Dismantle DEI Ideology

For now, the adults at the Stanford Law School appear to be in charge. In a March 22nd letter addressed to the “SLS Community,” Stanford Law Dean Jenny Martínez unequivocally repudiated the shoutdown of federal judge Kyle Duncan by Stanford law students earlier this month. The law school’s Associate Dean for Diversity, Equity, and Inclusion, Tirien Steinbach, who had lectured Duncan about his allegedly injurious presence on campus, has been placed on leave. That is the good news.

Letter from Stanford Law School Dean Jenny Martinez to the campus community, March 22, 2023

The Foundation for Individual Rights and Expression

Martínez’s letter is one of the most thorough defenses of academic free speech to come from a college administrator in recent years. However, she has declined to discipline the students involved in the heckling. Distinguishing those students who had engaged in punishable conduct from those who had not would be too difficult, she claims. Moreover, the hecklers had not been warned that they risked sanctions. Punishing the hecklers would also leave unpunished those who did not literally disrupt the event but whose vulgar signs or insulting personal questions were outside the norms of civil discourse.

Instead of discipline, Martínez will require all law students to attend a half-day session on free speech later in the semester. (One can’t help but observe that Judge Duncan’s student hosts, who engaged in no speech disruption, do not seem to be in need of such training.) The reasons for Martínez’s amnesty are not persuasive. Nevertheless, that amnesty could serve as an acceptable compromise if other measures to prevent a reoccurrence were in place. They are not, and Martínez’s letter shows why they likely never will be.

First, however, it is worth recalling the details of the Steinbach affair, since it is a flawless embodiment of how diversity ideology distorts academic life and constrains decision-making. The Stanford Law School chapter of the Federalist Society had invited Judge Stuart Kyle Duncan to deliver a speech titled, “The Fifth Circuit in Conversation with the Supreme Court: COVID, Guns, and Twitter.” Judge Duncan was a 2018 Trump appointee to the US Court of Appeals for the Fifth Circuit. Headquartered in New Orleans, the circuit is the most conservative federal appellate court in the country.

Duncan’s remarks, had he been permitted to deliver them, were going to address how appellate courts reach their decisions in areas of doctrinal flux before the Supreme Court has fully established an emerging legal rule. The speech would have provided Stanford’s future lawyers with practical insights into the evolution of federal case law. It would also have given them the opportunity to interact with a judge who has been centrally involved in his circuit’s important recent cases.

Such considerations mattered nothing to Stanford’s left-wing students, however, because Duncan does not subscribe to contemporary academic orthodoxies. Before becoming a judge, he had written a law-review article as a private lawyer, arguing that the definition of marriage should be left to the states. He had represented a Virginia school board that opposed allowing high-school boys to use girls’ bathrooms. And once on the bench, Duncan had declined to use “she” to refer to a male prisoner federally convicted of possessing child pornography.

Thus, according to a large contingent of the student body, Duncan was unfit to set foot in the Stanford Law School. The Outlaws—a self-described “social, support, and political group” that actively combats “homophobia, transphobia, [and] heterosexism” at the law school—were joined by the National Lawyers Guild chapter and other left-wing student groups in demanding that Duncan’s speech be moved off campus or held exclusively via Zoom. Never mind that Duncan’s speech would have nothing to do with “gender” issues. He would allegedly have put the “safety” of Stanford’s “marginalized” students at risk simply by being on campus.

The Federalist Society rejected the Outlaws’ demand to quarantine Duncan. Accordingly, photographs of Federalist Society members began appearing around the law school over the caption: “You should be ASHAMED.” At 7.02am on March 9th, the morning of Duncan’s planned speech, Associate Dean for DEI, Tirien Steinbach, initiated the first of her two intercessions into the event. She sent an email to the Stanford Law School under the subject line “Today at SLS” intended, she said, to “share [her] office’s goals and roles in this situation”—the “situation” being Duncan’s appearance.

A question immediately presented itself: Why was Steinbach weighing in on Duncan’s speech in the first place? Leave aside for a moment whether or not there are matters which might actually require the involvement of a Stanford DEI administrator. A speech on how the Fifth Circuit interacts jurisprudentially with the Supreme Court would not seem to be one of them. We have grown so accustomed to the intrusion of the diversity bureaucracy into every area of academic life that this oddity may pass unnoticed. It should not so pass, however, since this oddity is, until almost yesterday, without precedent.

For centuries, legal training in the Anglosphere was bare bones. In the American colonies, an aspiring lawyer would apprentice in the office of a practicing attorney, preparing legal documents out of a form book and performing clerical odds and ends. The first law schools, formed after the Revolution, were little more than a designated professorship within an existing college. Jefferson and John Marshall were taught by one such professor at William & Mary. Lincoln still rose up through the apprenticeship system several decades later, however, reading William Blackstone’s 1769 Commentaries on the Laws of England (the core legal reference text in the United States for over a century) under the tutelage of an Illinois legislator.

