Fabricated Outrage and the Right's Attack on Higher Education

by Neil H. Buchanan

By now, almost everyone who would be inclined to read a blog like Dorf on Law will have heard some version of a story about the outrage du jour in the American right's ongoing effort to subvert higher education.  This one comes out of an incident at Stanford's law school, which made it especially useful for anti-liberal propaganda purposes.  Even so, a few reactions to the story have been thoughtful and have even used the controversy to make good points, such as my Verdict colleagues Vik Amar and Jason Mazzone's piece earlier this week (the first of a two-parter, with the second part not yet published), in which they commit the unpardonable sin of observing that "shouting down" a speaker is actually a nuanced issue.

I use the sarcastic phrasing "unpardonable sin" because the standard response to any situation in which left-leaning university students express their displeasure involves a chorus of people across the political spectrum harrumphing and saying that it is simply awful that any students would dare to express negative opinions about a speaker's views.  You kids get off my lawn!  (Except of course, the commentators do not own the lawns in question.)  Universities are supposed to be places to learn, these people say, so it is absolutely unacceptable for students to protest against ideas with which they disagree.  No room for nuance; no allowing for the possibility that it could be acceptable for young people to have opinions and push back on their betters; no skepticism that the videos that go viral have been edited to make the situation look as bad as possible for the protesters.

Soon after the Stanford story broke, I happened upon a piece in Slate by Mark Joseph Stern, who provided a much more complete story than was available in more mainstream publications (much less right-wing outlets).  I wanted to push his analysis further, so I published a fantasy piece on Verdict yesterday in which I imagined myself as the president of an institution of higher learning known as FU (Fair-minded University).  There, my purpose was to push back strenuously against the claims (from the hyper-reactionary federal judge at the center of the controversy, among others) that the Stanford protesters were a bunch of "coddled children."

The key takeaways from my column were: (1) that the judge in question was the most childish of any of the actors in that over-hyped drama, a shameless bully who apparently thinks that being invited to speak at a major law school gives him license to be a fucking asshole braying jackass and then whine about how he was treated; and (2) that the other students in the story, the members of the conservative law school club who invited the judge to speak, were acting like nasty, vindictive children.

Here, I want to ask whether my second point in that Verdict column matters.  That is, does the intent of those who invited the speaker to visit the campus in fact change how we should think about the overall controversy?  I will also point out that my explanation for how the incident began shortchanged another part of the story: a national organization's efforts to contrive controversies like this, not out of childishness but as a matter of strategic political warfare.

I guess it should not be surprising that the oft-repeated claim that "Eskimos have a hundred words for snow" is simply false.  I thought of that recently when I noticed that George Fwill had spent one of his pointless columns on The Washington Post's op-ed page in his default state of high dudgeon, amplifying the Stanford story.  His piece was titled, "Expensively credentialed, negligibly educated Stanford brats threw a tantrum," (no link, because why bother), which is restrained by Fwill's standards when it comes to ranting about American universities.  Eskimoes might not have dozens of words for snow, but Fwill and his fellow culture warriors have countless ways of insulting students who disagree with them.  What are the hundred words meaning "dudgeon" in all its forms?

In any case, much of my column yesterday was devoted, in essence, to asking: Who are the real tantrum-throwing brats here?  I expanded on an explanation for right-wingers' behavior that I have applied in other contexts, which is that they are still (even in adulthood) acting out due to their hurt feelings from being socially shunned in college for being jerks.  The conservative students at Stanford (and those behind similarly concocted events elsewhere) are clearly not choosing their speakers because of the likelihood that they will in fact add to "viewpoint diversity" on campus, which is the right's new virtue signal: We just want to have an honest debate!  There are plenty of people who would advance and intelligently discuss conservative jurisprudence who do not act like middle school bullies.

As an aside, I should mention that my seemingly extreme example in yesterday's column, where I imagined a student who became socially toxic by advocating for eugenics in class, was not as outlandish as it might seem.  Most people in the post-WWII world have rejected eugenics, but there is in fact a disturbingly large element of eugenics-inspired thinking in the pet project of some right-wing billionaires called longtermism, and some of them are even willing to say out loud that they think that eugenics has gotten a bad rap and needs only to shed its Nazi taint.  So it is not at all difficult to imagine a university student repeating the harmful blather that he has absorbed online and then being shocked, shocked that his classmates shun him.  And then to lash back at those who have rejected him.

Moreover, there is no equivalence between a right-wing student having to "endure" the misery of listening to people say things with which he disagrees about, say, climate change vis-a-vis women being told that they have to listen respectfully to someone who will gladly take away their bodily autonomy, or LGBTQ+ people who are supposed to "engage deeply" with a speaker who so disparages them that he insists on ignoring their sincere request to be addressed by their gender.  This guest wants to prevent you from being able to marry the person you love, and to take away your right to appropriate medical care.  Let's all give him a warm welcome to FU!

