The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Stanford Disruption: Who Should be Apologizing to Whom?
There have been too few apologies for what transpired, not too many.
Over the weekend, Stanford Law School (SLS) Dean Jenny Martinez and Stanford President Marc Tessier-Lavigne apologized to Judge Kyle Duncan for the disruption of an event at which he was invited to speak at the law school. Some progressive groups and commentators objected to the apology, and suggested Dean Martinez should apologize to them. So who should be apologizing to whom?
Let's step back for a minute and think about the role of an apology. The purpose of an apology is to acknowledge and accept accountability for one's own actions (or inaction). It is about recognizing that one did not behave as one should and owning up to it. Whether or not one should apologize has nothing to do with whether the person mistreated is worthy of an apology. It's about you, not about them.
If you mistreat a bad person, you should apologize to them. If it was in response to something they did, perhaps they should apologize to you too. That "they did it first" or "they did it too" is not an excuse (as we should have all learned in grade school). We should each be responsible and accountable for our own conduct. And if two sides of a dispute both did wrong, then both should apologize.
How does this apply to the dust up at SLS? First, I think it indicates that it was perfectly appropriate for the Dean and President to apologize to Judge Duncan. The school did not adhere to and enforce its own speech policy, and as a consequence Judge Duncan was not treated the way an invited speaker should be. The apology acknowledges this, and that's good. But that should not be the end of it.
More than to Judge Duncan, an apology is owed to the student Federalist Society chapter and those who attended the event in the hopes of hearing Judge Duncan's remarks. Dean Martinez and President Tessier-Lavigne (and the SLS administrators who sat idly by as the event was disrupted) should apologize to these students because it is these students—as members of the Stanford academic community—who were the primary victims of the school's failure to adhere to its own policy.
As the text of Stanford's policy makes clear, the intended beneficiaries of the policy are members of the Stanford academic community (though it extends to "all individuals"), and it is the members of that community who are hurt most when the policy is not abided by. Consistent with Stanford's policy, all student groups should be able to plan events at which they discuss issues of interest to their members, free of disruption from others. If the school fails to ensure these rights are protected, those in charge should apologize for that. As of yet, they have not done so.
The apparent failure of Stanford's leadership to apologize to the organizers and audience of the event suggests they do not fully understand what was so bad about last week's events. Further, by apologizing to Judge Duncan but not to the students, the Dean and President have created the impression that they care more about the Judge's prominence and stature than they do about their own students and the principles underlying the policy. That's bad on multiple levels and I hope it is corrected.
And what about Judge Duncan? As various video clips and the full audio of the event make clear, Judge Duncan also misbehaved. He lost his cool. Both at the event and in at least one subsequent interview, he said things that were wholly inappropriate. However much he was provoked, Judge Duncan did not exhibit the temperament and demeanor we should expect from a federal judge, and not just at the event. Student misconduct at the event may explain why he responded rudely and dismissively to some questions, but it does not excuse it (and certainly cannot explain some of his comments in subsequent interviews). It was okay for Judge Duncan to be angry – I would certainly be mad if this happened to me – but it was not okay for him to act on his anger the way that he did. Thus he too should apologize. Again, that others misbehaved does not excuse one's own misbehavior. By any reasonable standard, Judge Duncan said things a judge should not say, and he should own up to it.
Lots of regrettable things were said and done last week at SLS. There have not been too many apologies for what happened. There have been too few.
UPDATE: Judge Duncan has published an op-ed about in the Wall Street Journal, "My Struggle Session at Stanford Law School." The article provides his perspective on what happened before, during, and after the event. It closes with the following:
I have been criticized in the media for getting angry at the protesters. It's true I called them "appalling idiots," "bullies" and "hypocrites." They are, and I won't apologize for saying so. Sometimes anger is the proper response to vicious behavior.
Whether or not Judge Duncan had this post in mind when he wrote that paragraph, I think it confuses two points: 1) whether it was reasonable (or even proper) for Judge Duncan to be angry; and 2) whether it was proper to act out of anger as he did. As I wrote in the original post: "It was okay for Judge Duncan to be angry – I would certainly be mad if this happened to me – but it was not okay for him to act on his anger the way that he did." Anger may be an explanation, but it is not an excuse, and even if one thinks their anger is justified, that does not mean they should not apologize for acting out of anger.
I will also confess that I hold Judge Duncan to a higher standard than I do the Stanford students, as he is an Article III judge. We properly hold judges to a higher standard of behavior because of their role, and thus we properly expect judges to show contrition for acting out when we might not have any such expectation of others who engaged in similar conduct.
