Having praised the free-speech principles that Stanford law dean Jenny Martinez set forth in her long letter to students, I’m sorry to say that the third part of her letter—on “next steps”—is disappointing. In particular, her categorical refusal to refer any disrupting students for disciplinary sanction and the feeble reasons she offers in support of her refusal severely undermine the principles she professes.
Martinez sets forth three “factors” that lead her to conclude that referring disrupting students for disciplinary sanction is inappropriate. None of her three factors makes any sense, and their makeshift nature suggests that Martinez is looking for an excuse not to punish students.
First, Martinez raises the concern that punishing disrupting students “may chill constitutionally protected speech.” If Stanford’s policy threatened a chilling effect on protected speech, that would be a damning criticism of the very policy that Martinez so eloquently defended in the first two parts of her letter. But there is no reason to think that punishing those who clearly engaged in disruptive activity would chill the speech of nondisruptive protestors.
Second, Martinez contends that “the failure by administrators in the room to timely administer clear and specific warnings and instead to send conflicting signals about whether what was happening was acceptable or not … renders disciplinary sanction in these particular circumstances problematic.” (Martinez’s sentence is ungrammatical, as there was not a “failure … instead to send conflicting signals”; in lieu of “instead to send,” she means something like “and their instead sending.”) But, as Martinez acknowledges, “students had been generally informed of the policy against disruptions (including by schoolwide email the morning of the event).” How much notice do law students need? What’s more, the major disruptions occurred before DEI dean Tirien Steinbach’s weird intervention, so Steinbach’s “conflicting signals” can’t be blamed for what preceded them.
Third, Martinez argues that “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.” But this perverse result follows directly from California’s Leonard Law, which requires Stanford to abide by First Amendment principles in disciplining students. There is separate action that Martinez could explore regarding those who made “vulgar personal insults” that are “perhaps constitutionally protected.” (She could, for example, identify them publicly and/or ensure that their unprofessional conduct is made known to bar- admissions commissions.) Instead, she has set up a perverse incentive for disrupting students to avoid discipline by arranging for fellow students to make vulgar personal insults.
Martinez instead is requiring all students to take part in a half-day session “on the topic of freedom of speech and the norms of the legal profession.” So students who did not misbehave at all—and, indeed, the Federalist Society members who were on the receiving end of much abuse—are receiving the same punishment as the disrupting students: having to spend three or four hours of their time on a session that they may have no interest in and no need for.