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What should institutions do when the watchdog barks?

I’ve been thinking about this in the aftermath of a contentious appearance by U.S. Court of Appeals for the Fifth Circuit Judge Stuart Kyle Duncan at Stanford University.

The initial story was significantly stoked by conservative activist Ed Whelan, who released a partial video of the event to Twitter that made it appear Duncan was “shouted down” and unable to speak.

Fueled by Whelan, the narrative that we were experiencing yet another incident of illiberal leftist students unable to handle the dissenting views of a conservative speaker took off.

Free speech watchdog FIRE (the Foundation for Individual Rights and Expression) jumped into the fray by quote tweeting Whelan’s initial characterization and, while saying they were working to get more information, also broadly endorsed Whelan’s perspective and labeled it a “substantial disruption.”

Outrage machine engaged and approbation flowing in, Stanford dean Jenny Martinez issued a statement saying that “it is a violation of the disruption policy to prevent the effective carrying out of a public event,” implying that this was what happened with Duncan.

Martinez issued another mea culpa directly to alumni the next day, repeating much of the same language from the first statement, saying, “The way the event with Judge Duncan unfolded was not aligned with our institutional commitment to freedom of speech. 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.”

Neither statement identifies which actions or statements were in violation of the policies, so we’re left to draw our own conclusions on the specifics.

Thanks to reporting from Mark Joseph Stern at Slate and a number of other videos, we know that the full story is a little more complicated.

I want to quote Stern’s reporting and interpretation of the videos at length:

As multiple firsthand accounts and videos demonstrate, that is not what happened. In reality, at the start of those remarks, the protesters peppered the judge with questions and criticisms but did not drown out his speech. Instead, a frustrated Duncan asked for an administrator to step in to tamp down the heckling. At that point, Tirien Steinbach, the associate dean for diversity, equity, and inclusion (and a Black woman), approached the judge. In the video, it appears he did not recognize that she was the administrator he had requested; “You’re an administrator?” he asked. Students began shouting to explain to the judge that Steinbach was an administrator (and that is when Whelan’s video begins). Reluctantly, Duncan let Steinbach speak. She told the students that she agreed with their criticisms of Duncan, but that they had to let him express his views. (Duncan responded that she had participated in a “setup.”) Steinbach also invited protesters to leave if they wanted to, and many exited. Videos reviewed by Slate show that a student leader of the protests then asked the audience to stay silent so Duncan could talk. They did.

Duncan then unilaterally decided not to deliver his talk and instead went to Q&A, which shows him responding with a series of dismissals, including calling one student “an appalling idiot.”

A group of Stanford students wrote to express “frustration” with Martinez’s response in the apology letter, saying it “fueled a dishonest narrative” and that Duncan “made civil dialog impossible.”

FIRE is quick to call itself nonpartisan, and while this is absolutely true about the arm of the organization that does the on-the-ground legal work, in reality, FIRE has two identities, as there is also a fairly apparent rightward slant in its public-facing advocacy. This can be seen in its “scholars under FIRE database,” which uses a methodology that seems deliberately chosen to minimize threats to scholars’ free expression that come from the right, and a recent survey on campus attitudes toward free speech that oversampled faculty from FIRE’s own database, likely skewing the results toward FIRE’s preferred narrative that academic freedom and the First Amendment are under threat.

FIRE uses its nominal nonpartisan status and legal advocacy work to enhance its credibility, so that when the watchdog comes barking at institutions, as in the case of Stanford, the impulse to turtle up and say uncle is strong, lest more outrage and trouble come their way. One member of FIRE’s advisory council, David Lat, appears to be the first person Duncan spoke to, telling Lat that he anticipated that he would be protested, and filmed the students as he entered.

The whole thing got off on the wrong foot, and Duncan seems to have played a role in that dynamic.

A source that Lat spoke to said of Duncan, “From the moment Judge Duncan arrived on campus, he seemed to be looking for a fight. He walked into the law school filming protesters on his phone, looking more like a YouTuber storming the Capitol, than a federal judge coming to speak.”

Yale professor Nicholas Christakis, another member of FIRE’s advisory board, said on Twitter that the “staff should face professional consequences” and that “administrators should be fired for not doing their job.” Students should “receive a note in their files” that could potentially call “their fitness as lawyers into question.”

This is not the full-on bad-faith outrage machine fueled by outfits like Campus Reform that Don Moynihan of Georgetown University unpacked in a recent newsletter at his Substack, but it is not entirely divorced from it, either.

