The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Provost Gail F. Baker:
We recently received complaints relating to a post by USD Law Professor Tom Smith on his personal blog concerning the causes of COVID-19. The complaints alleged violations of various university and School of Law policies.
As a threshold matter, we sought to determine whether the blog post at issue was protected by our policy on academic freedom. After a thorough legal review, it was determined that the expression was protected by that policy.
This conclusion in no way amounts to an endorsement by the university of the opinions shared in the blog post.
Academic freedom lies at the core of the mission of the University of San Diego. At the same time, we are committed to providing an educational environment that honors the dignity of every individual. Those two commitments can and must co-exist. It is important that members of the university community exercise their freedom in a responsible fashion, attentive to the impact of their protected opinions and sensitive to all members of the community, especially those who may feel vulnerable, marginalized or fearful that they are not welcomed. Members of the university community may feel an obligation, and certainly have the freedom, to criticize opinions that they believe demean the dignity of others.
As a contemporary Catholic university, we have a responsibility to promote a safe, just and inclusive environment within the university and in the larger society. We recently announced The Horizon Project, a comprehensive five-year plan to take concrete action to build a more inclusive campus community. As part of that project, the School of Law has announced specific initiatives to promote diversity, equity and inclusion within the law school community. This vital work is ongoing and will remain a focus for continuing and additional action by the university and the School of Law.
I would have much liked to see a stronger defense of academic freedom. Still, the result is correct.
For those who are interested, I'm copying my post from six weeks ago, which quotes the blog post and the objections to it, and offers some analysis:
Here is the post, by Prof. Tom Smith (The Right Coast):
Wednesday, March 10, 2021
Wuhan Lab Theory a Dark Cloud on China—WSJ
By Tom Smith
Alas, the World Health Organization mission is turning into a case of disaster foretold. A credible inquiry requires China's full cooperation, not just cooperation with those lines of inquiry that are consistent with its own propaganda. And couldn't somebody have put Peter Daszak, team member from New York City's EcoHealth Alliance, under permanent mouth quarantine?
To insist that human encroachment on nature is the great risk tells us nothing about what happened in this particular case. To insist, as he did on NPR, that China's manhandling of the delegation with greeters in full hazmat garb, its forcing of the visitors into 14-day quarantine, was merely testament to China's Covid rigor overlooks another possibility: China was seeking to intimidate and dominate the investigators because of the colossal importance it places on controlling the virus narrative.
If you believe that the coronavirus did not escape from the lab in Wuhan, you have to at least consider that you are an idiot who is swallowing whole a lot of Chinese cock swaddle. At least Peter Daszak has good personal and financial reasons, not to mention reasons of career preservation, for advancing what he must know is a facially implausible thesis. But whatever. Go Science!
UPDATE: It appears that some people are interpreting my reference to "Chinese cock swaddle," as a reference to an ethnic group. That is a misinterpretation. To be clear, I was referring to the Chinese government.
Even without the UPDATE, it's clear that the reference to "Chinese cock swaddle" must be a reference to the government of China, not to Chinese-Americans or to people of Chinese extraction. The title of the post is about China, and the quote refers four times to China ("China's full cooperation," "China's manhandling of the delegation," "China's Covid rigor," "China was seeking"). Though "Chinese" sometimes refers to the government, sometimes to the nation, and sometimes to the ethnic group, here the referent is clear, and it isn't to Chinese-Americans or to USD law students from China or anything like that.
And yet Prof. Smith is now being investigated by the law school, and the "Asian Pacific American Law Student Association (APALSA) and the USD School of Law Student Bar Association are calling on law school and university officials to fire the professor who they say used racist language when talking about the coronavirus and China." (Abbie Alford, CBS8). [UPDATE: Prof. William Jacobson (Legal Insurrection) has much more, though he suggests that APALSA didn't expressly call for the firing of Prof. Smith.] The law school has published the following response:
The University of San Diego School of Law is aware of the blog post of the faculty member.
While the blog is not hosted by the University of San Diego, these forms of bias, wherever they occur, have an adverse impact on our community. It is especially concerning when the disparaging language comes from a member of our community. A core value of the University of San Diego School of Law is that all members of the community must be treated with dignity and respect. University policies specifically prohibit harassment, including the use of epithets, derogatory comments, or slurs based on race or national origin, among other categories.
