A prominent public interest lawyer and the chairs of two U.S. House of Representatives committees are filing complaints with the State Bar of California and the American Bar Association against Stanford Law School as well as of its numerous students. The complaints come after students disrupted a March 9 lecture by a visiting conservative judge who has taken controversial stances against transgender people. Stanford refused to discipline the students, leading to accusations that the law school violated the Bar's accreditation rules.
The two separate complaints, filed by George Washington University emeritus law professor John F. Banzhaf III and two Republican committee chairs, are highlighting concerns over the behaviors of students at the nation's law schools. Students and some faculty have increasingly disrupted the free speech of lecturers with whom they disagree.
The student Federalist Society at the law school invited U.S. Court of Appeal Judge Kyle Duncan, a Fifth Circuit federal judge covering Texas, Mississippi and Louisiana, to lecture in March on "Guns, COVID, and Twitter," according to The Stanford Daily.
Duncan, who was appointed under former President Donald Trump, has come under fire for his defense of policies that discriminate against the rights of transgender persons, minorities and others. On the bench, in January 2020, he refused to use a transgender litigant’s preferred pronouns and wouldn't grant her request to change her name on court documents, according to multiple news reports. Duncan was also the lead attorney in the 2021 case Grimm v. Gloucester County School Board, which prevented transgender students from using their choice of restrooms at state institutions.
Ahead of Duncan's talk, Stanford law school students put up flyers condemning the judge for what they said is the support of laws that would harm women, LGBTQ people and immigrants, the Daily noted.
On March 9, an estimated 100 students arrived with posters and heckled Duncan, who had entered the classroom recording the demonstrators with his cellphone camera, according to the Daily.
Stanford Law School Associate Dean for Diversity, Equity and Inclusion Tirien Steinbach had been asked by the Federalist Society to attend the event as an observer and de-escalator. About 30 minutes into his lecture, and after much shouting by the students, Duncan asked for an administrator to address the heckling.
Instead, Steinbach took the floor and told Duncan that she was uncomfortable with his presence and the event, which was "tearing the fabric of the community that I care about apart," she said in a now-viral video.
"For many of us in this law school who work here and study here and live here, your advocacy, your opinions from the bench land as absolute disenfranchisement of their rights … I'm uncomfortable to say that for many people here your work has caused harm," she said.
Duncan eventually stopped his lecture.
In a letter dated March 31, Republicans Virginia Foxx, chair of the U.S. House Committee on Education and the Workforce, and Burgess Owens, chair Subcommittee on Higher Education and Workforce Development, wrote to the American Bar Association (ABA) that the the law school might have violated various ABA standards and rules of procedure, which require a law school to have an established and announced policy regarding academic freedom and tenure. They further accused Stanford Law of violating accreditation rules.
The committee leaders' letter said the law school didn't protect Duncan's right to free speech although it knew and had warned him that demonstrations were likely. The university in a March 22 letter to the law school community also acknowledged that staff at the event didn't enforce the university's policies and instead "intervened in inappropriate ways that are not aligned with the university’s commitment to free speech."
Stanford Law has a handbook for its faculty that spells out its policy regarding freedom of speech and states that viewpoints should be free from internal and external coercion. But, the committee chairs argue, the law school is out of compliance with the ABA rule because it didn't follow its policy and Duncan was denied carrying out the central function of teaching and scholarship, which he was invited to perform.
"In no sense can it be said that Stanford Law School, its administrators, or students promoted 'an atmosphere in which freedom of inquiry, expression, publication and peaceable assembly … were given the fullest or any protection,'" the committee leaders wrote, quoting from the law school's policy.
Stanford Law School didn't respond to requests from this news organization for comment.
However, in a March 22 letter to the law school's community, Jenny Martinez, the law school's dean, wrote: "Some students might feel that some points should not be up for argument and therefore that they should not bear the responsibility of arguing them (or even hearing arguments about them), but however appealing that position might be in some other context, it is incompatible with the training that must be delivered in a law school.
"Law students are entering a profession in which their job is to make arguments on behalf of clients whose very lives may depend on their professional skill. Just as doctors in training must learn to face suffering and death and respond in their professional role, lawyers in training must learn to confront injustice or views they don’t agree with and respond as attorneys," Martinez wrote.
Martinez said the school was adopting clearer protocols for managing disruptions and for educational programming on free speech and norms of the legal profession. Associate Dean Steinbach was placed on leave for her role during the protest. The law school is giving staff additional training regarding their roles in ensuring that university rules on disruption at events are followed, Martinez said.
