The Volokh Conspiracy

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The Shortsighted Complaint at Stanford Law School

This attempt at a "Gotcha" moment backfired.


Yesterday, Eugene blogged about an incident at Stanford Law School. I am still in the process of learning more about the specific facts, but here I wanted to address the issue at a high level.

Conservative students often complain about double standards. One set of rules seems to apply to progressive groups, and a different set of rules applies to conservative groups like the Federalist Society. And one way to highlight any double standards is to call the other side out for any transgressions. Alas, turnabout is seldom fair play.

Consider two recent incidents. The Rutgers Student Bar Association tried to force FedSoc to host CRT events. This policy was blatantly unconstitutional. Fortunately, FIRE intervened, and the law school begrudgingly relented. Yet, that story received zero press. Beyond my blog post, I did not see coverage anywhere other than the FIRE Blog.

FIRE also intervened on behalf of the student at Stanford. (Kudos to FIRE for protecting speech, regardless of who is speaking!). And this story made the New York Times and other leading outlets. The juxtaposition between these two incidents is stark. FIRE helps FedSoc, crickets. FIRE attacks FedSoc, national headlines.

We can draw some lessons here. Conservatives cannot expect to use liberal institutions to fight for conservative causes. More often than not, these efforts will backfire. Using the student disciplinary process as a "gotcha" moment for an obvious political satire may feel good in the moment. But that complaint had an entirely predictable process: martyring the student, creating a backlash against FedSoc, and alienating people who might otherwise be interested in learning more about right-of-center thought.

Every now and then, students ask me if they should file misconduct complaints against other students or groups. My advice is almost always don't do it. These efforts are counterproductive, and will not achieve the desired goals. A good analogy is public interest litigation. Groups like IJ or Goldwater or PLF or Becket or ADF do not bring every case to challenge every wrong. They select cases very carefully. They choose the right, sympathetic plaintiff. They select the right, unsympathetic defendant. And they choose the right time and forum to bring the case. They prepare an elaborate public relations campaign. And so on. Students should learn from these groups. The two-page complaint filed at Stanford was ill-advised, and was poorly thought through. It did not reflect the sophistication I would expect from Stanford FedSoc member. (And from what I've gathered, this complaint was filed by an individual member of the organization, and not the organization itself).

We should learn from this incident, and do better next time.