Damned if She Does, Damned if She Doesn’t: The Paradoxical Powerlessness of A Woman of Color in a Position of Authority

Written by: Katherine Murray

The recent incident at Stanford Law School highlights not only the obvious discrepancies between definitions of free speech, but also the double standards that are applied to women in positions of authority — particularly women of color.

On March 9, Judge Kyle Duncan spoke at Stanford Law School. Invited by the Stanford Federalist Society, his talk was titled “The Fifth Circuit in Conversation with the Supreme Court; Covid, Guns, and Twitter.” Duncan, appointed by Trump in 2017, has a long track record of opposing reproductive rights and LGBTQI+ rights. Stanford’s announcement of the inflammatory speaker’s invitation was decried by many students, including the coalition Identity and Rights Affirmers for Trans Equality, who requested that his presentation be canceled or moved to Zoom. 

When their request was denied, the student group mobilized to protest. Inside the classroom, posters emblazoned with phrases like “Free speech is not hate speech” prompted Duncan to comment, “I’m not blind — I can see this outpouring of contempt,” “In this school, the inmates have gotten control of the asylum,” and “Do you think this is an appropriate way to receive a guest?”

He requested the aid of an administrator, and Tirien Steinbach, Stanford Law’s Associate Dean for Diversity, Equity and Inclusion, took the floor. She reminded him that “For many people here, your work has caused harm,” and clearly delineated her thought process in her March 23 Wall Street Journal op-ed, “Diversity and Free Speech Can Coexist at Stanford.” Steinbach notes that “striv[ing] for authentic free speech” meant both supporting SLS’ decision not to cancel the event and allowing students to protest the event:

“I stepped up to the podium to deploy the de-escalation techniques in which I have been trained, which include getting the parties to look past conflict and see each other as people. My intention wasn’t to confront Judge Duncan or the protesters but to give voice to the students so that they could stop shouting and engage in respectful dialogue. I wanted Judge Duncan to understand why some students were protesting his presence on campus and for the students to understand why it was important that the judge be not only allowed but welcomed to speak. To defuse the situation I acknowledged the protesters’ concerns; I addressed the Federalist Society’s purpose for inviting Judge Duncan and the law school’s desire to uphold its right to do so; I reminded students that there would be a Q&A session at which they could answer Judge Duncan’s speech with their own speech, as long as they were following university rules; and I pointed out that while free speech isn’t easy or comfortable, it’s necessary for democracy, and I was glad it was happening at our law school.”

However, Stanford Law School officially condemned her approach. The Stanford Review issued a call to “Fire Tirien Steinbach,” arguing that her “notebook and prepared remarks” reflected a premeditated plan to censor Duncan. On March 11, SLS Professors Marc Tessier-Lavigne and Jenny Martinez issued an apology to Duncan, which included a clear jab at Steinbach: “… staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.” The National Review printed Duncan’s response to the apology, which included a complaint that “the administrators’ behavior was completely at odds with the law school’s mission of training future members of the bench and bar.” It is important to note that the SLS professors mention “staff members” and Duncan mentions “administrators,” but only Steinbach has been named or punished.

On March 22, Martinez issued a ten-page memo that states Steinbach was put on leave, outlines “clearer protocols for managing disruptions and educational programming on free speech and norms of the legal profession,” and confirms that the “role of any administrators present will be to ensure that university rules on disruption of events will be followed, and all staff will receive additional training in that regard.” All SLS students are also ordered to undergo “mandatory educational programming.” Ted Cruz posted that Stanford’s response presents “a victory for sanity and the right to free speech.”

Duncan’s speech — and the subsequent fallout  — represents the most recent inflammatory event in a cycle that centers universities as gatekeepers of freedom of speech and definers of deplatforming. Trump’s election and the ensuing aggrandizement of the alt-right led to a series of white supremacists, white nationalists, and proudly self-declared racists/ misogynists/ transphobes/ proponents of violence being invited to speak at college campuses.

The 2016 letter by Dean of Students John Ellison to the University of Chicago’s student body clarified, Our commitment to academic freedom means that we do not support so-called ‘trigger warnings,’ we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual ‘safe spaces,’ where individuals can retreat from ideas and perspectives at odds with their own.” While the term “safe space” is sometimes regarded facetiously as something desired by overly sensitive “snowflakes,” it is indisputable that schools no longer represent a physically safe space. American students justifiably fear experiencing violence at school, and educators who invite inflammatory speakers that promote violence cannot be surprised when the speakers’ supporters or their protesters respond in kind.  

In January 2017, a UC Davis talk by Milo Yiannopoulos and Martin Shkreli was shut down thirty minutes before it was scheduled to begin after the university’s police department reported security threats; Yiannopoulos’ February Berkeley talk incited violence that led to over $100,000 worth of damage to campus. ’

In March 2017, Middlebury students shouted down Charles Murray, whom the Southern Poverty Law Center has categorized as a white supremacist extremist. The remainder of his talk was live-streamed so that he could speak without interruption. Murray condemned Middlebury students’ response as “a radicalization of elite campuses and of the anti-free-speech movement.” On the same day, Franklin & Marshall College was praised for its handling of students protesting a talk by Flemming Rose, a Danish journalist who published cartoons of the prophet Muhammad, by encouraging them to engage in “nondisruptive protest”.

