Paul L. Caron

Monday, April 3, 2023

Law Profs' Petition Backs Stanford DEI Dean's 'Unimpeachable Approach' With An 'Obviously Repellent' Federal Judge

Stanford Law (2022)Mr. Marc Tessier-Lavigne
Stanford University
Stanford, California 94305

Ms. Jenny S. Martinez
Richard E. Lang Professor of Law and Dean Stanford Law School
Crown Quadrangle
559 Nathan Abbott Way
Stanford, California 94305-8610

Charlottesville, March 31, 2023

Re: Petition of academia in support of Associate Dean Diversity Equity and Inclusion Tirien Steinbach, Stanford Law School, March 31, 2023

Dear President Tessier-Lavigne,
Dear Dean and Professor of Law Martinez,

I write to respectfully submit for Stanford’s consideration the attached Petition of academia in support of Associate Dean Diversity Equity and Inclusion Tirien Steinbach, Stanford Law School (“the Petition”).

The Petition speaks for itself.

I hope this petition will help you see how fortunate Stanford is to have Associate Dean Tirien Steinbach and how wonderful a job she did in that situation that has gotten much press, invective and calumny addressed unfairly at her.

I take the liberty of this e-mail to inform of the wide-ranging exchange by a First Amendment expert, law professors, and Dispute Resolution experts today on Think Tech Hawaii entitled Free Speech Vs Disruption at Stanford (The Rule of Law in the New Abnormal). In that discussion in the short 30 minute video, a wide range of both historical and practical information is provided on student dissent and approaches to addressing difficult speaker situations. ...

Also, for your student chapter of the Federalist Society, I understand the video of the Student Chapter of the Federalist Society at Washington and Lee University School of Law panel of March 9, 2023 on thé Dobbs decision overturning Roe v Wade I understand will be posted at the Washington and Lee Law Review. I commend to you and the heads of your student chapters to watch in particular the beginning with the introduction of the panelists by the student President of this chapter. He set the proper tone for the lively exchange between the panelists and the audience on a difficult topic on which passions run high. Student leaders could learn from this student leader how to properly organize such speaking events with difficult speakers and/or difficult topics. Once that video is available, I shall not fail to forward it to you.

I have attempted to reach out to Associate Dean Tirien Steinbach about this petition but to no avail. She has played no part in the drafting of this submission.

I do not see an e-mail for either President Tessier-Lavigne or Associate Dean DEI Steinbach and I would be grateful if this message with the petition could be forwarded to each of them by Dean Martinez.

This petition is being shared with two listservs — the Dispute Resolution and the Minority Law Professors listservs of the American Association of Law Schools.

Thank you for your consideration of this message.

Benjamin G. Davis
Emeritus Professor of Law University of Toledo College of Law
Former Chair, American Bar Association, Section of Dispute Resolution
Chevalier of the Ordre des Palmes Academiques of the Republic of France

Enc: Petition and signators list

Petition of academia in support of Associate Dean DEI, Tirien Steinbach, Stanford Law School
March 31, 2023

We write to express our profound concern about the unfair treatment of Associate Dean DEI, Tirien Steinbach who we understand is on leave.  She has been the subject of completely unfair calumny and invective that requires that we write to you to seek her prompt reinstatement and a raise in pay for what she has been unfairly put through.

If you would seek to read the kind of horrendous invective being thrown at her for her remarkable efforts at de-escalation and deconfliction of the recent speech by a Judge Duncan,  we draw your attention to a number of links at Taxprof blog ....

We have skimmed all the commentary on this site about the Stanford event and watched the video available.

We are of the view that the heckler’s veto is the wrong paradigm to view this Stanford /Judge Duncan brouhaha.

The First Amendment types are a bit prisoner to the heckler’s veto paradigm as they think about what happened at Stanford Law. It is a well-worn rut in First Amendment teaching we understand.

We take you somewhere else which might have been a place that the late Professor Linda Mabry formerly of Stanford Law School would have taken your community.  In international law, the state operates through its jurisdictions to enforce, prescribe and adjudicate. Thus decisions of judges form part of a state’s power and can be breaches of international law obligations just like executive or legislative acts.

This is the difference of view that undergirds our view of what happened at Stanford.

From the video we have seen, we find the so-called “heckling” tame. Tame as it was and tame in comparison to other settings we have experienced such as resounding applause when Justice Scalia told one of your signators “get over slavery.” Extended colloquy with a judge or justice whether at a dinner, in a classroom, or with the faculty would be considered in the current environment heckling by not showing the proper respect for the member of the judiciary in a setting outside of the courtroom.

That is inimical to free speech.  Disagreement and repulsion with a speaker’s views are not heckling.

Dean Tirien Steinbach’s approach to de-escalation including allowing time for students who wished to walk out to walk out is unimpeachable.  She did nothing that should lead to her being thrown under the bus after the brouhaha.

