7 Updates On Judge Kyle Duncan And Stanford Law

Here's a curated yet comprehensive collection of news updates, original documents, and online commentary.

Judge Kyle Duncan speaking at Stanford Law School (screenshot via Vimeo of the Ethics and Public Policy Center).

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

Last Thursday, March 9, a disruptive protest broke out when Judge Kyle Duncan (5th Cir.) spoke at Stanford Law School, at the invitation of the Stanford Federalist Society. In case you missed my story—which wouldn’t be surprising, since I published it on a Friday night—here’s my comprehensive coverage of the controversy.

If you’ve already read that piece but want to know what’s happened since then, you’ve come to the right place. Let’s dive in; there’s a lot to cover.

1. On Saturday, Stanford’s president, Marc Tessier-Lavigne, and the dean of Stanford Law School, Jenny Martinez, sent a joint letter of apology to Judge Duncan.

In their letter, President Tessier-Lavigne and Dean Martinez told Judge Duncan that “what happened was inconsistent with our policies on free speech, and we are very sorry about the experience you had while visiting our campus.” They explained that “[w]e are very clear with our students that, given our commitment to free expression, if there are speakers they disagree with, they are welcome to exercise their right to protest but not to disrupt the proceedings.” Without naming names—but clearly referring to Tirien Steinbach, Stanford Law’s associate dean for diversity, equity & inclusion—they added 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 a statement to Ed Whelan, who broke the news of the apology (as well as the original event), Judge Duncan expressed appreciation for the apology, which he accepted. He also articulated the hope that “a similar apology is tendered to the persons in the Stanford law school community most harmed by the mob action: the members of the Federalist Society who graciously invited me to campus.”

2. Also on Saturday, the SLS dean of students sent an email to Stanford FedSoc leaders encouraging them to “reach out” for support to administrators—including Tirien Steinbach, associate dean for diversity, equity & inclusion.

In an email to “Fed Soc leadership,” Acting Associate Dean of Students Jeanne Merino offered “resources that you can use right now to support your safety and mental health,” including herself, Dean Steinbach, and a clinical psychologist to conduct “threat assessments” of social-media postings. Merino also suggested that FedSoc leaders “consider pausing their student organization social media accounts until this news cycle winds down,” since “issues tend to escalate and trolls are looking for a fight” on Twitter and similar platforms.

Aaron Sibarium of the Washington Free Beacon, who first reported on Dean Merino’s email, opined that it “raises questions about the sincerity of Stanford's apology.” I’m not sure I’d go that far, but I do think it was a bit tone-deaf to refer the FedSoc folks to Dean Steinbach, whom many of them likely see as the villain in this whole episode. I’m a little surprised to find myself referring to Yale Law School as a role model on these issues, but after the Yale Federalist Society had major problems with the Office of Student Affairs (OSA), Dean Heather Gerken wisely removed Yale FedSoc from OSA oversight and provided FedSoc with a different official, outside of OSA, to serve as their liaison with the YLS administration.

One other thought: Dean Merino’s email suggests Dean Steinbach isn’t going anywhere, at least not anytime soon. Judge Duncan called for her firing, and so have various conservative commentators. But given the support she enjoys from progressive SLS students (see item #3 below), firing her would cause a huge uproar. I think the most that might happen to Dean Steinbach would be quiet reassignment in a few months, which is what Josh Blackman predicts, but even that is not a sure thing.

3. The Stanford chapter of the uber-progressive National Lawyers Guild (NLG), which co-organized the protest of Judge Duncan with OutLaw, sent a defiant message to its members in which it praised the protestors.

In their Saturday email (also via the Free Beacon), the members of the NLG board declared their “firm support and admiration for every single person involved in planning or enacting the protest,” which “represented Stanford Law School at its best: as a place of care for vulnerable people, and a place to challenge oppression and bigotry in all their forms, including on the federal bench.”

