Stanford Law Protects Their Speakers From ‘Institutional Orthodoxy And Coercion’ By Forcing Their Students To Undergo ‘Mandatory Educational Programming’ – Above the Law

Kyle
Duncan’s
name
has
been
in
headlines
recently
on
account
of
his
belligerent
refusal
to
explain
his
judicial
reasoning
when
directly
confronted
coupled
with
his
schoolyard
insulting
of
Stanford
Law
students
who
disagreed
with
him.
In
response,
Stanford
put
its
diversity
Dean
on
administrative
leave
and
issued
an
apology
to
Judge
Duncan.
In
a
new
development,
Stanford
Law
Dean
Jenny
S.
Martinez
released
a
10-page
expose
on
academic
credo
that
should
give
Stanford
Law
students,
future
guest
speakers,
and
audience
members
a
taste
of
what’s
to
come.

[W]ith
respect
to
the
students
involved
in
the
protest,
several
factors
lead
me
to
conclude
that
what
is
appropriate
here
is

mandatory
educational
programming
for
our
student
body
rather
than
referring
specific
students
for
disciplinary
sanction.

…

In
addition,
a
more
detailed
and
explicit
policy
with
clear
protocols
for
dealing
with
disruptions
would
better
protect
the
rights
of
speakers
and
also
those
who
wish
to
exercise
their
right
to
protest
within
permissible
bounds,
and
is
something
we
will
seek
to
adopt
and
educate
students
and
staff
on
going
forward.
Doing
so
will
bring
greater
clarity
and
certainty
about
future
enforcement
of
the
policy,
including
through
disciplinary
sanctions
as
appropriate.

The
letter
is
well
written
enough,
but
there
are
some
obvious
questions
that
remain
after
reading.
What
is
going
to
be
the
content
of
the
half-day
thought
etiquette
course? 
Will
there
be
an
arts
and
crafts
segment
that
details
how
distracting
your
protest
cards
are
allowed
to
be?
Will
the
civility
for
dummies
course
have
some
defensive
strategems
for
what
to
do
if
the
esteemed
speaker
calls
you
some
flavor
of
idiot
like
Judge
Duncan
did?
There
should
be
some
elaboration,
given
the
recognition
of
behavior
that
is
freely
within
one’s
rights
to
express
but
still
unfit
for
whatever
culture
Stanford
is
aiming
for.

Given
this,
focusing
solely
on
punishing
those
who
engaged
in
unprotected
disruptions
such
as
noisy
shouting
during
the
lecture
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
in
a
professional
school.

There’s
also
a
dimension
of
the
letter
that
finger
wags
in
that
“for
they
know
not
what
they
do”
manner
that’s
always
lovely
to
see.
And
while
I
don’t
think
it
raises
to
the
level
of
quoting
MLK
at
Black
folks
protesting
police
brutality
or
voter
disenfranchisement,
it
definitely
has
the
“you
dishonor
the
ones
before
you
with
your
protest”
vibe.

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…Indeed,
for
the
reasons
explained
below,
I
believe
that
the
commitment
to
diversity,
equity,
and
inclusion
actually
means
that
we

must
protect
free
expression
of
all
views.

…

There
is
temptation
to
a
system
in
which
people
holding
views
perceived
by
some
as
harmful
or
offensive
are
not
allowed
to
speak,
to
avoid
giving
legitimacy
to
their
views
or
upsetting
members
of
the
community,
but
history
teaches
us
that
this
is
a
temptation
to
be
avoided…And
at
key
moments
in
history,
robust
protection
for
the
rights
of
association
and
speech
has
been
critical
to
the
advance
of
social
movements
for
historically
marginalized
groups.

See,
e.g.,
Gay
Students
Organization
of
University
of
New
Hampshire
v.
Bonner,
509
F.2d
652
(1st
Cir.
1974).
Thus,
I
believe
that
strong
protection
for
freedom
of
speech
is
a
bedrock
principle
that
ultimately
supports
diversity,
equity,
and
inclusion
and
that
we
must
do
everything
in
our
power
to
ensure
that
it
endures.

