Paul L. Caron

Tuesday, April 4, 2023

More Commentary On The Disruption Of A Federal Judge's Speech At Stanford Law School (Part 5)

Washington Post Op-Ed:  With Some Of My Fellow Stanford Law Students, There’s No Room For Argument, by Tess Winston (J.D. 2023, Stanford):

Stanford Law School has been in the news lately, after students disrupted a talk by a conservative federal judge. Similar protests have derailed events featuring conservative speakers at other law schools over the past year.

But as a third-year student at Stanford Law School, I see a more troubling problem: an academic environment with two loud camps, one aligning with far-right politics, one aligning with the far left. In between, where most students can be found: silence.

There’s little room for nuance. If you’re not overtly one of “us,” then you’re assumed to be one of “them.”

The far-right students make up a small and unpopular camp; there are perhaps half a dozen in my third-year class of 180 students. But their words and actions — such as trying to block the graduation of a progressive student who had mocked the conservative Federalist Society and its Stanford chapter’s invitations to speakers seemingly with the aim of provoking — have an outsize effect.

The far-left students in my class are more numerous — perhaps 20. (The left/right balance is closer in the classes behind me.) They are also far more outspoken than those on the right. And they hold more social influence because, in my experience, the many law students with left-of-center politics, but not far left, fear being labeled moderate or conservative by them.

The far-left students have a dismissive shorthand for fellow students whose politics they consider not sufficiently progressive: “future prosecutors.” The message is loud and clear — prosecutors are the bad guys. But also: Be careful what you say.

I often think of one of my first-year professors, who was appalled by these students’ stigmatizing of the prosecutorial role. He asked one: Given that prosecutors decide whether and what charges to bring against a defendant, isn’t it preferable for well-qualified people to fill the role? Without missing a beat, the student responded: No, being a prosecutor is simply evil. ...

Only now — as a student about to graduate — do I realize how few classmates agree with the loudest ones. Most of us fall somewhere between or are still forming our opinions.

A friend recently told me that “coming out as a moderate was more difficult than coming out as gay at Stanford Law School.” He eventually moved to San Francisco so he could “just ignore the madness.” ...

[I]f there is one place where people should understand the value of learning to engage — and disagree — respectfully, it is law school.

The Dispatch Op-Ed:  The New Stanford Prison Experiment, by Teddy Ray (J.D. 2024, Yale):

[Stanford DEI Dean Tirien] Steinbach’s treatment of Duncan unveiled an ugly truth about why shoutdowns like this have become so prevalent: It’s not that campuses are overrun by out-of-control students prone to anti-social behavior. It’s that administrators are still very much in control and creating an environment ripe for these results. 

The hecklers at Stanford were not an indecent mob that had wrested control of the school from its leaders. Even more, these students aren’t the vulgar and sadistic lot they played in front of Duncan. We’ve seen perfectly decent people turn to sadistic group behavior before. In fact, we’ve seen it before at Stanford.

Casting students as inmates in control of an asylum is the wrong way to understand what’s happening on college campuses. If we want to understand what’s really happening—and how to make it stop—we should pay attention to what happened at Stanford a half-century ago. The better analogy is the Stanford Prison Experiment. ...

The most common reaction to the Stanford Law School meltdown and other similar ones is to ask what’s gone wrong with the kids these days. ... The responses to last year’s fiascos at Yale Law School were similar. ...

Events like these prompt questions about whether these students could possibly handle the real world. If they are so incapable of hearing views they dislike, how will they be able to comport themselves as judicial clerks, litigators, and possibly even judges? Don’t worry: They’ll be able to do those things quite easily. ...

That’s because these students are playing roles right now. They’re like those well-adjusted college students who became ruthless prison guards overnight in the Stanford Prison Experiment. And they can snap out of these roles as easily as they assume them.

I know this. I’m a second-year law student at Yale. I was at the disrupted ADF event last year. I watched with some disbelief as classmates behaved in bizarre and inappropriate ways. But I’ve also had lunches, coffees, dinners, and cocktails with many of those same classmates, and I don’t think they’re the people they appear to be in the media. They’re funny, thoughtful, brilliant people with deep convictions. And in settings where they’re no longer playing the role of “outraged law student,” they’re willing to have a reasonable conversation about different ideas and beliefs. The problem on campus today isn’t immature and out-of-control students. The problem is that too many of our institutions of higher learning are running a big Stanford Prison Experiment. ...

