Althouse

Stanford Law School’s website touts its “collegial culture” in which “collaboration and the open exchange of ideas are essential to life and learning.” Then there’s the culture I experienced when I visited Stanford last week.... 

When I arrived, the walls were festooned with posters denouncing me for crimes against women, gays, blacks and “trans people.” Plastered everywhere were photos of the students who had invited me and fliers declaring “You should be ASHAMED,” with the last word in large red capital letters and a horror-movie font. This didn’t seem “collegial.” Walking to the building where I would deliver my talk, I could hear loud chanting a good 50 yards away, reminiscent of a tent revival in its intensity. Some 100 students were massed outside the classroom as I entered, faces painted every color of the rainbow, waving signs and banners, jeering and stamping and howling.  As I entered the classroom, one protester screamed: “We hope your daughters get raped!”

It was a big protest, generated by the real human beings the law school had assembled as its student body, not propaganda on the institution's website. It's real life, like the life experienced beyond the courthouse and beyond the law school, and it's not that polite. You know, it's also not polite to put "trans people" in quotation marks. It's a more polished form of incivility, but law students have long protested about the way law dresses up and glosses over injustice.

Of course, “We hope your daughters get raped!” is crude and ugly, but the right to defend one's own body has been taken away by the judges, and now, in America, a woman who has been raped may be forced to endure a pregnancy from that rape. In that context, “We hope your daughters get raped!” means: You might feel some empathy for us if it happened to someone close to you.

I had been warned a few days before about a possible protest. But Stanford administrators assured me they were “on top of it,” that Stanford’s policies permitted “protest but not disruption.” They weren’t “on top of it.”

Yes. The school failed him. Not only did the website promise collegiality, administrators, it seems, directly promised conditions that he relied on. You could parse their promise. What does it mean to be "on top of it"? What is "it"? They didn't say they would stop the protest. The students had a right to protest. The line was drawn at disruption, and where's the line between protest and disruption? Can we have a collegial debate about that? I'll bet we can't!

Before my talk started, the mob flooded the room. Banners unfurled. Signs brandished: “FED SUCK,” “Trans Lives Matter” (this one upside down), and others that can’t be quoted in a family newspaper. A nervous dog—literally, a canine—was in the front row, fur striped with paint....

Speaking of empathy... don't bring a dog into a noisy, chaotic scene. And don't paint your dog. I wonder what size and breed. It is dangerous to everyone to have a "nervous dog" in a place like that, and it's cruel to the dog.

When the Federalist Society president tried to introduce me, the heckling began.... Try delivering a speech while being jeered at every third word. This was an utter farce, a staged public shaming. I stopped, pleaded with the students to stop the stream of insults (which only made them louder), and asked if administrators were present. Enter Tirien Steinbach, associate dean for diversity, equity and inclusion. 

Ms. Steinbach and (I later learned) other administrators were watching from the periphery. She hadn’t introduced herself to me. She asked to address the students. Something felt off. I asked her to tell the students their infantile behavior was inappropriate.

One could hardly expect the dean for diversity, equity and inclusion to take the judge's instruction and call the students babies. She had a lot of interests to mediate and an important, ongoing relationship with the students. 

She insisted she wanted to talk to all of us. Students began screaming, and I reluctantly gave way. Whereupon Ms. Steinbach opened a folio, took out a printed sheaf of papers, and delivered a six-minute speech addressing the question: “Is the juice worth the squeeze?” What could that mean?

It's impossible for Wall Street Journal readers to guess what that could mean. It's out of context. Metaphors look weird when you don't know what they refer to. Clearly, it's questioning whether some effort is worth what you get from it. It's not that weird.

While the students rhythmically snapped, Ms. Steinbach attempted to explain. My “work,” she said, “has caused harm.” It “feels abhorrent” and “literally denies the humanity of people.” My presence put Ms. Steinbach in a tough spot, she said, because her job “is to create a space of belonging for all people” at Stanford. She assured me I was “absolutely welcome in this space” because “me and many people in this administration do absolutely believe in free speech.” 

I didn’t feel welcome—who would? And she repeated the cryptic question: “Is the juice worth the squeeze?”

