The Volokh Conspiracy
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Lawless IV: Leadership Failures Old and New
The pandemic showed the weakness of the leadership class. [UPDATE: Inadvertently posted it under my byline, but it's of course Ilya Shapiro's post, as the byline now reflects. -EV]
People who study these things point to the Ferguson protests of 2014 as the discernible moment when CRT/woke ideology broke into the mainstream. I describe in Lawless how the pandemic accelerated that trend toward perceiving our nation as racially intolerant, particularly as cultural influencers retreated to their laptops. The killing of George Floyd threw gas onto that fire, as institutions decided to radically restructure themselves overnight, centered on "antiracism." Everyone all of a sudden needed a vice president or associate dean for DEI.
Indeed, the pandemic was a boon to bureaucratic leviathans wishing to crawl even further into normal life. Anything could be justified as long as it was labeled a public-safety initiative. Any questioning of regulations would be labeled thought crime. In the resultant atmosphere, institutions seemed like organs of disorder and illogic, so it's little wonder that anarchic elements arose that questioned the very foundations of law and order.
And so we have illiberal student mobs, coached by professors who increasingly see their jobs as training activists, enabled by spineless deans who allow and encourage DEI to swallow every other law school goal. Counterexamples are few and far between; they're the exceptions that prove the rule because there's not much institutional will to remedy these problems. There was some hope that things might settle down after the waning of the pandemic, but the explosion of pro-Hamas sentiment on campus after October 7 showed that the heart of antisemitism in America lies on campus, among the most "progressive" people. As Bill Ackman put it in a revelatory essay the day Harvard president Claudine Gay resigned, antisemitism is the "canary in the coal mine." It's a leading indicator of underlying pathologies, which here means everything from cancel culture to ideological indoctrination, intellectual corruption to moral decay.
In summer 2022, when Justice Clarence Thomas withdrew from teaching at GW Law School, it was one more example of the poisonous atmosphere that makes it impossible to have a free exchange of ideas. GW administrators had stood up to the mob demanding that he be canceled for his vote to overturn Roe v. Wade, but that only shows their failure to inculcate a spirit of open inquiry. It's a shame that Thomas felt the need to withdraw—and a stark contrast to the announcement that the newly retired Justice Stephen Breyer would be teaching at Harvard.
Then there was the disruption of a town hall meeting at the University of Florida held by the school's incoming president, Ben Sasse, in October 2022. When Sasse formally took office in February 2023, he was met with pounding on his office door and a list of demands that included disavowing Governor Ron DeSantis's attacks on "woke higher ed." The nerdy Sasse is no fire-breathing extremist. If that kind of nonprogressive isn't welcome in academia, none is.
The dynamic was presciently described by former Treasury Secretary Larry Summers, who had been canceled from Harvard's presidency in 2006 for discussing the greater variability among males in cognitive abilities, leading to proportionally more men at the lower and upper tails of test-score distributions. "There is a great deal of absurd political correctness [in higher education]," Summers said on Bill Kristol's podcast in 2016. "Now, I'm somebody who believes very strongly in diversity … but it seems to me that there is a kind of creeping totalitarianism in terms of what kind of ideas are acceptable and are debatable on college campuses."
In that vein, let's revisit Stanford DEI Dean Tirien Steinbach's comments, which centered on whether Judge Kyle Duncan's speech justified the "harm" his visit caused. Duncan was confused by that interjection; he was there to talk about court decisions and judicial process. How could that not be worth a federal judge's presence? Students who didn't like his views didn't have to be there. But Steinbach's message should be familiar to anyone familiar with the DEI playbook, blending cultural Marxism with therapeutic gobbledygook.
As Josh Blackman wrote on this blog, Stanford can't absolve itself by sacrificing Steinbach, whom it ultimately did let go. The institution itself had created the problem:
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.
So is the DEI juice worth the squeeze? Framing the Duncan event as a clash between free speech and equity—the same way Dean Bill Treanor framed my Georgetown experience—hides the real issue, which was revealed in Stanford Dean Jenny Martinez's letter: "The university's commitment to diversity, equity, and inclusion can and should be implemented in ways that are consistent with its commitment to academic freedom and free speech."
There's an internal contradiction. As Tal Fortgang wrote in spring 2023, DEI as employed by its professional purveyors, "is predicated on contestable progressive assumptions and a thoroughly left-wing worldview that make it incompatible with the proper practice of law." To the extent such illiberal principles continue to infuse university bureaucracies, our higher-ed institutions will systemically work against anyone who is quite literally politically incorrect.
Moreover, Steinbach used the framework of speech advocates to advance her censorial message: "Me and many people in this administration do absolutely believe in free speech.… 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." Steinbach's use of the trope that her target was "denying" someone else's "humanity" or "right to exist" is telling. It's unclear what humanity-denial even means here, but what's there to discuss with a "literal" Hitler? It was a DEI dean's attempt to "deploy the de-escalation techniques in which I have been trained," as Steinbach later wrote. It's the duty of someone with her job to indoctrinate a radical ideology and label those who disagree as enemies of humanity.
Even as Steinbach granted Duncan the noblesse oblige "not to shut you down or censor you or censor the student group that invited you here," she did so grudgingly to uphold speech policies that benefit an oppressor class. By not enforcing antidisruption rules, by commandeering a speaker's time, she was indeed censoring Duncan—and censuring the students who invited him. It was ironic, given that Steinbach represented institutional authority, which she used to "punch down" on a group that's decidedly a minority within elite law schools: conservatives.
In the end, Steinbach reinforced the Critical Legal Studies lessons I discussed on Tuesday: favoring groups according to a privilege hierarchy and dismantling any institutions that dare resist. There's real harm from such examples of the "praxis" (as Marxists call it) of critical theory, but it doesn't come from the words of white male "cisheteronormative" federal judges. DEI offices, far from advancing neutral principles of access, welcome, and belonging, narrow the Overton window of acceptable discourse. Despite the insistence of law school leaders like Martinez, Treanor, and Yale's Heather Gerken that DEI supports the basic principles of free speech and the development of legal and other academic traditions, it's the DEI project that marginalizes and excludes—and deforms the legal-education project.
