Stanford Law School (SLS) became the target of public scrutiny after Judge Kyle Duncan’s visit to SLS on Thursday, March 9 was continuously interrupted and cut short due to the heated interactions between Duncan, the student protesters and the SLS Associate Dean for Diversity, Equity and Inclusion Tirien Steinbach.
In a statement to the SLS community released on March 22 by SLS Dean Jenny Martinez, Martinez announced that all SLS students will take part in a mandatory half-day of training “on the topic of freedom of speech and the norms of the legal profession.” Martinez also wrote that Dean Steinbach is on leave.
The University did not respond to The Daily’s request to comment on whether or not Steinbach’s leave is voluntary.
Martinez’s letter comes after commentators from various American media outlets have expressed their own views of the event and protest. Some argued that Steinbach should be fired, others condemned the protesters’ actions and still others called Duncan’s reaction to the protesters a “tantrum.”
Duncan’s appearance on campus and the subsequent protests have become a deeply controversial topic in the weeks since the event.
The timeline
In May 2022, the SLS Federalist Society (FedSoc) invited Duncan to give a speech on campus about “Guns, Covid, and Twitter,” according to FedSoc president Tim Rosenberger JD ’23.
Duncan is the judge for the U.S. Court of Appeals for the Fifth Circuit, covering Texas, Mississippi and Louisiana. The invitation sparked controversy and opposition by some students who put up flyers around the law school after learning of his arrival. The flyers postulated that Duncan has been a right-wing advocate for laws that, according to the flyers, would harm women, LGBTQ+ people and immigrants. Duncan served as lead trial and appellate counsel in a case that stopped transgender people from using the bathroom of their choice at state institutions.
FedSoc hoped to learn about “important areas of law that have particular connection to the 5th Circuit,” Rosenberger wrote in an email to The Daily. Duncan’s lecture on campus was scheduled for 12:45 p.m. in a classroom building of the law school on March 9, 2023. FedSoc also asked Steinbach to attend the event as an observer and de-escalator, if necessary, according to Steinbach’s Wall Street Journal opinion piece published after the fact.
SLS students in LGBTQ+ activist groups OutLaw and Identity and Rights Affirmers for Trans Equality (IRATE) said that they learned on Monday, March 6 that FedSoc was hosting Duncan for a lecture. They reached out to FedSoc that night to ask that FedSoc either cancel his event or move it to Zoom.
“While acknowledging your right to freely associate with speakers and gain mentorship from those you choose, we are writing to express specific concerns about the effect of bringing this person into our campus community… We respectfully request that you cancel your event or move it to Zoom,” the email, signed by 93 out of just under 600 SLS students, read.
FedSoc declined their request the next day, thanking the students “for taking the time to write and make [their] views known.” Rosenberger added in the email, “I gather from your note that you and others may find it more congenial not to engage with the Judge, but you are of course welcome to attend. If you would like to talk with me, before or after the event, I’m always grateful to learn from folks with strongly held perspectives.”
On Wednesday, March 8, OutLaw Retreat Chair Denni Arnold JD ’24 wrote to five SLS professors who had a class that conflicted with Duncan’s speech and the planned protest to ask that they move their classes to Zoom, let their students leave at 12:15 p.m. or “not penalize students who choose not to attend your class that day or who choose to leave class early.”
Steinbach organized an alternative gathering space for students, which took place before the protest and speech in the Robert Crown Building. Steinbach sent an email to SLS community members on Thursday morning to inform them of Judge Duncan’s appearance on campus and make them aware of this “safe space.”
In the email obtained by The Daily, Steinbach wrote, “Today, my hope is for this community to… practice using the skillful communication and active listening tools we will need to understand, to advocate, and to be part of creating the inclusive, diverse, just, and fair world we aspire to build. As always, I welcome your thoughts, concerns, suggestions, and reflections.”
Connor Friedersdorf of The Atlantic critiqued the email in a newsletter published on March 15, writing that it is important for people in the law profession to hear views they are opposed to.
“Steinbach validates the falsehood that the mere presence of a federal judge at a law school bears on whether any student belongs there — as if his physical proximity to the campus pollutes its purity, or as if his speaking there, at the invitation of a group that represents a small minority of students, somehow signifies Stanford Law School’s endorsement of the jurist’s moral character, political values, or jurisprudence,” Freidersdorf wrote. “In reality, Stanford hosts many such events due to their obvious educational value: It is vital for lawyers to understand how judges think, perhaps wrongheaded judges most of all!”
By 12:30 p.m. on March 9, protesters gathered in the classroom building of the law school with posters condemning Duncan; some also had trans flags painted on some of their cheeks. Short speeches about how Duncan’s actions are harmful to many communities were made by protest leaders and the protesters shouted call and response chants, including, “When our trans neighbors are under attack, what do we do? Stand up, fight back!”
As Duncan’s speech commenced at its planned 12:45 p.m. start-time, the classroom filled with significantly more protesters than FedSoc members. Some sat in chairs with others lining the back and side walls of the room. According to lawyer and commentator David Lat in a substack post about the protest, Duncan “walked into the law school filming protesters on his phone.” When asked by Lat about if he tried to record, Duncan responded with, “Damn right I did. I wanted to make a record.”
