About a month ago, I published an article in The Stanford Review which predicted, almost verbatim, the content of forthcoming op-eds like Will Halverson’s. The impetus for writing my op-ed then was the insinuation manifested by the reaction en masse to the Vinci incident that “Stanford needs to change its policies or structure in a way that would prevent certain forms of objectionable expression from arising at all.” I sincerely hoped then that I wouldn’t be so right. No longer is my fear just an insinuation: Halverson proposed explicitly, “To prevent the next Chaze Vinci, Stanford should revisit its own Fundamental Standard.” The ideas presented in Halverson’s op-ed are crushingly illogical and dangerously naïve in their support of authoritarian measures to control speech.
Just on a practical level, “revisiting” the Fundamental Standard would do nothing to “prevent the next Vinci,” for at least two reasons. First, Vinci’s speech was not protected by the Fundamental Standard. He was banned from campus, within 24 hours. He is not enrolled at Stanford. Susie Brubaker-Cole and Patrick Dunkley confirmed that “administrative procedures resulting from the incident are proceeding.” The Fundamental Standard is doing its job. What more should it be doing to deter potential offenders like Vinci?
Second, Vinci was, at least during the last week of August, suffering from an extreme mental health crisis. As reported by his mother, Vinci had a “severe mental breakdown” due to pandemic-induced isolation and “mismanagement of his current medications.” Of course, Vinci’s acute crisis doesn’t justify his actions — he will still be held accountable by appropriate judicial processes — but it does help explain them. I struggle to see how, as David Palumbo-Liu opined and Halverson rehashed, Vinci’s conduct should be amalgamated into the “larger pattern of malice at Stanford” — because an extreme mental health crisis cannot be part of a larger pattern (unless Palumbo-Liu intends to argue that SCR members universally and consistently suffer from acute psychotic episodes). I would be shocked if even one person in Stanford’s history has given the Fundamental Standard a modicum of thought during an extreme mental health crisis. Changing the Fundamental Standard, then, would do nothing to prevent anyone suffering from an extreme mental health crisis from doing anything. If the goal is to prevent the next Vinci, why aren’t we talking about, for example, effectively allocating resources toward mental health emergency response services?
Halverson’s op-ed proposes that the Fundamental Standard needs an “update … to restrict hate speech,” because such restrictions would ostensibly reduce, according to Richard Delgado, “lasting psychological harm and humiliation.” But his op-ed offers no specific insights on how the Fundamental Standard should be reworded or reworked.
For example, his op-ed states that the Fundamental Standard should be sensitive to identity-based attacks. Precisely what, though, is identity? There is an infinite number of nontrivial ways to categorize identity characteristics — which is to say nothing of legally protecting those characteristics. What about hair color? I have blond hair. Do you know how many millions of “dumb blond” jokes are told every day? What about height? I’m 6’2”, which puts me in the 97th percentile. I actually find it rather inconvenient and awkward to be this tall. Do you know how many people have assumed that I play basketball (I don’t), or that I can dunk (I can’t)? Hair color and height are arbitrarily assigned by genetics. Hair color is malleable — I could dye my hair blue at any time. Height is partly a product of my environment — in particular, my mom’s fantastic cooking when I was a child. I’m not belittling the importance many people attach to their identities. But it’s just not clear how identity should be defined, which identity characteristics are more important than others (if such a ranking is even possible to construct), which deserve legal protection and under what basis and by whom those decisions should be made.
Yet without offering any specificity, Halverson’s op-ed promises that an (undefined) update’s “narrowly defined application would prevent spillover” — that is, only when “opinions cross the line into attacks against other students’ identities” will students “be disciplined.” Without stated definitions and rationales for “identity,” “crossing the line” or “attacks,” however, such confidence against spillover is pulled out of thin air. Language and laws are reinterpreted all the time. The next time someone asks me if I play basketball because I am tall or makes fun of me because I can’t dunk, should the University be able to initiate a formal investigation against that person? If that hypothetical sounds ludicrous, you’re coming late to the party. Just the other day, a speaker who was hired — and presumably vetted — by UNC Chapel Hill administrators to give a “mandatory training session” said the following: “How many of you go to the grocery store, and you need someone to help you reach for the top shelf? Okay, got a good number of you. That is a system of oppression. It means that every grocery store, literally almost across the nation, was built for the average-height person.” If grocery-store aisles can oppress, what can’t?
