The Human Toll of Being Targeted by the Grievance Industrial Complex
This week saw some measure of justice for the mother and daughter in Georgia who were viciously targeted by Donald Trump, Rudolph Giuliani, and their vigilante enforcers. Giuliani in particular had used blatantly racist tropes in claiming that Ruby Freeman and Shaye Freeman Moss, the Black poll workers in Atlanta in 2020 who ended up having to leave their homes under threats to their lives and who continue to fear for their safety to this day, had been "quite obviously surreptitiously passing around USB ports, as if they're vials of heroin or cocaine."
The two wronged women sued Giuliani, and his persistent refusal to comply with discovery orders finally led the judge to issue a default judgment against the disgraced and embarrassing (but never embarrassed) soon-to-be-former lawyer. A trial for the sole purpose of determining damages will follow. Again, that is a measure of justice, incomplete though it is, for two innocent victims of the political movement that harshly lashes out at powerless people -- all the while claiming that they are in fact the innocent victims of the "radical left mob."
Last week, however, a different Black woman received the opposite treatment. As Professor Dorf noted in his column two days ago, Tirien Steinbach is now the former associate dean for Diversity, Equity and Inclusion at Stanford Law School, having committed the unpardonable sin this past Spring of de-escalating a volatile situation in a way that angered the Fox Newsiverse.
Steinbach had faced a roomful of students who were protesting a guest lecture so disruptively that the invited arch-conservative judge could not proceed with this planned remarks, and within a few minutes she had convinced the students either to leave or stay to listen and engage. For this, she was immediately suspended and ultimately fired by Stanford, while the dean who scapegoated her was promoted to university provost the day after firing her.
In the interim, Steinbach was harassed and threatened by the usual suspects, dragged through the mud on various media platforms, and basically received a version of the Freeman/Moss treatment. She unquestionably deserved better, as I will argue at more length shortly.
These two stories resonate in an unexpected way with my latest Verdict column, published yesterday: "Why Stay to Fight a Losing Battle? (Part Two of a Series)." There, I continue to discuss my recent decision to accept an offer to retire at the end of the current academic year from my professorship and other roles at the University of Florida's law school. In Part One of that series, I had set up the question of whether I should have stayed in my positions to oppose the right-wing attacks on academic freedom that Florida's Republican politicians have been carrying out with increasing abandon in the last few years.
I pointed out that those attacks had included ending tenure in all but name, a political attack that is designed to intimidate professors into silence about intellectual, social, and policy issues with which the reactionary right is once again obsessed: racism, LGBTQ+ rights, abortion, and the rest of their litany of grievances. The foundational idea behind academic freedom is that scholars should be able to say and write possibly unpopular things, which requires that they not have to fear for their livelihoods (to say nothing of their lives) if they annoy the political class. Hence, tenure. Real tenure.
Part Two picks up with a direct challenge to myself. If even "tenured" professors at UF and other state universities in that voter-suppressed and gerrymandered now-red state can no longer pursue ideas without fear of ruinous political reprisal, who can? Well, maybe me. As I point out, I happen to be in precisely the kind of fortunate situation in which people are able to throw caution to the wind, taking a "What the heck, why not?" approach to life. Given my age, my relative financial security (at least compared to my likely needs over the remaining decades of my life), and my political inclinations, why did I not stay and resist? As the saying goes, what's the worst that could happen, eh?
The bulk of my answer to the question I posed to myself -- and I must say that I was quite rude, suggesting that the person I was challenging might be guilty "of cowardice or laziness (or both)," so ... yikes -- was that there is nothing brave or principled about fighting an unwinnable fight. Armies retreat and regroup when needed, and playing an obviously fixed game is a losing proposition. People can walk into a barrage of (in this case metaphorical) gunfire if they choose to, but no matter how bold that decision might be, it is not one that they will survive. Moreover, doing so will not help the people we should be trying to help -- the students, staff, and faculties of Florida's universities, along with the citizens of that state.
Before I explored all of that, however, I also noted that maybe I am a bit of a coward in another way. Why would I not put myself out there, daring the politicians to come at me? Because, I explained,
I would be uncertain from day to day when the powers that be would finally decide to target me. And when that day inevitably arrived, I would then be forced to stop researching, writing, and teaching, instead wasting a huge amount of time and effort on being the person who was the right’s villain du jour.
I left it at that, but it is worth thinking in some detail about what it means to be targeted by the right's outrage machine. Because I am a White male and non-LGBTQ+, I might not have received the full Freeman/Moss treatment or even the Steinbach treatment. On the other hand, even though Republican provocateurs cannot define "woke" or "cancel culture" or "politically correct," they would surely conclude that I am on the opposite side of their culture wars in every way. And once a person is under the glare of that spotlight, the translation of my anodyne phrase "wasting a huge amount of time and effort on being the person who was the right’s villain du jour" would be "spending all of my time dealing with online and in-person threats, possible doxing, and all the other tools of the new fascism."
I was quite serious when I wrote in yesterday's column that I considered at some length the possibility of using my relatively privileged position to fight the good fight. But I concluded that it would not be a good fight (where fights are "good" in the sense that they are not sure things, but they at least have the chance of ending in something that counts as success), and it was clear that the process could be personally debilitating. I do not wish what has happened to the victims of these defamation and harassment campaigns upon anyone. And "anyone" includes myself.
In my upcoming Part Three of that series on Verdict, I will discuss the stay-or-go question in a broader context beyond the attacks on academia in Florida. For the remainder of this column, however, I want to return to my comment above that there is more to be said about what happened to now-former-Dean Steinbach.