In addition to condemning what it saw as Judge Duncan’s “abhorrent” behavior, the NLG Board declared its “deep disappointment” in the official SLS response: “In veiled language, the law school threw its capable and compassionate administrators who were present at the event, and who interceded productively, under the bus, and expressed an intent to ensure that such disruptions do not occur again.” Based on the unapologetic tone of the NLG email, as well as the fact that no actions have been taken against either the student protestors or Dean Steinbach, I wouldn’t be shocked if such disruptions do occur again.

On Sunday, the board of Stanford’s chapter of the progressive American Constitution Society (ACS) issued a similar letter (via KC Johnson and Nicholas Wallace). Addressed to President Tessier-Lavigne and Dean Martinez, the letter expressed “frustration with the Stanford administration's response,” which “has fueled a dishonest narrative being circulated by Judge Duncan and right-wing media.”

4. On Monday, Dean Martinez sent a letter about the controversy to Stanford alumni.

The letter, posted by Eugene Volokh, is similar in substance to her apology to Judge Duncan. But the first paragraph is worth noting: “I want to thank those of you who have reached out to me and others at SLS to share your reactions to the event on March 9, 2023…. Your care for SLS is evident in your messages, and in all that you do to advance and steward our school.” My takeaway: Dean Martinez got an earful from alumni about the protest, and I’m guessing a lot of the comments were negative.

I do not envy Dean Martinez right now. She faces a predicament similar to what Dean Heather Gerken faced at Yale Law last year: she’s getting attacked by conservatives for being insufficiently protective of free speech (and insufficiently aggressive in punishing protesters), and she’s getting attacked by progressives for being insufficiently protective of vulnerable members of the law school community. She’s getting criticized by alumni for caving to the woke mob, and she’s getting criticized by current students for caving to the forces of oppression.

And I think that Dean Martinez is in an even trickier position than Dean Gerken or Dean David Faigman (who had to deal with the protest of Ilya Shapiro at UC Hastings). Neither Kristen Waggoner of the ultra-conservative Alliance Defending Freedom (ADF), who was protested at Yale, or Ilya Shapiro, who was protested at Hastings, fought back against their protesters, which made it difficult to defend the protesters’ actions. But at Stanford, Judge Duncan did lash out at the protesters, calling them “idiots” and acting in a rude and dismissive manner toward them. Because he took these actions—in my opinion, strategic missteps on his part, even if you think they were understandable or even justified—the Stanford situation is less black-and-white than Yale or Hastings, and Dean Martinez is in a stickier predicament.

[UPDATE (10:35 a.m.): As just reported by Aaron Sibarium of the Washington Free Beacon, “Hundreds of Stanford student activists on Monday lined the hallways to protest the law school’s dean, Jenny Martinez, for apologizing to Fifth Circuit appellate judge Kyle Duncan, whom the activists shouted down last week. The embattled dean arrived to the classroom where she teaches constitutional law to find a whiteboard covered inch to inch in fliers attacking Duncan and defending those who disrupted him, according to photos of the room and multiple eyewitness accounts.” Click through to Sibarium’s story to check out the photos; this clearly took some SLS students a lot of work. Say what you will about Stanford Law students, but they definitely aren’t lazy!]

[UPDATE (4:55 p.m.): Two Stanford Law sources—one who is a member of FedSoc, and one who is not a member of FedSoc (or NLG or ACS, for that matter)—told me that the number of protestors at yesterday’s (silent) protest was more like 60 to 100, not “hundreds.” According to one of my sources, “For context, there are only about 180 students in the 1L class. I recognized nearly all protestors as 1Ls. I would guess that less than a third of the class was represented. That would be no more than 60 people. There were a few 2Ls or 3Ls there, but not more than a handful. I'd guess about 70 people, at maximum, were in attendance—equal to or less than the number that showed up for the March 9th protest. There are nearly 600 students in our law school.” In addition, this source said they did not see any cheering or crying after Dean Martinez left the building. If anyone has photos or videos of the Monday protest, I would welcome them; I was obviously not present, so I’m only as accurate as my sources and whatever supporting evidence they provide to me.]

