At Stanford Law School, the Dean Takes a Stand for Free Speech. Will It Work?
"After a student protest, Jenny S. Martinez wrote a much-praised memo defending academic freedom. But that protest shows how complicated protecting free speech can be.
Stanford Law School was under extraordinary pressure.
For nearly two weeks, there had been mounting anger over the treatment of a conservative federal judge, whose talk had been disrupted by student hecklers. A video of the fiasco went viral.
An apology to the judge from university officials had not helped quell the anger.
Finally, on March 22, the dean, Jenny S. Martinez, released a lawyerly 10-page memo that rebuked the activists.
“Some students might feel that some points should not be up for argument and therefore that they should not bear the responsibility of arguing them,” she wrote. But, she continued, that “is incompatible with the training that must be delivered in a law school.”
She added, “I believe that the commitment to diversity, equity and inclusion actually means that we must protect free expression of all views.”
Free speech groups hailed Dean Martinez for what they said was a stirring defense of free expression.
“We need Dean Martinezes at every school where this is an issue right now,” Alex Morey, an official with the Foundation for Individual Rights and Expression, a free-speech group, said in an email.
The Stanford memo echoed a similar declaration by the University of Chicago in 2014, saying that it was committed to free speech and that students may not obstruct or otherwise interfere with speakers because of their views.
Since then, dozens of universities have signed onto what is now known as the Chicago statement. And yet, every year seems to bring new free-speech clashes, on the left and the right.
Last year, law students at Yale and the University of California Hastings College of the Law disrupted conservative speakers. In 2021, M.I.T. invited the geophysicist Dorian Abbot to give a prestigious lecture and then disinvited him after some faculty members and students argued that he had created harm by speaking out against aspects of affirmative action.
That same year, members of Stanford’s chapter of the Federalist Society, the conservative legal organization, filed a complaint against a law student who had mocked the group with a satirical flier. The university briefly put the student’s graduation on hold but eventually said the flier was protected speech.
The question for Stanford and other institutions is whether the memo can ease tensions in this fraught and seemingly intractable political climate. In an era of high-pitched politics, living up to lofty free-speech principles can get messy on the ground.
Some free-speech advocates describe a delicate balancing act for any university, which must allow polarizing speakers a place at the podium while also allowing protesters to raise their voices in disagreement.
If things get out hand, it can be hard to figure out when to draw the line and whom to blame.
In the middle of a media firestorm, enforcement can become even trickier. As criticism mounts, the actual events can become distorted, leaving out important details about the people and the buildup to events.
All of these things came into play at Stanford.
‘Is the Juice Worth the Squeeze?’
The furor started on March 9, when Stuart Kyle Duncan, a conservative judge on the U.S. Court of Appeals for the Fifth Circuit, spoke to a roomful of students at the invitation of the student chapter of the Federalist Society.
Before becoming a judge, he had defended Louisiana’s gay-marriage ban in a Supreme Court hearing. And he had defended a North Carolina law restricting transgender people from using their preferred bathrooms.
Students were particularly upset that, in 2020, as a judge, he had denied the request of a transgender woman who asked the court to refer to her with female pronouns. It was an especially sensitive subject, as many in the law school were still grieving the death of a transgender student last year.
At the event, Judge Duncan was relentlessly heckled and traded barbs with students. He tried to power through his prepared remarks but was unable to speak more than a few words without interruption. He called for the help of an administrator to restore order.
Tirien Steinbach, the associate dean for diversity, equity and inclusion, stepped to the podium and began six minutes of remarks that would be recorded on video.
She said that, to many people in the room, Judge Duncan’s work had “caused harm.” She asked him, “Is the juice worth the squeeze?” That is, was the decision by Judge Duncan to speak worth the division it was causing students?
Her remarks became a signature moment online, condemned for giving tacit approval to the “heckler’s veto.” The Foundation for Individual Rights and Expression said that Ms. Steinbach had said the quiet part out loud, to chilling effect.
“Every day around the country, administrators are putting issues of ‘equity’ before students’ expressive rights,” Ms. Morey, of the foundation, said. “Those things do not have to be in tension.”
Ms. Steinbach’s remarks were condemned on Fox News and other conservative outlets. Tucker Carlson called her “barely literate.” Many called for her prompt firing.
Two days after the event, Dean Martinez and the president of the university apologized to Judge Duncan and, without naming Ms. Steinbach, said 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.”
In her memo, 11 days later, Dean Martinez again criticized Ms. Steinbach, stating that an administrator “should not insert themselves into the debate with their own criticism of the speaker’s views.” Asking speakers to reconsider the worth of what they plan to say, she wrote, constitutes an improper imposition of “institutional orthodoxy and coercion.”
The memo also announced that Ms. Steinbach was on leave.
The Back Story
That bare-bones narrative missed a more complicated situation, illustrating the perils of rushing to judgment based on a viral video.
To begin with, Ms. Steinbach had a cordial, productive relationship with the leader of the student-run Federalist Society, Tim Rosenberger Jr.
Ms. Steinbach, who started at Stanford in 2021, said she wanted to expand the role of D.E.I. to include groups like veterans, older students and conservatives. She viewed herself as a bridge builder.
