My Warm Up for Judge Duncan—and What Next for Stanford?

Stanford University, Image by Sima Ghaffarzadeh from Pixabay 

I supplied a rehearsal, or perhaps merely, a gesture of foreplay, for the spectacle that was loosed upon my friend Kyle Duncan recently at the law school at Stanford. I was invited to do a lecture there four years ago by the Federalist Society. And of course a campaign was launched by the Left to cancel the talk. The blackboards were being filled with passages drawn from my writings, passages that were held to be repugnant to the prevailing orthodoxies of the day. The lecture was on Natural Law, but the subject didn’t matter, and this point hasn’t broken through yet to many potential invitees. Whoever a conservative speaker is, the activists will go on the net, and search their writings, in articles or judicial opinions. Almost anything they find can furnish a pretext quite good enough to feign outrage and mount a campaign. In my own case, two student members of the Board of the Federalist Society resigned over my coming, in sympathy with the protest. And in that way, they exposed themselves as the opportunists they were, hoping that membership in the Federalist Society would offer signals and open doors for clerkships with notable judges. 

But there was no attempt to shout me down or block me from speaking. The room had its proper fill of students voicing hostile questions. By simply sticking with the substance of my argument, I was able to reply with a sharpness good enough. In the case of Judge Kyle Duncan, a Dean of Diversity, Equity & Inclusion, Tirien Steinbach, was called on to bring order to the room—or to deal with a disorder that she herself had a prime hand in choreographing. As indeed with the walkout she led, followed by students with presumably high LSAT scores who couldn’t summon the wit or the courtesy to hear a substantive argument not to their liking.

The Dean of the law school, in her letter of apology to Judge Duncan, strained her reserves of euphemism when she described Ms. Steinbach’s display as a “well intentioned” effort “at managing a room” that just “went awry.” The occasion recalled rather that famous line of my late leader, Mayor Daley in Chicago, who said that “the police are not there to create disorder. The police are there to preserve disorder.” Dean Steinbach was pretending to manage a tumult that she herself had generated. And there was nothing “well-intentioned” in her supposed “welcoming” of Judge Duncan—it was malicious and illiterate through and through, from demeanor to text.

Another Dean now has reached out to the members of the Federalist Society and offered to bring them into the healing hands of Dean Steinbach “if you would like support or would like to process last week’s events.” But what counseling is being offered now to those students who spat out obscene epithets at the judge, and sought to prevent him from speaking? These may indeed be the students who come under  Dean Steinbach’s portfolio to  protect, the students who feel deeply threatened and unsafe when they encounter speakers, say, on abortion or transgenderism, that are too jarring for them. We may have here a true iatrogenic disorder: a doctor called upon to treat a malady that she herself has created.   

A friend of mine, another federal judge, has been invited to speak at Stanford in the coming weeks. The Dean of the law school has said that the school is “taking steps to ensure that something like this does not happen again.” And so it is fair—and necessary—to ask now: What precise measures have you put in place to insure that this will not happen again? Apart from the presence of respected faculty and administrators, what sanctions do you have in mind for the students who might again disgrace the law school in this way? We have learned in recent days that Dean Steinbach has been placed on leave, though that has not stopped her from defiantly defending her actions as—brace yourselves—”de-escalation techniques.” However, no disciplinary measures for students would apply to those students who personally disrupted Judge Duncan’s planned address. The Dean of the law school has cited Dean Steinbach’s failure to “administer clear and specific warnings and instead to send conflicting signals about whether what was happening was acceptable or not.” She cited that as the primary reason against holding the heckling students accountable. Rather, all future students at Stanford Law will undergo a mandatory half-day of instruction on how to conduct themselves in accord with the principles of open exchange at a law school. In true woke fashion, we let the culprits go and punish the innocent.

But the treatment of Judge Duncan was not merely conduct ill-fitting a law school. It was a show of contempt for the principles of respect for civil discourse that are utterly necessary to the character of any place that would call itself a University. How can such incidents be prevented in the future? Any future lecture could be handled as an RSVP affair, so that the law school would have the names of everyone in attendance, and if the protestors had the courage of their convictions, they could confirm their names in the army of protest.

But there were also cameras at Stanford, and as it turned out, a group on campus was able to identify some of the key students who led the walkout—and that elicited, in turn of course, cries of protest.  There were cameras at work at that famous protest at my own University of Chicago in 1969, when students occupied the Administration building for over a week. Forty-two of the students were expelled and eighty-one put on different levels of suspension.  But that took place at a University with an Administration ready to say, in effect, that “what you’ve done severs your moral connection to the character of this University” or to any other, serious academic place.

The question now is whether the officers of Stanford University can summon the nerve and the moral conviction—and the self-respect—to speak those kinds of words and carry through with them.

Hadley Arkes is the Founder and Director of the James Wilson Institute as well as the Edward Ney Professor Emeritus of Jurisprudence at Amherst College.
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