In Zimbardo’s prison study, he assigned authoritarian roles to a group of students. Then he gave them a common enemy and dehumanized that enemy. In doing so, he lost himself in the project. He ceased to be the “adult-in-the-room” and became instead the superintendent of the jail. All of the same is happening on our campuses. Administrators have the power to undo it all. ...

We’ve given students the role of ideological prison guard on campus. This can make everyone else a thought and speech prisoner. Faculty and students alike must guard against any missteps that could attract unwelcome attention from the guards. As a coordinator of several speaker events, I’ve had speakers with mainstream views express reluctance about coming to our campus for fear of the students. That should not be.

We should also ask if it’s fair to the students to put them in the role of the prison guards, even if they want that role. Yes, they can snap out of it when they go on to clerk for federal judges or argue in front of them. But just as we might ask if the experiment did some long-term psychological damage to the guards in the Stanford Prison Experiment (to say nothing of the prisoners), we might ask if we’re doing the same harm to these students by letting them assume these roles now. ...

Finally, remember that while the Stanford Prison Experiment focused on the students, Zimbardo was always in charge. The prison guards may have felt like there was “little or no supervision,” but Zimbardo was watching the whole time. The same is true on campuses. At both the Stanford and Yale protests, the administrators were still in the room. The question is why they keep letting this bad experiment continue.

The Stanford incident gives some indication. For all the videos we’ve seen of outraged students on campuses, Tirien Steinbach was the first outraged administrator we’ve seen take center stage. Steinbach’s behavior shows that Stanford’s problem wasn’t out-of-control students without supervision. Instead, their supervisor was prodding them on. She had lost her objectivity as an administrator. She had become the superintendent of the new Stanford prison.

It took an outsider coming to observe the prison experiment to snap Zimbardo back to reality. That may be what happens with our campuses as well. Many students at Yale resented having our problems covered by outside media. They argued that these issues should be resolved internally. But sometimes things like this need to be exposed to outsiders to be recognized for what they are. Within the walls of Yale or Stanford Law School, behavior like this can seem normal. We snap back to reality only when the behavior is exposed to the outside world.

The two administrators who most directly oversaw the Yale events are gone. Ellen Cosgrove conveniently retired; Yaseen Eldik is no longer at the university. The remaining administrators have worked hard to ensure that last year’s embarrassments don’t happen again. And there is even talk about Yale hiring a conservative constitutional law scholar. That will be worth watching. It could be the next sign that Yale is leading the way to end this bad experiment. Perhaps Stanford and others will follow suit.

Whittier Daily News Op-Ed:  How Law Schools Can Restore Free Speech and Why They Must, by Charles Brandt (J.D. 2024, George Washington):

Freedom of speech has long been considered the sine qua non of the American experiment. But the First Amendment is worth little more than the parchment it’s written on without the support of lawyers. That’s what makes the latest episode at Stanford Law so concerning, and why law schools across the country must be vigilant in defending First Amendment values. ...

[L]aw school faculty must actively encourage counter-speech while discouraging disruption. Last year at my university, the George Washington University Law School, an LGBTQ+ student group strenuously believed that guest speakers invited by our chapter of the Federalist Society were hateful, discriminatory, and belonged nowhere on campus. Even so, the event proceeded without any substantial disruption of the sort witnessed at Stanford, and faculty intervention likely had something to do with it. As the event approached, two professors of mine expressly discouraged students from disrupting the event, emphasizing the importance of free speech. Critically, one of these professors, herself an expert in First Amendment law, gave the LGBTQ+ student group a platform to advertise their counter-speech event, which was to take place simultaneously alongside the Federalist Society event somewhere else on campus. In so doing, she vindicated the old adage of Supreme Court Justice Louis Brandeis: for “falsehoods and fallacies, … the remedy to be applied is more speech, not enforced silence.”

Today’s law students are tomorrow’s judges and advocates — the very people upon whose respect and understanding the continuing vitality of free speech depends. Law schools must restore a culture that embraces the First Amendment. Otherwise, freedom of speech awaits the same fate as the right to jury trial contemplated by our Founders: death by neglectful legal profession.

