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Wednesday, April 26, 2023

Neil Buchanan's 5-Part Series On The Stanford Free Speech Controversy

Duncan Stanford

Neil H. Buchanan (Florida), A Public Statement About Law Students (and Others) Acting Like Children, from a Fictional University President— Or, the Stanford Incident is Not What You Think (Apr, 13, 2023):

[T]he current cause célèbre among those who claim that American universities have been overrun by “illiberal leftist extremists” whose minds are supposedly closed to reasonable engagement is an incident at Stanford Law School last month in which an extreme right-wing federal judge was “shouted down” (maybe) by students who object to his substantive views and his treatment of vulnerable people. Cue the outrage from the usual commentators on the right and center, always on the lookout for any way to cloak themselves in the righteous garb of free inquiry. See? they exclaim innocently, Those liberals on campus are a bunch of crybabies who cannot even engage with their opponents’ ideas—and at a law school, no less! All we want is a chance to have a robust debate.

Color me skeptical. Among other things, right-wing virtue signaling was never so transparent. In any event, I was recently forwarded an email from a friend at another university, in which one of the top administrators at a highly ranked university said that his school’s students are “durable” and strong enough to accept “viewpoint diversity on campus” and promising that nothing like what happened at Stanford can happen at his university. Although the term viewpoint diversity has become code on the right for “we get to say any hateful thing we want, and you can’t criticize us for it,” I want to take that administrator’s idea seriously, in particular the claim advanced by others on the right that the Stanford protesters were acting like pampered children.

In that spirit, I have named myself the president of the fictional Fair-minded University (FU), and the remainder of this column is the letter that I have sent to my campus in response to the Stanford imbroglio.

Fabricated Outrage and the Right's Attack on Higher Education (Apr. 14, 2023):

The key takeaways from my [April 13 column above] were: (1) that the judge in question was the most childish of any of the actors in that over-hyped drama, a shameless bully who apparently thinks that being invited to speak at a major law school gives him license to be a fucking asshole braying jackass and then whine about how he was treated; and (2) that the other students in the story, the members of the conservative law school club who invited the judge to speak, were acting like nasty, vindictive children.

Here, I want to ask whether my second point in that Verdict column matters.  That is, does the intent of those who invited the speaker to visit the campus in fact change how we should think about the overall controversy?  I will also point out that my explanation for how the incident began shortchanged another part of the story: a national organization's efforts to contrive controversies like this, not out of childishness but as a matter of strategic political warfare. ...

[T]he rest of us do not have to go along with the fantasy that these incidents are unplanned, guileless matters that provide insight into the heart of modern universities.  These are modern morality plays, produced and directed by people who know exactly what they are doing, all as part of an authoritarian effort to undermine genuine intellectual and academic freedom.  And they barely even bother to try to hide it.

How Should Universities Respond to Organized Right-Wing Trolling? (Apr. 20, 2023):

One of my main points in [the above] columns was that the Stanford incident has been wrongly (and quite deliberately) portrayed as a good-faith effort by conservative-leaning students to engage in robust debate, an effort that was thwarted by a mob of intolerant campus lefties.

It was nothing of the kind. Indeed, the national organization that coordinates these events—and amply funds them—is openly engaged in efforts to gin up just the kind of politically useful controversy that the Stanford incident now represents. In light of that, my original idea for a headline on today’s column was: “Performative Outrage and the Aggrieved Conservative Campus Speakers Ploy.”

I will go into some detail about that aspect of the story in due course, but I also want to ask more broadly how American universities should respond to an intense campaign by movement conservatives to stoke made-for-cable-outrage imbroglios. There are no easy answers, but it is important to ground any response in a recognition of reality. Specifically, this was not a spontaneous student-on-student controversy but rather part of a deliberate political campaign—a long con that feeds conservatives’ tropes about free speech on campus being “under siege.”

If that is in fact the case, the ones laying siege to the American university today are doing a great job of portraying themselves as the victims, rather than the perpetrators. Our response must begin with ending the pretense that this is merely a series of unrelated incidents with liberal students playing the role of bullies. That is not only misleading but completely backward. ...

In the end, it is a recipe for disaster to fail to see through the schemes of individuals or organizations who are acting in bad faith. Naively accepting these incidents as organic disputes among people who disagree but mean well only encourages more of the same, empowering destructive behavior and all but inviting the bad actors to do their worst. The Stanford event was staged, and its aftermath has moved the narrative in a very bad direction. But that is surely what the people who set it in motion wanted from the start. No one else should play along.

Do Law Schools Truly Have to Worry About Students Not Being Able to Handle Real-World Disagreements? (Apr. 20, 2023):

I want to explore two issues that are relatively less important than the larger issues at play but which have been highlighted by Stanford's bungled response.  The latter of those points is rather contrarian, which means that I am especially enjoying thinking it through.  Here is a cryptic version of my bottom line: Maybe our students already know how to be grownups, but they rationally choose during law school not to be.  But that is my final point.  What of the first?

I start with an acknowledgement: In my columns thus far, one of my main arguments channels a conversation that I had with a friend at a top law school, who first pointed out to me the terrible power dynamic that played out in the dean's and president's suites at Stanford.  This friend prefers to remain out of the public fray, so I am being a conscientious academic by acknowledging that one of my major arguments was not original to me, but I am also being a good friend by not revealing who first brought it to my attention.