In his opening remarks to the crowd, Duncan addressed the protesters. “I’m not blind — I can see this outpouring of contempt,” he said to the room.
The rest of the country saw it too — short videos of the interaction between protesters and Duncan quickly circulated on social media, fomenting criticism of how each party acted.
Some critiqued the protesters’ actions, like Ilana Redstone in The Washington Post, who wrote, “a more productive mode of discourse for the protesters would have been to ask him to clarify the thinking behind his positions and then challenge it.”
Duncan’s response to the protesters has also been criticized. For instance, Mark Joseph Stern called his reaction a “tantrum” in Slate, an online political magazine, writing that “Duncan dismissed many of the questions and responded to others with insults.”
Other commentators have been less concerned with the protesters and more so with Steinbach. About 30 minutes into his speech, Duncan stopped his remarks to ask for an administrator to help handle the commentary and heckling from the protesters. He eventually ceded the floor to Steinbach after she repeatedly told Duncan that she was the administrator present.
“The way that he was treating Dean Steinbach shows the way he treats people who are different from him, which is [people who are] not a cis-het white man. That is all we need to know,” protester Hayden Henderson JD ’24 said.
In a speech that has now amassed millions of views on social media, Steinbach stepped in to speak to both Duncan and the crowd. She said that she “wholeheartedly” welcomed Duncan to campus, but told him, “For many people here, your work has caused harm.” Twice Steinbach asked, “Is the juice worth the squeeze?” seeming to question if he believed his speech was worth the reaction.
An article in Fox News said, “Steinbach gave a minutes-long and emotional speech at the event, accusing Duncan of causing ‘harm’ through his work on the U.S. Court of Appeals for the Fifth Circuit.” The San Francisco Chronicle reported it slightly differently, writing that Steinbach “stood and acknowledged the legitimacy of the students’ anger toward Duncan before reiterating his right to speak. The judge, visibly flustered, decided to open the floor for questions.”
According to Lat’s post, after one student’s question about a “decision denying a pro se motion to use the petitioner’s preferred pronouns,” Duncan responded with, “Read the opinion. Next question.” He dismissed several of the protesters’ questions, asking one student, “Was I even on that panel?” when she cited a specific case of his where she said he took “away voting rights from Black folks in a southern state.”
Duncan soon thereafter stopped his lecture. In an interview with Rod Dreher on March 12, a conservative writer and editor who used to write for The American Conservative, Duncan told Dreher, “Try delivering a lecture under those circumstances. Basically, they wanted me to make a hostage video. No thanks. The whole thing was a staged public shaming, and after I realized that I refused to play along.”
The reaction
The notion that Steinbach “staged” her speech is popular among Duncan’s defenders, including FedSoc president Rosenberger, who wrote, “While perhaps well intentioned, delivering a pre-written speech haranguing the judged (sic) was inappropriate.”
Stanford President Marc Tessier-Lavigne and SLS Dean Jenny Martinez issued a formal apology to Duncan in a letter on Saturday, March 11, stating that “staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.”
Martinez stood by Tessier-Lavigne’s statement in her March 22 letter to the SLS community, citing the statement as reason for why administrators “should not insert themselves into debate with their own criticism of the speaker’s views and the suggestion that the speaker reconsider whether what they plan to say is worth saying.” Her letter went on to state, “Steinbach is currently on leave. Generally speaking, the university does not comment publicly on pending personnel matters, and so I will not do so at this time.”
Steinbach herself published an opinion piece, entitled “Diversity and Free Speech Can Coexist at Stanford,” in the Wall Street Journal on March 23. She wrote that when Duncan asked for an administrator to step in, she was prepared to use the “de-escalation techniques” that she has been trained in.
“I pointed out that while free speech isn’t easy or comfortable, it’s necessary for democracy, and I was glad it was happening at our law school,” she wrote. “At one point during the event, I asked Judge Duncan, ‘Is the juice worth the squeeze?’ I was referring to the responsibility that comes with freedom of speech: to consider not only the benefit of our words but also the consequences.”
In his own opinion piece, entitled, “My Struggle Session at Stanford Law School,” published on March 17 in the Wall Street Journal, Duncan asked what Steinbach meant by her “cryptic” question. “What could that mean? While the students rhythmically snapped, Ms. Steinbach attempted to explain. My ‘work,’ she said, ‘has caused harm.’ It ‘feels abhorrent’ and ‘literally denies the humanity of people,’” he wrote.
Duncan also criticized the behavior of the students, standing by his name-calling of them — “It’s true I called them ‘appalling idiots,’ ‘bullies’ and ‘hypocrites.’ They are, and I won’t apologize for saying so” — and questioning their future professions. He wrote, “The protesters showed not the foggiest grasp of the basic concepts of legal discourse: That one must meet reason with reason, not power. That jeering contempt is the opposite of persuasion.”