The kinds of speakers who are invited and what made them famous are what makes them delicious to the students who invite them.  (The judge in the Stanford case in on the Fifth Circuit, but he is famous for being a bomb-thrower in the culture wars.)  Again, this amounts to having one group of aggrieved kids sticking it to another group of kids who have rejected them, and doing so in the most aggressively personal way possible.  All while mewling about how they are under siege and just wanted to have a robust discussion.  To paraphrase an actual teenager: You're not that innocent.

As I noted above, however, it is worth asking whether intent matters.  Even if the students who extend an invitation are doing so out of personal pique and a desire to stick their fingers in the eyes of their classmates, what of those who take the bait?  To be sure, I would prefer it if these types of controversies never arose, with the attempts to provoke outrage being met by silence.  Given that we are talking about childish behavior (and writing as the youngest of five children), nothing so annoys tormentors than when the target does not respond as expected.  On the other hand -- and also writing from the perspective of the youngest child -- when the tormentors know exactly what hurts the most, the zen response is rather difficult to maintain.  Again, we are talking about people whose very personhood is under attack.  Telling them to just chill until the bullies get bored is unrealistic and even borders on insulting.

Even so, the childhood adage that two wrongs don't make a right is operative here.  No matter the reason, a response that is out of bounds is still out of bounds.  It might be a mitigating factor in determining any punishment (or it might not), but if protesters physically assault, threaten, dox, swat, or shout down (this is a non-exhaustive list) guest speakers, then they have transgressed and should be stopped from doing so.  Again, Amar and Mazzone point out that there are genuinely difficult line-drawing questions when trying to distinguish acceptable heckling from unacceptably preventing someone from being heard at all.

As it happens, the facts of the Stanford case seem to show that the protesters did not cross that line -- or, at worst, that they went too far but then agreed to cross back to the better side.  That the judge decided in anger to throw away his script and start taunting students during Q&A was his bad choice, and it was not forced on him by "a bunch of crybullies" (as a right-wing neologism would have it).  As I noted in my Verdict column, my years on the parliamentary debate circuit make me especially unsympathetic to people who cannot handle being heckled and allow themselves to be thrown off message.  I am even less sympathetic when the "victim of the woke mob" in question is a jurist who is used to being able to push around the people who enter his courtroom without worrying that they will dare to push back.  Grow up, dude.

Still, there have been some other instances over the years in which students at other universities have in fact violated appropriate norms, and any university would be crazy not to try to stop that from happening.  As I put it in yesterday's column, even my fictional FU would "take appropriate and lawful action" against anyone who violates these standards, no matter what role (inviter or protester) they have played in an incident.

Finally, what of my comment above that my explanation yesterday shortchanged another explanation for the recent outbreak of incidents like the one at Stanford (which by design become clickbait for those who decry supposed illiberalism on campuses that are supposed to be devoted to providing a classically liberal education)?  It is possible that some of the students who join these conservative clubs and invite these incendiary speakers to campus are in fact not being deliberately nasty, in which case they are at best useful idiots.  But that raises the question: Useful to whom?

One need not speculate about any discussions behind closed doors, because there is plenty of open discussion among the extremely well financed groups that orchestrate these set-pieces that they are very much doing this on purpose.  There is a reason that they take such extensive efforts to cultivate these student groups on campuses, because they can then be used to gin up new outrages often enough to keep the anger flowing.

And because these groups can count on the tut-tutting responses from non-conservatives who buy into the nonsense (saying that liberals on campus "neglect intellectual diversity," or calling students who protest graduation speakers "commencement bigots"), this takes on the veneer of nonpartisanship.  The basic strategy is to figure out the greatest emotional vulnerabilities of non-conservatives and then record their responses after poking those sore spots with a sharp stick, counting on the likes of the "Morning Joe" crowd to nod sagely and lament the supposed "censoriousness" on American campuses.

In short, these are not organic, spontaneous outbreaks of left-wing witchhunts.  I continue to hope that the people whose chains are being yanked will adjust their behavior (but, again, they should also be punished when they in fact cross into unacceptable behavior).  But colleges and law schools every year bring in fresh crops of young people who are still adolescents or have only recently emerged into young adulthood.  They do not have the group memory to see patterns where they exist, making them easy pickings.

In the end, the rest of us do not have to go along with the fantasy that these incidents are unplanned, guileless matters that provide insight into the heart of modern universities.  These are modern morality plays, produced and directed by people who know exactly what they are doing, all as part of an authoritarian effort to undermine genuine intellectual and academic freedom.  And they barely even bother to try to hide it.