Stanford Apologizes to US Circuit Judge for Disrupted Speech (1)

Stanford University apologized to federal appeals court judge Kyle Duncan, saying students’ interruption of his appearance before a campus Federalist Society event was “inconsistent with” free speech policies.

Videos of the event posted online show Duncan, a judge on the US Court of Appeals for the Fifth Circuit, facing off with protesters who were critical of his rulings. The March 9 event was titled “The Fifth Circuit in Conversation with the Supreme Court: Covid, Guns, and Twitter.”

“As has already been communicated to our community, what happened was inconsistent with our policies on free speech, and we are very sorry about the experience you had while visiting our campus,” Marc Tessier-Lavigne, Stanford University’s president, and Jenny Martinez, the law school’s dean, said in a March 11 letter to Duncan.

The incident is the latest at a law school campus in which conservative speakers were met with protests and part of a larger trend of students “shouting down” speakers with whom they disagree, said Charles Geyh, a law professor at Indiana University who writes about judicial conduct and ethics.

The Stanford administrators said the school is “very clear” with students that they can protest but can’t disrupt speakers they disagree with, and that the school’s “disruption policy” says students can’t “prevent the effective carrying out” of a “public event.” The administrators also said staff present didn’t enforce school policy.

“In addition, 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,” Tessier-Lavigne and Martinez said.

Duncan faced pushback from civil and LGBTQ rights organizations after he was nominated to the Fifth Circuit by Donald Trump in 2017. Citing his past legal work, those organizations argued he took positions that were harmful to the LGBTQ community.

Several of the Stanford protesters carried pro-LGBTQ signs or flags, according to a video of the event posted by Ed Whelan, a fellow at the conservative Ethics & Public Policy Center. The same video also shows an associate dean that he identified as Tirien Steinbach stepping in and speaking to the room.

In her remarks, Steinbach told Duncan “your advocacy, your opinions from the bench, land as absolute disenfranchisement of their rights,” referring to the students. She also told Duncan he was welcome in the space.

“We believe that the way to address speech that feels abhorrent, that feels harmful, that literally denies the humanity of people—that one way to do that is with more speech and not less,” Steinbach, who is associate dean for diversity, equity, and inclusion said.

Another video of the event, posted by Jay Willis, who writes for the progressive website Balls & Strikes, shows Duncan arguing with a student off camera. Duncan later says, “thanks to the Federalist Society for inviting me, as far as the rest of you people, yeah whatever.”

Steinbach, Duncan, and Stanford Law School didn’t respond to requests for comment.

Yale Parallel

Fellow conservative Fifth Circuit Judge James Ho attracted national attention for his boycott of hiring future clerks from Yale Law School for what he said was the school’s poor handling of student demonstrations at events featuring conservatives on campus. Eleventh Circuit Judge Elizabeth Branch later joined that boycott.

“Part of it is a new strategy on the leftward leaning students and part of it is, I think, there is more political power being vested in a new kind of conservative that is perceived as more threatening to students who are shouting them down,” Geyh said.

One of the incidents Ho took issue with when announcing his boycott, for example, was protest of a panel discussion at Yale in 2022 featuring Kristen Waggoner of the conservative Alliance Defending Freedom and Monica Miller of the American Humanist Association.

While shouting a speaker down might be a course of action for oppressed groups to express themselves in some contexts, Geyh said in law schools, which try to cultivate a civil forum, shouting down speakers is “contrary” to legal education principles. “I confess to having a real problem with it,” he said.

Geyh, however, drew a line between student protests of conservative speakers and Ho’s boycott, saying Ho “traded on his prestige as a judge” by preventing all students at a school from getting a future clerkship with him.

Duncan has also received criticism for the way he conducted himself in response to the students. In one video of the event, posted by Chris Geidner, a legal writer and blogger, Duncan called a student an “appalling idiot.”

Catherine Ross, a law professor at George Washington University who has written about speech in schools, said universities should tell students during orientation they might hear things they don’t agree with on campus and teach them how to handle it.

“You get to respond to that with more and better speech,” Ross said.