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The University and Freedom of Expression

The campus of Georgetown University

Win McNamee/Getty Images

The campus of Georgetown University, Washington, D.C., March 12, 2019

The controversy surrounding conservative lawyer Ilya Shapiro’s future at Georgetown University Law Center threatens to turn academic freedom on its head. Only days after Georgetown Law announced his appointment last month to head its conservative-leaning Center for the Constitution, touting him as “an expert on the history of Supreme Court nominations, and one of the premier public commentators on constitutional law,” it placed him under investigation and on administrative leave for a pair of tweets that took issue with President Biden’s commitment to nominate a Black woman to replace Justice Breyer on the Supreme Court. Shapiro’s message was offensive, but if academic freedom is to mean anything, those two tweets can’t be a firing offense. And without academic freedom, the voices suppressed are as likely to be those of critical race theorists as opponents of affirmative action. 

The concept of academic freedom was initially advanced in the United States by universities and professors as a defense against political intrusions aimed at perceived anarchists, Communists, and other critics of the status quo. Universities argued that because a robust exchange of ideas and free inquiry are essential to the academic enterprise, state officials must respect the independent judgments of universities and the free speech rights of their employees. The Supreme Court’s academic freedom cases have all involved government efforts to banish Communists from campus.

Yet, as Georgetown Law, where I have been a faculty member since 1990, considers whether to fire Ilya Shapiro, the university itself has become the potential threat to academic freedom. If universities do not respect this principle within their own institutions, how will they resist the political encroachments of outsiders? Academic freedom, like the First Amendment itself, does not protect all speech. But it surely protects this speech.

On Twitter, Shapiro expressed his opinion that the D.C. Circuit’s chief judge, Sri Srinivasan, would be President Biden’s “objectively best pick” for the Supreme Court, but “alas doesn’t fit into latest intersectionality hierarchy so we’ll get [a] lesser black woman.” In a second tweet, he lamented that the next justice would forever “have an asterisk attached” to her name.

Shapiro’s argument, if one can dignify a tweet with that label, is baseless and offensive. Many readers interpreted it as an assertion that all Black women are by definition “lesser.” Others have argued that Shapiro meant only that all other candidates were “lesser” because Srinivasan was the best candidate, not becausethey were Black women. But even on the more sympathetic reading, how does Shapiro know any Black woman would be “lesser” than Srinivasan? Has he actually assessed all potential Black women nominees, or is he simply resting on race-based assumptions? 

Either way, the use of “lesser Black woman” tapped into a history of bigotry, and the notion that the first Black woman would have to bear an asterisk reinforced that view. And such speech has real consequences; as a petition by the Georgetown Black Law Students Association put it, Shapiro’s tweet “sends the visceral message that even if Black women attend the best law schools, hold the highest clerkships and serve on the most prestigious courts, they still are not good enough.”

The next day, Shapiro deleted the tweets. He posted an apology for his “poor choice of words,” while reasserting his view that “men and women of every race” should be considered. (This tweet was also later deleted.)

Georgetown Law’s dean condemned the original tweets in a message to the law school community, stating that “the tweets’ suggestion that the best Supreme Court nominee could not be a Black woman and their use of demeaning language are appalling. The tweets are at odds with everything we stand for at Georgetown Law and are damaging to the culture of equity and inclusion that Georgetown Law is building every day.” Many faculty and students joined in the criticism, some at a campus sit-in, many others online.

That was the right response. Offensive speech should be called out and condemned. And when individuals make such remarks, retracting them and apologizing is appropriate.

Many in Georgetown Law’s community, however, have demanded more. A petition from Georgetown’s Black Law Student Association, joined by twenty other student groups, including the Student Bar Association, the Georgetown Law Journal, the Women’s Legal Alliance, and the American Constitution Society, and signed by more than one thousand students, calls for Shapiro to be fired. Many faculty members have echoed the demand. Almost no one at Georgetown has spoken up publicly to counter the call for dismissal. The pressure on the university to fire Shapiro is overwhelming.

Doing what the vocal majority demands in this instance would be a huge mistake. I unequivocally reject Shapiro’s contention that it is improper to seek to rectify the shameful fact that no Black woman has ever served on the Court—just as there was nothing wrong in Ronald Reagan’s commitment to appoint the first woman, or President Trump’s statement that he would pick a woman to fill Justice Ruth Bader Ginsburg’s seat. And Shapiro’s tweet was, in my view, offensive.

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But that doesn’t mean he should lose his job—or that the Georgetown community will be better-off if it banishes him. Expressing one’s position on affirmative action, or any other matter of public debate, even in an offensive manner, cannot be the basis for termination if academic freedom is to be respected.  

The principle of academic freedom, like the freedom of speech generally, is not absolute. It does not protect those who engage in targeted racial harassment or threats, or speech that creates a pervasively hostile environment. But Shapiro’s tweets do not come close to crossing those lines. And in an instance such as this, in which he immediately responded by deleting the tweets and apologizing, the commitment to academic freedom demands tolerance for those with whom we disagree. Some have raised concerns about whether students of color will feel comfortable taking Shapiro’s classes. But his primary role will be running a conservative institute on campus, and as a lecturer he would not teach any compulsory courses.

Georgetown has also said it is investigating whether Shapiro’s tweets violated its rules of “professional conduct,” but if that open-ended term can be invoked to terminate a teacher for expressing a controversial view in a provocative manner, off-campus and outside of his employment, no professor’s free speech rights will be safe.

Most importantly, if universities start policing controversial speech within their own intellectual community, they will undercut their standing to object to others’ efforts to police them. This is no hypothetical concern. In their crusade against critical race theory, Republicans across the country have sought to censor discussion of race and gender in public schools and universities, recalling the worst tactics of the McCarthy era. The ACLU, for which I am the national legal director, has filed lawsuits challenging those efforts, invoking academic freedom. 

Meanwhile, conservatives recently called upon Rutgers University to fire Brittney Cooper, a tenured professor of Africana, women’s, and gender studies, for rhetorical statements in an online conference that “white people are committed to being villains in the aggregate,” and that they should be “take[n]…out.” (Rutgers, to its credit, has not disciplined Professor Cooper.) And last month, a federal judge ruled that the University of Florida violated the First Amendment by barring faculty members from participating as experts in a voting rights case against the state. The risk here is clear: if universities themselves do not respect academic freedom, the victims of suppressed expression will nearly always be those whose views challenge the status quo.

Academic freedom is especially important in today’s toxic political environment. The survival of our vast, multicultural democracy demands a commitment to pluralism. Our society is afflicted by deep polarization, in which both left and right have grown more strident and increasingly intolerant, opinions have ossified into identities, and many of us rarely talk to, or hear from, those with whom we disagree. The university has the potential to be a critical antidote. At its best, it provides a place in which people with widely divergent opinions live and learn together. But it can do so only by practicing the tolerance for disagreement that is too often missing elsewhere.

As a private university, Georgetown is not bound by the First Amendment. But like virtually all institutions of higher learning, it has committed itself to respecting the free exchange of ideas. Its policy protects even speech that “most members of the University community [consider] offensive, unwise, immoral, or ill conceived.” That so many faculty, students, and student organizations have demanded Shapiro’s ouster will make Georgetown’s adherence to its own standards extraordinarily difficult. Nothing is more challenging for leaders than to stand up to the will of the vocal majority. But it is moments like these that test our commitment to the values of tolerance and diversity. Condemning the message is the right response; firing the speaker is not.

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