Chaos and rudeness at Stanford
It is unusual for a controversial event to end with absolutely everybody looking bad, but that is what happened on March 9 at Stanford University Law School, when the Federalist Society chapter sponsored a talk by Judge Stuart Kyle Duncan, an ultra-conservative firebrand appointed by President Trump to the Fifth Circuit Court of Appeals. The judge, the student protesters and an on-scene administrator all played to type, exhibiting arrogance, intolerance and irresponsibility, respectively, that combined to make the afternoon a fiasco for all concerned.
There was no doubt that Duncan, an avatar of the conservative legal movement, would be met by protesters at Stanford. In law practice, he specialized in anti-LGBTQ litigation, and he was general counsel to the Beckett Fund for Religious Liberty in a Supreme Court challenge to ObamaCare’s contraceptive mandate. His judicial rulings have been predictable, following the same pattern as most Trump appointees.
In one case, however, Duncan went out of his way to score points against what the rightwing calls wokeism. A federal prison inmate had, without a lawyer, petitioned the court for a name change from Norman Keith Varner to Katherine Nicole Jett, having come out as a “transgender woman.” Duncan’s majority opinion denied the request as beyond the jurisdiction of the court, a harsh but not entirely unreasonable decision.
But then Duncan went further, launching into an uncalled-for six-page disquisition denying the prisoner’s request for the use of female pronouns. Although the inmate explained that the use of male pronouns “makes me feel very uneasy and disrespected,” Duncan absurdly held that using female pronouns would compromise “judicial impartiality,” as though extending such a simple courtesy was somehow an indicator of bias. The dissenting judge called Duncan’s opinion “inappropriate [and] unnecessary,” while himself using the feminine pronoun “out of respect for the litigant’s dignity.”
It was surely the pronoun decision – a “cruel, petty opinion . . . mocking the very notion of gender identity” – that most outraged the Stanford students, who decried it as “denying the humanity of people.”
According to one observer, Duncan brought that same aggressiveness into the lecture hall at Stanford. He is said to have entered the law school “looking for a fight” and recording “protesters on his phone, looking more like a YouTuber storming the Capitol, than a federal judge coming to speak.” He engaged with the heckling students early on, calling them “juvenile idiots” who were “prisoners running the asylum.”
The student protesters, who packed the room, needed no bait. The loud heckling started almost as soon as Duncan began speaking, frequently drowning him out and making it impossible for the Federalist Society members to hear their guest. The insults ranged from pointed to shockingly vulgar, continuing almost nonstop for about 12 minutes until Duncan asked for an administrator to intervene.
The four administrators sitting complacently in the room had done nothing to quell the shouting, which was in clear violation of Stanford’s written Policy on Campus Disruptions, until Duncan was forced to seek help.
Up stepped Tirien Steinbach, the associate dean of diversity, equity and inclusion (DEI). As shown in a widely posted video, Steinbach pulled out a sheaf of prepared remarks. She turned to Duncan, rather than the protesters, and began admonishing him for causing harm and discomfort to students in the room. While nominally affirming Duncan’s right to speak, she asked him whether the “juice was worth the squeeze,” evidently meaning that his subject matter may not have been worth the pain he was causing the protesters.
Holding the floor for seven minutes, Steinbach allowed that “many people in this administration do absolutely believe in free speech,” while nonetheless explaining that other “people feel like the harm is so great that we might need to reconsider those policies.”
She commended the protesters for “what is going on here,” took a few more jabs at Duncan, and finally reminded the students that “you do not need to stay” and asked them to “give space” for Duncan to answer questions.
At that point, as the room half emptied, the apparent leader of the protest asked the remaining students to “tone down the heckling slightly, so he can get to our questions.”
The following exchange featured rudeness on both sides, with students continuing to jeer, and Duncan responding in kind. Although the heckling had abated and the most exercised students were gone, Duncan called the remaining questioners “infantile,” “ridiculous” and “a bunch of hypocrites,” singling out one as an “appalling idiot.”
In later interviews, Duncan continued to call the protesters idiots, their tactics “dogshit” and DEI Dean Steinbach “creepy.”
In the meantime, Stanford Dean Jenny Martinez issued a bland apology to Duncan, although not to the Federalist Society students who were equally aggrieved by the disruption of their meeting. The most Martinez could bring herself to say about her feckless administrators was that their “well intentioned . . . attempts at managing the room in this instance went awry.”
It took another day before a more meaningful joint apology was issued – again only to Duncan – by Martinez and Stanford President Marc Tessier-Lavigne, at last conceding 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.”
That was far from the end of it, as student demands have flown back and forth. Conservatives have called for firing Steinbach for interrupting Duncan’s speech, while progressives have called on Martinez to resign for having dared to apologize.
Duncan has returned to his chambers in New Orleans, leaving Stanford Law School in well-earned chaos and disrepute. The protesting students are as riled-up as ever, hundreds having recently subjected Martinez to a silent gantlet of shame outside her classroom. The administration has thus far taken no action against the disrupters, and seems unlikely to demote Steinbach, who was unnamed in the apologies. Duncan has reveled in attention from conservative media, explaining in the Wall Street Journal that his “anger is the proper response to vicious behavior.”
Going forward, perhaps we can hope that students will learn to exercise better judgment. We ought to expect it from administrators. We must demand it from judges.
Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is the author of “Fugitive Justice: Runaways, Rescuers, and Slavery on Trial” and three other books on 19th century legal history.
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