Long after law schools had evolved into professionalized graduate institutions, they still lacked a therapeutic bureaucracy. In the mid-20th century, a skeletal crew of administrators dealt with the logistics of class registration and job placement; the rest of the educational enterprise was largely left to the faculty. Classes were large, the ruthlessly unsentimental Socratic method prevailed, and if you needed counseling, you went to the health services. The idea of mobilizing an administrator to psychologically prepare students for the arrival of a federal judge would have been unthinkable.

Yet here was Steinbach weighing in on Duncan’s upcoming appearance without even knowing the details of what he was going to say. And the reason for that intervention is an interlocking set of fictions that currently reign on university campuses: first, that universities discriminate against and “marginalize” certain student groups; second, that such marginalization puts those groups at physical and psychological risk; and third, that their precarious physical and mental status means that ideas can injure them. A designated bureaucracy is therefore needed to protect these vulnerable groups from harm.

Martínez created one such bureaucracy in 2020, during the hysteria that swept college campuses after the George Floyd race riots. She installed Steinbach in the law school’s new Diversity, Equity, and Inclusion Office the following year. Immaculately intersectional (though, sadly, still using “she/her/hers” pronouns), Steinbach had been a public-interest attorney in the Bay Area and had offered trainings on “increasing mindfulness” in the legal profession, an undoubted plus in the era of the therapeutic college spa.

The Stanford law school’s DEI office seeks to remove the school’s “barriers to belonging.” Reality check: There are no barriers to belonging, outside of those created by the school itself through its vigorous use of racial preferences. As a Stanford law student in the early 1980s, I tutored a classmate in legal writing. Based on her abysmal writing and analytical skills, that classmate did not belong at the Stanford Law School, though she would have done just fine at nearby Santa Clara Law School. Stanford welcomed her, however, with open arms (and if asked, would no doubt have penitently attributed her academic difficulties to its own racism), just as it welcomes and celebrates members of every other group that proclaims itself “marginalized.”

Given the Outlaws’ contention that Duncan’s presence on campus put them at risk, Steinbach was tasked with mediating between Duncan’s opponents, his Fed Soc hosts, and the judge himself. Her 7.02am memo made no attempt to be even-handed. If there were anything that students might learn from Duncan’s speech, you would not know it from Steinbach’s recitation of Duncan’s past infractions and likely future depredations. Her ultimate announcement that Stanford would not be cancelling the event came off as a conflicted concession to an unfortunate intellectual regime.

Unsurprisingly, that early-morning memo had no effect on the law students’ sense of wounded entitlement. Duncan had to pass through a gauntlet of about 100 jeering Stanford students to get to the classroom where he was supposed to speak. The level of discourse was not elevated. “We hope your daughters get raped!” someone taunted. Another protester noted that though he, as a gay man, could find the prostate, Duncan could not “find the clit.” Posters and banners in the classroom proclaimed, “We hate you,” “Leave and never come back,” and “FED SUCK.” Waves of mostly female shrieking interrupted the Fed Soc president’s introduction of his guest. And once Duncan started speaking, the heckling prevented any possible delivery of his speech.

The student-services bureaucracy had previously assured the Fed Soc board that members of Stanford’s public-safety department would be nearby and ready to step in if there were a disruption. Having campus security actually in the room would apparently put LGBTQ+ students at further psychological and physical risk. (Yale’s equally delicate law students advanced this claim last year as well.) The campus cops never showed, however. So even if someone had issued the hecklers a warning, which Martínez now says is the prerequisite for discipline, no one would have been available to remove the fractious students.

Flabbergasted by the display of aggressive irrationality, Duncan began posing rhetorical questions to the screaming audience. “Is this a law school?” “You’re supposed to be learning to be lawyers, what court are you going to go into and act like this?” The responses were puzzling. “You just said that this is a law school; there’s no jurisdiction!” “Trigger!” “This is not your court!” Most weirdly, laughter broke out when Duncan asked, “Why do you want to cancel people’s speech?”

Unbeknownst to Duncan, five student-services administrators, including Steinbach, were standing to the side of the podium. After 10 minutes of being yelled at, Duncan asked if an administrator was present. Steinbach stepped forward, introduced herself as an associate dean, and said that she wanted to address Duncan and the students. Confused as to why an administrator would address a speech to him, Duncan repeated his request.

The response from the gallery was predictable: “Your racism is showing!” “Black female!” Bowing to inevitability, Duncan ceded the podium and Steinbach began to read from a prepared speech, her voice trembling. From its opening phrases, her remarks captured the ethos of the therapeutic diversity university:

I had to write something down because I am so uncomfortable up here. And I don’t say that for sympathy. I’m just saying I’m deeply, deeply uncomfortable. I’m uncomfortable cuz this event is tearing at the fabric of this community that I care about and am here to support. And I don’t know and I have to ask myself and I’m not a cynic to ask this: Is the juice worth the squeeze? Is this worth it?

