There’s much to disagree with in Judge Stuart Kyle Duncan’s record, both as a onetime legal advocate specializing in opposition to same-sex marriage and as a member of the U.S. Court of Appeals for the 5th Circuit, elevated to the bench in 2018 by President Donald Trump. In the latter role, he wrote a notorious opinion gratuitously trashing a transgender woman litigant’s request to be referred to as “she.” Yet even students who understandably find his views and temperament obnoxious might learn from hearing him speak, which he tried to do at Stanford Law School on March 9, pursuant to an invitation by the local chapter of the conservative Federalist Society.
Instead, student protesters disrupted his talk in a raucous exercise of the heckler’s veto, captured on viral video, that violated Stanford’s own policy on free speech at such events — and was worsened by the failure of administrators present to enforce that policy. To the contrary, one administrator appeared to take the protesters’ side, turning to Judge Duncan, telling him of the “harm” his work had caused and asking him to reconsider his talk in light of the disruption: “Is the juice worth the squeeze?”
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This latest episode in the long-running controversy over free speech on campus has had a constructive ending, however, in the form of law school Dean Jenny Martinez’s measured but unequivocal defense of Judge Duncan’s right, and that of other controversial speakers, to be heard at the law school — and of Stanford students to hear them. In a 10-page open letter published Wednesday, Ms. Martinez offered an explanation of the apology she and Stanford President Marc Tessier-Lavigne offered Judge Duncan, which has also triggered protests. (In making that apology, she and Mr. Tessier-Lavigne rose above the judge’s own unbecoming reaction, which included profanity directed at the students.) Importantly, Ms. Martinez’s letter went beyond university policy and First Amendment law, to articulate values which underlie them: specifically, the relationship between reasoned discourse on the one hand and learning, civility and the “special role of lawyers in our system of justice” on the other. She argued forcefully that there is no contradiction between free expression and diversity, equity and inclusion. And she notified students that the school is planning a mandatory half-day training session to reinforce these concepts.
“There is temptation to a system in which people holding views perceived by some as harmful or offensive are not allowed to speak,” she wrote, “but history teaches us that this is a temptation to be avoided.” And there’s a chance it will be avoided on U.S. campuses where administrators emulate Dean Martinez’s leadership.
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