It's not that hard to understand, and you've deprived readers of the context. Steinbach's remarks made sense and dealt with the relationship between the speaker and the protesters that she needed to manage. She told him he was "absolutely welcome in this space," but he wants us to care about his feelings — he didn't feel welcome — but the students had their feelings too. Steinbach stood in a crossfire of feelings, and she did well enough.

I asked again what she meant, and she finally put the question plainly: Was my talk “worth the pain that this causes and the division that this causes?” 

Again she asserted her belief in free speech before equivocating: “I understand why people feel like the harm is so great that we might need to reconsider those policies, and luckily, they’re in a school where they can learn the advocacy skills to advocate for those changes.”

That is, Steinbach acknowledged that there are different legal positions that are taken about free speech and this, too, is a subject for debate in law school. That is certainly true. Free speech rights could be lost if people don't believe in their value. It's not that difficult to articulate the arguments for limitations on free speech. Those of us who care about free speech rights need to be vigilant. They've been under attack for centuries, and they are under attack right now, from people, like those students, who would characterize some spoken words as a physical injury.

Then she turned the floor back over to me, while hoping I could “learn too” and “listen through your partisan lens, the hyperpolitical lens.”

That sentence needs editing to put "hoping" closer to "she," but you can figure it out. She told him that she hoped he could not just talk to the students and teach them but listen to them and learn from them. She accused him of being political — hyperpolitical. 

In closing, she said: “I look out and I don’t ask, ‘What’s going on here?’ I look out and I say, ‘I’m glad this is going on here.’ ”

She was suggesting that protesting be seen in a positive light. Perhaps somehow the judge could have taken a lighthearted tone — I love protests! I was a student protester myself and I know how it feels to be righteously angry, etc. etc. — and connected it back to the things he came prepared to say. There was a path in that direction, but it was a road not taken.

This is on video, and the entire event is on audio, in case you’re wondering....

I've heard the audio. The judge becomes impassioned, and he expresses a good amount of hostility toward the students. As a law professor (retired), I can't imagine openly expressing hostility toward students who were aiming hostility at me. I lock into professor mode, mostly because I believe I have a duty to care for the students but also because I think a dispassionate, professional demeanor is more effective — especially when your interlocutors are highly emotional. Set the right example, and maybe they will meet you where you can coexist in something approaching conversation. 

Two days later, Jenny Martinez and Marc Tessier-Lavinge, respectively the law school’s dean and the university’s president, formally apologized, confirming that protesters and administrators had violated Stanford policy. I’m grateful and I accepted. 

The matter hasn’t dropped, though. This week, nearly one-third of Stanford law students continued the protest—donning masks, wearing black, and forming a “human corridor” inside the school... protesting Ms. Martinez for having apologized to me....

I don't think it was right to apologize for what Steinbach did. And I think the students had the right to protest. If they crossed the line into disruption, Martinez (and Tessier-Lavinge) should specify exactly where that happened. And they ought to apologize for the institution's failure to do enough to prevent the disruption or to deal with it quickly. 

The protesters showed not the foggiest grasp of the basic concepts of legal discourse: That one must meet reason with reason, not power. That jeering contempt is the opposite of persuasion.

I don't think the students needed to limit themselves to "legal discourse." This wasn't the courtroom or the classroom. They were protesting, going outside of the "legal discourse" that the judge would have preferred. Protesting is an old tradition, and it's important, though sometimes rude and ugly. The students seem to have thought — with some reason — that judges like Duncan deserve to be made to feel ashamed of themselves and they went into the familiar theatrical protest style we Americans have loved and hated for so many years.  

That the law protects the speaker from the mob, not the mob from the speaker.

He keeps calling students "the mob." Where's the love? These are our young people. They did not commit violence or threaten imminent violence, so there was no occasion to protect him, as First Amendment law is traditionally understood. There's no First Amendment right not to be heckled! And calling the speaks "the mob" doesn't take away their rights. 

Worst of all, Ms. Steinbach’s remarks made clear she is proud that Stanford students are being taught this is the way law should be.

She wanted the students to know that the First Amendment — which Stanford, though private, is bound to follow —  is subject to interpretation and they may apply their legal skills to working to develop strong exceptions to free speech. Ironically, Duncan is arguing for a strong exception to free speech if he means to say that the students may not shout him down. 

