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

Posted in: Constitutional Law

For those of us who live our lives in the field of higher education, events that seem internal to our world sometimes unexpectedly burst into public view. As I will describe below, while some of those instances are genuinely interesting, others are manufactured public-relations events that have been ginned up by people whose larger agenda is to attack higher education itself.

In any event, the 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.

A Letter from Your President: Everyone Must Stop Acting Like Children!

Dear Students, Faculty, Alumni, and Friends,

I write to you today out of a sense of deep concern. A great deal of public outcry has accompanied a distorted story that grew out of a contentious guest lecture last month at a law school in California. The invited lecturer (a federal judge with obvious ambitions to be appointed someday to the Supreme Court) has been given loads of media attention, claiming to have been mistreated. An administrator has been suspended for supposedly not doing her job. And the national conversation has again been manipulated to make it appear that our universities are seething cauldrons of intolerance and closed-mindedness.

That would be bad, if it were true. But because my job is to make Fair-minded U. a place for, dare I say, fair-minded inquiry (a joke that never gets old, no matter that it is not funny), I have decided to write to you today to report the facts of what happened in California and how our university will respond to a similar situation, if something like this were to visit our campus.

To set the table, I should state up front that many of you are in fact very young, and our job is to help you make the transition from late adolescence into full adulthood. I take seriously any claim that people are acting childishly, especially when those people are not students but are in fact supposedly mature adults. But I am getting ahead of myself.

To begin, it was not easy to find a full rendition of the facts of the case out in California. Most of the media coverage and hot-takes—in the supposedly sensible center as well as the right—were based on an incomplete story supported by a strategically edited video of the appearance at Stanford Law School by Judge Kyle Duncan. Luckily, a more complete story has been published, although it has sadly not penetrated the pearl-clutching responses that have dominated the news. Of particular interest to us at FU is this:

[T]he protesters peppered the judge with questions and criticisms but did not drown out his speech. Instead, a frustrated Duncan asked for an administrator to step in to tamp down the heckling. At that point, Tirien Steinbach, the associate dean for diversity, equity, and inclusion (and a Black woman), approached the judge. In the video, it appears he did not recognize that she was the administrator he had requested; “You’re an administrator?” he asked. Students began shouting to explain to the judge that Steinbach was an administrator (and that is when [the widely circulated] video begins). Reluctantly, Duncan let Steinbach speak. She told the students that she agreed with their criticisms of Duncan, but that they had to let him express his views. (Duncan responded that she had participated in a “setup.”) Steinbach also invited protesters to leave if they wanted to, and many exited. Videos reviewed by Slate show that a student leader of the protests then asked the audience to stay silent so Duncan could talk. They did.

In another media account, the student who heads the group that invited Judge Duncan to speak on campus claimed (in what was otherwise a mild defense of Dean Steinbach) that “[i]f she was the administrator whose job was to enforce the no-disruption policy, then yeah, she totally failed.” Dean Steinbach has been suspended (or is “on leave,” which is plainly some form of punishment).

Let me state clearly, as your president, that I will never allow our university to punish a person who in fact did her job admirably. The situation needed to be de-escalated, and she succeeded in doing so. Again, after she spoke, one of the protesting students “asked the audience to stay silent so Duncan could talk. They did.”

That Dean Steinbach did so while expressing her opinion about the judge’s opinions does not make her accomplishment any less impressive. Nonetheless, Stanford chose to go after the one person involved who is neither a future alum (and potential donor) nor a “respected” federal judge. They went after a person whose job status is unprotected by tenure. We at FU will never scapegoat the most vulnerable person in the room, even if (as very much did not happen in the situation at hand) that person makes an honest mistake.

But beyond the made-for-cable-anger editing of the event, I want to address the larger issue of being open to other points of view. As two of my scholarly colleagues at the University of Illinois’s law school recently wrote in an excellent column on Verdict (a top-notch legal magazine that I highly recommend), there are very difficult questions about where and how to draw lines when it comes to “shouting down” speakers. Perhaps because I spent so many of my younger days as a parliamentary debater, I can easily tell the difference between being heckled and being silenced. That someone becomes frustrated by heckling and changes their planned talk in response (as Judge Duncan apparently did, turning from prepared comments to a remarkably combative Q&A period) is simply not a matter of being shouted down. We at FU will do what is necessary to allow speakers to speak, but we also understand that a speaker who complains about being heckled is being, for lack of a better term, a snowflake.

More to the point of the public criticism of the Stanford protesters, and the more general claim that “kids today” are too soft and weak to engage with ideas, let me be clear. As far as I can see, if the protesters were being childish, then the students who invited the judge to speak—and certainly the judge himself—were being infantile.

