Dean Jenny Martinez Speaks Out About The Protest Of Judge Duncan At Stanford Law

Other deans can learn from her clear, convincing, and courageous statement.

Dean Jenny Martinez (courtesy of Stanford Law School).

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In the world of campus free-speech issues, certain pronouncements have acquired canonical status. There’s the Kalven Report (1967). The Woodward Report (1974). The Chicago Principles (2014).

And now we have a new addition to their august ranks: the Martinez Memo (2023). This is what leadership looks like.

On Wednesday, Dean Jenny Martinez of Stanford Law School issued a 10-page memorandum addressing the disruptive March 9 protest of Fifth Circuit Judge Kyle Duncan. I’m a little late in covering the news (partly because of some weird 24-hour bug I had), but the delay has given me time to reflect on the memo, gather reactions from sources, and produce this deep dive.

The Martinez Memo is a follow-up to the dean’s March 10 statement, sent internally at SLS, and her March 11 letter of apology to Judge Duncan (which was co-signed by Stanford’s president, Marc Tessier-Lavigne). But the Memo is far more detailed. Here’s how it opens:

As my message to you last week indicated, I had hoped to wait until after final exams concluded at the end of this week to offer any further comments on the disruption of Judge Kyle Duncan’s speech at a student Federalist Society event on March 9, 2023, and the school’s response to that disruption. However, continuing outside attention to these events, as well as the volume of hateful and even threatening messages directed at members of our community, have led me to conclude that a more immediate statement is necessary.

In her next paragraph, Dean Martinez refers to the invective as “appalling,” and she’s absolutely right. As my original story about the March 9 protest should make clear, I’m no fan of how the protestors and Tirien Steinbach, Stanford Law’s associate dean for diversity, equity, and inclusion (DEI), conducted themselves. But there is no justification for sending anyone hate mail or responding to incivility with incivility.

Following this brief introduction, Dean Martinez’s memo proceeds in three parts. In Part I, she discusses academic freedom, free speech, and campus protests, making clear that while protest is permitted, disruption is not. In Part II, she addresses the relationship between academic freedom, free speech, and DEI, as well as the proper role of university administrators. Finally, in Part III, she outlines measures that SLS will be adopting to prevent such incidents from occurring in the future.

Part I begins with a quotation from Stanford’s Statement on Academic Freedom, adopted by the faculty Senate in 1974:

Stanford University’s central functions of teaching, learning, research, and scholarship depend upon an atmosphere in which freedom of inquiry, thought, expression, publication and peaceable assembly are given the fullest protection. Expression of the widest range of viewpoints should be encouraged, free from institutional orthodoxy and from internal or external coercion.

Dean Martinez then addresses one argument that drives me batty:

Some students have argued that the disruptive protest of the event was itself constitutionally protected speech. Of course, protests are in some instances protected by the First Amendment, but the First Amendment does not give protestors a “heckler’s veto.” As First Amendment scholar Dean Erwin Chemerinsky has written, “Freedom of speech does not protect a right to shout down others so they cannot be heard.”

See also David French’s New York Times column about SLS, as well as Ken White’s Popehat post and this FIRE dialogue between Greg Lukianoff and Nadine Strossen, which I’ve mentioned before in these pages.

But even if you think you know more about the First Amendment than Deans Chemerinsky and Martinez—who is, by the way, also a professor of constitutional law—you can’t dispute that private institutions like Stanford have the right to establish their own policies prohibiting disruption. This brings us to Stanford’s policy (citations omitted, as they are throughout this post—and there were quite a few, because the Martinez Memo contains an impressive amount of law):

The “nature of a meeting” in an indoor university classroom, under settled First Amendment law, does not countenance the same sort of “prolonged, raucous, boisterous demonstrations” that might be acceptable at an outdoor rally. Rather, different “customs and usages” apply in a setting like a planned lecture in a reserved room on campus. In such a setting, limiting audience participation to signs, questions during a planned Q&A, and a non-disruptive level of audience reaction is appropriate to the nature of the forum.