I have been criticized in the media for getting angry at the protesters. It’s true I called them “appalling idiots,” “bullies” and “hypocrites.” They are, and I won’t apologize for saying so. Sometimes anger is the proper response to vicious behavior.

All right, then. He stands by his angry expressions. As I said, I would not, as a law professor, talk to students that way. But he wants the freedom to lean into anger. That puts him on the same page with them. Whatever happened to "the foggiest grasp of the basic concepts of legal discourse."

There's a lot of fog here!

Duncan seems to have come prepared for all of this. He arrived brandishing his cell phone and proceeded to record the protesters.

Well, everyone has a cell phone. Is Mystal saying Duncan walked through the door with his phone aimed at the students' faces or did he merely get out his phone and record defensively? 

And, almost as soon as he left the building, Federalist Society sycophants rushed out heavily edited videos of Duncan’s appearance on social media. Then they did their old song and dance about free speech (for conservatives, not the protesters) and civility (toward conservatives, not the marginalized people conservatives hate).

For that, I add the "civility bullshit" tag to this post. 

As is usual, they collapsed the difference between the right to appear at Stanford and the right to force Stanford students to sit there like docile automatons while Duncan held forth. Everybody has the right to speak; nobody has the right to be heard over the din of the crowd. But the conservative echosphere pretends not to understand this distinction.

You will have observed that I'm not in the conservative echosphere. 

In a more extensive recording of the event—one not edited by friends of the FedSoc—Duncan can be seen being hostile and combative towards the students who stayed to ask him questions. He called some of them “appalling” (later he would call them “dogshit”) and wouldn’t answer many of their questions....

The entire escapade sure seems like a set-up. Duncan went into a hostile environment spoiling for a fight, got one, videotaped it, and then ran to his media spokes-buddies to cast himself as a victim....

I don't know. I think a carefully scripted sequence of events would not have shown the judge exhibiting hostility toward students and calling them "dogshit"! But I do think that after the incident occurred, the "conservative echosphere" hit the ground running, and the other side stood flat-footed. Mystal's essay is the first strong support of the students I've seen, and it only came out today, and the incident took place 6 days ago.

[I]n a complex, interrelated, urban society, it becomes increasingly difficult to single out who is to blame for any particular evil. There is a constant, and somewhat legitimate, passing of the buck.... It should be borne in mind that the target is always trying to shift responsibility to get out of being the target. There is a constant squirming and moving and strategy—purposeful, and malicious at times, other times just for straight self-survival—on the part of the designated target. The forces for change must keep this in mind and pin that target down securely. If an organization permits responsibility to be diffused and distributed in a number of areas, attack becomes impossible.... 

One of the criteria in picking your target is the target’s vulnerability—where do you have the power to start? Furthermore, any target can always say, “Why do you center on me when there are others to blame as well?” When you “freeze the target,” you disregard these arguments and, for the moment, all the others to blame. Then, as you zero in and freeze your target and carry out your attack, all of the “others” come out of the woodwork very soon. They become visible by their support of the target....

What if they don't support the target? The law school dean has apologized for Steinbach. Steinbach's attackers doubled down and demanded that she be fired. This non-firing is a bit of support, somewhat visible. Students are protesting the apology — as well they should! — and perhaps it will be taken back. So the tactic of going after Steinbach could be effective in getting at the larger DEI culture.

Anyway, I've been saying all along — click my "Tirien Steinbach" tag — that Steinbach, as the DEI dean, was doing what the law school hired her to do. She should not be targeted by the people who are using her as the face of their DEI culture. They should explain and defend their culture... or refine and improve it. The enemies of that culture have clamped their jaws around one part of it, and you're delusional if you think it's only about an isolatable associate dean.

Instead of explaining to the students that they should respect an invited guest at the law school (yes, a federal judge, but really this applies to any guest), even one they might disagree with passionately, she launched into a bizarre (and already printed out) monologue where she accused me of causing “hurt” and “division” in the law school community by my mere presence on campus. So, this had the effect of validating the mob. Then, at the same time, she pretended to “welcome” me to campus so that I could express my views. All of this was delivered, as anyone can see from the video, in the voice and idiom of a therapist.

He's criticizing her voice. He's tone policing!

I found it profoundly creepy.

He doesn't need protection from creepiness. If the tables were turned, and he were the lefty, wouldn't conservatives call him a "snowflake"?