Chronicle of Higher Education Op-Ed:  Stanford Law Students' Infantile Protests, by Andrew Koppelman (Northwestern):

The students who disrupt right-wing speakers — the protest against Judge Stuart Kyle Duncan, who tried to speak at Stanford Law School, is a prominent recent case — have been appropriately criticized for their obliviousness to the value of free speech. I want to flag another issue: their piffling political ambitions. Today’s left aims to protect minorities from offense. It ought to aim to change the world.

The two aspirations are in conflict. Hypersensitivity to feelings, and the desire to vent them in the crudest possible way, enfeebles law students. It turns them into lousy advocates, useless to the social movements they hope to serve. ...

The distinguishing mark of adults is that they focus on bringing about real results in the world, instead of indulging in the pleasure of venting their feelings.

PrawfsBlawg:  More Thoughts on the Ideological Divide on Free SpeechHoward Wasserman (Florida International):

George Mason invited (apparently without student consultation) Virginia Governor Glenn Youngkin to give its commencement address. Some students objected, based on the policies Youngkin has pursued--including anti-trans and anti-race-in-educationstuff that DeSantis has tried in Florida to greater fanfare. FIRE and others have responded by, unsurprisingly, treating student objections as efforts at censorship. GMU President Gregory Washington echoed the platitudes by saying "'I don’t believe that we should silence the voices of those with whom we disagree, especially in this forum where there is no imminent threat present as a result of the disagreements.'" Instead, it was important to "giv[e] Youngkin a platform so students can not only hear his perspective, but also so conversations about differences can ensue."

I think we have reached Peak Preferred First Speaker. Because the only way to understand students as "censors" is if the invited First Speaker has an absolute right to speak and all others bear nothing more than an obligation (legal, moral, ethical, civic) to shut-the-fuck-up and listen.

FIRE and others object to the withdrawal of the invitation. But the objecting students must urge disinvitation as opposed to noninvitation because the university invited Youngkin unilaterally, before students had an opportunity to object. Suppose the university held a plebiscite on whether to invite Youngkin and the students vetoed the choice. I expect that FIRE, President Washington, and others would react the same way--the students are improperly denying the Governor of Virginia a platform to speak. If so, this is not about disinviting--this is about obligating everyone  to allow any First Speaker to be invited without objection and to listen to his perspectives. Alternatively, I cannot see a meaningful difference between objecting before or after the invitor (university administration) acts.

Moreover, this case is worse than the Duncan case. One can argue that "civil discourse" compels objectors to listen to the First Speaker and engage him (always politely) during Q&A (I doubt the position because the First Speaker need not engage with any student). But accepting that with Duncan or other open-forum speakers, Youngkin will not do a Q&A at graduation. So students are obligated, in Washington's words, to sit and hear his (and only his) perspective and maybe"conversations about differences can ensue" at some other undefined moment in time. 

Peter Kalis (Former Chairman & Global Managing Partner, K&L Gates), The DEI Delusion and the Reality of Meritocracy:

It was over 20 years ago that the law firm of which I was a partner made some headlines locally and in the national legal press for appointing a chief diversity officer, described as the first in a Pittsburgh law firm and perhaps in the United States. I later learned that it was globally unique in the legal profession. Firms throughout the country and eventually the world created the same position.

What was the thinking behind this new position? At least at my firm we thought a lot about foundational principles. And the foundational principle at issue was the very reason law firm leaders serve: To build a meritocracy in service to clients. ...

You can therefore imagine my distress twenty years later to see that diversity has been hijacked and turned into “Diversity, Equity and Inclusion.” The operative ethic is no longer equal opportunity but equity — that is, equal outcomes dictated by identity instead of merit.

Whereas diversity welcomed and indeed encouraged diverse viewpoints, DEI punishes all but its own viewpoint that society is composed of oppressors and the oppressed. This poisonous approach has infiltrated higher education, journalistic organs, professional schools and much of corporate America as well as many law firms (but happily not my former firm). Instead of eliminating imperfections in the market for talent, DEI has become one.

Prior TaxProf Blog coverage:

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