Duncan’s assertion that the protesters are unfit for a profession in law is shared by Professor John Banzhaf of George Washington University, who is filing a complaint with the American Bar Association (ABA) against the student protesters, according to a letter he wrote to Martinez on March 20. The letter reads, “I feel that [the protesters’] actions in deliberately preventing a federal judge from speaking to law students who wanted to hear his views and perhaps question him about them reflects adversely on their character and fitness.”
Banzhaf’s complaint would ask the bar admission to delay or deny the student protesters bar admission, however, it is unlikely that this complaint will effectively accomplish Banzhaf’s stated objective, according to SLS Professor of Law Richard Ford. Ford wrote in an email to The Daily that “participating in a raucous protest, even of a judge, does not disqualify someone from practicing law. Sadly, in today’s America, the involvement of some federal judges and members of the House of Representatives tells us nothing about whether a claim is sensible. It’s easy to score a cheap political point by having a staff member write a letter demanding that the ABA ‘look into’ some scandal that’s in the news.”
In a separate email, Banzhaf wrote that SLS’s accreditation “is being challenged by two powerful committee chairs in the U.S. House of Representatives,” — Virginia Foxx and Burgess Owens — “who have requested that the American Bar Association consider revoking it over its much publicized ‘appalling treatment’ of a federal judge”
The stripping of the law school’s accreditation is also highly unlikely, according to Ford. “There are very specific accreditation standards for law schools and of course, Stanford Law School easily meets them all,” Ford wrote. “There is nothing in any accreditation standard that would require a school to punish students for a lawful assembly because it made a speaker uncomfortable — in fact, under the Leonard Law Stanford is severely constrained in how it may respond to any student expression.”
Many argue that other actions should be taken, including that the University fire Steinbach. The Stanford Review wrote in an article on Saturday, “If Stanford cares about free speech, it must fire any administrator who actively encourages these unruly actions against it.” On Twitter, they wrote, “Fire Tirien Steinbach.”
The Stanford Review’s opinion is shared by several conservative organizations, including Accuracy in Media, a non-profit conservative news media watchdog. On Thursday, March 16, a van sponsored by Accuracy in Media appeared on campus, driving around with the words, “Tirien Steinbach uses fascist tactics to bully others. Stanford, stand up for REAL inclusivity!” plastered on the sides. On the bottom was a link to a petition to fire Steinbach. It was seen again on Tuesday, March 22.
Many have come to Steinbach’s defense and say that they are upset with the University for the apology sent to Duncan. The American Constitution Society (ACS) Board — a progressive legal organization — sent a letter to Tessier-Lavigne and Martinez on Sunday admonishing them for the apology letter to Duncan.
“We write to express our frustration with the Stanford administration’s response to the student protest against Judge Kyle Duncan,” the letter reads. “We feel that the apology letter submitted to the judge has fueled a dishonest narrative being circulated by Judge Duncan and right-wing media, to the detriment of the Stanford Law School community and principles of free speech. The administration’s statement frames Judge Duncan as a victim, when in fact he himself made civil dialogue impossible.”
Some SLS students also backed Steinbach, protesting Martinez and the letter of apology on March 13 after her class by plastering posters over her white boards, which said, “We, the students in your constitutional law class, are sorry for exercising our 1st Amendment rights.” Protesters also lined the walls of the hallway as Martinez left her class, wearing masks that said “counter-speech is free speech,” according to Aaron Sibarium in an article for The Washington Free Beacon.
The University did not respond to The Daily’s request to comment on this protest or on the ACS letter.
These events have captured the attention of professors and higher educators around the country. Portland State University professor Jennifer Ruth, a member of the American Association of University Professors (AAUP) Committee A for academic freedom, wrote a blog post on Monday in Academe Blog, a website published by the AAUP. In the post, Ruth argued that “by seizing on and amplifying any story featuring left students protesting, libertarian-funded media outlets handed social conservatives the vehicle they intend to ride to the White House in 2024. We are under attack. We are the victims. The liberal elite have captured all our institutions — the media, education, corporations — so now we must use the power of the government to fight back.”
Ruth also praised Steinbach’s speech, specifically referencing how Steinbach reminded the students that they did not need to be there and were free to leave. Steinbach “defended the humanity of the students while seeking to ensure the event succeeded in going forward. In doing so, she handled the situation with integrity and that the Stanford administration does not acknowledge this in their apology is deeply disappointing,” Ruth wrote.
Professors inside the University have also commented on the ramifications of these events and how they reflect on SLS. Ford wrote in an email to The Daily, “In an important sense, this student protest was not in reaction to Kyle Duncan’s speech at all. It was in protest of his actions as an attorney and a judge…I think it’s a mistake to look at their protest as directed at merely ‘unpopular ideas or opinions’. And because this political situation is unlikely to change soon, I don’t think this kind of political protest is likely to change either.”
A previous version of this article contained an unintentional copy error that seemed to imply in one paragraph that Jenny Martinez was on leave, not Tirien Steinbach. The Daily regrets this error.