The
good
ol’
faux
pander
with
the
very
tailored
case
site.
Brilliant,
to
be
fair.
The
issue
—
and
maybe
this
will
be
discussed
in
the
mandatory
conduct
class
for
ivy
leaguers,
good
luck
with
that
one
—
is
that
the
letter
appears
to
assume
a
naïve
conception
of
how
the
tolerance
of
ideas
ought
play
out
in
academic
settings.
It
makes
sense
on
paper
to
leave
space
open
for
both
sides,
but
neglecting
the
material
reality
of
the
positions
isn’t
radical
centrism
—
it
is
sophistry:

There
are
some
views
worth
nipping
in
the
bud,
whose
tacit
approval
in
the
name
of
tolerance
and
civility
enable
social
mores
that
violate
tolerance.

Put
otherwise,
there
should
be
some
grounds
for
recognizing
legitimate
threats
to
communal
well-being
that
are
not
met
with
polite
debate,
but
exclusion.
It’s
the
old
Karl
Popper
tolerance
problem:

It
is
a
short
read
—
here
is
a
more
robust
statement
of
the
position:

Now,
is
it
really
fair
to
bring
up
extreme
matters
like
this
in
response
to
a
FedSoc
speaker?

Yes.
FedSoc
has
been
inviting
members
of
hate
groups


for
a
while
now.
And
it
isn’t
just
an
ATL
bias
against
the
Chic-Fil-A
frat
either;
a
recent
Politico
article
notes
an
apparent
anti-democratic
sentiment
that
has
been
picking
up
steam:

“Democracy
is
what
philosophers
call
an
‘essentially
contested
concept,’”
said
Daniel
Lowenstein,
a
professor
of
law
emeritus
at
UCLA
and
an
expert
in
election
law,
during
a
panel
on
Friday
evening.
“Differences
that
seem
on
their
surface
to
concern
the
meaning
of
the
word
‘democracy’,”
he
added, are
actually
struggles
to
advance
particular
and
controversial
political
ideas.”

What
democracy
does not mean,
Lowenstein
argued,
was
“plebiscitary
democracy,”
or
simple
rule
by
democratic
majorities.
Citing
the
Federalist
Papers
—
the
namesake
of
the
Federalist
Society
—
Lowenstein
suggested
that
governance
based
on
simple
mathematical
majorities
would
enable
“tyrannical
domination
of
the
minority
by
the
majority.”

“The
assumption
that
only
plebiscitary
forms
[of
government]
are
truly
democratic
is
fallacious,
and
should
be
openly
and
directly
contested
by
those
supporting
non-plebiscitary
positions,”
he
added.

Behind
me,
somebody
whispered,
“We’re
a
republic,
not
a
democracy”
—
a
tongue-in-cheek
slogan
that
some
conservatives
have
adopted
as
a
way
to
slyly
signal
their
approval
of
minority
rule.

Be
it
the
increase
in
voter
suppression
or
the

rapid
increase
of
anti-LGBTQ+
laws,
there
is
more
at
play
than
just
a
neutral
play
of
ideas.
Legitimacy
is
being
added
to
them.
That’s
a
problem
an
etiquette
class
can’t
really
solve.

The
Federalist
Society
Isn’t
Quite
Sure
About
Democracy
Anymore
[Politico]

Earlier:

Another
FedSoc
Chapter
Invites
Recognized
Hate
Group
To
Speak…
So
This
Is
Going
To
Be
A
Trend

Letter
from
Stanford
Law
School
Dean
Jenny
Martinez
To
The
Campus
Community,
March
22,
2023
[The
Fire]

---

Chris
Williams
became
a
social
media
manager
and
assistant
editor
for
Above
the
Law
in
June
2021.
Prior
to
joining
the
staff,
he
moonlighted
as
a
minor
Memelord™
in
the
Facebook
group Law
School
Memes
for
Edgy
T14s.
 He
endured
Missouri
long
enough
to
graduate
from
Washington
University
in
St.
Louis
School
of
Law.
He
is
a
former
boatbuilder
who
cannot
swim, a
published
author
on
critical
race
theory,
philosophy,
and
humor,
and
has
a
love
for
cycling
that
occasionally
annoys
his
peers.
You
can
reach
him
by
email
at cwilliams@abovethelaw.com and
by
tweet
at @WritesForRent.