Steinbach's Revenge

My next law review article is on academic speech issues and the regulation of campus protest. You know, taking a break from the fraught topic of antisemitism and shifting over to something placid and uncontroversial. The article was accepted for publication in March, but I did ask my editors if I could make some revisions before we started the editing process due to, er, recent developments (they've been very supportive).

The framing device for my article was the student protests of a talk by Fifth Circuit Judge Kyle Duncan at Stanford Law last year (remember that?). Much of the attention surrounding that incident focused on the behavior of the Stanford administrator on-site, Tirien Steinbach. Steinbach was widely pilloried for her performance, which critics said was insufficiently protective of Judge Duncan's free speech rights and too accommodating towards the protesters. My view was that Dean Steinbach was being unfairly maligned -- she actually did a decent (not perfect, but who is?) job and that people were underestimating the difficult position she was in and the tough cross-cutting pressures that make superficially "easy" free speech issues hard.

I wonder if Steinbach is laughing, just a bit, right now.

A particular claim one saw coming out of the Stanford incident was that the disruptive behavior of the students was attributable to past and present failures by the Stanford administration to respond to illicit protest with a stern hand. Administrative indulgence was akin to tacit support, which emboldened the students to behave even more brazenly later on, and so the cycle went. If the university stopped mollycoddling and just crushed policy-violating protests with an iron fist, the argument went, then they'd send a message to the students that such activities were not okay, successfully deter future disruptions, and restore calm and campus order. Dean Steinbach's relatively conciliatory approach towards the Duncan protest was easily slotted into a villainous role under this narrative: it was a symbol of the limp and weak-willed administrative cowering that was ultimately responsible for "bad" protests.

When one looks at what is happening on campuses today, it's hard not to feel like that argument has been pretty decisively falsified. The current wave of protests and encampments really can be traced back to Columbia, and in particular Columbia President Minouche Shafik's decision to essentially immediately respond to largely peaceful encampments on her campus with a hyper-aggressive police intervention. The result, it turns out, was not that the students were duly chastened and slunk back to their dorms; the result was a cascading series of escalations and counter-escalations at Columbia and the emergence of copycat solidarity protest encampments at universities across the country. Even if one did believe that Shafik had the formal "right" to enact her decisions, it's hard for me to imagine that anyone can call these policies success stories, regardless of whether your metric is protecting free speech, preserving campus order, defending Jewish students, or anything else.

So with the benefit of now getting to see the road-not-taken, maybe Steinbach's choice to take a more conciliatory, non-confrontational approach toward the disruption at Stanford and not immediately resort to "am I formally allowed to call in the police to drag people away" didn't emanate from some personal disdain for freedom of speech. Maybe she was actually a professional who knew what she was doing.  Maybe there are lessons we can learn from her. Maybe the prevailing administrative value in responding to protests should not be reflexive insistence on asserting yourself as the boss.

There's very little for anyone to feel good about regarding what's happening on campus right now (I share Robert Farley's worry that we're rapidly constructing a social framing where "no one can be serious about protesting the war (or countering protests of the war) unless windows are broken and billy clubs bared"), but if anyone deserves to feel the slightest bit of schadenfreudean satisfaction, its Tirien Steinbach.