My Struggle Session at Stanford Law School
By Stuart Kyle Duncan
Stanford Law School’s website touts its “collegial culture” in which “collaboration and the open exchange of ideas are essential to life and learning.” Then there’s the culture I experienced when I visited Stanford last week. I had been invited by the student chapter of the Federalist Society to discuss the U.S. Court of Appeals for the Fifth Circuit, on which I’ve served since 2018. I’ve spoken at law schools across the country, and I was glad to accept this invitation. One of my first clerks graduated from Stanford. I have friends on the faculty. I gave a talk there a few years ago and found it a warm and engaging place, but not this time.
When I arrived, the walls were festooned with posters denouncing me for crimes against women, gays, blacks and “trans people.” Plastered everywhere were photos of the students who had invited me and fliers declaring “You should be ASHAMED,” with the last word in large red capital letters and a horror-movie font. This didn’t seem “collegial.” Walking to the building where I would deliver my talk, I could hear loud chanting a good 50 yards away, reminiscent of a tent revival in its intensity. Some 100 students were massed outside the classroom as I entered, faces painted every color of the rainbow, waving signs and banners, jeering and stamping and howling. As I entered the classroom, one protester screamed: “We hope your daughters get raped!”
I had been warned a few days before about a possible protest. ButStanford administrators assured me they were “on top of it,” that Stanford’s policies permitted “protest but not disruption.” They weren’t “on top of it.” Before my talk started, the mob flooded the room. Banners unfurled. Signs brandished: “FED SUCK,” “Trans Lives Matter” (this one upside down), and others that can’t be quoted in a family newspaper. A nervous dog—literally, a canine—was in the front row, fur striped with paint. A man with a frozen smile approached me, identified himself as the “dean of student engagement,” and asked, “You doing OK?” I don’t remember what I said.
The protesters weren’t upset by the subject of my talk—a rather dry discourse on how circuit courts interact with the Supreme Court in times of doctrinal flux. Rather, I was their target. While in practice, I represented clients and advanced arguments the protesters hate—for instance, I defended Louisiana’s traditional marriage laws. As for my judicial decisions, among the several hundred I’ve written, the protesters were especially vexed by U.S. v. Varner.
A federal prisoner serving a term for attempted receipt of child pornography (and with a previous state conviction for possession of child porn) petitioned our court to order that he be called by feminine pronouns. As my opinion explained, federal courts can’t control what pronouns people use. The Stanford protesters saw it differently: My opinion had “denied a transwoman’s existence.”
When the Federalist Society president tried to introduce me, the heckling began. “The Federalist Society (You suck!) is pleased to welcome Judge Kyle Duncan (You’re not welcome here, we hate you!). . . . He was appointed by President Trump to the United States Court of Appeals for the Fifth Circuit (Embarrassing!).” And so on. As I began, the heckling continued. Try delivering a speech while being jeered at every third word. This was an utter farce, a staged public shaming. I stopped, pleaded with the students to stop
the stream of insults (which only made them louder), and asked if administrators were present.
Enter Tirien Steinbach, associate dean for diversity, equity and inclusion. Ms. Steinbach and (I later learned) other administrators were watching from the periphery. She hadn’t introduced herself to me. She asked to address the students.
Something felt off. I asked her to tell the students their infantile behavior was inappropriate. She insisted she wanted to talk to all of us. Students began screaming, and I reluctantly gave way. Whereupon Ms. Steinbach opened a folio, took out a printed sheaf of papers, and delivered a six-minute speech addressing the question: “Is the juice worth the squeeze?”
What could that mean? While the students rhythmically snapped, Ms. Steinbach attempted to explain. My “work,” she said, “has caused harm.” It “feels abhorrent” and “literally denies the humanity of people.” My presence put Ms. Steinbach in a tough spot, she said, because her job “is to create a space of belonging for all people” at Stanford. She assured me I was “absolutely welcome in this space” because “me and many people in this administration do absolutely believe in free speech.” I didn’t feel welcome—who would? And she repeated the cryptic question: “Is the juice worth the squeeze?”
I asked again what she meant, and she finally put the question plainly: Was my talk “worth the pain that this causes and the division that this causes?” Again she asserted her belief in free speech before equivocating: “I understand why people feel like the harm is so great that we might need to reconsider those policies, and luckily, they’re in a school where they can learn the advocacy skills to advocate for those changes.” Then she turned the floor back over to me, while hoping I could “ learn too” and “ listen through your partisan lens, the hyperpolitical lens.” In closing, she said: “I look out and I don’t ask, ‘What’s going on here?’ I look out and I say, ‘I’m glad this is going on here.’ ” This is on video, and the entire event is on audio, in case you’re wondering.
The mob’s leader, a young woman, then addressed the crowd: “I want to ask that half the folks walk out in protest and the rest of us, let’s tone down the heckling slightly so that he can get to our questions.” I didn’t see how I could continue, so after the partial walkout, I dispensed with my prepared remarks and opened the floor. That went poorly, and the plainly hostile questions were the least of it. Students hurled abuse, including vile sexual innuendo; some filed past me spitting insults(“You’re scum!”). Two U.S. Marshals decided it was time to escort me out.
Two days later, Jenny Martinez and Marc Tessier-Lavinge, respectively the law school’s dean and the university’s president, formally apologized, confirming that protesters and administrators had violated Stanford policy. I’m grateful and I accepted. The matter hasn’t dropped, though. This week, nearly one-third of Stanford law students continued the protest— donning masks, wearing black, and forming a “human corridor” inside the school. They weren’t protesting me; I’m long gone. They were protesting Ms. Martinez for having apologized to me.
The most disturbing aspect of this shameful debacle is what it says about the state of legal education. Stanford is an elite law school. The protesters showed not the foggiest grasp of the basic concepts of legal discourse: That one must meet reason with reason, not power. That jeering contempt is the opposite of persuasion. That the law protects the speaker from the mob, not the mob from the speaker. Worst of all, Ms. Steinbach’s remarks made clear she is proud that Stanford students are being taught this is the way law should be.
I have been criticized in the media for getting angry at the protesters. It’s true I called them “appalling idiots,” “bullies” and “hypocrites.” They are, and I won’t apologize for saying so. Sometimes anger is the proper response to vicious behavior.
Judge Duncan serves on the U.S. Court of Appeals for the Fifth Circuit.