THE STANFORD UNIVERSITY WAR BETWEEN THE DEI DEAN TIRIEN STEINBACH AND LAW SCHOOL DEAN JENNY MARTINEZ HEATS UP

Stanford DEI dean escalates; Stanford law dean cowers; and more

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From NRO’s Bench Memos:
Stanford DEI Dean Escalates Battle against Law-School Dean

In a remarkable op-ed in the Wall Street Journal, Stanford law school DEI dean Tirien Steinbach escalates her battle with law school dean Jenny Martinez. Steinbach had already given Martinez ample cause to fire her. It’s difficult to see how Martinez could avoid doing so now.

Before we look at the particulars of Steinbach’s op-ed, let’s briefly sum up the context in which she wrote it:

Two weeks ago, when Stanford law students disrupted Judge Kyle Duncan’s speech at a Federalist Society event, Steinbach seized the occasion to deliver six minutes of prepared remarks in which she chastised Judge Duncan. Two days later, Stanford’s president and Dean Martinez issued a joint letter of apology to Judge Duncan for the disruption of his event in violation of Stanford’s policies on free speech. In an obvious reference to Steinbach, the joint apology observed 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.”

Just yesterday, Dean Martinez followed up with a long letter to Stanford students that reiterated that the disruption of the event violated Stanford’s policies. In her letter, Martinez revealed that she had placed Steinbach on leave. In explaining university policy, Martinez pointedly observed:

[W]hen 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. For that reason, I stand by my statement in the apology letter that at the event on March 9, “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.”

Now let’s look at Steinbach’s op-ed:

Steinbach never recognizes or acknowledges that the disruption of Judge Duncan’s event violated Stanford policy. Indeed, she never acknowledges that any disruption occurred. She instead says that there was merely a “heated exchange,” “a verbal sparring match,” in which “[s]ome protesters heckled the judge and peppered him with questions and comments” and Judge Duncan “answered in turn.” That is a gross distortion of what occurred and in direct conflict with Martinez’s apology and letter.

Steinbach never acknowledges or apologizes for her own gross misconduct. On the contrary, she defends her conduct in terms that directly conflict with Martinez’s criticism of her: She aimed “to give voice to the [protesting] students.” She “wanted Judge Duncan to understand why some students were protesting his presence on campus” so that he could ponder “Is the juice worth the squeeze?” So much for Martinez’s admonition that administrators “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.”

Steinbach fundamentally disagrees with Dean Martinez (and with Stanford’s president) on the role of freedom of speech and on the relationship between free speech and “diversity, equity, and inclusion” (or DEI). In her apology to Judge Duncan, Martinez stated: “Freedom of speech is a bedrock principle for the law school, the university, and a democratic society.” In her letter yesterday, Martinez explained that “the commitment to diversity, equity, and inclusion means that we must protect free expression of all views.” As her question “Is the juice worth the squeeze?” indicates, Steinbach instead sees a need to “strike a balance” between values of freedom of speech and DEI that are often in conflict.

Steinbach’s op-ed is titled “Diversity and Free Speech Can Coexist at Stanford.” But Martinez and Steinbach have very different ideas of what such co-existence involves. It is difficult to see how Martinez and Steinbach can co-exist at Stanford. It’s time for Martinez to realize that Steinbach’s juice isn’t worth the squeeze.

Stanford Law Dean’s Letter Responding to Student Complaints—Part 2

Having praised the free-speech principles that Stanford law dean Jenny Martinez set forth in her long letter to students, I’m sorry to say that the third part of her letter—on “next steps”—is disappointing. In particular, her categorical refusal to refer any disrupting students for disciplinary sanction and the feeble reasons she offers in support of her refusal severely undermine the principles she professes.

Martinez sets forth three “factors” that lead her to conclude that referring disrupting students for disciplinary sanction is inappropriate. None of her three factors makes any sense, and their makeshift nature suggests that Martinez is looking for an excuse not to punish students.

First, Martinez raises the concern that punishing disrupting students “may chill constitutionally protected speech.” If Stanford’s policy threatened a chilling effect on protected speech, that would be a damning criticism of the very policy that Martinez so eloquently defended in the first two parts of her letter. But there is no reason to think that punishing those who clearly engaged in disruptive activity would chill the speech of nondisruptive protestors.

Second, Martinez contends that “the failure by administrators in the room to timely administer clear and specific warnings and instead to send conflicting signals about whether what was happening was acceptable or not … renders disciplinary sanction in these particular circumstances problematic.” (Martinez’s sentence is ungrammatical, as there was not a “failure … instead to send conflicting signals”; in lieu of “instead to send,” she means something like “and their instead sending.”) But, as Martinez acknowledges, “students had been generally informed of the policy against disruptions (including by schoolwide email the morning of the event).” How much notice do law students need? What’s more, the major disruptions occurred before DEI dean Tirien Steinbach’s weird intervention, so Steinbach’s “conflicting signals” can’t be blamed for what preceded them.

Third, Martinez argues that “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.” But this perverse result follows directly from California’s Leonard Law, which requires Stanford to abide by First Amendment principles in disciplining students. There is separate action that Martinez could explore regarding those who made “vulgar personal insults” that are “perhaps constitutionally protected.” (She could, for example, identify them publicly and/or ensure that their unprofessional conduct is made known to bar- admissions commissions.) Instead, she has set up a perverse incentive for disrupting students to avoid discipline by arranging for fellow students to make vulgar personal insults.

Martinez instead is requiring all students to take part in a half-day session “on the topic of freedom of speech and the norms of the legal profession.” So students who did not misbehave at all—and, indeed, the Federalist Society members who were on the receiving end of much abuse—are receiving the same punishment as the disrupting students: having to spend three or four hours of their time on a session that they may have no interest in and no need for.

This Day in Liberal Judicial Activism—March 24

1997—By a vote of 4 to 3, the Ohio supreme court rules in DeRolph v. State that Ohio’s existing system of financing its public-school system violates the state constitution’s declaration that the General Assembly “make such provisions, by taxation or otherwise, as will secure a thorough and efficient system of common schools throughout the state.” The court orders the General Assembly to “create an entirely new school financing system.” (How a school system can ever be “thorough and efficient” so long as self-serving teachers unions have clout is a mystery that the court did not explore.)

2009—Reviewing yet another Ninth Circuit grant of habeas relief on a claim of ineffective assistance of counsel, the Supreme Court (in Knowles v. Mirzayance) again unanimously reverses the Ninth Circuit. Perhaps it is not surprising that a court laden with so many incompetent judges is inept at determining what constitutes incompetent legal advice. __________________________________________

M. Edward Whelan III
Distinguished Senior Fellow and

Antonin Scalia Chair in Constitutional Studies
Ethics and Public Policy Center
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www.EPPC.org