By Tal Fortgang
Thursday, April 13, 2023
Stanford Law School has responded, if imperfectly, to the debacle of March 9. After Judge Kyle Duncan of the Fifth Circuit Court of Appeals was heckled, derided with obscenities, and blocked from giving his full prepared remarks, the super-elite school responded with a bit of force that, while encouraging on the surface, did not disturb the roots of the problem of systemic bias.
Tirien Steinbach, the diversity, equity, and inclusion (DEI) dean who delivered the viral six-minute lecture hectoring Judge Duncan for his temerity to try to speak while conservative, is now on some kind of administrative leave. University president Marc Tessier-Lavigne and law-school dean Jenny Martinez apologized to Duncan several times. Most encouragingly, Martinez issued a memorandum explaining how the law school would try to inculcate the value of free speech among its students through mandatory training sessions, and presumably to explain how the heckler’s veto runs afoul of that value.
Though these responses do fall short of what is due the students who hurled despicable insults at a visiting federal judge — not investigating and expelling whoever allegedly shouted at Duncan “I hope your daughters get raped!” seems particularly deficient — they are a start. Most reactions to the incident, including those from conservative critics of the illiberal turn in higher education, have cast the shocking altercation between Duncan, the snotty Stanford students, and Steinbach as a major battle in the war for free speech. And many have received Martinez’s insistence on free speech’s primacy as an encouraging sign that elite universities have turned a corner after years of cowardice on the issue.
But seeing the incident primarily as a collision between free speech and DEI, personified by Steinbach in her snide performance, pushes the core issue under the rug. The real trouble is summed up by a line in Martinez’s memo: “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.”
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Martinez may be correct that Stanford Law’s commitment to what it believes DEI to stand for can be made to conform with free speech and academic freedom, two important values of contemporary law schools. But DEI cannot be made to conform with a law school’s openness to those who dissent from a very narrow progressive orthodoxy. Rather, it entrenches progressive orthodoxy in the legal academy and profession. In turn, a generation of lawyers educated under DEI principles will act not as lawyers should, but as an army of partisan activists trained to view history and current events as one oppression after another — an outlook that is anathema to the precedent- and institution-based logic of law — and far more dedicated to progressive maneuvering than to upholding the rule of law.
That is because DEI, notwithstanding its neutral-sounding name, is predicated upon contestable progressive assumptions and a thoroughly left-wing worldview that make it incompatible with the proper practice of law. As long as DEI remains a part of higher-education administration, universities will be systemically biased against conservatives, or anyone unsure of today’s trendy orthodoxies.
To see just how the practice of DEI and its most basic principles undermine these commitments to free speech and academic freedom, all we need to do is look at how DEI concepts are wielded by people trained to implement them. We need consider no more than Steinbach’s words, prepared in advance with the goal of bringing the full weight of the DEI concept-world down on Judge Duncan and his Federalist Society hosts.
In her now-infamous refrain “Is the juice worth the squeeze?” Steinbach rhetorically asked whether Judge Duncan had something so important to say that it was worth the “harm” his presence caused Stanford Law students. But to focus only on free-speech implications and pillory Steinbach accordingly is to forget that this question is often a good one. A stable, free society allows and even encourages citizens to ask themselves whether exercising their right to speak freely at a given moment, in a given way, is beneficial or harmful to those around them. Sometimes a legally protected act of expression can be bad; burning an American flag, yelling one’s hope for rape against a fellow citizen’s family, and Sieg Heil-ing all tear at our social fabric and detract from our ability to live together peaceably.
Yet in this instance Steinbach deployed the metaphor before Duncan had said anything substantive, and with no indication that the speech itself would involve anything objectionable. Rather, she relied on the common DEI theory that merely platforming someone who holds certain views is intrinsically harmful: “For many people in this law school who work here, who study here, and who live here, your advocacy, your opinions from the bench, land as absolute disenfranchisement of their rights. . . . For many people here, your work has caused harm.” The juice-and-squeeze calculation, then, was not about assessing the value of the words to be spoken but rather about casting suspicion on the person trying to speak. It also places standard legal work — the writing and debating of opinions by judges who often hold competing views — outside the bounds of acceptable discourse.
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By placing a mark of disrepute on a speaker only because of his past remarks or writings, Steinbach slams the Overton window shut on anyone who has previously placed himself beyond the present orthodoxy. In most cases, that means placing a target on conservative speakers who have transgressed law-school orthodoxies regarding identity and autonomy. In this case, someone whom students can identify as conservative was preemptively lumped in with the neo-Nazis and racists, in a failure to make the distinction between disagreement and enmity that marks a civilized country. That is a far more restrictive standard than one recognizing simply that some speech is legal but destructive — and it raises the question of just what the “I” in “DEI” really means.
