Stanford Law Dean Tries to Reconcile University’s Commitments to DEI, Free Speech

In a Wednesday letter to the Stanford Law School community, Dean Jenny Martinez presented a case for reconciling diversity, equity, and inclusion (DEI) with free speech and announced the school’s next steps after heckling students and a school administrator derailed federal judge Kyle Duncan’s March 9 presentation. We “cannot function as a lawschool from the premise … that speakers, texts, or ideas believed by some to be harmful … justify a heckler’s veto,” she said.

Martinez announced four steps the school is taking in response to the incident. First, “Associate Dean Tirien Steinbach is currently on leave.” Steinbach, Stanford Law’s dean of DEI, was one of the school officials present at the March 9 event, where the campus chapter of The Federalist Society had invited Judge Duncan to speak. But instead of enforcing the school’s policy against disruptions — of which students had been reminded that very morning — she took the lectern herself and joined in their criticism of Duncan in a six-minute speech.

Second and related, Martinez said “all staff will receive additional training” regarding their role at a university event. “At future events, the role of any administrators present will be to ensure that university rules on disruption of events will be followed” (emphasis in original).

Third, Martinez announced “mandatory educational programming for our student body rather than referring specific students for disciplinary sanction” (emphasis in original). This will take the form of a “half-day session” in the spring on “freedom of speech and the norms of the legal profession.”

Martinez gave several reasons why administrators ruled out disciplining students who disrupted Duncan’s address. These included: the difficulty in creating “a fair process for identifying and distinguishing between” students who “engaged in constitutionally protected non-disruptive protest” and those who “crossed the line into disruptive heckling,” “the failure by administrators in the room to timely administer clear and specific warnings,” and the fact that disciplining only behavior not protected by the First Amendment “would leave perversely unaddressed the students whose speech was perhaps constitutionally protected but well outside the norms of civil discourse that we hope to cultivate.”

Fourth, Stanford Law will “seek to adopt and educate students and staff on … a more detailed and explicit policy with clear protocols for dealing with disruptions.”

Martinez also attempted to persuade the student body that DEI and First Amendment freedoms go hand-in-hand. “The university’s commitment to diversity, equity, and inclusion can and should be implemented in ways that are consistent with its commitment to academic freedom and free speech,” she argued. In fact, “the commitment to diversity, equity, and inclusion actually means that we must protect free expression of all views.”

Appealing to Stanford’s 1974 Statement on Academic Freedom, which states that “expression of the widest range of viewpoints should be encouraged, free from institutional orthodoxy and from internal or external coercion,” Martinez pointed out, “unless we recognize that student members of the Federalist Society 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.”

Martinez explicitly countered the notion that harmful or offensive views should be silenced “to avoid giving legitimacy to their views or upsetting members of the community.” First, she noted, “the cycle of degenerating discourse won’t stop if we insist that people we disagree with must first behave the way we want them to. … The cycle stops when we recognize our responsibility to treat each other with the dignity with which we expect to be met.” Second, “history teaches us that this is a temptation to be avoided. … The power to suppress speech is often very quickly directed towards suppressing the views of marginalized groups.”

Martinez took pains to clarify that her defense of free speech — arguments now often heard only from conservatives — did not imply opposition to DEI values, nor was inconsistent with believing “that our LGBTQ+ students, faculty, and staff are valued members of our community of scholars.” Instead, she emphasized these values expressed “the basic norms of pluralism that underpin our operation as a university.”

Martinez offered concrete examples of how a law school could promote DEI without undermining academic freedom. “We support diversity, equity, and inclusion,” she said:

• “By encouraging thoughtful and critical discourse about the law and legal system, by training students to offer substantive critiques of injustice that they encounter, by teaching future lawyers how to marshal evidence that supports their point of view and how to make arguments that convince others.”
• “When we encourage people in our community to reconsider their own assumptions and potential biases.”
• “When we encourage students to connect with and see one another as people.”
• “When we teach each and every one of our students how to be the best possible lawyer they can be, and take those skills of advocacy out into the world.”

However, Martinez added, the school would not fulfill its DEI commitment by “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.”

In fact, such an approach would be “incompatible with the training that must be delivered in a law school,” argued Martinez. “Law is a mediating device for difference. It therefore reflects all the heat of controversy, all the pain and suffering, and all the deeply felt moral urgency of our differences in position, power, and cherished principles.”

“Law students are entering a profession in which their job is to make arguments on behalf of clients whose very lives may depend on their professional skill,” added Martinez. “Just as doctors in training must learn to face suffering and death and respond in their professional role, lawyers in training must learn to confront injustice or views they don’t agree with and respond as attorneys.”

Martinez concluded, “we cannot function as a law school from the premise … that speakers, texts, or ideas believed by some to be harmful inflict a new impermissible harm justifying a heckler’s veto.”

