Is Stanford Law School Taking its Free Speech Problem Seriously?

After the shout-down of Judge Stuart Kyle Duncan at Stanford Law School (SLS) earlier this year, SLS Dean Jenny Martinez issued a memo for which she was widely praised. She made powerful arguments in favor of academic freedom and free speech; invoked the University of Chicago’s Kalven Report on institutional neutrality in a discussion of free expression and diversity, equity, and inclusion; and outlined steps SLS would take to respond to the incident and promote free expression at the law school.

ACTA President Michael Poliakoff and I welcomed Dean Martinez’s defense of free expression and her appeal to the Kalven Report, but we also called for more action, including disciplining the students involved and sanctioning Associate Dean Tirien Steinbach, who intervened in the event and questioned the value of Judge Duncan’s speech.

One action promised by Dean Martinez was “mandatory educational programming” for SLS students, including a “mandatory half-day session in spring quarter for all students on the topic of freedom of speech and the norms of the legal profession. A faculty committee will plan the session and invite speakers representing a range of viewpoints.”

According to an email obtained by the American Council of Trustees and Alumni, SLS settled on providing students with four recordings to watch on their own time. As listed in the email, these include:

• “A presentation by a leading First Amendment scholar on a variety of issues relating to freedom of speech and association”;
• “An interview of a public defender and a prosecutor about how they approach and work across differences”;
• “An interview of four federal circuit judges, appointed by US Presidents from each party, about how they approach and work across differences with colleagues and lawyers”; and
• “An interview of an author who has written extensively about the challenges of communicating and interacting with others during polarized times.”

According to the email, “The program can be watched all at once or in segments, as you wish, but it must be completed no later than June 2, 2023, for graduating students, and June 12, 2023, for all others.”

Students are also given a link to a form they must use to attest that they completed the program, and they are informed that “The platform on which you view the program will create a record of completion that will be sent to the Law School Registrar’s office.”

This method does not guarantee that students will watch the videos, since they can leave them running and go do something else. It certainly does not provide an interactive opportunity for members of the SLS community to engage one another in serious discussion about academic freedom and free speech on campus.

It is also concerning that the email mentions that “as part of our long-range recommendations, we will suggest that the law school provide a much broader array of (non-mandatory) programs in the next academic year that will engage more fully with the challenges and questions relevant to promoting the kind of discourse and community that we have described.” Such programs would, of course, be welcome, but Dean Martinez said in her memo that there would be “mandatory educational programming.” Does SLS also have plans to provide ongoing, mandatory free expression education to its students?

The shout-down of Judge Duncan was an egregious violation of free expression on campus. We wait to see if SLS will take more significant action to ensure that its students understand the importance of academic freedom and free speech.

Steven McGuire is the Paul & Karen Levy Fellow in Campus Freedom at the American Council of Trustees and Alumni. Follow him on Twitter @sfmcguire79.