5. Also on Monday, Judge Duncan spoke with Sarah Isgur and David French on my favorite legal podcast, Advisory Opinions.

I won’t summarize the episode because you really should just listen to it for yourself—especially since yours truly is also a guest on the same episode. ;-)

In addition, also on Monday night, Stanford FedSoc President Tim Rosenberger appeared on Tucker Carlson Tonight (via Mike Davis). Interesting tidbit from that interview: only two Stanford Law professors have reached out to Rosenberger to express support, the chapter’s advisor (Professor Michael McConnell) and Professor Joseph Bankman (most well-known right now as the father of FTX co-founder Sam Bankman-Fried, but before that, one of the most popular members of the SLS faculty). [UPDATE (10:35 a.m.): Updated to identify Professor McConnell by name.]

6. Not surprisingly, given the hot-button issues involved and the prestige of Stanford Law as an institution, the Kyle Duncan controversy has unleashed a raft of online commentary over the past few days.

Call L’Affaire Duncan “the protest that launched a thousand tweets”—and given the sheer volume of Twitter discussion, I won’t attempt to summarize it here. But I have collected blog and other online media commentary, which I prefer over the Twitter’s short, hot takes. Here are some of the more noteworthy pieces, from an ideologically diverse set of pundits, and you can read any in full by clicking on the links:

• Josh Blackman: “The debacle at Stanford Law School is the logical conclusion of DEIdeology…. [C]onsistent with anti-racist teachings, [adherents of DEIdeology] seek to use their newly-acquired power to elevate preferred messages and to deplatform ‘harmful’ speech.”

• GianCarlo Canaparo: “Stanford should punish the students who protested and the administrators who did nothing. Duncan has called for Steinbach to be fired; she should be. It isn’t enough for Stanford’s president to rebuke unnamed ‘staff members’ for failing to enforce the free speech policy. A few pink slips, on the other hand, might encourage those who remain to behave.”

• Rod Dreher: “It was a revolt of the elites, a pogrom against free speech and civil discourse carried out by some of the nation’s most privileged. It was a scene from Dostoevsky’s political novel Demons played out in one of America’s most exclusive training schools for its legal ruling class. And it is a stark warning about the potentially totalitarian future of the US.” (Dreher also interviewed Judge Duncan, which ended with the judge asking, “What if, in ten or twenty years time, this kind of behavior is the norm in the courtroom, the law firm, the boardroom? And I don’t necessarily mean loud vulgarity and shouting people down. Instead, I mean a situation where power and ideology always trump reasoned debate.”)

• Scott Greenfield (commenting on Dean Martinez’s first email): “I see the same old empty platitudinous crap that goes nowhere. At the presentation, Dean Steinbach shook with passionate fury. In the email, Dean Martinez just shook, using the words she’s supposed to use without actually doing anything. If the students feared consequences, perhaps they wouldn’t have acted. But they have no fear. They know they can make the dean shake, quiver with fear at the thought of being the next dean to be canceled.” [UPDATE (4:29 p.m.): I just added Scott Greenfield, whose post I somehow missed.]

• Rory Little: “When repeatedly voiced complaints are ignored and individual rights are perceived as being trampled by ‘the Establishment,’ principled civil disobedience of generally accepted rules and regulations may be appropriate. The heckling of speakers—speakers perceived to be representative of racist or other discriminatory views—may be one such occasion.” (Professor Little’s op-ed makes clear why he didn’t attempt to silence the protesters at the Ilya Shapiro event at UC Hastings, where he was present as Shapiro’s sparring partner.)

• Ian Millhiser (discussing the Duncan visit against the backdrop of State of West Virginia v. B.P.J., a transgender-rights case now before the Supreme Court via the emergency/shadow docket): “[W]hat does [the Duncan controversy] have to do with the B.P.J. case? The answer is that, if you tried to engineer a controversy in a lab with the goal of outraging a Court dominated by Federalist Society stalwarts, you would come up with something like this confrontation.”