Stanford will also institute a mandatory half-day session in the spring quarter for all students on freedom of speech and the norms of the legal profession rather than referring specific students for disciplinary sanction.
Complaint: Law school's response insufficient
But Banzhaf, the George Washington University emeritus professor and an ardent defender of the public interest, said Stanford Law didn't go far enough in its response to the March 9 incident. He is filing a character and fitness complaint with the State Bar of California against the particular students involved in the Duncan incident because Stanford hadn't taken steps to discipline the offending students.
"We are taught that we should believe in the rule of law. There are many things in the world, in society in the United States, in the law that I disagree with, but I don't think that the way to deal with them is to physically attack people, blow up their home, send them threats, and do all the other things that (some) people are thinking," Banzhaf said In an interview with this news organization.
"And as a number of people said, if they go out of law school with these ideas that this is OK and proper, it could be incredibly dangerous because the kids from Stanford and Yale are going to wind up in these top positions. Many of them will be members of Congress, senators and in the House of Representatives. Many will be state legislators. They will be governors. They will be judges. They will head large corporations. They will head universities," he said.
"I think it's very important that the (students) understand what the law is. If you don't like a law, if you don't like what a judge has written, then the answer is to fight back using the law — use your unique legal skills."
Banzhaf has used those skills to win many precedent-setting cases. A longtime public interest attorney known for his successful battles against Big Tobacco, his legal work resulted in restricting cigarette advertising and creating nonsmoker's rights, which became a ban on smoking in airplanes.
He also took on former presidents Richard M. Nixon and Donald Trump. In the 1970s, he filed a court motion for the federal government to appoint a special prosecutor to investigate the White House's role in Watergate. A judge denied the petition, but it set a precedent for future special prosecutors.
More recently, he filed a complaint with Georgia election officials that led to the investigation of Trump's alleged pressure campaign on Georgia Secretary of State Brad Raffensperger to find more than 11,000 votes to shift the 2020 presidential election in Trump's favor.
So Banzhaf isn't against law students' activism; in fact, in the 1960's he created the term "legal activism." Traditional lawyering involves taking on cases for a client and addressing the client's particular needs and solving the legal problem as best as one can, he said. But legal activism encompasses an additional purpose of the law: It uses the law "as a powerful, largely untried, untested, tool or weapon to change, to prove the public interest and to change the world," he said.
Today, there are legal-action organizations representing all different perspectives, from liberal to libertarian and conservative.
"They use their talents to bring legal actions to do what they think will best benefit the public interest. And it's something I'm all in favor of," he said.
But what Banzhaf saw at Stanford, Yale and other law schools is "misdirected activism," he said.
"In my judgment, what they should do if they don't like (a decision), which was adopted by a judge, is to go out and use their unique legal skills to try to change it. Because as a practical matter, anybody can march in the streets. Anybody can yell and scream and shout down a speaker. Anybody can waive banners and so on and so forth. But only law students as a practical matter can go out and change the world," he said.
The actions by the Stanford students were also lawless by violating First Amendment rights, he said. And by not disciplining the students involved, Stanford sent the message that rules aren't going to be enforced.
"I strongly disagree, and many, many others disagree with their decision that there should be no punishment, no discipline at all, for the people who they know did it because they have videotape; some of the names are posted on the internet. Because that sends exactly the wrong message," he said.
Banzhaf doesn't think that Stanford Law School will lose its accreditation. But the impact of not disciplining the students "is going to hang like a cloud over the head of Stanford for some time," he said.
Some federal judges have said they won't hire clerks from Stanford Law School — a similar fate they meted out for Yale law students who also allegedly violated free-speech rights during protests. It's not clear if the judges are following through on their threat, however.
Banzhaf said students might be a little concerned that attending one of these schools might bar them from a clerkship.
The threat of losing accreditation could also harm law schools' abilities to attract students.
"If there's an evidentiary hearing (for de-accreditation), a lot of what I think are embarrassing facts will come out," he said. "I might think a little bit more carefully about going to either one of those schools."
Fundamentally, Banzhaf said, he is concerned about the current trend of law students trying to drown out opposing views.
"Law can be used to make for a better society. It is a tool. In some ways, it's the great equalizer. There's no better example than as a 27-year-old graduate … I write a three-page letter to the FCC (Federal Communications Commission) and we get hundreds of millions of dollars of anti-smoking messages and drive cigarette commercials off the air," he said.
"I can be as powerful with my little pen as somebody with a big voice and a lot of money and a lot of lobbying clout and everything else. It really bothers me when people think the way to deal with things is to rip down people's signs, block them from coming into a door, shouting them down as they get in and physically attack them. I worry about the future of law schools," he said.