The juice/squeeze turn of phrase appears to be a Rorschach test for all concerned.  Contrary to what the naysayers purport, she worked very hard and fully in her role as a representative of the institution to both be deferential to the speaker and to also be caring toward the students obviously profoundly disturbed by this judge’s decisions.

What we see here is an institutional response to a student movement challenge and that response being both an effort at cooptation and suppression. And the institution is not just Stanford Law but the other institutions giving voice to outrage in a vast array of press spaces including recently on Morning Joe.  That effort at cooptation and suppression is unacceptable in academia.

So let us start with the suppression with respect to Dean Steinbach.  The appropriate view is not to see this as a heckler’s veto problem but as an issue of institutional repression and suppression of an Administrator who did nothing wrong and in fact did something to try to deescalate a situation. And that suppression is of an Administrator who “just happens” to be a DEI Administrator in an environment of attacks on DEI — that so fatiguing topic of integration that has been on the American dashboard for over 70 years in our lifetimes and back to the Founding.

Beyond the treatment of Dean Steinbach, what is being attempted and will no doubt fail are the loud voices trying to repress and suppress dissent by sending a thinly (if at all) veiled warning to students, faculty and staff (especially DEI staff) in universities and beyond that what is happening to Dean Steinbach can happen to you.

Or as Buffalo Springfield said in For What it’s Worth.

“Paranoia strikes deep.
Into your heart it will creep
It starts when your always afraid
Step out of line and they’ll come and take you away.”

We recognize that administrators can differ on the appropriate approach, but that is the old Monday morning quarterbacking by persons who were not on the field and in the moment of the play. In that room at that point, we consider what Dean Steinbach did was beautiful in mediating a difficult moment. She was the most adult person in the room.  Not the judge.

The tolerance through silence of all voices that do not take issue with those who endorse the Administration’s or Judge Duncan’s view of what is the proper Stanford policy approach for their action against Dean Steinbach is what we find amazing to watch both in and outside of academia.

The fact that there is going to be training suggests to us that the policy was sufficiently vague and without clear protocols that Dean Steinbach’s actions were well within the limits of that policy.

We would go further and say the tame student response to a provocative and obviously repellent speaker for many was also well within what we have experienced at similar types of events over the past 50 years.

When the standard is a policy and not the First Amendment, manipulation of the interpretation of a policy to suppress dissent and dialogue can be reasonably feared. This Stanford debacle attempting to suppress Free Speech proves the point about the insidious nature of such policies.

What is happening now is an effort to stick the cold knife of fear in the heart of free speech that dissents. It is to encourage the old “go along, to get along” rather than cheering those who actually have the courage to dissent and those who have the courage to attempt to deescalate a situation.

We believe we are to bless the peacemakers like Dean Steinbach and not throw them under the bus.

As to students disagreeing with and asking difficult questions of speakers with whom they disagree, we support students who dare to do that.  We well remember professors seeking to squelch views or saying abhorrent things in classes.  Students are not showing temerity, they are showing bravery. As did Dean Steinbach.

As Hans Fallada wrote in Every Man Dies Alone, “The main thing is, you fight back.”

Would that we were in a country or time that rewarded such good deeds as opposed to the usual response well learned by people in your business school that “no good deed goes unpunished.”

That does not say to not do good deeds as Dean Steinbach attempted to do, but to just understand that there are those who will seek to punish a person for doing those good deeds.  We are concerned that punishment is happening to Dean Steinbach which is completely undeserved.

We show respect for Dean Steinbach and the students who said no to and challenged a judge who they perceive (with some justification by his decisions) as a purveyor of oppressive judicial activism that constrains their freedom and liberty.  People cannot do that in the courtroom, but in a space of intellectual curiosity and interaction, that challenge to one judge’s orthodoxy is refreshingly courageous.

If a speaker cannot stand the heat of discourse, the speaker should not go in the kitchen of intelligent and diverse thinking.

But, of course, that kind of thinking displeases those who whatever they say really just cannot handle dissent in their face. 

(In alphabetical order, institutions for identification purposes only and do not imply endorsement by the institution)

Benjamin G. Davis
Emeritus Professor of Law
University of Toledo College of Law
Former Chair, American Bar Association Section of Dispute Resolution
Chevalier of the Ordre des Palmes Academiques of the Republic of France

Bernadette Hartfield
Associate Professor of Law Emerita
Georgia State University College of Law

Brian L. Owsley
Associate Professor of Law
UNT Dallas College of Law

Dr. Katherine Simpson, Esq., FCIArb.
Fellow, College of Commercial Arbitrators
Member, National Academy of Distinguished Neutrals
Vice Chair, Ray Corollary Initiative (RCI), Inc.
Chair, Women in dispute Resolution (WIDR) Committee, ABA Section on Dispute Resolution

Constance de la Vega
Professor of Law
University of San Francisco

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