Stanford’s event disruption policy gives attendees a right to hold signs and to demonstrate disagreement in other ways as long as the methods used do not “prevent or disrupt the effective carrying out of a University function or approved activity, such as lectures, meetings, interviews, ceremonies… and public events.” Moreover, students are encouraged to hold alternative events where they can share their own views without disrupting the invited speaker.

The SLS students disrupted the invited speaker, Judge Duncan—and he responded harshly at times. This generated a lot of “whataboutism”—e.g., “what about Judge Duncan and his rude treatment of the protestors”—which Dean Martinez addresses:

Some students contend that the judge invited the heckling with offensive comments or engagement with protestors. These arguments misunderstand the nature of the disruption policy. The policy would not be meaningful to protect the carrying out of public events and the right of attendees to hear what is said if it applied only when a speaker said things protesters in an audience found agreeable. Nor does the fact that the speaker departs from their planned remarks and engages with the hecklers justify further heckling that disrupts the event.

As I’ve said before, I wish Judge Duncan had been more restrained in reacting to the protestors. But as I told Nico Perrino of FIRE when we discussed L’Affaire Duncan on his free-speech podcast, So To Speak, that’s not really the news; the news is that yet another event at an elite law school was subject to a disruptive protest. (And in fairness to Judge Duncan, let’s not forget that he was provoked—by protestors who said, among other things, “we hope your daughters get raped”—and he tried to give his prepared remarks for quite some time before finally criticizing the hecklers.)

Now let’s turn to Part II, the intersection of free speech and DEI. Dean Martinez has a demonstrated commitment to diversity: she chaired Stanford Law’s Working Group on Diversity and Inclusion, which developed the law school’s DEI plan, before becoming the first Hispanic person and woman of color to lead SLS. And her commitment to DEI is precisely why she cares so much about free speech:

The university’s commitment to diversity, equity, and inclusion can and should be implemented in ways that are consistent with its commitment to academic freedom and free speech. Indeed, for the reasons explained below, I believe that the commitment to diversity, equity, and inclusion actually means that we must protect free expression of all views.

The Federalist Society has the same rights of free association that other student organizations at the law school have. Students calling for the law school administration to restrict the organization or the speakers it can bring to campus are demanding action inconsistent not only with freedom of speech but with rights to freedom of association that civil rights lawyers fought hard in the twentieth century to secure.

Amen. True diversity includes not just the visual diversity of race and ethnicity, but ideological and intellectual diversity as well. Accordingly, university administrators—including, yes, DEI administrators—must enforce free-speech policies to protect minority views:

Enforcement of university policies against disruption of speakers is necessary to ensure the expression of a wide range of viewpoints. It also follows from this that when a disruption occurs and the speaker asks for an administrator to help restore order, the administrator who responds 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, for that imposes the kind of institutional orthodoxy and coercion that the policy on Academic Freedom precludes.

This is an unmistakable rebuke of Dean Steinbach. Even though she’s not mentioned by name, who else “insert[ed] 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”? (By the way, Dean Steinbach just published a Wall Street Journal op-ed defending her actions; I think her characterization of what transpired is belied by the evidence, including the audio recording, but read her piece and judge for yourself—and read the WSJ reader comments for the lulz.)

Dean Martinez then quotes three paragraphs from the Kalven Report, the University of Chicago’s landmark statement about free speech. Here’s the key language:

The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars. To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community.

Consistent with the university being “the home and sponsor of critics” and “not itself the critic,” Dean Martinez makes this excellent declaration:

[O]ur commitment to diversity, equity, and inclusion is not going to take the form of having the school administration announce institutional positions on a wide range of current social and political issues, make frequent institutional statements about current news events, or exclude or condemn speakers who hold views on social and political issues with whom some or even many in our community disagree. I believe that focus on these types of actions as the hallmark of an “inclusive” environment can lead to creating and enforcing an institutional orthodoxy that is not only at odds with our core commitment to academic freedom, but also that would create an echo chamber that ill prepares students to go out into and act as effective advocates in a society that disagrees about many important issues.