It was the language of “compassion” and “feelings,” but it came across as deeply controlling and aggressive.

It "came across as".... You're calling for a person to lose her job. You, with your life tenure guarantee. Your subjective experience is worth hearing about, but it doesn't establish that she did something terribly wrong. She had a hard task to carry out, and you ought to try to understand how it felt, subjectively, to her.  

Many people are talking about the weird metaphor she used: “Was the juice worth the squeeze?” I had no idea what she was talking about, but at some point I realized that she meant, “Yes, you were invited to campus, and we ‘welcome’ you. But your presence here is causing such hurt and division. So, was what you were going to talk about really worth all this pain you’re causing by coming here?” In other words, it’s just a folksy way of giving these students a heckler’s veto.

But it's not a heckler's veto, because she was clearing the way for you to speak. She was caring for the students' concerns and simultaneously helping you.  She was engaging in an intellectual consideration of the issues of protest and the right to hear a speaker. Notice the question mark: "Was the juice worth the squeeze?" It's an important question, and she answered it in your favor while also supporting the students.

If they hate you enough, then surely it wasn’t worth your coming to campus. Apply that twisted idea to the civil rights movement, and see where you end up. It isn’t on the side of the people marching across the Selma bridge.

You reject their analogies, and I'm pretty sure they'll reject that one of yours. 

In other words, what the dean was preaching is the exact opposite of the law of free speech. We protect the speaker from the mob, not the mob from the speaker.

Was there a threat of physical violence? No. Do we protect the speaker from the words of the "mob"? Duncan must know it's not "the exact opposite of the law of free speech." This wasn't a case of the speaker being punished for riling up the crowd. It was only a case of the crowd drowning out the speaker's speech with more speech. 

And here was a dean of one of the best law schools in the world using the exact opposite of that basic principle to silence a sitting federal judge....

How was she silencing you? She was clearing the way for you, she just took longer to do it than you would have liked and she acknowledged the feelings and opinions of the protesters as she did it.

Duncan returns to the idea of a law school as the manufacturer of lawyers:

[T]he whole point of law school is to train bright-yet-unformed young minds to “think like a lawyer.” You’ve seen The Paper Chase, of course. The brilliant professor Kingsfield humbles the first year law students with his withering Socratic interrogation. Now we’ve evidently turned that model upside down.

Has he seen the movie "The Paper Chase"?! Kingsfield isn't the hero. The law student is, and the film audience is on the side of the student. The film turns that model upside down!

Ah, but Duncan's idea is that he — in the classroom — not as a professor, but an outside speaker — ought to have been respected and revered like the old-fashioned law prof. In that light, he spoofs:

The first year law students ridicule and silence Kingsfield for his cis-hetero-normativity, and then Kingsfield is publicly disciplined by the assistant DEI dean for harming the community’s sense of “belonging” by expecting them to recite a case.

Duncan was not "publicly disciplined." He was interrupted by rude noise from students, and the DEI dean restored order using an overlong speech he didn't enjoy. The dean invited the students to leave the room and they did. He was never pushed to help them feel that they belonged.

What did Duncan actually say after order was restored? He says he declined to give his prepared remarks. So what did he do instead? Did he rise to the occasion? Is there video of what went on after Steinbach spoke? I'd like to see it. 

In an obvious reference to DEI dean Tirien Steinbach’s bizarre six-minute scolding of [Judge Kyle] Duncan, their letter observes that “staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.”

As you know, I defended Tirien Steinbach.

My first question is whether Ed Whelan got it right: Were the president and the law school dean — Marc Tessier-Lavigne and Jenny Martinez — apologizing for the way Tirien Steinbach spoke? Let's read their letter, here.

They apologize for "the disruption" of the speech, which I think refers to the student protests. They attest to a policy that requires students to protest speeches without disrupting them. But then they say:

In addition, staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech. We are taking steps to ensure that something like this does not happen again. 

Did anyone other than Tirien Steinbach "intervene"? I think we have to interpret that as an accusation that Steinbach's short speech was "inappropriate" and that it was "inappropriate" because it did not adhere to the position established by the law school's policy. Tessier-Lavigne and Martinez are, I think, saying that the administrator enforcing the policy must adhere closely to its terms and not expound on other ideas and policies — even if the administrator enforcing the policy is the DEI dean and the additional ideas are the very substance of DEI. I guess the point is that policy against disrupting speakers entails a commitment to getting the speech back on track and ending the disruption quickly and without giving any reward or comfort to the disrupters. 