Steinbach proceeded to use pro-free-speech language to cloak some extraordinary accusations against Duncan: “Me and many people in this administration do absolutely believe in free speech. We believe that it is necessary.” Steinbach continued: “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 hardly maintains the line of institutional neutrality here, much as she tries to appear as if she sees both sides. Rather, she defers to the “feelings” of the crybullies who consider Duncan — again, not his speech, but his very presence — abhorrent and harmful. This suggests that the feelings of one group of students are more important than those of another (more on the Federalist Society in a moment). More important, it treats as irrelevant the question of whether those feelings are warranted.
The most astonishing claim is that Duncan’s history of speech “literally denies the humanity of people.” For not having previously acquiesced to progressive views about homosexuality and gender ideology, that is, Duncan was deemed guilty of literally (in its figurative sense) using his power as a lawyer and judge to set the stage for genocide. The verbal tic of crying humanity-denial has become so common that it is easy to shrug off, but this was no petulant student, no rogue activist claiming something so outlandish and defamatory. It was a trained DEI administrator stepping up to “deploy the de-escalation techniques in which I have been trained,” as she later wrote in the Wall Street Journal.
If this is what results from DEI training, the whole movement’s harmfulness should be obvious. Steinbach’s expressions of disgust were central to what she saw as her role in that situation. She is, in a sense, right: The goal of a DEI administrator is to institutionalize progressive views by deeming conservatives to be violators of basic human decency and categorically unworthy of a hearing.
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Steinbach does not acquit herself much better in her subtle distinctions between in-group and out-group. Unsurprisingly, Stanford’s Federalist Society chapter is an out-group. Steinbach congratulates herself and the rest of the Stanford administration for having chosen “not to shut you down or censor you or censor the student group that invited you here.” The various identity-based groups that denounced Judge Duncan are normal; the Federalist Society is aberrant or deviant. This is precisely the attitude that DEI theorists claim to abhor, since distinctions between normal (and therefore institutionally powerful) and deviant (therefore powerless) allegedly reflect categories that were socially constructed to justify discrimination and mistreatment. Yet Steinbach’s own words demonstrate that the DEI goal in practice is not to make all feel welcome but to turn the tables on those who supposedly shouldn’t be.
Steinbach put it even more bluntly later in her speech: “I am not, you know, in the business of wanting to . . . shut down speech, because I do know that if they come for this group today, they will come for the group that I am part of tomorrow.” In her capacity as associate dean for DEI, Steinbach is supposed to be there for all Stanford students. But even in scripted remarks tailored to this foreseeable altercation, she let slip that “this group” — the Federalist Society — not only was not “the group that I am part of” but was one she disapproved of. In practice she does not work for all students — not if they belong to the Federalist Society.
A number of key DEI concepts are at play here. One is that individuals from “traditionally marginalized communities” (those defined by race, sexuality, gender identity, and so on) have special insights into the nature and urgency of their own plight (a principle known as “positionality”). When Steinbach credits these students for being in touch with the true effects of Duncan’s presence, she is relying on positionality to give her favored students (“the group that I am part of”) greater credence than she affords Duncan and his hosts.
Another DEI concept is that certain forms of verbal disagreement amount to a denial of humanity. Rather than encouraging students to examine in their context whatever statements Duncan had made — and to evaluate them on their own terms — Steinbach purports to fit Duncan’s views of gender, sexuality, and race into an alleged millennia-long campaign to oppress and eradicate minorities. (In the words of one student heckler: “You know who can’t listen? The people vilified by your decisions! . . . Queer and trans people killed by your decisions.”) This catastrophizing of disagreement is a presumption, by those who believe they are on the righteous side of an epic human struggle, that they must confront manifestations of entire systems of lethal oppression. Judge Duncan was, to these students, not merely a conservative person. He was systemic racism, sexism, and transphobia personified. Rather than disabusing students of this dehumanizing and toxic attitude, Steinbach did what her DEI training had prepared her to do: She fanned the flames.
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The DEI worldview, which appears procedural and nonideological, is in fact quite substantive. Steinbach and the heckling students learned well from DEI’s theorists and practitioners to view all social relations as a confrontation between oppressor and oppressed. They also learned to try to even the score by, for instance, favoring members of the oppressed class in admissions (diversity), aiming for equal outcomes between groups (equity), and altering any institutions that resist those goals (inclusion). Again, this attitude could not be more inimical to the proper practice of law, which looks to precedent and existing institutions with reverence rather than incurable suspicion. The attitude thereby cultivates elites who would discard the rule of law tomorrow if it meant they could fix the injustices that are more important to them than anything else — including public etiquette at speeches and basic human decency to speakers.
The damages of such episodes to free speech and academic freedom are real, but they do not get to the heart of the matter. DEI departments institutionalize a particular worldview and weaponize it against dissenters, as non-DEI administrators such as Martinez insist (despite evidence exclusively to the contrary) that DEI can coexist with the basic principles of free speech, objective inquiry, and the development of legal and other intellectual traditions. Martinez is mistaken, and there are thousands more Tirien Steinbachs who cannot wait to put enemies, whether visiting judges or disfavored students, in their place. No law school will get itself back on track until it has dismantled its DEI apparatus and disavowed the conspiratorial, catastrophizing, and deeply partisan worldview that DEI stands for.
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