ACTA in the News | Freedom of Expression

Stanford Law Dean Has the Right Ideas But Needs to Do More

REALCLEAREDUCATION   |  April 13, 2023 by Michael B. Poliakoff and Steven McGuire

If breaking a law has no consequences, is it a law at all? Stanford Law School dean Jenny Martinez has received praise—some of it justified—for her recent letter, in which she defends free expression and institutional neutrality at the school and outlines next steps in the wake of the shout-down of Fifth Circuit Judge Stuart Kyle Duncan last month. But her letter states that the students involved will not face sanctions, and she fails to make clear that there will be decisive discipline for Dean Tirien Steinbach, whose halfhearted and disingenuous intervention arguably exacerbated the disturbance. Thus, she undermines her otherwise impressive words. These failures to act communicate that Stanford’s rules are not really rules at all.

On the plus side, the dean’s letter far exceeds what we usually expect from university administrators. Dean Martinez properly references the First Amendment and California’s Leonard Law, which prohibits private colleges and universities from sanctioning students for speech that would otherwise be protected by the First Amendment or the California Constitution’s free-speech clause. She then adeptly explains that heckling and shout-downs, as opposed to “non-disruptive counter-speech,” cannot be tolerated by college administrators. This neutralization of “speech we hate” with loud noises robs all Stanford students of the opportunity to gain a better understanding of legal arguments, whether they agree with them or not.

Dean Martinez’s citation of the University of Chicago’s 1967 Kalven Report is especially welcome. The Kalven Report states that the university should not take sides in political disputes: it is “the home and sponsor of critics; it is not itself the critic.”

Dean Martinez is exactly right to say that “our commitment to diversity, equity, and inclusion is not going to take the form of having the school administration announce institutional positions on a wide range of current social and political issues, make frequent institutional statements about current news events, or exclude or condemn speakers who hold views on social and political issues with whom some or even many in our community disagree.” Doing so could establish a campus orthodoxy and an “echo chamber that ill prepares students to go out into and act as effective advocates in a society that disagrees about many important issues.”

While the Chicago Principles on Freedom of Expression are well known (99 institutions and counting have adopted them), some in higher education are increasingly recognizing the importance of institutional neutrality for freedom of expression on campus. The University of North Carolina–Chapel Hill Board of Trustees recently reaffirmed its endorsement of the Kalven Report. Stanford would do well to do the same.

According to the Martinez letter, Stanford Law will seek to adopt a clearer policy, and its students will attend a half-day session next spring on “freedom of speech and the norms of the legal profession.” These are welcome initiatives and should be made permanent.

But it is not enough to protect free expression at Stanford Law School. Dean Martinez’s letter also announces that none of the disrupters will be sanctioned for shouting down a federal judge. She questions whether the university could equitably and fairly identify those who “crossed the line” and adds that administrators at the event sent “conflicting signals about whether what was happening was acceptable or not.” Yet, the students knew the policy and were warned in advance. If they do not face consequences, what message does this send?

We must also wait to see what will become of Dean Steinbach, who is currently on leave and who recently attempted to defend her actions in the Wall Street Journal. Her insistence that she acted appropriately suggests that she might not be a fit for a law school committed to free expression and institutional neutrality.

Finally, Dean Martinez’s letter does not indicate that Judge Duncan will be reinvited to deliver his remarks.

Stanford should punish the guilty, implement policies that guarantee the rights of guest speakers and others on campus to share their views, and then ask Judge Duncan to return to the university and try again. Only then will we know that Dean Martinez’s defense of free expression represents the law of the land at Stanford Law School.

This article appeared in RealClearEducation on April 13, 2023.


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