Tuesday, April 04, 2023

Stanford Law Students’ Infantile Protests

Andrew Koppelman

The students who disrupt right-wing speakers – the protest against Judge Kyle Duncan, who tried to speak at Stanford Law School, is a prominent recent case – have been appropriately criticized for their obliviousness to the value of free speech.  I want to flag another issue: their piffling political ambitions. Today’s left aims to protect minorities from offense.  It ought to aim to change the world.

The two aspirations are in conflict. Hypersensitivity to feelings, and the desire to vent them in the crudest possible way, enfeebles law students. It turns them into lousy advocates, useless to the social movements they hope to serve.

Before President Trump appointed him to the Fifth Circuit, Duncan specialized in anti-LGBTQ litigation. As a judge, he nastily mocked a transgender litigant. Stanford’s Federalist Society invited him for a discussion, but he was unable to complete his remarks in the face of constant booing from audience members. The law school’s dean has since apologized for the school’s failure to enforce its own rules against shouting down speakers.

The Stanford chapter of the National Lawyers Guild defended the disruption, declaring that it “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.” Stanford’s American Constitution Society said that the “vast majority of students’ shouting was to defend valued members of the SLS community against verbal abuse from a powerful man.” They seem to think that the way to do this is to stop Duncan from speaking. (In these pages, Jennifer Ruth has similarly argued that because many conservatives are attacking higher education, students who do the same are merely showing that they “grasp the moment.”)

It is a quack remedy. It confuses trivial, symbolic victories for real ones.

I’m an advocate of LGBTQ rights. I’ve fought Duncan and his allies for decades. I think it’s a good thing when he presents his views, precisely because I want to defeat those views – to change the law, in ways that Duncan would hate.

The fundamental purpose of a law school is to give the next generation the skills to build a more just world. In order to develop those skills, the students need the experience of engaging with smart, skilled people like Duncan who embrace ideas that they find hurtful and abhorrent. A good advocate must anticipate the strongest arguments on the other side – arguments that she may find painful to contemplate, especially when she has not yet figured out how to answer them.

That’s true of all lawyers, but it’s particularly pertinent to those who are trying to advance social change.

Tirien Steinbach, the associate dean for diversity, did nothing about the disruption until Duncan asked an administrator to intervene. She then said that Duncan had a right to speak, but questioned whether he ought to be there at all. “Is the juice worth the squeeze?” she asked. “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 it is worth this impact on the division of these people?” She later claimed that she “was referring to the responsibility that comes with freedom of speech: to consider not only the benefit of our words but also the consequences.”  Evidently, she thinks the consequences are a reason for Duncan to stay away from law students.

Steinbach does not understand the point of legal education. I’ve had the kind of painful encounters she describes. They made me a better advocate. The pain and the improvement are inseparable. There is no substitute for actually meeting and talking to the people on the other side, discovering that they do not instantly crumble under your questions, feeling frustrated that the encounter was not the moral triumph you had hoped for, and regretfully realizing, two days later, what you should have said.

If you can’t handle that, please don’t be an LGBTQ rights lawyer. You won’t be good at it, and so will do the movement real harm. Shielding students from encountering Duncan is like keeping a boxer from watching videos of an opponent’s fights.  This kind of insulation will make law students less competent to do their jobs, and will lead them to lose cases that they could have won.

That was amply displayed by the infantile behavior of the protestors.  Some of the best law students in the country actually believed that they were advancing their cause by shouting insults at Duncan. Need one really say that yelling “We hope your daughters get raped!” or “Why can’t you find the clit?" is not effective advocacy? (Videos of these antics will probably end up in Republican political ads.)

The protestors also don’t serve themselves well by distorting Duncan’s views – by claiming, as Steinbach did, that his speech “literally denies the humanity of people.” Duncan doesn’t deny their humanity. He, like much of the religious right, aims to impose on them a standard of conduct that is sectarian and cruel. He actually believes that he is doing them a favor, showing them the way, the truth, and the light. Duncan isn’t a sociopath. He is an idealist, one who embraces ideals that are warped and destructive. I don’t think I’ve ever met him, but I know people like him.  By patiently learning about their claims, I’ve been able to rebut them in detail.

The self-indulgent fantasy that Duncan is some kind of demon also cuts off the possibility of real conversation. Lawyers need to understand reality. I’ve learned to appreciate that my opponents are decent people, even as I continue to do all I can to vanquish their oppressive political visions. Some of them have even become my friends.  It is fascinating, when I talk to them, to consider how it is possible for such otherwise smart people to be so wrong. (Of course, they think the same of me.)

And then of course there is the task of persuading judges – judges who may themselves embrace views of the world that we reject. Like it or not, you have to be able to imagine your way into their view of the world. 

One of the biggest litigation victories I participated in was the Supreme Court’s 2020 decision, in Bostock v. Clayton County, that discrimination against LGBTQ people is illegal sex discrimination – a claim I’ve been making since I was a law student. When Yale Law Professor William Eskridge and I wrote our amicus brief in that case, we consciously targeted Justice Neil Gorsuch, aiming to show him that his textualist philosophy of interpretation demanded that result. I have big disagreements with Gorsuch. We thought it was nonetheless worth testing the hypothesis that he is not a mere political apparatchik, but an honest judge who sincerely tries to get the law right. Lawyers who can’t imagine that possibility won’t be able to do their jobs.

We won, and Gorsuch wrote the Court’s opinion. LGBTQ people all over the country are now protected from employment discrimination. The lawyers who won the right to same-sex marriage were likewise coolly result-oriented. This isn’t just about lawyering. The distinguishing mark of adults is that they focus on bringing about real results in the world, instead of indulging in the pleasure of venting their feelings.

(The above is at the Chronicle of Higher Education,



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