Bench Memos
The Duncan Incident Poses the Question: Are Law Schools a Training Ground for Bad Conduct?
Last week’s shout down of Fifth Circuit Judge Kyle Duncan at Stanford Law School, a story broken by Ed Whelan, has been reverberating as the latest example of campus hostility to free speech and the rise of cancel culture. As documented in a video of the incident, Duncan was disrupted from speaking in a lunchtime event billed as “The Fifth Circuit in Conversation with the Supreme Court: Covid, Guns, and Twitter” and hosted by the Stanford Federalist Society.
The Federalist Society had declined to cancel the event or move it to Zoom, as was requested by the LGBTQ law school student organizations Identity and Rights Affirmers for Trans Equality (IRATE) and OutLaw with the signatures of over 90 law school students. Duncan was heckled first by dozens of student protesters who shouted him down for 20 to 30 minutes (by his estimate). Their vitriol included both vulgarities and non-profane messages along the lines of “You’re not welcome here, we hate you!” and “We do not respect you and you have no right to speak here! This is our jurisdiction!”
Then a campus administrator in attendance spent about six minutes berating the judge from prepared remarks. Tirien Steinbach, Stanford’s associate dean for diversity, equity, and inclusion (DEI), incoherently peppered her comments with the occasional reference to Stanford’s free speech policy, the suggestion that it should be revisited, and vilification of Duncan. How traumatized she must have been having to share space with someone whose “advocacy” and “opinions from the bench land as absolute disenfranchisement of” the students’ “rights,” by her description. Someone who “literally denies the humanity of people.” She also made clear that the judge’s presence made her “uncomfortable.” Steinbach made the law school look like a clown show rather than one of the world’s most prestigious educational institutions.
In an interview, the judge called the episode a “therapy session from hell.” It involved “the underhanded manipulation” of “a particularly insidious form of the ad hominem attack: a person is labeled a ‘hater’ or as ‘denying someone’s existence’ or whatever, and so you can write that person off completely.” The irony, of course, is that the hatred—in this case including the explicit use of the h-word, aimed by hecklers at Duncan and also at the Federalist Society—comes from the faction that deems itself the enlightened purveyors of love and tolerance. A spectacle of this kind would be unimaginable at the hands of Federalist Society student members, no matter how much they disagreed with a speaker.
Last week’s outrage did yield a joint letter of apology from Stanford’s president and law school dean. They articulated that “what happened was inconsistent with our policies on free speech” and that “staff members who should have enforced university policies . . . instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.” They said they “are taking steps to ensure that something like this does not happen again” but offered no specifics.
We shall see what action the law school takes, but to state the obvious, Steinbach should be fired. Anything short of that would fail to acknowledge just how pathological it is to have a DEI officer who helps crush the diversity of ideas in an institution that should be dedicated to the cultivation of ideas. And if such counterproductive bureaucrats do not seem unusual, universities that profess dedication to DEI should question their own gaping blind spot. While they are at it, they should revisit the utility of bloated staffs in general. University-wide, Stanford lists 15,750 administrative staff for 16,937 students.
For all of their escalating costs and administrative bloat, what have these institutions of higher learning actually done to form the next generation of legal practitioners? The cancellation of speakers by leftist protesters at universities has, of course, proliferated in recent years, and even among other top law schools we have the example of the Alliance Defending Freedom’s Kristen Waggoner being shouted down as protesters reverted to physical intimidation at Yale last year.
Lest anyone think that last week’s disrupters at Stanford were a few bad apples or that the national media coverage exposing the incident would have evoked humility or self-reflection, hundreds of student activists lined the hallways yesterday in protest of law school dean Jenny Martinez’s apology. They wore black and donned face masks that read “counter-speech is free speech,” coldly staring at Martinez as she exited her constitutional law class. The Washington Free Beacon reported that nearly a third of the law school’s students participated in the protest, including about 50 of the 60 who were enrolled in Martinez’s class. One non-protester stated that those who did not join the crowd and wear black were also subjected to the “weird looks” given to the dean. “It didn’t feel like the inclusive, belonging atmosphere that the DEI office claims to be creating.”
The deeper problem is how poor a job institutions of higher learning have been doing to form the next generation of leaders in general and lawyers in particular. They are teaching the next generation of lawyers not to argue to zealously defend their clients, but to shout louder than the other side. The lawyer’s craft has devolved into pounding the table. As Duncan put it, the protesters’ “operating principle is: If I don’t like what you say or think, I will silence you. Power trumps reason. . . . [T]hese students are evidently being formed to think and behave this way by the law school itself.” If years from now “this kind of behavior is the norm in the courtroom, the law firm, the board room,” then “the rule of law will have turned into barbarism.” By at least the currently prevailing notions of the legal profession, “[u]nless those students undergo a radical change in their whole approach to argument and disagreement, they are unfit to be members of any bar.”
The Duncan episode is reason for alarm because it occurs against the broader backdrop of the intimidation of judges, which has been escalating from political threats to pack the Supreme Court to physical threats to Supreme Court justices. And then most recently on this topic, I noted the campaign to shame judges with whom the Left disagrees, with Judge Matthew Kacsmaryk a recent target.
The alarming conduct on campus illustrates that Stanford and many other law schools have become training grounds to perpetuate the worst actors in today’s political and legal arenas. If this goes on, expect those bad actors to multiply as they are reinforced by the ranks of today’s students.