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Stanford Law hides identities of students who shut down conservative judge

Sen. Ted Cruz and law professor ask bar admission authorities to intervene, but Foundation for Individual Rights and Expression praises dean's letter to campus community as "tour de force" in defense of free speech. .

March 24, 2023 11:10pm

Updated: March 24, 2023 11:10pm

Stanford Law School's attempt to find a middle ground between punishing students who repeatedly and crudely disrupted a conservative judge and tacitly encouraging them to do it again by withholding any sanction, does not appear to be winding down the controversy.

In a 10-page letter to the campus community on Wednesday, Dean Jenny Martinez said the school will host a "mandatory half-day session" for all students on free speech "and the norms of the legal profession" in lieu of identifying and punishing those who disrupted 5th U.S. Circuit Court of Appeals Judge Kyle Duncan.

SLS is also going out of its way to inhibit bar admissions authorities and judges from learning who was involved. Martinez said faces will be blurred from the recording the Federalist Society chapter paid Stanford Law to make, due to "vitriolic and threatening" messages against disrupters, even as she acknowledged they had no "reasonable expectation of privacy" at the event and many video and audio recordings are circulating.

Duncan's 5th Circuit colleague James Ho and 11th Circuit Judge Elizabeth Branch, who are already boycotting clerkship applications from Yale Law due to a similar previous incident, preemptively warned Stanford Law against this path in a National Review essay last week.

Law schools have already suspended, expelled or threatened to report students to state bar examiners for disruptions, and "at a minimum they should identify the disrupters so that future employers know who they are hiring," they wrote.

The dean's explanation for letting identifiable students off the hook is that administrators at the event didn't quell the disruptions. Associate Dean of Diversity, Equity and Inclusion Tirien Steinbach went further by literally deplatforming Duncan to give her own lecture about the "harm" his work has caused.

Steinbach has also been placed on leave, Martinez said without specifying why, and "all staff will receive additional training" on enforcing university rules against disrupting events.

"Her reasoning" for the non-punishment "would have earned a low grade if submitted by a law student," George Washington University law professor John Banzhaf said in an analysis that called the decision "bizarre and dangerous."

He accused the dean of repeatedly contradicting herself, including by unilaterally making a decision about student discipline. Martinez noted the Office of Community Standards has that jurisdiction because "it involves a deliberate process including fact-finding and hearings."

Martinez cited California's so-called Leonard Law, which applies First Amendment standards to private secular colleges, even as she admitted the more severe disruptions weren't constitutionally protected, Banzhaf wrote. She invoked the "sometimes uncertain boundary between permissible audience reactions and impermissible disruptions at an event," yet refused to consult the voluminous evidence for which disruptions merited punishment, he said.

Even as Martinez said administrators at the event sent "conflicting signals" about the acceptability of the disruptions, she also acknowledged students had been explicitly warned against disruptions in an email that morning, Banzhaf noted.

Sen. Ted Cruz (R-Texas) and Banzhaf have both said they are contacting bar admissions authorities to ensure they scrutinize Stanford Law graduates who may have participated in the disruptions and possibly refuse admission to confirmed participants.

Their behavior before a sitting judge "boggles the mind" and "raises a fair question as to whether they can be trusted to dispassionately defend clients" with opposing views, Cruz told the Texas Supreme Court and Texas Board of Bar Examiners in a letter last week.

Class years 2023 through 2025 should be required to answer in writing if they participated in the "shameful harassment of Judge Duncan," with offenders given a remedy such as a training course or apology letter, he said.

In a Monday letter he shared with Just the News, Banzhaf told Martinez that he plans to file complaints with bar admissions authorities with "links to video recordings of the disruption" because of her failure to pledge sanctions despite Martinez agreeing they violated Stanford policy.

"Students at Stanford are likely to see this as a green light 'get-out-of-jail-free' card" for future violations, as will students at other schools, he wrote in an email to Just the News.

"[A]fter all, if a top-ranked school believes it is wrong to punish students clearly guilty of disrupting a speech, surely the same policy should be OK for all the lesser-ranked schools," Banzhaf said.

Martinez didn't respond to Just the News queries about the criticisms.

Martinez and Stanford's president apologized to Duncan in a March 11 letter. Martinez later told alumni that the shutdown of Duncan was an aberration among the "number of events with controversial speakers on campus" that took place "without incident" in recent years and that staff failed to enforce rules.

Student activists weren't happy about the dean's belated apology, posting hostile flyers all over her classroom and creating a "human corridor" of silent protest comprising about a third of the law school when Martinez exited the class, the Washington Free Beacon reported.

The Foundation for Individual Rights and Expression praised Martinez's "tour de force," however,  for methodically knocking down student activists' claims that their disruptions were just "counter-speech" and reminding them "lawyers are held to higher standards of professional conduct and interaction with one another than lay people."

The civil liberties group especially appreciated her comments on the common use of "the power to suppress speech" against "the views of marginalized groups." Free speech and inclusion are "complementary" because such groups can only "express themselves even to those with more power or influence" through free speech, it said.

"College students may be adults, but college administrators are the adults in the room," Alex Morey, director of FIRE's campus rights advocacy, told Just the News when shown Banzhaf's criticism.

"It's absolutely troubling that students are reaching for authoritarians' playbooks to censor speech they dislike, but that's separate from the question of where the blame predominantly lies" for not enforcing university policy, and the dean "did an excellent job in her response yesterday of spelling that out really clearly," Morey wrote in an email.