Last week on Verdict, I wrote a column in which I debunked what has quickly become the dominant narrative about a recent controversy at Stanford Law School. The next day, I published a follow-up piece on Dorf on Law: “Fabricated Outrage and the Right’s Attack on Higher Education.” One of my main points in those columns was that the Stanford incident has been wrongly (and quite deliberately) portrayed as a good-faith effort by conservative-leaning students to engage in robust debate, an effort that was thwarted by a mob of intolerant campus lefties.
It was nothing of the kind. Indeed, the national organization that coordinates these events—and amply funds them—is openly engaged in efforts to gin up just the kind of politically useful controversy that the Stanford incident now represents. In light of that, my original idea for a headline on today’s column was: “Performative Outrage and the Aggrieved Conservative Campus Speakers Ploy.”
I will go into some detail about that aspect of the story in due course, but I also want to ask more broadly how American universities should respond to an intense campaign by movement conservatives to stoke made-for-cable-outrage imbroglios. There are no easy answers, but it is important to ground any response in a recognition of reality. Specifically, this was not a spontaneous student-on-student controversy but rather part of a deliberate political campaign—a long con that feeds conservatives’ tropes about free speech on campus being “under siege.”
If that is in fact the case, the ones laying siege to the American university today are doing a great job of portraying themselves as the victims, rather than the perpetrators. Our response must begin with ending the pretense that this is merely a series of unrelated incidents with liberal students playing the role of bullies. That is not only misleading but completely backward.
What Not to Do When Responding to a Campus Controversy
I noted in my Verdict column last week that the only person who suffered real consequences after protesters disrupted an arch-conservative judge’s appearance at Stanford was the one person with no real power: Tirien Steinbach, the law school’s untenured Associate Dean for Diversity, Equity, and Inclusion.
The students have power because the law school knows that many of them will become wealthy potential donors. The right-wing student organization has power because it is a chapter of the national organization that has effectively been given the authority to select judges and justices during Republican administrations. The federal judge who spoke at Stanford has power, obviously—and, not at all surprisingly, he was successfully pushed onto the bench by that very same national organization.
I should note that I am not bothering to name that organization, because doing so merely brings attention to their brand. And besides, nearly everyone knows who they are. What matters, in any case, is not what they call themselves but what they do.
In any event, Stanford’s administration continues to defend its scapegoating of the least powerful person in the room. In a combative letter to the Stanford Law community, the current dean argued that her underling deserved her fate because Associate Dean Steinbach’s (successful) effort to calm the situation included comments that made clear that she disagreed substantively with the judge’s views. The letter includes this puzzler:
Enforcement of university policies against disruption of speakers is necessary to ensure the expression of a wide range of viewpoints. It also follows from this that when a disruption occurs and the speaker asks for an administrator to help restore order, the administrator who responds should not insert themselves into debate with their own criticism of the speaker’s views and the suggestion that the speaker reconsider whether what they plan to say is worth saying, for that imposes the kind of institutional orthodoxy and coercion that the policy on Academic Freedom precludes.
Just how this “follows” is unclear, and it is also unclear how an associate dean’s comments to a US Court of Appeals judge constitute “coercion.” There was no imposition of institutional orthodoxy. Saying to a petulant speaker, “Are you sure you want to do this?” is miles away from a violation of academic freedom, especially when there were no threatened consequences to a negative reply (and none ensued).
Indeed, the associate dean’s intervention helped to achieve the goals of restoring order and allowing the event to continue, because what she said gave her the credibility then to say to the students that even though she agreed with their substantive objections, it was nonetheless important that the event be allowed to move forward. That enhanced the event—indeed, it saved it—which is what she appropriately set out to do.