In other words, it’s not the role of a law school to say that #BlackLivesMatter or that #BlueLivesMatter, or to condemn critical race theory or to endorse it. Instead, a law school should create an intellectual environment in which individual professors and students feel comfortable taking those stands. Cf. my Boston Globe op-ed about law firms (arguing that firms should stop issuing statements on every issue in the news).

Dean Martinez goes on to observe that law students, if they want to succeed as lawyers, must be able to hear viewpoints they don’t share—or even find odious:

Law students are entering a profession in which their job is to make arguments on behalf of clients whose very lives may depend on their professional skill. Just as doctors in training must learn to face suffering and death and respond in their professional role, lawyers in training must learn to confront injustice or views they don’t agree with and respond as attorneys.

She then offers this eloquent meditation on the important role of law and the legal system—a role that’s more important and necessary than ever in polarized times:

Law is a mediating device for difference. It therefore reflects all the heat of controversy, all the pain and suffering, and all the deeply felt moral urgency of our differences in position, power, and cherished principles. Knowing all of this, I believe we cannot function as a law school from the premise that appears to have animated the disruption of Judge Duncan’s remarks—that speakers, texts, or ideas believed by some to be harmful inflict a new impermissible harm justifying a heckler’s veto simply because they are present on this campus, raised in legally protected speech, and made an object of inquiry.

Like a good lawyer, Dean Martinez addresses opposing viewpoints—specifically, the view that “harmful” viewpoints must be kept out of law schools:

There is temptation to a system in which people holding views perceived by some as harmful or offensive are not allowed to speak, to avoid giving legitimacy to their views or upsetting members of the community, but history teaches us that this is a temptation to be avoided. I can think of no circumstance in which giving those in authority the right to decide what is and is not acceptable content for speech has ended well. Indeed, the power to suppress speech is often very quickly directed towards suppressing the views of marginalized groups. We see this today, both around the United States and around the globe.

See generally Florida. If you don’t like what Governor Ron DeSantis is doing to the First Amendment in the Sunshine State—and paid subscribers to this newsletter, who receive Judicial Notice, are well aware of my own views—then you should understand the danger of “giving those in authority the right to decide what is and is not acceptable content for speech.”

Finally, in Part III, Dean Martinez outlines “Next Steps” for Stanford Law. She begins by addressing one topic that everyone has been wondering about:

First, Associate Dean Tirien 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. I do want to express concern over the hateful and threatening messages she has received as a result of viral online and media attention and reiterate that actionable threats that come to our attention will be investigated and addressed as the law permits.

Some critics of Dean Martinez have complained that she didn’t come down hard enough on Dean Steinbach or fire her. I respectfully disagree. First, by the decorous standards of decanal declarations, Dean Martinez came down harshly on Dean Steinbach—in the aforementioned discussion of administrators who improperly “insert themselves into debate,” and in a passage I’ll discuss shortly.

Second, Dean Martinez didn’t state that placing Dean Steinbach on leave is the only thing that will happen to her. Given how tempers are running high right now at SLS, I can understand why Dean Martinez didn’t want to fire Dean Steinbach immediately, especially in light of the strong support she enjoys from the left flank of the student body. But don’t be surprised if after her leave is over, she finds herself in a new position at SLS, or no position at all—the fates of Yale Law School DEI director Yaseen Eldik and dean of students Ellen Cosgrove, respectively, after similar problems at YLS. (As one Stanford alum put it to me, “I am encouraged that SLS has placed [Steinbach] on leave, and I hope this is a first step towards terminating her.”)

Third, there may be facts here that we don’t know. For example, there were other administrators in the room during the Duncan protest, including the acting associate dean of students, Jeanne Merino. Did Dean Steinbach run her actions by any colleagues in advance? According to her WSJ op-ed, she “was asked to attend the event by the Federalist Society, the organizers of the student protest, and the administration.” Depending on what was said to her by fellow administrators and whether she got buy-in for her actions, Dean Steinbach might have a defense that we don’t know about.