Martinez’s missive is likely to anger some on both sides, as she predicted. On the Left, hundreds of students have protested her for apologizing to Judge Duncan for their behavior. On the right, Stanford College Republicans Vice President Stephen Sills said, “Stanford has taken steps in the right direction, but Stanford has not nearly gone far enough. Steinbach must not just be put on leave. She must be unequivocally fired for her shameful conduct.”

Doubtless, Martinez and her fellow administrators are in an unenviable position. Ongoing public attention on the controversy can only tarnish the top law school’s reputation and prestige. A threatened boycott of Stanford Law graduates by federal judges could eliminate its ability to recruit top talent, threatening the school’s viability. Yet a sizable and well-organized Marxist faction in the student body remain unrepentant and incorrigible. And ideological commitments to academic freedom, free expression, and pluralism — both avowed by the school and required by California law — limit the administration’s tools for reform.

Still, Stanford Law’s proposed corrective actions are the non-corporal equivalent of a slap on the wrist. Martinez has said publicly — and repeated — that associate dean Steinbach did not uphold school policy; under the circumstances, a suspension is the least possible punishment. As for the student offenders, mandatory reeducation training for all students (that’s what it is) amounts to a four-hour timeout, which those who don’t care about free speech will summarily ignore.

Martinez does point out some legitimate difficulties with meting out punishments, but these are hardly adequate excuses. She claimed that such punishments “would leave perversely unaddressed” behavior “well outside the norms of civil discourse” but not outside the protections of the First Amendment, which Martinez clarifies Stanford is not allowed to punish under California law. This is an argument for the collective punishment of mandatory education on free speech, but it is not an argument against punishing misbehavior. She also noted that part of the problem was misconduct by the administrators in egging on those disrupting the event, rather than warning them to stop. This exacerbates her weak action against Steinbach but hardly justifies not punishing those who clearly crossed the line.

Martinez also appealed to the difficulty is distinguishing students who engaged in First-amendment-protected protest from those who crossed the line. This difficulty will hardly be overcome by clarifying a policy. Her proposed alternative is to let everyone who crossed the line go unpunished, which seems likely to embolden students participating in future protests to cross the line — much like Antifa members often camouflage themselves among a legitimate, peaceful protest, dart out to commit violence, and then melt back into anonymity.

In fact, Martinez undermines all her arguments by stating the policy in eight words: “Protest is Allowed but Disruption is Not Allowed.” Who could misunderstand that? This policy was clearly communicated to all students on the morning of March 9, and yet students loudly disrupted the event anyways.

More likely, Martinez is reluctant to admit that school administrators are powerless to effectively rein in the rowdy, irrepressible activism of the campus’s powerful Marxist contingent. Any attempt to discipline those who disrupted Duncan’s address — which, as she pointed out, would be difficult in its own right — would likely result in boisterous, constant, and sustained disruption of ordinary campus business — not only by the large number of violators, but by roughly the third of students in solidarity with them. If this is true, it raises questions about whether a substantial portion of Stanford law students actually desire to be educated in the law, or whether they simply desire an environment that conforms to their every demand.

This underscores a fundamental weakness in Martinez’s case for reconciling DEI and free speech, as correct as that case might be. Namely, the target audience is not interested in listening. The vast majority of those pushing DEI in universities have no deep-rooted commitments to free speech — or any other fundamental American value, for that matter. They are fundamentally Marxists or “woke,” or whatever the latest label for critical theory is. They fundamentally believe that politics is a struggle between oppressor and oppressed, and that all means are legitimate to overthrow a dominant power system. If language about free speech or other individual rights serves that purpose, they are willing to employ it. But, as soon as it hinders their agenda, they will discard it like a McDonald’s drink on a Maryland highway.

Still, there’s one thing for which Martinez deserves far more credit than she will receive. Contemporary conservative philosopher Yuval Levin has lamented, “What stands out about our era in particular is a distinct kind of institutional dereliction — a failure even to attempt to form trustworthy people, and a tendency to think of institutions not as molds of character and behavior but as platforms for performance and prominence.” In her 10-page letter, Martinez breaks that mold.

Despite the use of personal language, it’s difficult to tell whether Martinez personally believes in Stanford’s simultaneous commitments to DEI and free speech and personally believes they can be compatible or whether she is simply representing the position required by California law, expected by students, and most calculated to serve the interest of the institution she leads. She tries her hardest to put forward the best case why radical Marxist students should “buy in” to the school’s commitment to free speech, even in pursuit of their own interests. This mindfulness about the institution counts to Martinez’s credit, and it’s a worthy model for emulation, even among those dissatisfied with her recipe for combining DEI and free speech.