identity which students in the room were being disruptive as opposed to making statements protected by the First Amendment, but it’s hard to believe that it’s impossible to identify the ringleader in a room with dozens of witnesses and a number of administrators present.

Regardless, it is more than a little disturbing when the entire student body of one of America’s top law schools — one that produces elite litigators, clerks, scholars, judges, administrators, and thinkers alike — is summarily deemed so fundamentally unaware of the basic requirements of professional and social comportment that they need to be carted off to mandatory day-camp for proper reeducation in the norms of civilization, lest they spread unchecked out into the world and destroy Stanford Law’s reputation for sanity among actual practitioners.

So while we strongly approve of Stanford Law’s statement committing itself to the principles of free speech and intellectual inquiry in the teeth of the cynical political demands of its students, we see a warning in it as well: The fact that it had to come to this at all suggests something is deeply amiss about the values of an entire generation of young elites.

Prior TaxProf Blog coverage:

https://taxprof.typepad.com/taxprof_blog/2023/03/dean-martinezs-10-page-letter-to-the-stanford-community-about-the-disruption-of-judge-duncans-speech.html

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