A powerful advocacy organization and influential voices in elite higher education shaped a narrative around what happened at Stanford that may or may not be wholly accurate to the actual events, which anyone must admit are complicated.

Even if the worst accounts of student behavior are 100 percent accurate, the intervention by FIRE and others makes it considerably harder for the institution to address them in a constructive way. FIRE’s intervention puts the institution on the defensive, and the institution reacts accordingly.

There are a few takeaways I’m thinking about here. I wouldn’t say these are all etched in stone, but they’re my best read of things at this time.

One is that when figures like Duncan are invited to speak on campus in an apparently deliberate effort to troll the liberal portion of the student body, it’s probably best to literally ignore him. Let him come, speak to his ideological brethren, engage in some mutual backslapping and go on his way.

I really do mean ignore him entirely. When someone is coming in bad faith, even if a protest is within the bounds that FIRE or someone like Christakis would find acceptable, there’s no guarantee that someone acting in bad faith will not distort those events to their own advantage.

Does this require some students to self-censor so as not to risk backlash? Yes, but this is the state of things regarding these issues on campuses today.

Another takeaway is that I think it’s important for folks to realize that FIRE is an advocacy organization, and that like all advocacy organizations, it first has a responsibility to its own mission and organizational success. FIRE is not constituted to help institutions navigate these issues. It has a different role.

FIRE has fostered a narrative of left-wing censoriousness on campus for years, helping to raise tensions that require an organization like FIRE to police. It plays these tensions expertly to make itself central to and a powerful voice inside these debates.

There’s a reason why FIRE had mobile billboards circling the campus of Hamline University following the ham-fisted and counterproductive attempts of Hamline administrators to address student complaints but is almost entirely silent about the hostile takeover of the New College of Florida by right-wing ideologues.

FIRE would likely tell you that whatever one thinks about what’s going on at New College, what Ron DeSantis is doing is not illegal, and where DeSantis is overstepping in terms of the law, it is advocating against him, and it is right. But FIRE also helped create the narrative that DeSantis is currently using to attempt to run roughshod over New College as he declares that Florida is the place where “woke goes to die.”

FIRE’s mission is not to help create an overall improved atmosphere for the free exchange of ideas on campus, an issue that requires nuance and collaboration. FIRE is a blunt instrument playing a different role to protect (with the legal work) and police (with the advocacy arm) instances of individual rights, and an institution taking its cues directly from FIRE may not be acting in the best interest of creating a healthy atmosphere for the free exchange of ideas on campus.

I think FIRE would argue that the kind of intervention it performed at Stanford, or those billboards at Hamline, are effective deterrents to other institutions doing something similar, which is a fair point. But again, this is FIRE acting as a kind of police of behavior, which is not something institutions should be bound to. FIRE is merely one voice. FIRE is designed to deliver pressure from a particular standpoint. It is not responsible for the actions of the institutions themselves.

If institutions allow themselves to be intimidated away from their values by these tactics, they are failing in their community responsibilities.

Nothing illegal happened at Stanford, so it’s not clear why administrators felt such urgency to bend the knee. They could have waited, weighed the complicated and competing issues, and then acted according to the deep values of the institution. There is reportedly a video of the full event. Such a document could be used to develop a robust dialogue about the various rights and responsibilities that can indeed be in tension on these occasions and how they can best be negotiated.

It’s a cliché, but it really is a teaching opportunity. That opportunity is now likely lost.

The overall atmosphere around learning has almost assuredly been harmed at Stanford Law.

People like Nicholas Christakis apparently believe that anything short of dismissals is a betrayal of institutional responsibility. The failure to address this will cause discontent on one side. On the other side, the students feel they’ve been thrown under the bus by an administration that catered to someone looking to make their bones by provoking—and getting—a fight.

Students reportedly silently protested Martinez on campus in the aftermath of her apology letters. This is not a place where productive work is going to happen. It’s a very hard situation, but it could’ve gone differently if there was less concern about being a battleground in the tug-of-war over power and more concern about the truth-seeking role of higher education.

It’d be nice if the organizations and individuals who say they believe in those values could give others the space to and grace to do that seeking, rather than leaping headlong into the fray. Perhaps eminences with roles in important free speech organizations like FIRE could have guided us to wait for the full video so we could have had that fuller discussion, or perhaps they could have matched the condemnation with equal measures of analysis to make more space for discussion.

Unfortunately, the outrage storm ginned up to score some points in the culture war likely made that goal impossible.

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