The crowd erupted in a chorus of ecstatic finger snaps. Steinbach would go on to use “uncomfortable” or “not comfortable” 11 times, “feel” seven times, “harm” or “harmful” five times, “safety” or “safe” twice, and “pain” once—all in six minutes. It is again worth noting the oddity of Steinbach’s role at this juncture. It was she who represented the administration because the DEI office is at the fulcrum of every university function. And the DEI office is at the fulcrum of every university function because everything in a university today bears on identity. There is no independent sphere of thought and knowledge.

Steinbach might still be the acting DEI dean today but for her by-now infamous, thrice-repeated question to Duncan: “Is the juice worth the squeeze?” Asked to clarify, she explained:

I mean is it worth the pain that this causes and the division that this causes? Do you have something so incredibly important to say about Twitter and guns and COVID that that is worth this impact on the division of these people who have sat next to each other for years, who are going through what is the battle of law school together, so that they can go out into the world and be advocates.

The answer was obvious. “Luckily,” Steinbach said, Stanford students were gaining the advocacy skills to challenge free-speech policies that do not take harm into account. She concluded with a celebration of the hecklers: “I look out [at this room] and I don’t ask, ‘What is going on here?’ I look out and I say, ‘I’m glad this is going on here.’”

Several videos of this dismal episode went viral. By the next day, the law school was in damage-control mode. Dean Martínez sent an email to the law school calling the attempts at managing the room “well-intentioned,” but ultimately not aligned with the school’s “institutional commitment to freedom of speech.” The day after Martínez’s March 10th email, Martínez and Stanford University’s president co-signed a letter to Judge Duncan apologizing for the disruption of his speech. This time Martínez was a little more critical of Steinbach, writing that “staff members … intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.”

Martínez’s apology to Duncan and her guarded criticism of Steinbach were too much for the Outlaws and their allies. On Monday, March 13th, nearly a third of the law school student body protested in Martínez’s constitutional-law classroom, having covered the whiteboard with signs attacking Duncan and commending the hecklers as free-speech heroes. Over half of Martínez’s con-law students joined the protest; those who did not were subject to silent shaming. Feelings were again dominant. When Martínez ducked out of the building after her class, reported the Washington Free Beacon, the protesters began to cry and hug each other, presumably in the belief that they had achieved an historic civil-rights victory.

In her March 22nd letter, Martínez announced that Steinbach was “currently on leave.” That letter was implicitly directed at Steinbach’s many supporters inside the law school and the wider university. That Martínez felt compelled to justify her apology to Duncan and her mild rebuke of the DEI dean is a reminder of how politically skewed the academic population is compared to the public at large. Remarkably, the Outlaws insist that it was their free speech that was violated by Duncan’s parrying questions and by his description of his tormenters as “bullies” and “idiots.” And Steinbach’s “allies” claim that she is being “thrown under the bus.” Those allies are right. Her behavior was perfectly in keeping with the ideology of her office. If she ended up tacking a bit too far in the direction of protecting marginalized communities from harm, well, we all make mistakes.

Firing Steinbach (more likely, her leave will quietly become permanent during the summer) or abolishing her office, as many who deplore the identity-based university are calling for, will not restore the idea-based university. And Martínez’s letter shows why. For all her eloquent defense of free speech and free association, she nonetheless ends up rewarding the hecklers. Stanford will be offering even more programming and events on LGBTQ+ rights in the spring, Martínez announced. It is hard to imagine how much more thorough Stanford’s celebration of LGBTQ+ identity could be. Martínez justifies this sop to the shutdown lobby on the grounds that what motivated the protests was the “desire by students to bring greater attention to discussion [sic] of LGBTQ+ rights.”

That is fanciful. The hecklers were motivated by hatred and censoriousness, period. No one claimed that Duncan needed to be run off campus in order to “bring greater attention to discussion of LGBTQ+ rights.” But even if that had been the motivation, rewarding it now means that the protests worked. The only programming that should be increased in the wake of the shutdown is Federalist Society programming. But Martínez has offered the Stanford chapter no apology, besides stating in her latest letter that the “Federalist Society has the same rights of free association that other student organizations at the law school have.” That self-evident assertion is hardly a rousing endorsement of their role as virtually the only remaining source of ideological diversity at the law school. If we are on the lookout for marginalized minorities to celebrate, we need look no further than the Fed Soc chapter.