So while I reject Whelan's characterization of Steinbach's speech as a "bizarre six-minute scolding," I agree that Tessier-Lavigne and Martinez apologized for it. They hung Steinbach out to dry. There was not a word of encouragement for the DEI mission, her mission.

Whelan calls attention to an earlier statement from the law school dean alone to Stanford law students —  in two parts. That statement was more sympathetic to Steinbach. It credited her good intentions but said she "went awry." Whelan — who wants Steinbach fired — asks:

Why did Stanford president Tessier-Lavigne sign the apology to Duncan, rather than just leave it to [law school dean Jenny] Martinez to do so? One obvious possibility is that he was disappointed with her excuse-mongering for Steinbach and didn’t trust her to issue a proper apology.

Excuse-mongering?! To say that Steinbach meant well but went awry isn't to proffer an excuse — and it's certainly not "excuse-mongering," which would require some sort of trafficking in excuses. But it's interesting to speculate whether Tessier-Lavigne had to intervene because Martinez couldn't get it right on her own. That sounds very insulting to Martinez!

Anyway, I don't see how a school can have a strong commitment to DEI and not give more support to Steinbach. Steinbach invited students to use their legal training to consider and develop arguments for elevating DEI concerns over the right to hear invited speakers. Is that not an ongoing issue for legal analysis? I would prefer to see schools protect the invited speaker's forum, but that doesn't keep me from seeing the room for continuing debate. On the contrary, it's a lively issue that law professors ought to encourage students to delve into.

“Some law deans are already exploring ways to sidestep any restrictive ruling by reducing their emphasis on test scores and grades — criteria used in our rankings,” Eric J. Gertler, the executive chairman and chief executive of U.S. News, wrote in an opinion essay on Tuesday in The Wall Street Journal....

It's a little hard to figure out the causality. If law schools can't directly take race into account, why would they make an adjustment that puts less emphasis on test scores and grades?

Here's the WSJ op-ed. It's quite short. Here's the part that is relevant to the Supreme Court case (with the quote used in the NYT boldfaced):

[E]lite schools object to our use of a common data set for all schools because our rankings are something they can't control and they don't want to be held accountable by an independent third party. There is added urgency as the Supreme Court considers a pair of cases on affirmative action that could change admission norms. Some law deans are already exploring ways to sidestep any restrictive ruling by reducing their emphasis on test scores and grades -- criteria used in our rankings. By refusing to participate, elite schools are opting out of an important discussion about what constitutes the best education for students, while implying that excellence and important goals like diversity are mutually exclusive.

Notice how he slid from the topic of "admission norms" — who will be the students — to delivering "the best education for students" — how to serve the students.

Gertler's piece is quite crudely written — easy to read but impossible to understand!

"A few law schools recently announced that they will no longer participate in the data collection process.... However, U.S. News has a responsibility to prospective students to provide comparative information that allows them to assess these institutions.... We will continue to pursue our journalistic mission...."

Says U.S. News, quoted at Taxprof.

Wrote Fariha Amin, "a full-time worker and mother to a 6-year-old son," quoted in "Law School Accrediting Panel Votes to Make LSAT Optional/Legal-education community has been divided over testing requirement and its impact on diversity in admissions" (Wall Street Journal). 

And here's a quote from John White, chair of LSAC’s board of trustees: "This proposal will be highly disruptive. The change won’t be worth it, and we won’t get the diversity we are looking for."

I wonder how he knows... how he thinks he knows.

There's also council member Craig Boise, dean of Syracuse University College of Law: "I find the argument that the test is necessary to save diversity in legal education is bizarre." 

How is it "bizarre"? It's something I've heard for more than 30 years. (I was a lawprof for more than 30 years, and I often served on the admissions committee. I've read many real applications and seen the relationship between LSAT scores and other aspects of an applicant's qualifications.)

The LSAT produces a hard number, and it feels secure to rely on such things. But you can rely too much, and the U.S. News ranking has for decades rewarded schools that rely heavily on this number. The question is who will contribute to the class in law school and go on to do good work, not who did best on one structured, high-pressure test.