Stanford’s “No Discipline” Ruling is Bizarre and Dangerous; But Disruptive Stanford Law Students May Still Face Consequences
Stanford’s No Discipline Ruling
WASHINGTON, D.C. (March 23, 2023) – Some 13 days after many students disrupted a presentation which was to be made to a law school class by a visiting lecturer who is also a judge on a U.S. court of appeals.
The Dean of the Stanford Law School has ruled that none of the disruptive students will be disciplined in any way, including even the mildest penalties which its code provides: e.g. a simple warning, some community service, or simply "education."
This decision was made although the Dean admitted on several occasions that some of the students clearly violated the university's free speech policies by drowning out the judge so that he could not address the students who wished to hear him, and although several video recordings show who the disruptive students were and provide irrefutable evidence of the violations.
The much criticized decision also appears to be made unilaterally by the Dean - who has herself been subjected to withering criticism by judges, legislators, law professors and others - and not by the Office of Community Standards [OCS] which she admits is the appropriate body because it "involves a deliberate process including fact-finding and hearings" - rather than an ad hoc decision made by the supervisor of the DEI Dean who escalated the disruption and is now not with the University.
Even more puzzling are the four reasons the Dean set forth in hopes of justifying her ruling, argues public interest law professor John Banzhaf, who days earlier had advised the Dean of his plan to follow the policy of at least two federal judges, a U.S. Senator, and several law professors to report the antics of the students to bar admission authorities.
Her reasoning would have earned a low grade if submitted by a law student, he says.
Factors Behind The Ruling
The four stated "factors" which led the Dean to rule against a "disciplinary sanction," even for the ringleaders are:
ONE - "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." But strangely the Dean herself has admitted that "the disruptive conduct of many students at the event was not protected by the First Amendment."
TWO - finding a "fair process for identifying and distinguishing between two categories of students"; those who "crossed the line into disruptive heckling while others engaged in constitutionally protected non-disruptive protest."
But there are several video recordings clearly showing which students engaged in which conduct. Moreover, a major purpose of the OCS is to hold hearings to make just such factual findings; in this situation they can be based upon irrefutable video evidence, notes Banzhaf.
THREE - 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 . . . renders disciplinary sanction in these particular circumstances problematic."
But, as the Dean herself admitted in her letter: "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). [emphasis added]
Moreover the published written rules are very clear, and should not require student memorization or interpretation.
"It is a violation of University policy for a member of the faculty, staff, or student body to: Prevent or disrupt the effective carrying out of a University function or approved activity, such as lectures, meetings, interviews, ceremonies, the conduct of University business in a University office, and public events." [emphasis added]
Moreover, says Banzhaf, any student who does not realize that it is not acceptable to shout at and drown out a judge - in a court, in a classroom, or elsewhere - does not belong in college, much less at a law school.
FOUR - "Students could be sanctioned for interrupting the speaker with loud shouts, for example, but not for holding signs or asking questions (when called upon) that are offensive, vulgar, or provocative.
Given this, focusing solely on punishing those who engaged in unprotected disruptions such as noisy shouting during the lecture would leave perversely unaddressed the students whose speech was perhaps constitutionally protected but well outside the norms of civil discourse that we hope to cultivate in a professional school."
In other words argues the Dean of a major law school, we should not punish those students who violated the rules because we cannot punish those who didn't violate the rules but we simply consider outside our "norms."
But this argument makes little sense since the rule violators could be punished, and the "norm" violators could simply be admonished or "educated" as the code provides.
So instead of using the OCS to determine the facts, and then administering some discipline to those found guilty after a fair hearing of violations the free speech rules - which could involve nothing more than a simple warning, some community service, or simply "education" - the entire school will have to suffer though a mandatory indoctrination session on what Stanford believes are the "freedom of speech and the norms of the legal profession."
Views On Freedom Of Speech
But given its history, the school's views of the law regarding "freedom of speech" might be questionable if not misleading, says Banzhaf.
It appears, however, that the guilty students may not escape all consequences for their violation of free speech guarantees. Here's why:
Professor Banzhaf has advised Stanford of his intent to file complaints - as several commentators had suggested and some schools have in fact done - against the students responsible for the disruption with bar admission authorities, and California bar authorities have indicated that they will thoroughly investigate any incident which might reflect on the applicant's "respect for the rights of others and for the judicial process."
U.S. Senator Ted Cruz has asked the Texas bar board to "take particular care" for students graduating from Stanford Law School during the next three years, and to require them to state in writing - presumably subject to penalties for lying - if they participated in the disruption. Other states might likewise follow this advice.
In addition, U.S. Circuit Judge James Ho, and U.S. Circuit Judge Elizabeth Branch announced that students who engage in such behavior should be subject to future professional consequences for their “intolerance.”
They wrote that schools should “at a minimum […] identify the disruptors so that future employers know who they are hiring” and “inform employers if they’re injecting potentially disruptive forces into their organizations.”
Failure to impose even the mildest discipline on students who clearly violated the school's free speech protections sends exactly the wrong message, and is likely to encourage similar outrageous at other universities where it is already becoming a common and commonly accepted practice, argues Banzhaf.