The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I don't normally do this sort of thing, but in light of the continued calls to terminate Ilya Shapiro from Georgetown University Law Center because of his tweets last week, I was part of a group of professors who sent the following letter to Georgetown Dean William Treanor. (Signatories include several other members of this blog, and many professors not on this blog.)
Here is our letter, available at FIRE:
Dear Dean Treanor:
We understand that some have called for Ilya Shapiro to be fired from his position as Executive Director of the Georgetown Center for the Constitution, because of his tweet criticizing President Biden's pledge to appoint a black woman as a Justice. We think such a firing—or subjecting Shapiro to disciplinary action of any kind based on his tweet—would be contrary to basic academic freedom principles, which Georgetown rightly applies (1) to "all faculty," including "lecturer[s]" such as Shapiro, and not just tenure-track faculty, and (2) to "professional service" and "all the domains of [faculty] academic activity," which would include public commentary by public intellectuals, and not just "research" and "teaching."
We agree that the reference in the tweet to "a lesser black woman" was a poor way of expressing the message (and Shapiro's apology seems to agree as well). "[Sri Srinivasan] doesn't fit into the latest intersectionality hierarchy so we'll get [a less-qualified] black woman" is presumably what Shapiro meant to say. But setting aside that one mistake—which should not be seen as a fireable offense—the substance of the message, which is that Sri Srinivasan is the most qualified progressive nominee, and that it's wrong for the President to pass him over because of race and sex, is a position that is most certainly protected by academic freedom principles of "[f]ree inquiry and unconstrained publication of the results of inquiry."
To be sure, the substantive position about the President's pledge, and about the relative qualifications of the various possible appointees, is not a position that all of us endorse. Indeed, some of us have publicly disagreed with it.
But academic freedom protects Shapiro's views, regardless of whether we agree with them or not. And debate about the President's nomination, and about whether race and sex play a proper role in such nominations more generally, would be impoverished—at Georgetown and elsewhere—if this view could not be safely expressed in universities. Indeed, to the extent that people do think it's proper for a President to promise to fill a position with a member of a particular group, they can only have real confidence in that conclusion if they know that the contrary view can be freely supported and discussed, and has been found unpersuasive on the merits rather than silenced by fear of firing. That is famously the way academic discourse about science operates. And it is true for moral and political judgments as well.
More broadly, firing Shapiro for expressing his views will send a message to others in Georgetown—both faculty (and especially untenured faculty) and students—that debate about matters having to do with race and sex is no longer free; that the promises of academic freedom are empty; and that dissent from the majority views within the law school is not tolerated. That will chill far more than just honest discussions of this particular Presidential nomination.
- Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, University of California, Los Angeles
- Samuel J. Abrams, Professor of Politics and Social Science, Sarah Lawrence College
- Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University
- Kenneth Anderson, Professor of Law, American University Washington College of Law
- William Baude, Professor of Law, University of Chicago
- David E. Bernstein, University Professor, Antonin Scalia Law School, George Mason University
- Josh Blackman, Professor of Law, South Texas College of Law Houston
- Paul G. Cassell, Ronald N. Boyce Presidential Professor of Criminal Law and University Distinguished Professor of Law
- Nicholas A. Christakis, Sterling Professor of Social and Natural Science, Yale University
- Richard W. Garnett, Paul J. Schierl/Fort Howard Corporation Professor of Law, University of Notre Dame
- Robert P. George, McCormick Professor of Jurisprudence, Princeton University
- Gail Heriot, Professor of Law, University of San Diego
- Randall Kennedy, Michael R. Klein Professor, Harvard Law School
- Amna Khalid, Associate Professor, Department of History, Carleton College
- Eugene Kontorovich, Professor of Law, Antonin Scalia Law School, George Mason University
- Andrew M. Koppelman, John Paul Stevens Professor of Law, Northwestern University
- Brian Leiter, Karl N. Llewellyn Professor of Jurisprudence, University of Chicago
- John McWhorter, Associate Professor of English and Comparative Literature, Columbia University
- David G. Post, I. Herman Stern Professor of Law Emeritus, Temple University Beasley School of Law
- Glenn Harlan Reynolds, Beauchamp Brogan Distinguished Professor of Law, The University of Tennessee
- Adam Scales, Professor of Law, Rutgers Law School
- Stephen Sachs, Antonin Scalia Professor of Law, Harvard Law School
- Jeffrey Aaron Snyder, Associate Professor of Educational Studies, Carleton College
- Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
- Nadine Strossen, John Marshall Harlan II Professor of Law, Emerita, New York Law School
- Alexander Volokh, Associate Professor of Law, Emory University
- Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University
- Jonathan Zimmerman, Judy and Howard Berkowitz Professor in Education, University of Pennsylvania
- Todd J. Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason University
Note: Further signatures will be continually added as they arrive. If you're interested in adding your signature to this letter, please email email@example.com.
And here is an email subsequently sent out today by Dean Treanor:
Dear Members of the Georgetown Law Community,
Over the past several days, I have heard the pain and outrage of so many at Georgetown Law, and particularly from our Black female students, staff, alumni, and faculty. Ilya Shapiro's tweets are antithetical to the work that we do here every day to build inclusion, belonging, and respect for diversity. I have heard and listened to a wide range of views, and I am grateful to the many members of the community who have reached out to me and other leaders at the school to share their thoughts.
I am writing to inform you that I have placed Ilya Shapiro on administrative leave, pending an investigation into whether he violated our policies and expectations on professional conduct, non-discrimination, and anti-harassment, the results of which will inform our next steps. Pending the outcome of the investigation, he will remain on leave and not be on campus. This investigation will follow the procedures established by Georgetown University.
Racial stereotypes about individual capabilities and qualifications remain a pernicious force in our society and our profession. I am keenly aware that our law school is not exempt. We will continue our work with students, staff, alumni, and faculty to put in place strategies, policies, and practices to strengthen our community and our commitment to justice and equality for all. And I remain committed to working with each of you to create a community where we can all thrive.
I may have more to say about this, but it remains to be seen what else will happen.
UPDATE: This also seems like a good occasion to repost Professor Jacob Levy's advice for universities on social media controversies, which it seems like many university administrators need to print out and tape next to their computers: