Kyle Duncan’s name has been in headlines recently on account of his belligerent refusal to explain his judicial reasoning when directly confronted coupled with his schoolyard insulting of Stanford Law students who disagreed with him. In response, Stanford put its diversity Dean on administrative leave and issued an apology to Judge Duncan. In a new development, Stanford Law Dean Jenny S. Martinez released a 10-page expose on academic credo that should give Stanford Law students, future guest speakers, and audience members a taste of what’s to come.
[W]ith 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.
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. Doing so will bring greater clarity and certainty about future enforcement of the policy, including through disciplinary sanctions as appropriate.
The letter is well written enough, but there are some obvious questions that remain after reading. What is going to be the content of the half-day thought etiquette course? Will there be an arts and crafts segment that details how distracting your protest cards are allowed to be? Will the civility for dummies course have some defensive strategems for what to do if the esteemed speaker calls you some flavor of idiot like Judge Duncan did? There should be some elaboration, given the recognition of behavior that is freely within one’s rights to express but still unfit for whatever culture Stanford is aiming for.
Given this, focusing solely on punishing those who engaged in unprotected disruptions such as noisy shouting during the lecture would leave perversely unaddressed the students whose speech was perhaps constitutionally protected but well outside the norms of civil discourse that we hope to cultivate in a professional school.
There’s also a dimension of the letter that finger wags in that “for they know not what they do” manner that’s always lovely to see. And while I don’t think it raises to the level of quoting MLK at Black folks protesting police brutality or voter disenfranchisement, it definitely has the “you dishonor the ones before you with your protest” vibe.
The university’s commitment to diversity, equity, and inclusion can and should be implemented in ways that are consistent with its commitment to academic freedom and free speech…Indeed, for the reasons explained below, I believe that the commitment to diversity, equity, and inclusion actually means that we must protect free expression of all views.
There is temptation to a system in which people holding views perceived by some as harmful or offensive are not allowed to speak, to avoid giving legitimacy to their views or upsetting members of the community, but history teaches us that this is a temptation to be avoided…And at key moments in history, robust protection for the rights of association and speech has been critical to the advance of social movements for historically marginalized groups. See, e.g., Gay Students Organization of University of New Hampshire v. Bonner, 509 F.2d 652 (1st Cir. 1974). Thus, I believe that strong protection for freedom of speech is a bedrock principle that ultimately supports diversity, equity, and inclusion and that we must do everything in our power to ensure that it endures.
The good ol’ faux pander with the very tailored case site. Brilliant, to be fair. The issue — and maybe this will be discussed in the mandatory conduct class for ivy leaguers, good luck with that one — is that the letter appears to assume a naïve conception of how the tolerance of ideas ought play out in academic settings. It makes sense on paper to leave space open for both sides, but neglecting the material reality of the positions isn’t radical centrism — it is sophistry:
There are some views worth nipping in the bud, whose tacit approval in the name of tolerance and civility enable social mores that violate tolerance.
Put otherwise, there should be some grounds for recognizing legitimate threats to communal well-being that are not met with polite debate, but exclusion. It’s the old Karl Popper tolerance problem:
It is a short read — here is a more robust statement of the position:
Now, is it really fair to bring up extreme matters like this in response to a FedSoc speaker? Yes. FedSoc has been inviting members of hate groups for a while now. And it isn’t just an ATL bias against the Chic-Fil-A frat either; a recent Politico article notes an apparent anti-democratic sentiment that has been picking up steam:
“Democracy is what philosophers call an ‘essentially contested concept,’” said Daniel Lowenstein, a professor of law emeritus at UCLA and an expert in election law, during a panel on Friday evening. “Differences that seem on their surface to concern the meaning of the word ‘democracy’,” he added, are actually struggles to advance particular and controversial political ideas.”
What democracy does not mean, Lowenstein argued, was “plebiscitary democracy,” or simple rule by democratic majorities. Citing the Federalist Papers — the namesake of the Federalist Society — Lowenstein suggested that governance based on simple mathematical majorities would enable “tyrannical domination of the minority by the majority.”
“The assumption that only plebiscitary forms [of government] are truly democratic is fallacious, and should be openly and directly contested by those supporting non-plebiscitary positions,” he added.
Behind me, somebody whispered, “We’re a republic, not a democracy” — a tongue-in-cheek slogan that some conservatives have adopted as a way to slyly signal their approval of minority rule.
Be it the increase in voter suppression or the rapid increase of anti-LGBTQ+ laws, there is more at play than just a neutral play of ideas. Legitimacy is being added to them. That’s a problem an etiquette class can’t really solve.
The Federalist Society Isn’t Quite Sure About Democracy Anymore [Politico]
Earlier: Another FedSoc Chapter Invites Recognized Hate Group To Speak… So This Is Going To Be A Trend
Letter from Stanford Law School Dean Jenny Martinez To The Campus Community, March 22, 2023 [The Fire]
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at firstname.lastname@example.org and by tweet at @WritesForRent.
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