Law Schools

Stanford Law School Moderates May Be The Biggest Snowflakes Of All

Protecting the 'silent middle' from strong opinions might be the worst of all possible law school outcomes.

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Snowflake on a branchWhile conservative media mulls boycotts and expulsions and licensing consequences for students who tried to ask Judge Kyle Stuart Duncan to explain his opinions — a simple task that he appeared unprepared to execute — everyone is overlooking the real victims that need to be protected from the out-of-control campus crisis: the students afraid of their own shadow.

Stanford 3L Tess Winston wrote a piece for the Washington Post exploring the recent hubbub surrounding her law school these days from a different perspective. Rather than feed the outrage machine casting law schools as a hotbed of Trotskyites seeking to squelch free speech (or, in the most bonkers iteration yet, spread religious oppression), Winston places a pox on “both” houses, lamenting the outsized influence of students with strong opinions, specifically noting the Federalist Society’s history of provocation and the local chapter’s penchant for vindictiveness. Still, most of the criticism in the article is leveled on the lefties.

But while the article attempts to carve out a reasonable “middle ground” and concludes with constructive advice, it exposes a potentially foundational problem in legal education that deserves more attention. If the article is to be believed, outside of small groups of students with strong partisan opinions, there’s a whole generation of soon-to-be lawyers who lack confidence in their own convictions and, worse, would really prefer to never be forced to confront polarizing issues at all.

The far-left students have a dismissive shorthand for fellow students whose politics they consider not sufficiently progressive: “future prosecutors.” The message is loud and clear — prosecutors are the bad guys. But also: Be careful what you say.

Or it’s just funny. Obviously the lefties don’t really think every slightly moderate student is going to be a prosecutor. Most of the moderates are going to be Biglaw partners!

Even if the joke carries some normative judgment, learning to deal with that is one of the most important parts of law school. Students can learn a lot about themselves when a civil, if snarky, remark makes them grapple with “am I comfortable with this hyperbolic characterization or not?” Do they really feel comfortable being cast as a future prosecutor? Why or why not? They’ve now been confronted with a worldview they don’t immediately share: they can investigate and learn if they really should be more critical of law enforcement or if they really are fine with their priors and can live with this moniker.

Sticks and stones, people.

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For all the phony outrage and sneering aimed at “safe spaces” as a method of minimizing the gratuitous trauma of professors hurling racial epithets for no reason, this paragraph implies a much more disturbing “safe space” to shield moderates from having to defend or even confront their own positions. As a professional, a lawyer is going to take stands and has to develop the requisite backbone to live with how others describe those actions. Law students shouldn’t be sad when the National Lawyers Guild calls them a prosecutor any more than when FedSoc calls them a “baby killing pinko.”

Take either barb as an invitation to interrogate your personal views and, if you’re satisfied, to go on confidently living your truth. If you’re not, then figure out your convictions now before it’s too late.

But taking the “everyone should stop making us feel bad” approach is problematic because while the intentions are more reasonable, the prescription is functionally the same as the top-down authoritarian model of free speech advocated by the right. It’s about admonishing students to stay silent, placing the burden on the audience to sit on their hands while the elites at the podium get to speak without criticism.

I often think of one of my first-year professors, who was appalled by these students’ stigmatizing of the prosecutorial role. He asked one: Given that prosecutors decide whether and what charges to bring against a defendant, isn’t it preferable for well-qualified people to fill the role? Without missing a beat, the student responded: No, being a prosecutor is simply evil.

Well, yeah, this would be stupid. But I’m also not totally convinced that it accurately reflects this worldview. I think a lot of these folks understand that “progressive prosecutors” can implement tangible improvement through judicious application of prosecutorial discretion. They just don’t consider that outcome to be much more than rearranging chairs on the Titanic in the face of broad institutional challenges that, they feel, would be better confronted by well-qualified people working from outside the system.

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In other courses, students have refused to argue points made by justices whose perspectives they don’t like. Or they first issue a disclaimer about their disagreement. That sets the standard: Other students fall into line, making a similar disclaimer when it’s their turn to role-play.

