Tirien Steinbach, “Diversity and Free Speech Can Coexist at Stanford; We have to stop blaming, start listening, and ask ourselves: Is the juice worth the squeeze?” Wall Street Journal, March 23, 2023 (2:00 pm ET);
Tirien Steinbach, the Associate Dean for Diversity, Equity, and Inclusion at Stanford Law School, offers a defense of her controversial intervention in the conflict over Judge Duncan’s speech at Stanford Law School recently.
At the same time, however, her article reveals the fundamental flaw in the approach of university administrators to the relationship between DEI and free speech.
Diversity, equity and inclusion plans must have clear goals that lead to greater inclusion and belonging for all community members. How we strike a balance between free speech and diversity, equity and inclusion is worthy of serious, thoughtful and civil discussion. Free speech and diversity, equity and inclusion are means to an end, and one that I think many people can actually agree on: to live in a country with liberty and justice for all its people.
The fundamental flaw in this reasoning is the assumption that free speech should be “balanced” against diversity, equity, and inclusion, or any other societal goal.
Balancing free speech against any goal of society (Who decides what are and ranks societal goals? Who balances? What standard or test is used to balance?) is a slippery slope that leads very quickly to the curtailment of free speech.
The only balancing test that is necessary or desirable is that administered by judges between the near absolute value of free speech in a free and democratic society, on the one hand, and the likelihood of speech producing immediate physical violence or other physical harm, on the other.
The classic tests are still valid: “Don’t cry ‘fire’ in a theater” or give directions for arson in the middle of a riot.
Our legal system has carefully defined the few limitations on free speech that exist in our constitutional democracy.
Free speech is not only a societal goal, it is a constitutional right.
There is no need for university administrators or anyone else to introduce any new “balancing test” for limiting free speech.
The Spirit of Voltaire
1) Tunku Varadarajan, “DEI at Law Schools Could Bring Down America; After the Stanford episode, Ilya Shapiro sounds a warning: The threat to ‘dismantle existing structures’ is an idle one in English class. But in legal education it targets individual rights and equal treatment under the Constitution,” Wall Street Journal, March 28, 2023 (6:50 pm ET);