• Joe Patrice: “Judge Duncan dispensed with playing the respectable victim and went full wrestling heel, channeling his inner Ric Flair and preening for the crowd about how much they hate him because he’s beautiful—or in this case, because he’s life-tenured and doesn’t have to care about their rights. He successfully feasted on the crowd’s disdain, but can you really make the case that you’re getting canceled when you’re the one launching into calling students things like ‘appalling idiot’ while they ask questions you refuse to answer?”

• Mark Joseph Stern: “Duncan got the attention he so obviously wanted, drawing instant support from GOP senators and Fox News. He emerged as a folk hero on the right, the audacious judge who punched back at crybullies on the left who tried to silence his free speech. Yes, his behavior was injudicious; that was the point. The judge has likely concluded that conducting himself like a truculent provocateur will increase his odds of advancing to the Supreme Court under a future Republican president.”

• John Sexton (the writer for the conservative Hot Air website, not the former NYU Law dean, responding to Mark Joseph Stern): “There’s no doubt that Judge Duncan gave as good as he got. He was not especially kind to the law students who were baiting and berating him with crude and crass messages about his sex life. But it’s a long way from saying that to claiming his whole intent all along was merely to rile up students. To put it bluntly, Mark Joseph Stern can’t possibly know that unless he’s a mind reader on the side.”

• Charlie Sykes: “While some critics on the left have focused on Duncan’s petulance, that’s not really the key issue here, is it? …. Once again, we learned that quite a few folks on the progressive left have no problem with suppressing or disrupting speech that they believe causes ‘harm.’”

• Jonathan Turley: “This event was videotaped and shows students shouting down Judge Duncan to prevent others from hearing his views. It is called ‘deplatforming’ or silencing those with opposing views. Yet, neither [President] Tessier-Lavigne nor [Dean] Martinez promise to hold these students accountable or to sanction Steinbach [in their apology letter to Judge Duncan].”

7. What will happen at Yale Law tomorrow?

“Hey Stanford Law, Yale Law called—it wants its drama back.”

In case YLS students are getting jealous of all the attention their SLS peers are getting, the Yalies have a chance to take back the limelight. Tomorrow, March 15, Judges James Ho (5th Cir.) and Lisa Branch (11th Cir.)—the two judges leading the boycott of clerks from Yale Law, based on their concerns about the state of free speech at the law school—will be speaking at YLS. How will they be received?

My guess is that they won’t be protested. First, Yale Law School seems to be turning over a new leaf, reflected in the successful Return of the Queen (of Darkness): in January, Kristen Waggoner of the archconservative Alliance Defending Freedom spoke at YLS, and her appearance went off without a hitch. Judge Ho is controversial, but he’s no Kristen Waggoner, and Judge Branch is far less controversial than both.

Second, and shrewdly on YLS’s part, Judges Ho and Branch are part of a larger panel of eight judges participating in this event of the Crossing Divides Speaker Series of the Tsai Leadership Program. There will be three Trump appointees besides Ho and Branch: Judges Marvin Quattlebaum (4th Cir.), Roy Altman (S.D. Fla.), and Dabney Friedrich (D.D.C.). And there will be three Obama appointees: Judges Pamela Harris (4th Cir.), Stephen Higginson (5th Cir.), and James Boasberg (D.D.C.).

Judges Friedrich, Higginson, and Boasberg are Supreme Court feeder judges, so expect the YLS students to be on their best behavior. The #1 rule of Yale Law gunners: you don’t bite the hand that feeds you.

[UPDATES (3/26/2023, 11:05 a.m.):

1. As I predicted, the Yale Law School event was not disrupted.

2. I posted a 41-minute audio recording of (almost) the entire event with Judge Duncan.

3. Dean Martinez sent an excellent, 10-page memo to the SLS community about the protest and its aftermath.]

---

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.