The law school’s official letter goes on to reiterate the dean’s previous apology to the judge—the same judge who called one of the students during Q&A in the event “an appalling idiot” and who later went on national television and said that the Stanford Law students had acted like “dogshit.” As I pointed out in my columns last week, the right’s response to this incident frames it all as a matter of “coddled children” on university campuses, whereas the biggest baby in the entire story was the judge himself—a man who figuratively crossed his arms and held his breath, refusing to continue his remarks and instead choosing to move directly to Q&A, where he proceeded to bully students who dared to make him unhappy.
To me, an apology to the lead actor in that melodrama—a repeated apology, no less—does not seem like “best practices” for university administrators who are looking to guarantee free and fair debate on campus. If, however, the goals are to suck up to a “feeder judge” and to try to counter bad public relations, then one can only say: mission accomplished.
What to Do When Bad-Faith Controversy-Mongering Masquerades as Innocent Intent?
In my column last Thursday, I cited a Verdict column by Illinois Law’s Dean Vik Amar and his colleague Professor Jason Mazzone. There, Amar and Mazzone carefully explained how difficult it is to draw the line between an audience’s negative response to a speaker and “shouting down” a speaker. That column was the first part of a two-part series, and the second half was published three days ago.
I highly recommend that readers look at both halves of the Amar/Mazzone series, which are thoughtful and calmly reasoned. Among other things, their understated style and tone are a stark contrast to the satirical, ironic, and sarcastic choices that I made in writing my column last Thursday. Style aside, however, they make many of the points that I think are the most important to emphasize in this debate. (To be clear, I do not know whether they agree with all or only some of what I have written. I do not mean to associate them with my arguments generally but only to note a few essential points on which their written words make it abundantly clear that we are on the same page.)
Of particular note, Amar and Mazzone offered this key observation:
Let’s be honest. Student groups (acting within their rights) often invite people who don’t deserve an audience; student groups sometimes are unsophisticated about which speakers have anything interesting and defensible to say; and student groups are often manipulated by outside organizations that have political agendas but no real commitment to meaningful exploration and discovery of knowledge, ideas, empirical data, etc.—the very mission of universities.
As hard as it is to ignore loud know-nothings, it can be an effective device. Both of us are often asked why we didn’t attend a lunchtime session in which a student group had invited a rabble-rousing (if sometimes publicly prominent) provocateur who (if past is prologue) was unlikely to offer anything interesting or insightful.
Later in their column, they add this:
[A] university might well permit student organizations to bring in any outside speaker they want. But that doesn’t mean the university cannot also give those organizations some general advice about how to go about choosing speakers who will best serve the organizations’ programmatic goals. In our experience, student organizations often go for a speaker who has been in the headlines, when somebody less noisy could deliver richer substance on the same topic.
Just because someone is a judge does not stop him from being a provocateur. And I very much agree that “student groups are often manipulated by outside organizations.” I am not saying that the student members of the local chapters of those national organizations are (or are not) in on the con. I am saying, however, that there is indeed a coordinated campaign to send flamboyant and explosive right-wing speakers to American university campuses. That campaign is plainly not designed to generate robust debate but to provoke outrage from the left—in particular by sending speakers whose views are objectionable not merely in the sense of highlighting policy or ideological disagreements but by advancing arguments that bring into question the personhood and the very value of the lives of easily identifiable left-wing students and groups. Having poured the gasoline and lit the match, the provocateurs then feign surprise (and hurt feelings) when the house catches fire.
The national organization in question, in fact, has a list of approved speakers and removes speakers from that list for any number of reasons (sometimes even for defensible reasons). Only by inviting speakers from that list will student organizers receive reimbursement for speakers’ expenses, honoraria, and so on. What happens if a conservative student or group thinks, “Gee, that judge who caused all of those problems at Stanford is more devoted to making noise than providing a rich educational experience, so we’ll invite someone who agrees with that judge about legal philosophy but who does not call students ‘dogshit’”? Unless that more sober alternative speaker is on the centrally approved list, no money will flow unless the students receive special dispensation from the national organization. Allowing that, however, would undermine the whole enterprise.
