In a Wednesday article for the National Review, US Fifth Circuit Judge James Ho and US Eleventh Circuit Judge Elizabeth Branch called for law schools to “crackdown” on punishments for law student protestors.
Ho and Branch argued that universities that allow their students to “disrupt [speakers] without consequences” promote intolerance. While many universities have policies in place to “promote free speech,” Ho and Branch argue that these policies are often unenforced, which they claim results in a generation that does not know how to disagree peacefully. The judges stated that law schools are specifically “failing in their basic mission to teach students how to become good citizens — let alone good lawyers.”
Debates over free speech on college campuses have been ongoing for many years. Critics like Ho and Branch often argue that student protests are attempts to silence free speech on campuses. Often cited is a 2016 survey by the Knight Foundation, which found that, while most college students generally support free speech, many are in favor of adding some restrictions against speech.
The American Civil Liberties Union (ACLU) has also argued that restrictions on speech are not the answer to many liberal concerns. The organization explained:
Historically, restrictions on speech have proven at best ineffective, and at worst counter-productive, in the fight against bigotry. Although drafted with the best intentions, these restrictions are often interpreted and enforced to oppose social change. Why? Because they place the power to decide whether speech is offensive and should be restrained with authority figures — the government or a college administration — rather than with those seeking to question or dismantle existing power structures.
However, the ACLU reasoned that the protection of free speech includes the freedom to protest and speak out against things a person finds to be bigoted or offensive. While college groups should be free to invite anyone they want to speak on campus, students should be equally free to protest speakers they disagree with or find offensive.
Nonetheless, Ho and Branch called for permanent punishments for protesting law students, including negative reports from law schools to state bar associations. They also requested that schools “at minimum” report participation in protests to the student’s future employers. The judges stated that, should the schools fail to implement these punishments, they will have “no choice” but to stop hiring students from those schools altogether.
Ho and Branch wrote the article in response to a recent protest at Stanford Law School during a speech by Fifth Circuit Judge Stuart Kyle Duncan. The Stanford Law Federalist Society invited Duncan to speak at their event last week, entitled “The Fifth Circuit in Conversation with the Supreme Court: Covid, Guns, and Twitter.” Student protestors arrived at the event to object against Duncan, citing his history of opposition to LGBTQ+ rights. Most notably, Duncan wrote the opinion in United States v. Varner (2020), denying the name-change request of a trans woman. He also made public statements in opposition to same-sex marriage when the US Supreme Court heard oral arguments in Oberfegell v. Hodges (2015).
Stanford Law School’s Associate Dean of Diversity, Equity, and Inclusion Tirien Steinbach was present for the protest and urged Duncan to consider the harm he has done to marginalized communities.