Many readers of Dorf on Law and Verdict might recall a five-part series of columns that I wrote in April about the Stanford incident and its aftermath. Those columns caught the attention of an organizer of the annual conference of law school associate deans, who asked me to speak at this summer's conference (even though I made it clear from the very beginning of my first column that I have no experience in any relevant administrative role and was writing only as an interested law professor). The conference was held in late May, and although it initially looked like Tirien Steinbach would be joining the panel, she ultimately had to withdraw due to family obligations.
Happily, the session was not designed as one of those annoying faux-debates, where panelists are chosen to represent "the two sides of the issue." As a result, the atmosphere was generally quite positive, and the audience consisted of associate deans who were honestly and earnestly engaged with what had gone right at Stanford, what had gone wrong, and what lessons could be learned to apply to future situations in which right-wing trolls decide to gin up another made-for-cable conflagration that they can use to attack the libs. No matter one's political leanings, no university administrator welcomes the wildfires that such events set off on campus. Whether and how to require preapproval of events, to be sure that event organizers are truly interested in an academically valuable exchange or instead are merely setting up deliberate provocations, is a very difficult question, and the discussion covered a wide range of interesting possibilities.
I was surprised, however, when one of the people in the room pushed back at my description of then-Dean Steinbach's real-time handling of the situation. Echoing what I had argued in my columns, I noted during my remarks at the conference that she had been asked to calm the room down, at which point she read a statement that she said she had prepared when she (correctly) anticipated that the event might become difficult. Because she wanted to be careful with her words, she said, she had worked out what to say in advance.
I then pointed out that the text of her remarks included exactly what Stanford's dean and others had piously intoned in the aftermath of the event, that is, reminding the students of the importance of listening to opposing points of view and saying more than once that she looked forward to hearing the judge's remarks. Those who have vilified her will surely say that she was merely giving lip service to those ideals, but at the very least she said what everyone in Monday-morning-quarterbacking mode loudly proclaimed that she should have said.
Did she make her own views about the judge's views clear? Yes, she did. She also said that she would listen to him and that the students should either join her in doing so or leave. After she was finished, she turned the floor back over to the judge, who then made a unilateral decision to drop his planned remarks in favor of a Q&A in which he insulted and belittled his audience.
In describing that sequence of events, I noted that Steinbach's comments consumed less than seven minutes, after which the event was able to continue. And this was where the surprising objection came in. The objector said that "Tirien was completely out of line, I mean completely out of line" with her remarks. Why? "She spoke for more than six minutes," he replied, "in a one-hour event!" Unfortunately, this comment bled into another comment that pulled the conversation in a different direction, meaning that we were not able to pursue that objection. But at the time, I thought: WTF?! And more than three months later, I still find myself flummoxed.
To start with a bit of a cheeky response, I will note what every academic knows, which is that public events that allow any response from the audience frequently find people asking "questions" that amount to speeches that can drag on for more than six or seven minutes. That is part of academic life. "Minutes of the event were taken up by someone else's comments" is not unusual, and it certainly cannot be the basis for saying that Steinbach was completely out of line.
But the more important point is that it is difficult to figure out what exactly is wrong with taking six or seven minutes in that situation. If anything, it seems like a small amount of time to me, under the circumstances. (And this is even setting aside the implicit assumption that the event had a hard 60-minute limit, which strikes me as at least questionable.) Steinbach had been called upon to calm the situation. How long is too long to achieve her goal?
Even if we cannot set a numerical limit -- "No more than 2 percent of the total time," or whatever -- what would make the time taken at Stanford so clearly beyond the pale that the person who did so should lose her job after suffering months of harassment? Should we rely on a variation of former Supreme Court Justice Potter Stewart's oft-derided words about obscenity, "I shall not today attempt further to define the kinds of material I understand to be embraced... [b]ut I know it when I see it," such that we trust ourselves to know when an intervention is taking too long? Fifty-eight out of sixty minutes is too much, obviously, and two are (maybe?) not too much. Who decides on anything in between, and based on what?
Moreover, how do we even know that she could have achieved the goal of taming an unruly situation in fewer minutes? If results matter, Tirien Steinbach got results. She had the misfortune of doing so, however, as a woman of color, an untenured administrator, and a person whose job title included the dreaded word "diversity."
Or maybe the problem is that she expressed disagreement with the judge's known (and loudly stated) regressive views? What would the critics’ response be if she had instead led the students in breathing exercises, continuing until the room had calmed down enough for everyone to take their seats or leave? Or perhaps she should have argued with the students and told them that the judge's views are in fact correct? No, you say? She should simply have told them not that those views were correct but only that they should be listened to and engaged with, you say? Well, that is exactly what Steinbach did.
I concede that a person might conclude -- not reasonably, in my view, but still possibly -- that what Steinbach did at Stanford took too long, or was insincere, or was too disagreeable. What I cannot possibly conceive of, however, is that the facts of this case add up to being completely out of line, a firing offense.
To return to the larger story, the right's grievance industrial complex has always targeted academics. We are, after all, exactly what authoritarians hate: independent sources of informed facts and judgments. Sometimes we swing and miss. Sometimes we go off half-cocked. That is inevitable, because we are human. But seeing the white-hot, ever-increasing intensity of the right's rage against academia is truly frightening. Even when people try to do their jobs and succeed, they are now being fired -- in this case, by a private, elite law school. This increasingly scary situation is not going to turn around any time soon.