Mr. Rosenberger, for his part, said he wanted a Federalist Society chapter that was better integrated into the university and had found that she was willing to engage in ways that many students, professors and administrators, to Mr. Rosenberger’s disappointment, would not.
In January, when Mr. Rosenberger could not find a co-sponsor for an event with Nadine Strossen, a former head of the American Civil Liberties Union and a champion of free speech, he found a partner in Ms. Steinbach, who moderated the event.
“That took some courage,” he said.
Ms. Strossen said she had spoken to many Federalist Society chapters in recent years and had noticed that, especially since the Jan. 6 attack on the Capitol, the group had become effectively “blacklisted” at many law schools.
This backdrop, Ms. Strossen said, made Ms. Steinbach’s enthusiastic participation in the event “extraordinary.”
A Question of Responsibility
On the morning of Judge Duncan’s talk, Ms. Steinbach sent an email to the entire law school, approved by Dean Martinez. She summarized the concerns that students had with Judge Duncan but said that students who tried to stop speech “would only amplify it,” and she linked to the free-speech policy.
Ms. Steinbach’s connection to students might have made her confident that she could be the broker between the two sides. But during a free-speech conflagration, who should play the role of enforcer? And how should that message be delivered?
The university had made other preparations. Law school administrators had warned university officials that students could run afoul of the university’s speaker policy that day, according to an email obtained by The Times. The university sent an official to join others representing the law school.
But when the judge asked for an administrator, it was Ms. Steinbach who stepped up to the podium.
While the judge was insulted by some of her remarks, Ms. Steinbach also defended free speech. “We believe that the way to address speech that feels abhorrent — that feels harmful, that literally denies the humanity of people — that one way to do that is with more speech, and not less,” she said.
She invited students to leave if they felt uncomfortable but said that those who remained should listen to Judge Duncan. Many students left.
In an interview, Ms. Steinbach said she had not been there to enforce the university’s speech policy.
“My role was to de-escalate,” Ms. Steinbach said. She wanted to placate students who said they were upset with Judge Duncan — “and to, I hoped, give the judge space to speak his prepared remarks.”
In hindsight, she said, she did not get the balance right. She noted, however, that she had been speaking to students in the room, and did not realize that her words would be blasted out to the world.
Mr. Rosenberger said that he had been upset by Ms. Steinbach’s remarks in the lecture hall but that she had been something of a “scapegoat” for the university’s broader failure to protect speech.
He said that he wished an official had stepped to the podium and warned students that further disruption would be in violation of the university’s free-speech policy — but that Ms. Steinbach, as D.E.I. dean, was not that messenger.
“If she was the administrator whose job was to enforce the no-disruption policy, then yeah, she totally failed, but that’s not her job description,” Mr. Rosenberger said. “People have called her stupid and incompetent. She’s a smart and good person who was just put in a really bad spot.”
Dean Martinez, in an email to The Times, said that one of the problems that day was a “lack of clear communication” among administrators in the room. But she laid at least part of the blame with Ms. Steinbach.
“Regardless of what should have happened up to that point,” she wrote, “when Judge Duncan asked for an administrator to help restore order, it was Ms. Steinbach who responded, introduced herself as an administrator, and then delivered remarks.”
A Balancing Act
To some students, the dean, by not presenting a fuller defense of Ms. Steinbach in her memo, capitulated to an intense right-wing attack.
“A leader takes responsibility for her actions as well as those of her subordinates,” Denni Arnold, a protest leader, wrote to Dean Martinez. “A leader presents a united front to the world, no matter what conversations need to happen behind closed doors.”
Julian Davis Mortenson, a professor of constitutional law at the University of Michigan and a Stanford alumnus, suggested that there had been a broader failure.
“Law schools need to have plans and protocols in place for controversies like this, which are going to happen with increasing frequency,” he said. “Stanford was not adequately prepared.”
Barring context he is unaware of, he said, he was disappointed that Ms. Steinbach had not received more support.
“An administrator on the ground, in a room literally full of shouting people, got them to stop shouting and also insisted that they should listen to the speech,” Professor Mortenson said.
Some of the confusion may lie in Stanford’s free-speech policy, which bars preventing or disrupting “the effective carrying out” of a university event, like a lecture. Precisely when that policy is violated is ambiguous — meaning that it can be hard to know when or how to intervene.
Holding vulgar signs or asking pointed questions or even making gagging noises — as many students did when Judge Duncan was introduced — does not necessarily violate the university’s policy.
In her memo, Dean Martinez said she would not take action against individual students, citing the difficulty of distinguishing between protected speech and unprotected speech.
“Are 10 minutes of shouting out of an hour-and-a-half-long event too much?” said Ms. Strossen, the free-speech crusader. “That is a matter of judgment and degree.”
If you get the balance wrong, Ms. Strossen said, then you risk chilling speech on the other side.
The week after she spoke at Stanford, Ms. Strossen said, she appeared at Yale, on a panel with a conservative speaker whose visit last year was disrupted during another student firestorm.
Ms. Strossen said she was struck that this time, during her panel, there were no protesters of any kind.
“I worry that maybe the reason that there weren’t even nondisruptive protests,” she said, “is students were too afraid that they would be subject to discipline or doxxing.”
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