We have received formal complaints relating to the faculty member's conduct, and in accordance with university procedures, there will be a process to review whether university or law school policies have been violated.
The Dean also sent this to the faculty, administrators, and staff:
Dear Law School Community,
It has come to my attention that a faculty member made a blog post concerning the origin of COVID-19, using offensive language in reference to people from China. As I wrote to you in a previous message, COVID-19 has been associated with an alarming increase in hate crimes directed against the Asian and Pacific Islander (API) community, with racist commentary relating to the virus and its origins. While the blog is not hosted by the University of San Diego, these forms of bias, wherever they occur, have an adverse impact on our community. It is especially concerning when the disparaging language comes from a member of our community.
Scientists are investigating the exact origins of COVID-19. Whatever the realm for debate by experts about this scientific question, there is no place for language that demeans a particular national group. Such language undermines our shared commitment to creating an inclusive, welcoming community.
A core value of the University of San Diego School of Law is that all members of the community must be treated with dignity and respect. University policies specifically prohibit harassment, including the use of epithets, derogatory comments, or slurs based on race or national origin, among other categories. I have received formal complaints relating to the faculty member's conduct, and in accordance with university procedures, there will be a process to review whether university or law school policies have been violated.
I will be meeting as soon as possible with leaders of the Asian Pacific American Law Students Association and the Student Bar Association to discuss further steps. In addition, I will continue to work with faculty, students, staff, and alumni over the course of this spring and beyond to develop and implement plans to promote diversity, equity, and inclusion at the law school. This occurrence reminds us again of the importance and urgency of this project. I will be sending you more information about plans as they develop.
It is clear that we have much work to do together to repair and enhance our community. That work must begin by acknowledging the harm caused by this kind of demeaning language.
Yet I stress again that the blog post is not "disparaging language" or "epithets, derogatory comments, or slurs based on race or national origin" towards any "members of the [USD] community" (students, faculty, or staff). It is disparaging language towards China, in context referring to the government of China.
To the extent people who feel some connection to China find it offensive, that is no basis for the university to prohibit such speech, or even investigate a faculty member for such speech—just as a university has no business investigating a faculty member for sharp criticism of the government of Israel (or of other Israeli institutions), or of Russia or, back in the day, South Africa or whatever else.
I've heard some suggestion that such harsh condemnation of the Chinese government might increase the risk of hate crimes against Asians. I'm skeptical that this is likely so, especially in a blog post such as this.
But in any event, faculty or student speech like this can't be suppressed simply because it has a supposedly bad tendency to inflame a few of its readers in a way that might cause them to commit crimes:
- Harsh criticism of the police might lead to violent attacks on the police.
- Harsh criticism of the Israeli government (or of "Israel" generally) may lead to violent attacks on Jews.
- Harsh criticism of the U.S. government might lead to criminal attacks on government institutions, whether from the Right (as with the Capitol riot) or from the Left (as with the riots in Portland).
Yet such speech remains protected by academic freedom and free speech principles. In particular, besides the promises of academic freedom (which I think covers public commentary and not just scholarship) that USD, alongside most other private academic institutions, provides, the California Labor Code protects "political activities" even by private employees:
[§ 1101.] No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.
[§ 1102.] No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.
And the California Supreme Court has made clear (in Gay Law Students Ass'n v. Pac. Tel. & Tel. (1979)) that "political activities" includes not just electioneering but also "espousal of … a cause," including non-campaign-related causes, such as "the struggle of the homosexual community for equal rights." Espousal of opposition to the Chinese government is equally a "political activit[y]" that USD can't penalize.
Now I personally don't much care for the vulgarity of "cock swaddle," though a mutual acquaintance of Prof. Smith's and mine speculates that this wasn't a deliberate reference to something sexual, but a mistaken attempt to use something softer than "bullshit" (perhaps under the influence of a dimly remembered "codswallop"). Still, even if we take "cock swaddle" at face value as a vulgarism, that is clearly not the basis for the investigation or, as best I can tell, for the calls for firing.