So that’s the fate—for now—of Dean Tirien Steinbach. What about the protestors? From the memo (boldface type in the original):

[W]ith respect to the students involved in the protest, several factors lead me to conclude that what is appropriate here is mandatory educational programming for our student body rather than referring specific students for disciplinary sanction…. My analysis here is informed by California’s Leonard Law, which as discussed above legally prohibits Stanford University from imposing disciplinary sanctions on students for activity protected by the First Amendment. Measures targeting constitutionally unprotected speech raise concerns when implemented in a way that may chill constitutionally protected speech.

As I have already explained at length above, the disruptive conduct of many students at the event was not protected by the First Amendment. There were easily a hundred students in the room, however, and some individual students crossed the line into disruptive heckling while others engaged in constitutionally protected non-disruptive protest, such as holding signs or asking pointed questions. Even if we could come up with a fair process for identifying and distinguishing between the two categories of students consistent with First Amendment values, the particular circumstances of this event raise additional concerns.

As promised, here’s the second act of shade-throwing against Dean Steinbach:

Given the sometimes uncertain boundary between permissible audience reactions and impermissible disruptions at an event, “a warning and a request that defendants curtail their conduct” before proceeding to sanction can in some circumstances be important in preventing a constitutionally impermissible chilling effect on speech. Such an onsite warning might not be required in all cases, and students had been generally informed of the policy against disruptions (including by schoolwide email the morning of the event).

In this instance, however, the failure by administrators in the room to timely administer clear and specific warnings and instead to send conflicting signals about whether what was happening was acceptable or not (and indeed at one point to seemingly endorse the disruptions that had occurred up to that point by saying “I look out and say I’m glad this is going on here”) is part of what created the problem in the room and renders disciplinary sanction in these particular circumstances problematic.

As one Stanford Law alum quipped to me, this is where Dean Martinez “threw Steinbach under the bus—and ran it back and forth a few times.”

As for not punishing the students, another area where some admirers of the Martinez memo took issue with the dean, I again think Dean Martinez made the right call, or at least a reasonable one. I take a “rule of lenity” approach with something punitive like discipline, so I think violations should be very clear. And even though it’s very clear that Stanford’s policy was violated by the protestors collectively, Dean Martinez is correct in observing that (1) figuring out which individual students violated policy presents challenges, and (2) Dean Steinbach muddied the waters with her “is the juice worth the squeeze” speech, as well as her statement, made after the event to a smaller group of students, that the protest didn’t violate policy and was simply a manifestation of “messy” free speech. [UPDATE (12:38 p.m.): For the case in favor of punishing the students, see, e.g., this Bench Memos post by Ed Whelan (which was published just around the time of my post).]

Here’s what the educational programming will entail:

[T]he law school will be holding a mandatory half-day session in spring quarter for all students on the topic of freedom of speech and the norms of the legal profession. A faculty committee will plan the session and invite speakers representing a range of viewpoints. Needless to say, faculty and students are free to disagree with the material presented in these sessions or with the arguments I have presented in this memorandum—there will be no orthodoxy on this topic either.

Assuming she signed off on Dean Steinbach’s WSJ op-ed, Dean Martinez means what she says about “no orthodoxy.” (I have reached out to SLS to inquire whether Dean Martinez in fact authorized the Steinbach op-ed, but I have not yet heard back; I will update this post on the web if and when I do.) [UPDATE (3/25/2023, 12:48 p.m.): According to a Stanford Law spokesperson, “Tirien Steinbach did not share her op-ed with the law school or the university before publication.”]

In addition to training, there will also be policy changes:

In addition, a more detailed and explicit policy with clear protocols for dealing with disruptions would better protect the rights of speakers and also those who wish to exercise their right to protest within permissible bounds, and is something we will seek to adopt and educate students and staff on going forward. Doing so will bring greater clarity and certainty about future enforcement of the policy, including through disciplinary sanctions as appropriate.