Even if language and legal interpretations were perfectly stable, centralized administrations are not to be trusted with speech-regulating powers. As I wrote a month ago, “Codifying support for one social cause — regardless of its ostensible virtues — simultaneously sets the philosophical precedent for codifying support for anything, regardless of a future social cause’s vices.” Historically, Stanford administrators have plainly supported, for instance, eugenicism. Would you want to attend Stanford if administrators had modified the Fundamental Standard such that viewpoints opposing eugenicism were liable to formal discipline?
And even if language were perfectly stable and authoritarian, speech-regulating agencies were perfectly trustworthy, spillover would still remain. A Fundamental Standard update would necessarily open new legal avenues for formal investigation and discipline. Anyone who has been a defendant will tell you that being subject to formal investigation ranks among the most psychologically taxing and damaging experiences of her or his life, regardless of the outcome. Dealing with the process can be as physically and mentally harmful as suffering from a disease. In her TED Talk, defense attorney Kathleen Heath said she is often asked, “How do you defend a person who you know is guilty?” She usually responds, “The real question is this: ‘How do you defend someone who wants to plead guilty but who you know is innocent?’ I can tell you now — that is far and away the more common and pressing ethical dilemma.” To be sure, I am not saying that legal machinery altogether should be scrapped for defendants’ sakes. But the stress which accompanies a formal investigation is so unbearably painful that it would be hopelessly naïve to believe people wouldn’t needlessly self-censor to avoid risking “crossing the line” — whatever that means.
Perhaps the implied interpretation of Halverson’s proposal is to define identity strictly, say, around race. Even setting aside the arbitrary nature of such a selection, that narrower framework is still prone to the same misapplications and spillover discussed above. Examples, sadly, come to mind readily. San Diego Gas & Electric fired Emmanuel Cafferty because someone saw his “left hand casually hanging out the window” and decided it was a “white-supremacist hand gesture.” (Cafferty is half Mexican.) At USC, Professor Greg Patton said nèi-ge 那個 — in flawless Mandarin — as part of an illustration of common filler words in other languages. After “Black MBA Candidates c/o 2022” claimed that Patton “offended all the Black members of our class,” USC administrators suspended Patton. (Refreshingly, over 100 international USC students wrote a scathing letter in response.) SDG&E’s and USC’s written value codes already sustain these egregious misapplications of “identity-based attacks.” So it’s hard to see how enshrining even narrow identity protections in Stanford’s Fundamental Standard would do anything other than permanently establish a mechanism capable of breeding identical insanity, just more often.
I wish the problems with Halverson’s op-ed ended there, but they don’t. A month ago I wrote, “I would be terrified attending a Stanford in which a student could be expelled without due process — let alone within 24 hours — for saying something, even if it was outrageous or offensive.” Meanwhile, his op-ed cites yet again, as if endorsing, the seeming widespread frustration by the University’s “lack of transparency” and its failure to immediately expel Vinci. I just don’t understand this one. Defendants have rights. These rights include due process and privacy. When you’re a defendant, you’ll want due process and privacy. The rights awarded to defendants — no matter their crimes — mark one of the crowning achievements of human history. Those rights also help control the intolerable stress of formal judicial proceedings. It is difficult to trust the intentions of those who ostensibly seek to mitigate net “lasting psychological harm” but who also obviously undervalue defendants’ rights and would happily wish upon more people the opportunity to sit in the defendant’s seat. Proposals to create a new legal framework — with “teeth,” ideally — that would undoubtedly wreck the life of any student put through the process, all while doing nothing to “prevent the next Vinci,” only fuel that fierce irony and deep distrust.
Do I think the world and our campus would be better without wanton hate speech? Absolutely. But it matters how that aim is achieved — and the costs of authoritarian means to that end will far outweigh the benefits of the end itself. Is the Stanford community really prepared to abdicate its value structure to authoritarianism because of the fallout of one student’s mental health crisis?