In any case, the more I have looked into the situation, the more appalled I have become by Stanford's response.  In particular, I was honestly surprised that a letter from the law school's dean (which has been praised on the political right and by establishment centrists as being "powerful" and "lawyerly") was more than a bit of a mess.  Most notably, the letter uses the word coercion in two distinct contexts without acknowledging that that word cannot possibly mean the same thing in both, and it also manages to use that word incorrectly both times.  More broadly, however, the central argument from the dean was to prove that Stanford could legally do what it is doing.  Fine.  Well, not fine.  But fine.

In my three previous columns, I have said repeatedly (and I stated again above) that the law school's response only punished that one person.  I should be clear, however, that although no one else was punished, the law school did in fact impose consequences on its students as a result of the event.  It is not punishment, after all, to require that students attend "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" (p. 9 of the dean's letter).  I suspect that it might feel punitive to many of the students at the law school, both those who protested and those who did not, but maybe the committee that puts together the program will provide valuable information and insight to those who are mandated to attend (which, again, is all of the students).

If I were not so angered by the overall situation -- especially Stanford's insistence on apologizing (and re-apologizing) to the most blameworthy actor in the whole morality play: Judge Kyle "Stanford students are dogshit" Duncan -- perhaps I would be less cynical about the involuntary class at which the topic will be freedom.  In any case, I will limit myself here to a wry observation about forcing students to learn how to be good professionals. ...

What should we think about students who are asking not to have to listen to a guest speaker at their law school -- a speaker who is there to tell them that, say, they should lose the right to bodily autonomy on the basis of religious dogma? My point is that it is not at all clear that such students lack grit or toughness or (more importantly) that they will wilt in a professional situation because they were not forced during law school to let their blood boil as part of a process of "learning to channel the passion of one’s principles." They might simply understand that law school is not real life, and when it is possible to avoid engaging with hateful bigots, maybe it is OK to do just that.

I should say that my views on these two issues are not absolute. That is, I am not saying that we should simply assume that our graduates will find the kinds of jobs in which they can choose whether or not to confront hateful people and ideas. Similarly, having seen some truly ridiculous courtroom behavior from some real-life attorneys, it might well be a good idea to include in our curricula exercises in professional deportment.

In other words, I am not saying that law school is useless. Legal education is quite useful in a myriad of ways, and I am proud to be part of the enterprise.  I do have some rather strong doubts, however, about the claim that our job is to force our students to "face uncomfortable situations." Perhaps it is, but the knee-jerk pronouncements from legal educators about snowflake students strike me as more than a bit overblown.

Law Schools Should Continue to Develop Critical Thinking Skills, Not Become Finishing Schools (Apr. 25, 2023):

Yesterday was the last day of classes at my law school, which is as good an excuse as any to reflect on some of the timeless issues that educators face in every area of learning.  Here I want to consider two related questions: What do law schools do? and What should law schools do (and not do)?

As I teased in the title of this column, law schools are not -- and do not need to be -- finishing schools, teaching students to be well-behaved young ladies and gentlemen.  We law professors are, however, instilling habits and values that matter both to the legal profession and to society at large.

Who might imagine otherwise?  The answer might surprise you.

Over the last two weeks, I published (on Verdict and on Dorf on Law) an ad hoc series of four columns in which I tried to set the record straight about a recent student protest against a notorious archconservative judge during his appearance at Stanford Law School.  In large part, the first three of those columns are a sustained response to the freakout from rightwingers as well as those who pose as "sensible centrists" to the supposedly deplorable actions of the student protesters, whom the judge called "coddled children" (as well as less printable things).  Short version: the supposed victims of the lefty students -- their conservative classmates and the judge himself -- acted childishly, egged on by a national organization that choreographs controversies like this as stunts to further their anti-intellectual political agenda

In the fourth installment of that series, however, I addressed a separate issue on which there has been widespread agreement, even among those who do not buy the right's self-victimization pose (a pose that Stanford's administrators inexplicably and egregiously validated).  Specifically, the idea is that law students need to be taught to be respectful and polite, because "universities in general, and law schools in particular, are places where students need (for their training as citizens and professionals) to get used to handling in a disciplined and productive way speech that makes their blood boil," in the words of two genuinely insightful observers (one a law school dean, the other a law professor).  I agree with those authors on everything else that they wrote about the Stanford controversy, but I think that they at best overstated their case on this matter.

Below, I will expand on my core response, which is that there is essentially no danger that law students will misbehave in court or in the workplace, even if we in law schools never tell them not to be loud or undisciplined after they graduate. ...

Do I care whether my Income Taxation students remember that, say, the Supreme Court has instructed us that a "gift" for income tax purposes flows from "detached and disinterested generosity" and arises from "affection, respect, admiration, charity or like impulses"?  Of course not.  I do want them to understand that those words are almost infinitely manipulable, which means that it is surprisingly easy to characterize many non-gifts as gifts.  More broadly, I want them to approach every question with an appropriate degree of skepticism and to understand that simply accepting arguments from authority is wrong -- while also seeing that rejecting arguments merely because they are from authorities is just as misguided.

What I am not worried about is whether we are sending into the world a bunch of graduates who are too thin-skinned to understand reality or to adjust their behavior accordingly.  I wrote last week that "we [law professors] need to get over ourselves just a bit," but that is not quite right.  We need to remember that our core mission is truly important, but we must stop imagining that teaching proper comportment is our job.  We are instilling habits of mind that last a lifetime, not lessons from Miss Manners.

The argument that universities' most important purpose is to teach critical thinking, by the way, is hardly original to me, yet it can be published without citation.  How do I know that?  Because I have been to law school.

Prior TaxProf Blog coverage:

https://taxprof.typepad.com/taxprof_blog/2023/04/neil-buchanans-5-part-series-on-the-stanford-free-speech-controversy-.html

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