In September 2017, Ben Shapiro’s talk at Berkeley led to nine arrests, three of which were for carrying banned weapons on campus. Before the talk, Berkeley’s City Council reversed a twenty-year ban on pepper spray and authorized police officers to use it on protesters.

In October 2017, white nationalist Richard Spencer spoke at the University of Florida. Administrators reportedly breathed a sigh of relief as violent responses “only” included five arrests, including three men charged with attempted murder after yelling Nazi slogans and firing a gun into a crowd of protesters.

In February 2018, Milo Yiannopoulous was scheduled to speak at UCLA, but the event was canceled by the inviting Bruin Republicans after sociology professor Gabriel Rossman issued an open letter that reminded them, “your conscience should tell you that you never want anything to do with someone whose entire career is not reasoned argument, but shock jock performance art.” As Rossman indicates, the danger of inviting speakers like Spencer and Yiannopoulous is that it legitimates “shock jock performance art”; while Duncan’s credentials seemingly suggest that he would hold himself to a higher standard, it then becomes the responsibility of administrators like Steinbach to play referee, a task that seems destined to fail when it is easier for listeners on both sides of the aisle to play partisan rather than actually engage in debate.  

There is no denying that women in positions of power are held to higher scrutiny. Despite her impressive resume, Steinbach’s credentials (which include a J.D. from Cal, seventeen years of legal practice, and Chief Program Officer at the ACLU of Northern California) have been called into question. The Atlantic claimed that Steinbach “disempowered students,” but had she stayed quiet or not injected herself after Duncan asked her to do so, she surely would have been labeled weak or ineffectual. Though Tessier-Lavigne and Martinez jointly issued SLS’ official apology, Martinez evidently incurred more public wrath; her memo notes that “the course I have chosen will not please everyone.”

The 2016 Presidential debates confirmed that Americans are unbothered by unbridled displays of emotion by men, but expect women in similar roles to remain completely objective, lest they willingly sacrifice credibility and respectability. Brett Kavanaugh’s red-faced tirade during his 2018 hearing stood in stark contrast to Christine Blasey Ford’s impressive display of stoicism. Angela Wright, an uncalled witness during the Clarence Thomas hearings, reflected, “I don’t think I could have maintained the grace and dignity of Anita Hill… [but] it would have been nice to have been able to defend myself.” Indeed, some Republicans are only too happy to create a double standard for gendered emotion; Trump and Kavanaugh were hailed as authentic, and Kyle Rittenhouse’s crocodile tears during his November 2021 testimony led to a verdict of “not guilty” after he murdered two people.

Within the spaces of universities, women in power are apparently expected to simultaneously embody and reject bureaucracy. In September 2017, University of Virginia President Teresa Sullivan came under fire after students dropped a tarp over a statue of Thomas Jefferson; Sullivan’s statement “express[ed] her disagreement with the action but supporting the protesters’ First Amendment rights.” One month previously, Sullivan had been criticized by proponents of freedom of speech for discouraging students from participating in white supremacists’ Unite the Right rally.

Women of color are held to even more impossible double standards. The Internet responded with unflattering caricatures of Steinbach that employ racist stereotypes, and an unpleasant perusal of comments on articles about the incident reveals condemnations of Steinbach’s perceived femininity and perceived lack of femininity, perceived authority and perceived lack of authority, and perceived embracing of her job duties and perceived ignoring of her job duties. This is not a recent phenomenon. Jacinta Kent’s “Scapegoating and the ‘Angry Black Woman’” (2021) argues that such scapegoating “achieves the paradoxical feat of ascribing power while simultaneously taking it away… as a result of intersecting, deep-rooted, and malignant forces operating within the (un)conscious, with a particular focus on racism.” It is difficult to imagine a response to Duncan’s speech that would have left Steinbach being considered a successful arbiter of differing discourse.

No matter what her response could have been, she would have been criticized for taking up too much or too little space, for openly siding with or against students, for taking a stand or not taking a stand. As Frances M. Beal’s “Double Jeopardy: To Be Black and Female” (2008) notes, “It is the depth of degradation to be … powerless to reverse this syndrome” (168). As a navigator of red tape whose job is to protect the plurality of students’ identities, Steinbach’s administrative position at Stanford constantly subjects her to a recursive loop: she is expected to advocate for identity politics, but is rendered powerless by the appearance of limiting those whose careers are defined by ignoring others’ identity politics. The nature of DEI administration suggests that even individuals like Duncan, who has spent decades enacting legislation that restricts the rights of marginalized peoples, deserve to be included. Steinbach was put in a difficult position when she was asked to ensure the freedom of speech of someone who has made a career out of restricting others’ freedom of speech.

The Post-Truth era, fueled by the proclivity of social media to reduce any argument to soundbites and snapshots, corrupted the notion of free speech by magnifying the loudest and most inflammatory platforms. Federalists like Duncan love to invoke the Founding Fathers as proof of the inherent goodness of freedom of speech, but somehow manage to do so without worrying that this has legitimized the platforms of anti-vaxxers’ promises that horse dewormer treats COVID or Marjorie Taylor Greene’s rants about Jewish space lasers.

Ultimately, Steinbach was made into a convenient scapegoat in an era that favors polarized rhetoric at the expense of nuanced discourse.

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