Stanford Law Hasn’t Fixed Its Free Speech Reputation Yet

Stanford Law Hasn’t Fixed Its Free Speech Reputation Yet

Public servants who won’t bow to the demands of leftism have targets on their backs. That’s bad enough. To make things worse, some of the worst ideologues taking aim at them are students at our nation’s most influential law schools. 

Simply consider the thuggery directed at Judge Kyle Duncan, a Catholic father of five and former religious freedom lawyer, during a speaking engagement last week at my alma mater, Stanford Law School, where I served two of my three years there as president of the student body. 

A belligerent and unruly group of the law school’s students shouted down this judge from the Fifth Circuit court of appeals at an event hosted on campus by Stanford’s Federalist Society chapter. The event was titled “The Fifth Circuit in Conversation with the Supreme Court: Covid, Guns, and Twitter.” The protest had nothing to do with any of those topics and everything to do with Duncan’s defense of liberty and the rule of law.  

Before his nomination to the bench by President Trump, Duncan served from 2012 to 2014 as general counsel of the Becket Fund for Religious Liberty, the religious freedom legal powerhouse. His work included serving as lead counsel in Hobby Lobby’s successful challenge to the Affordable Care Act’s contraceptive mandate.    

Duncan also courageously represented a Virginia school that directed students to use restrooms consistent with their sex. He also represented North Carolina Republican lawmakers in their defense of a bill directing schools and other facilities with single-sex washrooms to permit exclusive use to people with the appropriate biological sex on their birth certificates.  

As a federal judge on one of the nation’s most influential courts of appeals, Duncan reviewed a case brought by a sex offender whose lawsuit demanded his court records be changed to refer to him with his new legal female name and a motion on appeal to refer to him using female pronouns. The court denied both requests.

In reference to the latter request, Duncan explained that “no authority supports the proposition that we may require litigants, judges, court personnel, or anyone else to refer to gender-dysphoric litigants with pronouns matching their subjective gender identity.” 

So, in Palo Alto, an estimated 100 protesters prevented the federal judge from giving his prepared remarks. Each time Duncan began to speak, they would heckle him with insults, shouting things including “Scumbag!” and “You’re a liar!” When he asked for an administrator to keep order, things went even more off the rails.  

Tirien Steinbach, the associate “diversity dean” at the law school, delivered a six-minute speech she had previously prepared. Steinbach worked as a program officer at the American Civil Liberties Union, an organization that was founded to defend free speech, before assuming her position at Stanford. Yet Steinbach’s diatribe condemned Duncan’s life’s work.

“For many people at the law school who work here, who study here, and who live here, your advocacy — your opinions from the bench — land as absolute disenfranchisement of their rights.” She then asked: “Is the juice worth the squeeze?” When Duncan tried to reply, students screamed: “Let her finish!”— a courtesy they refused to give him   

Two days after the event, Stanford President Marc Tessier-Lavigne and Stanford Law School Dean Jenny Martinez issued a joint letter of apology to Judge Duncan for the students’ violations of university policies on speech. “We write to apologize for the disruption of your recent speech at Stanford Law School. As has already been communicated to our community, what happened was inconsistent with our policies on free speech, and we are very sorry about the experience you had while visiting our campus,” they wrote.  

What is that policy? Stanford and all of its schools, including the law school, expect that any member of the faculty, staff, or student body will not “prevent or disrupt the effective carrying out of a University function or approved activity, such as lectures, meetings, interviews, ceremonies, the conduct of University business in a University office, and public events.” 

Such a policy reflects the university’s and law school’s historic commitment to civil rights and respect for viewpoint diversity, one the law school community understood when I attended.

During my graduation ceremony, a group of my classmates protested the administration’s decision to withhold an offer of tenure to a well-regarded clinical professor by staging a quiet walk-out during the remarks of a member of the tenure committee. Objecting students quietly returned to their seats when the professor finished her remarks.

Unlike the respectful opposition of yesteryear, Stanford Law students and faculty today use guerrilla warfare. And some school administrators see no problem with joining in.   

Tessier-Lavigne and Martinez recognized in their letter to Duncan 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.” Astoundingly, however, they made no mention of whether Steinbach would be disciplined or reprimanded.  

Responding to a request for comment by National Review’s Ed Whelan, Duncan graciously accepted the administrators’ apology. He added: “I hope a similar apology is tendered to the persons in the Stanford law school community most harmed by the mob action: the members of the Federalist Society who graciously invited me to campus. Such an apology would also be a useful step towards restoring the law school’s broader commitment to the many, many students at Stanford who, while not members of the Federalist Society, nonetheless welcome robust debate on campus.”  

The mob may have silenced Duncan during his recent visit to Stanford Law School, but I hope it’s not too late for those entrusted with forming the next generation of lawyers to have the last word. One day those hysterical protesters will join the legal profession and hold positions of influence. Before they graduate, Stanford Law and other top law schools must invest the time and find the inclination to teach the true meaning of free speech. 

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[By: Andrea Picciotti-Bayer

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