Much of the Stanford dean’s defiant letter to her community is essentially an extended argument to the effect that law schools have the right under First Amendment doctrine (as applied to private institutions like Stanford by California state law) to do what Stanford did. I read the Amar/Mazzone friendly advice to say something like this: What you can do and what you should do are quite different here; so maybe the better path would be to be aware that sometimes bad actors will ‘play’ you. (Again, I am using my more assertive tone there, which is not how Amar and Mazzone’s beautifully restrained prose is constructed.)
Why Would any University Allow Itself to “Get Played”?
Even though it is true that a university or law school administration could offer a much more aggressive response in dealing with outside agitation by a lavishly funded and extremely politically powerful national group, many (including one of the most powerful universities in the country) instead choose to knuckle under and apologize. Why would they do that?
The short answer is that they are engaged in a particularly annoying form of virtue signaling. They understand how well the American right has mis-framed the narrative about college campuses being hotbeds of illiberal leftists, and they see how the powerful voices of the establishment media reward those who are willing to say: “We are nonpartisan, nonideological defenders of academic freedom and free speech. Respect us.”
Indeed, the letter from Stanford’s dean was soon lauded by one of The New York Times regular columnists, who called the letter “powerful” and wrote that “the center is fighting back on some of the most elite campuses in the country, that some of the ‘best’ still do, in fact, possess the necessary convictions.” Virtue signaled!!
That columnist also put a halo on this passage from the Stanford letter: “Unless we recognize that student members of [the local chapter of the national organization] and other conservatives have the same right to express their views free of coercion, we cannot live up to this commitment nor can we claim that we are fostering an inclusive environment for all students.” It might be worth noting here that the columnist in question built his career (which included being a writer for the right-wing National Review) by leading an organization that makes complaints about “campus orthodoxy run amok” its main focus.
But what exactly is the coercion that Stanford’s dean is worried about (other than the nonexistent coercion from her associate dean, which I discussed above)? How are the conservative students being coerced? As I have argued here on Verdict, being unpopular among one’s peers is not coercion or “enforced” orthodoxy. When I was in graduate school in economics, it was unpopular to discuss issues of distribution (because “fairness” is so subjective!!) rather than efficiency (which is purportedly objective, even though it is anything but). I could have decided not to say anything in class, and indeed, conservative economists have bragged that they used “whispers and giggles” to shame non-conservatives during university seminars. I eventually chose to change fields, but if I had not done so, I would have known what the orthodoxy was and how it was enforced. But that is not coercion in the sense that it was used in the Stanford letter. Not even close.
Even so, it plays well not just among conservatives but among those who view themselves as the “sensible center” to extol the virtues of “open and fearless debate.” The letters that The Times published in response to that column about campus controversies (the one that said that “the center is fighting back”) is a veritable cornucopia of pompous assertions of self-righteousness and dedication to a “bedrock principle of our constitutional democracy.”
To be absolutely clear, I am not saying—and would never say—that anything goes when it comes to protesting speakers on a university campus (or anywhere else). Actually shouting down speakers is wrong and cannot be allowed. Administrators do not have an easy job when it comes to these difficult matters, some of which are necessarily line-drawing exercises. I think Stanford got it completely wrong, but there probably was not a completely right choice, so I can only say that they should have tried to err less than they did. Full reinstatement of Associate Dean Steinbach, along with an apology, would be a good start. (A salary bump sounds good, too.) Clearly, however, they are dug in on this one. It is apparently better not to defy the conventional wisdom.
In the end, it is a recipe for disaster to fail to see through the schemes of individuals or organizations who are acting in bad faith. Naively accepting these incidents as organic disputes among people who disagree but mean well only encourages more of the same, empowering destructive behavior and all but inviting the bad actors to do their worst. The Stanford event was staged, and its aftermath has moved the narrative in a very bad direction. But that is surely what the people who set it in motion wanted from the start. No one else should play along.