Clarifying policy is one of several steps that Yale Law took in the wake of its own free-speech debacles—and might be one of the reasons why a return visit to Yale Law by Kristen Waggoner of Alliance Defending Freedom was not disrupted.

In the wake of the Stanford protest, Professor Rory Little suggested that student protestors might be engaged in civil disobedience. If future protestors at Stanford Law knowingly violate these updated policies and willingly accept the consequences, I can respect that. But I don’t buy the argument that they should be able to violate university policy and be spared discipline; to quote from a recent Advisory Opinions episode on SLS, “It's not ‘Letters from a Birmingham Coffeehouse.’”

Here’s the closing paragraph of the Martinez memo:

I recognize that the course I have chosen will not please everyone, not least of which those who have demanded that I retract my apology to Judge Duncan and those who have demanded that students be immediately expelled. But this is the course I believe best furthers our obligations as legal educators, charged with training future lawyers and preparing them to participate in a profession that undergirds the very fabric of our democracy and the rule of law.

Brava, Dean Martinez. Your chosen course hasn’t pleased everyone, but it has pleased this observer. I also solicited opinions from my Stanford sources by email and from the world at large on Twitter, and to sum up, most folks in the “moderate middle” support your handling of the situation. (I have posted some of the more noteworthy or detailed responses as an addendum to this post.)

For folks who fault Dean Martinez for not being tougher on the protestors, let me ask you: can you name a current dean who has faced a recent free-speech controversy and issued a better statement than the Martinez Memo? I didn’t think so. Most deans would have written something like this: “While I understand why many members of the SLS community, including members of this administration, find Judge Duncan’s views deeply hurtful, his right to speak was protected under University policy.”

Let’s be realistic: Dean Martinez is the leader of an elite law school in the year 2023. Her faculty has a single public-law conservative. Her student body is overwhelmingly progressive. Her law school is located in northern California. She faces tremendous systemic pressures to sell out free-speech values in favor of social-justice values—or at least to waffle and engage in “bothsidesism.”

But she didn’t. She took a stand. She issued a clear, convincing, and courageous defense of academic freedom and free-speech values. Kudos to her.

Thanks to Dean Martinez for her valuable contribution to the discussion of free expression at U.S. law schools—which I hope can serve as a model for other deans facing similar controversies, giving them the fortitude to resist improper pressures to curtail speech—and good luck to her as she works to reinforce ideals of free speech and civil discourse at Stanford Law.

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COLLECTED REACTIONS TO THE MARTINEZ MEMO

I’ll begin with a Stanford Law student. From a Stanford 1L who is neither a protestor nor a member of FedSoc/ACS/NLG:

Among my group of friends (similarly ideologically situated, though some did go to the Monday protest against the administration's initial response), Dean Martinez's memo is well-received. There are several students who attended the second protest not to “demand” an apology from Dean Martinez (or retraction of her apology to Judge Duncan), but to ask the school to recognize that some protestors' behavior at the event was likely acceptable "counter speech" (e.g., pointed Q&A questions, the protest prior to the event, perhaps even a shocked reaction or two from the audience at Judge Duncan's off-the-cuff remarks that didn't rise to purposeful heckling).

In other words, some of the community has been worried that there would be a move to quash those forms of speech because it would be easiest to cast all of March 9th as unacceptable.  But Dean Martinez took on the difficult task of parsing through the series of events and actions that constituted the protest and, in her letter, drew lines around what was and was not acceptable behavior. I respect and greatly appreciate those efforts. 

I've heard from a few people who wish Dean Martinez had addressed what they saw as “inappropriate” behavior towards students from Judge Duncan. But I think condemning Judge Duncan's response to students was beyond the scope of Dean Martinez's role. The school needed to clarify its understanding of the event and what its practices will be going forward—that's it. I also don't think it's appropriate given that some of the students' heckling was quite aggressive and out of the bounds of civility. 