Martínez’s rush to placate the wounded sensibilities of the LGBTQ+ lobby and her unwillingness to discipline them are signs of how difficult it will be to return the university to a place where reason, not self-pity, rules. Another indication is provided by the law school’s acting associate dean of students. On March 11th, the same day that Martínez and Stanford’s president sent Duncan their apology, that associate dean, Jeanne Merino, sent a one-page memo to the law school’s student groups. It was just as drenched in the rhetoric of victimhood and vulnerability as DEI dean Steinbach’s pronouncements. Merino uses “safety” or “safe” three times, “feeling” or “feel” three times, “hurt” twice, and “comfortable” and “mental health” once each:

The focus of this email is to provide you with resources that you can use right now to support your safety and mental health. I am so sorry that you are having to deal with this difficulty at all, much less now. Many of us are feeling raw and hurt right now. That’s understandable. Use … the wonderful counselors at CAPS and therapists at SLS if you need help dealing with your hurt and anger. … And of course, please connect with anyone at SLS with whom you feel comfortable who can support you now.

Merino suggested that the memo’s recipients reach out to Tirien Steinbach and to the Levin Center, the public interest group that had provided what Steinbach, in her 7.02am memo, had called an “alternative space” for “community members for whom [sic] their sense of belonging is undermined by this event taking place.” The Federalist Society leadership received a copy of the Merino memo, addressed to “Dear Fed Soc leadership.” Some observers have wondered why Merino would recommend that Fed Soc members seek help from Steinbach, of all people, in “processing” the previous week’s events. But Merino clearly composed the memo with the Outlaws in mind and merely copied and pasted it to the Fed Soc leadership, oblivious to the resulting incongruity.

Thus properly understood, the memo is another marker of the solipsistic bathos that characterizes universities in the grip of victim ideology. It was the Outlaws and their allies who coerced the shutdown of Duncan. Their tactics raised questions of foundational principle for university governance. And yet Merino responded to the incident with the language of feeling, characterizing the Outlaws as the injured party in need of mental-health support.

The most astonishing aspect of the Steinbach affair is that it occurred at a law school. The essence of lawyerly work is to represent someone other than oneself—a defendant, a business client, a plaintiff seeking redress. One’s own identity is not at stake. A lawyer is supposed to grapple with legal ideas—the principles behind a statute or constitutional provision, the implications of a contractual clause. Here, too, his identity should be irrelevant. Much of legal work is adversarial; a lawyer confronts strongly opposing viewpoints, the outcome of which may lead even to the loss of a client's liberty. A lawyer rebuts those arguments not by claiming to be emotionally wounded by them, but by posing a stronger set of arguments that better accord with reason. Here, yet again, a lawyer’s own identity should not come into play.

A large portion of the Stanford law school student body seems to have no grasp of these truths. They weaponized their feelings against Duncan, and claimed that his mere presence somewhere on campus, even if they stayed away from him, was intolerable. Several administrators openly validated this emotionalism; others may be in quiet agreement. It was not coincidental that Steinbach began her speech to Duncan with a recitation of her feelings. Merino offered Stanford’s vast therapeutic apparatus to salve the wounded students’ “hurt and anger.”

The question now is: Where are the faculty? They are looking at an educational failure. If they are not appalled by the protesters’ frenzy of irrationalism, they, too, misunderstand law and their role in passing on legal culture. To be sure, Martinez argues in her March 22nd letter that “lawyers in training must learn to confront injustice or views they don't agree with and respond as attorneys.” But a one-time statement of principle, even one backed up by a “mandatory half-day session on ... the norms of the legal profession,” is hardly enough to reverse the all-encompassing incursion of solipsism. The faculty, either collectively or individually, should themselves put out a statement against the weaponization of alleged victimhood. They should emphasize in all their classes the priority of principle and ideas in the practice of the law. Their continuing silence on the matter demonstrates either cowardice or complicity with the narcissism of the identity-besotted student.

Stanford’s law students are not alone in rejecting the ideal of disinterestedness. For decades, certain topics have been off-limits in moot court because students claim that making or hearing arguments on the politically “wrong” side of a question is injurious to them. A number of criminal-law professors have stopped teaching the law of sexual assault. The student protests at Yale, Harvard, and other elite law schools against the elevation of Judge Brett Kavanagh to Supreme Court embraced the motto “Believe Survivors!,” a motto antithetical to the presumption of innocence and to due process.

The emotional solipsism of the Stanford students and their peers around the country would make the practice of law impossible. But it also undercuts the highest ideals of Western civilization: that human beings can transcend tribal identities and use reason to govern themselves and to unlock the secrets of nature.

By all means, axe every college DEI office, since every one is a monument to a lie. But the student-services bureaucracy and a large portion of the faculty will simply continue their work. That is why, if we are to restore academic integrity, it will not be sufficient to advocate for free speech, however important such advocacy is. It will be necessary to challenge head-on the grounding falsehoods of the diversity university: that majority society (or whatever is left of it) is always and everywhere oppressing the fragile “Other” and that victim identity trumps the ideal of transcendent, objective knowledge.