First, the judge. He reportedly showed up on campus aggressively responding to protesters and even prominently holding up his smartphone to show that he was recording them. (This makes his claim that he was the victim of a “setup” an especially naked example of projection.) When he received negative comments and hostile questions during his remarks, he responded by escalating the nastiness. In one instance, he called a student “an appalling idiot”; and after the event, he went on cable news and said that the “coddled law students” had behaved like “dogshit”—yes, that was his word—and telling Stanford that it should discipline the students who irritated him.

I can tell you all, my colleagues as well as my students, that FU is never going to stand for any speaker, even one with the power of a federal appellate judge, bullying our community. Had that incident happened here, I would have gathered information and allowed our internal due process to reach a just result. Because I happen to have been trained in the law, however, I am especially appalled by the lack of judicial temperament that the judge displayed both while he was on Stanford’s campus and after. He might have seen how now-Justice Brett Kavanaugh advanced his career by having a meltdown borne of entitlement and privilege, but we at FU expect our invitees—and certainly those who are middle-aged jurists—to set an example of respectful engagement with diverse viewpoints. If there was a child in this case, it was the judge. He has, I suppose, the right be a jerk, even as a guest on a university campus, but that does not mean that anyone should excuse or applaud him for exercising that right.

Finally, let me address the other children in the room—not the protesting students but their classmates who invited Judge Duncan to speak in the first place. We at FU certainly encourage students to engage in extracurricular activities, including career-building endeavors that we make available on campus. Even so, when any of our students use those opportunities to contrive “free speech” events that are mere pretexts for expressing their own grievances against other students, we should think about the situation skeptically.

Let me be clear that the students who invited the judge to speak at Stanford knew exactly what they were doing. That judge was only barely confirmed to the bench because of his long record of hostility to underserved communities, and he had recently made news by going out of his way to refuse to address a litigant in his courtroom by their preferred pronouns. Given that the pronouns controversy has been hyped on the right for the last several years, the students who invited the judge knew that they were not bringing onto campus a speaker who would engage in a robust debate about legal or other issues. He was a provocateur, and he delivered on his role by provoking people exactly as he intended—and as his hosts expected him to do.

But why would the students who invited the judge do that? They are part of a national organization—the same organization that spent millions of dollars to put that judge on the bench in the first place—and a political movement that treats “owning the libs” as an end in itself. They have said so, over and over again. And student groups like this have taken on the role of setting up their classmates by inviting speakers not for their likely ability or willingness to “engage with ideas” but for the pain and discomfort that they will create for other students.

We have some students like that on our campus, too. Why would they be so deliberately nasty, manipulating the university’s processes to bring in someone to “stick it” to their non-conservative peers? Apparently, they feel aggrieved, and they do not like the fact that their political views make them unpopular on campus.

At FU, we know that “being liked, in spite of the content of my opinions” is not what any right to free speech is all about. When a student opines in class that, say, eugenics is a valid scientific theory and should be used to guide population policy, other students are fully within their rights to reject that student socially and to express their opinions about his opinions. More pointedly, when a student organization chooses a speaker whose views are not only unpopular (which, again, is not a reason to refuse to listen to someone) but are specifically aimed at the personhood and rights of other students, that is simply a matter of deliberate nastiness. If they go down that road, they deserve only what the law requires, nothing more.

Children often dislike it when other children disagree with them. Acting out by finding an adult who will yell at the other children might be satisfying, but it is still childish. At FU, we expect our students—all of our students—to be tough, smart, and resilient, so much so that they do not resort to inflaming their colleagues merely because of the sense that their unpopularity is “so unfair.” Parents whose children try to manipulate them into punishing their siblings for responding to a deliberate provocation should not be fooled. As we at FU try to allow our students to grow into an adulthood that will involve dealing with the reality of one’s own possible unpopularity, we have no sympathy for the young adult version of: “Johnny doesn’t like me, so punish him!”

We will always respect the law, the ideals of academic freedom, and the importance of robust debate. If our students ever cross the blurry line into shouting or shutting down honest (if heated) disagreement, then we will take appropriate and lawful action. But if our students create controversy for its own sake and then try to get us to focus only on those whom they have targeted, we will take similarly appropriate and lawful action. And just as we hold ourselves to the standard of being gracious hosts, we expect our guests to act accordingly.

Most importantly, we will not be goaded into viewing a controversy only through the lens of cable-news-driven outrage. We are better than that, and because we care about encouraging true engagement with ideas both popular and unpopular, we will hold everyone to the high standards that our university has always sought to uphold. We do not want anyone to act like children, especially those who have not been children for decades.


President Lamont Themis

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