I'm also happy that the school will be releasing video of the event to the Federalist Society but blurring students' faces [as mentioned in footnote 2 of the Martinez Memo]. I have no idea what threats have been circulating, but Dean Martinez seems to suggest that there have been several lobbied at the community. I imagine you've seen the invective on Twitter, and I think the school has a responsibility to not add more images of students to that mess….

Overall, I think this is a nuanced and very solid response to a messy situation. But I wish it had come much earlier to spare the majority of law students, who had no role in any of this, from the backlash.

From a federal appellate judge (but not Judge Duncan, who told me he might address the Martinez memo in his Notre Dame speech at 12:30 p.m. today):

I thought Dean Martinez’s letter hit the bull’s-eye on the vital importance of free expression. It’s a stirring, well-reasoned defense of bedrock free speech principles. I only wish she’d offered a sterner rebuke of the acquiescing administrators who stood silently in the classroom as things veered off the rails. Bigger picture, ABA accreditation should (1) factor in schools’ demonstrated commitment to free expression, (2) broaden its definition of “diversity” in faculty hiring to include viewpoint diversity so that future lawyers can escape their echo chambers. Monocultures that lazily reinforce ideological conformity harm the profession, and the rule of law.

From Professor Nadine Strossen, former president of the American Civil Liberties Union:

I was very impressed with Dean Martinez’s letter, and encouraged that it states a strong support for academic freedom/free speech, not only in terms of legal principles, but also in terms of a constructive implementation/enforcement program moving forward.

Especially striking and positive to me was Dean Martinez’s explicit endorsement of the Kalven Principles (which, after being long ignored, or even unknown, have been enjoying a bit of a renaissance starting quite recently). I have long been convinced that these Principles provide critically important support for academic freedom/free speech, and also liberate Presidents and other university officials from escalating demands to issue statements on proliferating issues, so that they can attend to their many pressing responsibilities—including developing a culture in which academic freedom/free speech can flourish. I hope that, just as many campuses adopted the “Chicago Free Speech Principles,” many will also adopt the Kalven Principles.  Given the prestigious stature of Stanford Law School, this step by it may well catalyze others to follow suit; that would be a silver lining to the  cloud of the Judge Duncan incident.

For more on the Kalven Principles, see this Twitter thread by Nico Perrino of FIRE.

From Perrino’s colleague Alex Morey, director of campus rights advocacy at FIRE:

The dean's statement hits all the right points, going in depth on both the First Amendment and state law, as well as making the normative case for tolerating a very wide range of views. Whatever it is that's causing students to turn to authoritarian methods to forcibly silence speech they dislike is the scary stuff that goes right to the heart of whether our democracy can survive. A few hours of free speech training probably won't resolve whatever's at the core of that, but it's a good start.

At the University of Chicago, where they arguably do the free speech thing better than any other school, students repeatedly and clearly get the message from the time they apply, in orientations, in policy documents, and modeled in class and at events, that wide open debate is going to be baked into their experience. 

In our current climate, we need that level of commitment from college and university administrators. They need to understand that free and open debate is the essential element of higher education, and act accordingly.

And I’ll end with a Stanford Law student. From a member of FedSoc:

Dean Martinez stood up for the values that make Stanford great. She championed pluralism, freedom of speech, and ideological diversity. She called for leniency for protesting students while laying the blame exactly where it belongs: at the feet of Tirien Steinbach and any other administrator that encouraged those who disrupted the event last week. And she also took time to express human decency, condemning the vile threats that Dean Steinbach and others have received from trolls inhabiting the worst corners of the Internet. I think that Dean Martinez hit all the right notes here, and the thoughtfulness and thoroughness of her statement proves her commitment to addressing the institutional rot that this incident uncovered.

Now, we will have to see if she succeeds in cultivating a true culture of free speech and diversity on campus. There is a lot of work to do, but I will do everything I can to help her succeed. We're all in the same boat. We all want to help Stanford remain the best place in the country to be a law student—whether you are conservative or progressive, or anywhere in between. Here's hoping Dean Martinez follows through and takes additional steps to ensure true ideological diversity at Stanford, not only among SLS students, but among SLS faculty and administrators as well.

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