The Volokh Conspiracy
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Watching Judge Kyle Duncan's experience at Stanford Law School brought me back to my protest at the CUNY Law School. The CUNY students refused to let me speak. They interrupted me with crass comments and invective. And after they finished protesting, they stormed out of the room–none were actually interested in what I had to say. But there was one big difference between 2018 and 2023. At CUNY, an associate Dean intervened and warned the students not to interrupt me. The Dean did not go on a lengthy rant about how awful my views were. Now, granted, after the Dean left the room, she did nothing to actually stop the disruptions. But at least at CUNY, circa 2018, the administration could still be distinguished from the hecklers. Not so at Stanford Law School. If you haven't already, read David Lat's excellent summary of the event. (I am deeply grateful that David exhumed himself from the now-moribund Above The Law; subscribe to his Subtack and support his vital work.)
Here, I'd like to focus on the remarks of Tirien Steinbach, the SLS Associate Dean for DEI. A common theme she repeated was whether Judge Duncan's visit justified the harm he was causing to the community. Steinbach asked, Is the juice worth the squeeze?
Steinbach: I'm also uncomfortable because it is my job to say: You are invited into this space. You are absolutely welcome in this space. In this space where people learn and, again, live. I really do, wholeheartedly welcome you. Because me and many people in this administration do absolutely believe in free speech. We believe that it is necessary. We believe that the way to address speech that feels abhorrent, that feels harmful, that literally denies the humanity of people, that one way to do that is with more speech and not less. And not to shut you down or censor you or censor the student group that invited you here. That is hard. That is uncomfortable. And that is a policy and a principle that I think is worthy of defending, even in this time. Even in this time. And again I still ask: Is the juice worth the squeeze?
Duncan: What does that mean? I don't understand…
Judge Duncan's confusion is warranted. He was there to talk about actual decisions of his court, and how those cases affected Supreme Court jurisprudence. Students attend an elite institution like Stanford to learn firsthand from luminaries like sitting federal judges. How could those comments possibly not be worth Duncan's presence on campus? If students did not think Duncan's remarks were worthwhile, they could have done anything else. Like wait on line at a Silicon Valley Bank branch. But Steinbach's remarks should make sense to anyone who has witnessed the explosion of DEI in recent years.
On Saturday evening, the Stanford President Marc Tessier-Lavigne and Law School Dean Jenny Martinez issued a joint apology. Why was the letter signed jointly? Ed Whelan speculates that the President "was disappointed with [Martinez's] excuse-mongering for Steinbach and didn't trust her to issue a proper apology."
The letter promptly threw Steinbach under the bus:
In addition, 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.
Good for the President and the Dean! (Update: I now realize that referring to Steinbach as "staff" rather than a "Dean" is quite disparaging–one might even say, "dehumanizing.") But Stanford cannot absolve itself of this problem by sacrificing Steinbach as a scapegoat. (To be clear, I suspect Steinbach will be quietly reassigned in six months after things quiet down with a nice settlement offer.) Rather, Stanford created this problem by establishing, reinforcing, and growing the DEI bureaucracy.
When a university empowers DEI to deem speech "harmful," DEI will deem speech "harmful." When a university empowers DEI to designate spaces as "safe," DEI will deem spaces as "safe." When a university allows DEI to treat some people as "oppressors," DEI will treat those people as "oppressors." When a university teaches students that "harmful" speech has no place on a campus, the students will take steps to prevent "harmful" speech on their campus. This protest was a direct byproduct of what students have learned for years.
Every word in Steinbach's speech reinforces these core planks of DEI. And her speech was obviously prepared in advance. She was so confident in her beliefs that she delivered those remarks, knowing she would be recorded. Steinbach no doubt thought she was on the right side of the university. Did Dean Martinez approve this conduct in advance? Or did Steinbach thinks she did not need to run her tirade by the Dean first? In either case, we have witnessed the endgame of DEI. These officials are empowered to extend their tendrils into every facet of an academic institution, with or without the backing of the Dean. Their mission is not to promote learning or academic inquiry, but instead to advance a specific ideology, which I refer to as DEIdeology. These beliefs are not trying to achieve a goal of neutrality. Rather, consistent with anti-racist teachings, they seek to use their newly-acquired power to elevate preferred messages and to deplatform "harmful" speech.
I firmly believe that many people support DEI efforts in good faith as a means to improve conditions on campus. And these offices can do important work. But the debacle at Stanford Law School is the logical conclusion of DEIdeology. At the bottom of that slippery slope is Tirien Steinbach.
So let me ask the same question that Steinbach posed? Is the DEI juice worth the squeeze? I'll assume for the sake of argument that these departments provide some benefit to academic institutions. I only assume, because there is some evidence these programs do not actually provide any tangible benefits. Moreover, many of those purported benefits with regard to admissions and hiring will likely soon be declared illegal by the Supreme Court. But let's assume there are benefits.
Still, what are the costs of DEI? The core purpose of an academic institution is to promote the pursuit of knowledge. I quote from the venerated Kalven Committee report:
The mission of the university is the discovery, improvement, and dissemination of knowledge. Its domain of inquiry and scrutiny includes all aspects and all values of society. A university faithful to its mission will provide enduring challenges to social values, policies, practices, and institutions. By design and by effect, it is the institution which creates discontent with the existing social arrangements and proposes new ones. In brief, a good university, like Socrates, will be upsetting. . . .
The neutrality of the university as an institution arises then not from a lack of courage nor out of indifference and insensitivity. It arises out of respect for free inquiry and the obligation to cherish a diversity of viewpoints. And this neutrality as an institution has its complement in the fullest freedom for its faculty and students as individuals to participate in political action and social protest. It finds its complement, too, in the obligation of the university to provide a forum for the most searching and candid discussion of public issues
Any activity that thwarts this mission is immediately suspect. Apparently, students at Stanford are taught to abandon that pursuit of knowledge, and instead ask a federal circuit judge, "Why can't you find the clit?" I'm sure the student who asked this question thought he was doing exactly what he had learned, and there would be no repercussions for his action. If that is what DEI taught him, and the others who disrupted Judge Duncan's speech, then the DEI juice at Stanford is not worth the squeeze.
Let me close with a plan of action. Every university should survey their DEI office, with a single question: do you agree with the Stanford President that Steinbach acted "inappropriately"? If the answer is anything other that yes, then the scope of the DEI office's authority and budget should immediately be revisited. Forget squeezing juice. To paraphrase Justice Scalia, the budgetary pencil should be driven through that bitter rind.
Update: Judge Duncan gave an interview with Rod Dreher, and addressed the "juice" metaphor:
Many people are talking about the weird metaphor she used: "Was the juice worth the squeeze?" I had no idea what she was talking about, but at some point I realized that she meant, "Yes, you were invited to campus, and we 'welcome' you. But your presence here is causing such hurt and division. So, was what you were going to talk about really worth all this pain you're causing by coming here?" In other words, it's just a folksy way of giving these students a heckler's veto. If they hate you enough, then surely it wasn't worth your coming to campus. Apply that twisted idea to the civil rights movement, and see where you end up. It isn't on the side of the people marching across the Selma bridge.
In other words, what the dean was preaching is the exact opposite of the law of free speech. We protect the speaker from the mob, not the mob from the speaker. And here was a dean of one of the best law schools in the world using the exact opposite of that basic principle to silence a sitting federal judge. I just read back through what I wrote, and I find it hard to believe what I'm describing. And yet it happened. You can watch the video.
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