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Paul L. Caron
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Thursday, March 30, 2023

Judge Duncan: What We Must Expect Of Our Law Schools

National Review Op-Ed:  What We Must Expect Of Our Law Schools, by Kyle Duncan (U.S. Court of Appeals for the Fifth Circuit): 

Stanford Law (2022)I want to reflect on the event at Stanford from three related angles: free speech, legal education, and how we govern ourselves in this country. While I was preparing these remarks, something else remarkable happened: Just last Wednesday, March 22, the Stanford Law School dean, Jenny Martínez, sent an extraordinary letter to the Stanford community. It’s a powerful letter and a credit to Dean Martínez. The letter happens to touch on, in an eloquent way, some of the same themes I’m talking about today. So, I’ll highlight parts of the dean’s letter in my remarks. I will say at the outset that I believe the letter provides a solid basis for improving the intellectual climate at Stanford — and perhaps at other law schools — assuming its powerful words are backed up by concrete actions.

We have a vital tradition of free speech in this country, both in our law and our culture. That of course extends to student protests. ... But make no mistake. What went on in that classroom on March 9 had nothing to do with our proud American tradition of free speech. It was a parody of it. I’m relieved that Dean Martínez’s letter forcefully recognizes this. As she writes: “Freedom of speech does not protect a right to shout down others so they cannot be heard.” It is not free speech to silence others because you hate them. It is not free speech to jeer and heckle a speaker who’s been invited to your school so that he can’t deliver a talk. It is not free speech to form a mob and hurl vile taunts and threats that aren’t worthy of being written on the wall of a public toilet. It’s not free speech to pretend to be “harmed” by words or ideas you disagree with, and then to use that feigned “harm” as a license to deny a speaker the most rudimentary forms of civility. ...

Let’s say the quiet part out loud: The mob came to target me because they hate my work and my ideas. They hate the clients I represented in court. They hate the arguments I made. They evidently hate my judicial opinions, although the protesters were evidently familiar with only one of the hundreds I’ve written — an opinion where I refused to enlist the federal judiciary in the project of controlling what pronouns people use. So, the protesters did not come to respond to my talk or engage in counter-speech. They just wanted to vent their rage against me. None of this spectacle — this obviously staged public shaming — had the slightest thing to do with “free speech.” It had everything to do with intimidation. And to be clear, not intimidating me, but the protesters’ fellow students. The message could not have been clearer: Woe to you if you represent the kind of clients that Judge Duncan represented, or take the same views that he has.

So, next, let’s talk about legal education. We shouldn’t forget that this incident did not occur in a campus bar at 12:45 a.m. after the USC game. It occurred in a law school — indeed, one of our nation’s elite law schools. Dean Martínez’s letter eloquently explained why this makes the incident doubly shameful. ... Dean Martínez is correct when she writes, “I believe we cannot function as a law school from the premise that appears to have animated the disruption of Judge Duncan’s remarks.” And what was that premise? That “speakers, texts, or ideas believed by some to be harmful inflict a new impermissible harm justifying a heckler’s veto simply because they are present on this campus.” I’ve heard someone comment recently that to be a lawyer means, by definition, to have to occupy the same room with people you seriously disagree with — and yet to have to engage in reasoned, indeed persuasive, argument with them. If that is true — and it is — then the primitive impulse to shout someone down is not a trait we should want to encourage in law schools. Just the opposite. It is a trait we should strive to help students unlearn. ...

Finally, we must not overlook why we train lawyers: to make our civil society function. Once again, Dean Martínez says this well: “Law is a mediating device for difference.” The discourse of law, and of lawyers, greatly affects how we order our lives together in a liberal democracy. I am no political philosopher, and Professor Muñoz would have much more to say about this than I. But one thing strikes me on this topic: The basic premise of a free and self-governing society is that we, as citizens, can reason together. This occurs not only in government but in the multitude of mediating institutions that constitute civil society. To accomplish this requires certain civic virtues — self-control, humility, tolerance, patience, moderation, courage, to name a few. What would happen if the cast of mind modeled in that classroom at Stanford becomes the norm in legislatures, in courts, in universities, in boardrooms, in businesses, in churches? We must resist this at all costs, otherwise we will cease to have a rule of law. Lawyers and the schools that educate them have immense responsibilities. So I am cautiously encouraged that Stanford has promised to implement some form of training for students in the virtues of civil discourse. I hope it is only the beginning.

In closing, I would like to do something that I haven’t had the chance to do since the March 9 event — and that is publicly thank the Stanford Federalist Society for inviting me to speak. Even though the talk didn’t go as planned, I owe each of you a debt of gratitude. As I was trying to say that day, I know that you would never treat your fellow students as you were treated — no matter how much you may disagree with them or with speakers they might invite to campus. I was encouraged to read this in Dean Martínez’s letter: “The Federalist Society has the same rights of free association that other student organizations at the law school have.” I encourage you to take the dean at her word. Consider also these words from her letter: “We support diversity, equity, and inclusion when we encourage people in our community to reconsider their own assumptions and potential biases.” I submit that students like you, who may find themselves out of the mainstream in certain quarters, have an important role to play in challenging your fellow students and professors to reconsider their own assumptions and potential biases on a whole range of supposed orthodoxies. There will always be people who want to tell you what to think, what to say, even what words you are allowed to use. But you are free to challenge the echo chamber with a firm “I respectfully disagree.” Do not be afraid to do that.

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