In other courses, students have refused to argue points made by justices whose perspectives they don’t like. Or they first issue a disclaimer about their disagreement. That sets the standard: Other students fall into line, making a similar disclaimer when it’s their turn to role-play.

How? In what possible world does the disclaimer, “I don’t agree with this, but I think what Justice Scalia argues here is…” compromise the class? The student was asked to present the argument, not invite Scalia’s spirit to use the student’s body as a fresh vessel to return to the surface world. If the student correctly lays out the justice’s points for the class to discuss, then who cares if some 1L really feels it.

And I guess I don’t know the circumstances under which a student would “refuse” to argue a justice’s points. It’s one thing to be asked to “lay out the dissent and explain its reasoning” and another to make a Black student roleplay the Topeka Board of Ed for some elaborate moot court. The latter feels less educational and more about placing the student in an uncomfortable role for the professor’s own perverse entertainment.

In either event, these vague anecdotes don’t compel me to conclude that the academy is being torn asunder.

I know this from helping organize a spring-break trip this year to Israel and the Palestinian territories. Far-left, pro-Palestinian students opposed the trip, urging classmates to abstain from visiting the “apartheid state” of Israel. One student, who ended up going anyway, was first subjected to an intervention-like meeting with critics of the trip. Others, intimidated, dropped out. One told me, “It’s not my fight.”

Again, why is this an issue? People who care a lot about the subject tried to convince people not to go. Lawyers making arguments! Some students were unconvinced and went anyway and others decided not to. That’s how the world works. Flipping it to the other side, if FedSoc wanted to try to tell someone not to join the immigration defense clinic or something that’s cool too!

Students should figure out if they have the clarity of purpose to ignore these entreaties or not… that’s called growing up.

The problems that Stanford faces are part of a larger phenomenon on college and university campuses. In a 2021 study conducted by the Foundation for Individual Rights in Education and College Pulse, more than 80 percent of students, at 159 colleges, said they censored themselves.

Do we need First Amendment protections against the superego? “Self-censorship” is such a cop out. As a professional, sometimes you don’t get to say what’s on your mind in every setting and that’s okay. It’s not a threat to free discourse that you don’t throw yourself into every fight. On the other hand, if you really believe in a cause and you’re blaming “self-censorship” for staying out of it, that’s a more worrisome trait in a future lawyer than the folks out there running a loud but entirely peaceful protest.

Despite a number of issues with how Winston describes the problem she sees at Stanford, her article actually reaches a correct conclusion after these detours.

Students can play a role, too. I hope more will speak their piece rather than remaining silent, taking back the room with the sort of thoughtful exchanging of views that is essential to the legal profession.

I wish I had done that more often during my own time at Stanford. Yet I have never regretted my decision to attend the law school. I treasure the friends I’ve made, and the value of the legal education delivered by the professors and lecturers far outweighs the drawbacks.

But if there is one place where people should understand the value of learning to engage — and disagree — respectfully, it is law school.

Bingo! If students don’t like the conversation, then go ahead and join it. There’s an implication that “respectfully” is breached by quipping that someone is a “future prosecutor” but if you can dispense with that silly take, this is pretty dead on.

My only quibble with this take is that it’s couched as a criticism of the situation at Stanford Law School when it should be a celebration. After three years of legal education, a moderate who felt uncomfortable with the strong opinions expressed among the class decides to speak up more for exactly what she’s decided to believe. That’s a critical part of legal education, and it’s one that she appears to have reached because of and not in spite of being forced to engage with vocal fellow students.

Let students talk. Let them protest. Let them face criticism. Let them either learn from that criticism or learn to stand up for themselves. You might not like everything law students are going to say, but they’ve got to work that out through give and take.

The reason you don’t make rules to silence law students is because those are the conversations that end up forging graduates with the maturity to be advocates. In this case, it seems like the status quo ultimately worked.

With some of my fellow Stanford Law students, there’s no room for argument [Washington Post]

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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