Georgetown, "Discrimination," "Harassment," and "Political Affiliation"

Something Georgetown might want to keep in mind when deciding when Tweets from faculty members are punishable as "discrimination" or "harassment": D.C., like many jurisdictions, bans employment discrimination based on "political affiliation," though defined narrowly to refer only to "belonging to or endorsing any political party." It also bans discrimination in educational programs based on political affiliation. Unsurprisingly, Georgetown's antidiscrimination policy covers political affiliation alongside other characteristics.

If Georgetown were to interpret its policies on discrimination and harassment as forbidding tweets that are seen as offensive or derogatory to particular racial groups, then I think it would be bound to apply the same rules to future tweets that are seen as offensive or derogatory to people who belong to or endorse any political party as well. I don't think the policies should be thus interpreted, and in particular I don't think the Ilya Shapiro tweet should be seen as violating those policies. But if they are thus interpreted, then that would have to cover future public statements by other Georgetown faculty related to political party (and, of course, religion) as well as race or sex.

UPDATE: I revised this slightly to make clear that I'm talking about how a decision in this case would affect future cases, in which the tweets were seen as offensive or derogatory to, say, Republicans or Democrats.

Comments

[AmosArch]

I read the tweet and I don’t get it. Is it really all about just the three word phrase ‘lesser black women’ when its absolutely clear that he is not talking about all black women? If racism is just a game of gotcha now instead of a serious examination if someone is indeed bigoted and everybody knows it why do we continue to pretend that its serious? This PC garbage is the most bizarre case of mass psychosis I’ve ever seen.

[JJJSSS]

The implication of “lesser Black woman” is, in fact, that all Black women are lesser than the professor’s preferred candidates. Unless he thinks that there are Black women who are more qualified for the Supreme Court but who are not under consideration for some reason.

[TwelveInchPianist]

The post opined that an Indian guy was the most qualified candidate.

So by implication, all black women, and all white men, and all polka-dotted two-spirits are less qualified. There’s nothing wrong with saying that.

[Longtobefree]

Lesser is a comparison of two things.
In this case, whoever is eventually selected based on sex and race, compared to Ilya’s recommendation. There was no generalization of blacks as a group, or women as a group.
All this proves is that Georgetown does not teach English anymore.
The terrifying thing about 1984 was Newspeak, not the damn cameras.

[AmosArch]

He might. Biden certainly isn’t considering any nonscreaming leftwing black woman. Calling that tweet racist is as dumb as if I was called racist against white people if I said Justice Thomas was the best Justice in the world.

[David Welker]

If the author thinks that Sri Srinivasan is the “best” candidate, then by definition all black women, all black men, all white women, all white men, all Hispanic women, all Hispanic men, and all other people are, by definition, “lesser” candidates.

I happen to think Shapiro is simply wrong, having an overly simplistic view of the concept of “best.” But being wrong is part of being human.

The working theory amongst the “woke” seems to be what? That Shapiro is racist against black women, but not Indian men?

I suppose it is theoretically possible for a white male to be racist in that peculiar manner. But how likely is that???

Not very likely.

This is just more cancel culture and “I am more holy than thou” self-righteous woke politics run amok. Otherwise educated people are running modern day witch hunts with no self-awareness and no self-reflection. And like many of the Massachusetts colonists who engaged in such behavior in the past, they actually think they are the good guys.

This is maybe what we should expect to happen when campuses try to make themselves safe places by excluding uncomfortable ideas. People lose their basic critical thinking abilities.

People need to think for themselves. And part of that process is thinking out loud and not being afraid to be wrong.

[santamonica811]

“The working theory amongst the “woke” seems to be what? That Shapiro is racist against black women, but not Indian men?

I suppose it is theoretically possible for a white male to be racist in that peculiar manner. But how likely is that???…”

David, given that “Indian” people make up between 20 and 20% of the earth’s population (I’m lumping together India, Bangladesh, and Pakistan for this purpose, which seems fair to me.), I suspect that A LOT of those people are perfectly fine with Indian men and yet are racist against black people, and black women in specific. My many trips to India (and few trips to Pakistan and Bangladesh) certainly supported this view…sadly, I haven’t found a country on earth where one could not find people who had some bigotry.

(I’m just addressing that one factual point . . . I think that it’s not just a charitable reading of the statement–in context–to find an innocuous explanation, it is the most common-sense explanation. But Ilya’s tweet was poorly written. More proof that writing and speaking off-the-cuff can only lead to turmoil and heartache.

[Rev. Arthur L. Kirkland]

” This is just more cancel culture and “I am more holy than thou” self-righteous woke politics run amok. ”

It’s the self-righteous wokesters vs. the roundly bigoted, disaffected, usually superstitious, often autistic, stale-thinking right-wing clingers.

Need I guess which side counts you among its partisans, Mr. Welker?

[David Nieporent]

For the record, he said lesser black woman, not women.

[loki13]

What a strange post.

You point out that the prohibition on discrimination based on partisan affiliation doesn’t apply, but if it did, it would apply?

Okay then. I mean, if someone is going to make the argument that derogatory statements* regarding black women is intrinsically tied to the GOP, that will be fun.

*Again, I would say that it was inartful, and on twitter. But still.

[Commenter_XY]

It was a proverbial shot across the bow, IMO.

[loki13]

It’s a truly stupid one.

Here’s the logical fault.

1. Assume that DC is an “at will” jurisdiction. Then you can terminate (and discipline) employees for any reason at all- a good reason, a bad reason, or no reason.

2. However, even completely “at will” jurisdictions are subject to certain laws- local, state (not for DC of course), and federal. If you terminate someone for these certain reasons (say, on account of their race), then you are subject to liability.

3. DC is one of those places that includes partisan affiliation- you cannot take an adverse employment action against individuals on the basis of their party. So you can’t terminate someone simply because they are a Democrat or a Republican. However, you can take an adverse employment action for other reasons (DUH!) even though they are a Democrat or a Republican.

4. If GULC has policies regarding non-harassment, non-discrimination, and professional conduct that are violated, then that’s still a legitimate reason to take an adverse employment action.

5. And, of course, this has NOTHING TO DO with Ilya Shapiro. It would be like me saying, “Hey, I’m going to tell you all about the statute of limitation being 5 years. Yeah, I know this happened 10 days ago, BUT WHAT IF???”

This is truly one of the most baffling posts I’ve read in a while from EV.

[Krychek_2]

I agree that Ilya’s post, while badly drafted, was not racist. That said, I also don’t think firing him would be discrimination based on political affiliation. To me, political affiliation means Democrat, Republican, Libertarian, Socialist Workers, or independent.

There’s a further problem in that protected status does not necessarily protect conduct. Suppose an evangelical Christian gets fired for telling his gay co-workers that the Bible says homosexuality is an abomination in the eyes of God. Well, was he fired for his religion, or for being an ass?

When Christian missionaries first went to Madagascar, they learned that the local indigenous religion taught that it was very bad luck to build with stone. They decided to demonstrate to the natives how ill-informed their religion was by building a church out of stone. The Queen of Madagascar responded by ordering them tossed off a cliff. (The stone church still stands, by the way; I saw it when I visited the island two years ago.) So, were they martyrs to the faith, or just idiots?

[Noscitur a sociis]

That said, I also don’t think firing him would be discrimination based on political affiliation.

No one is suggesting that it would be. Other than that, great post!

[Krychek_2]

No one suggested it except for the red herring in Eugene’s first paragraph, but sometimes making sure a red herring is dead isn’t a bad thing.

[Rev. Arthur L. Kirkland]

” It was a proverbial shot across the bow, IMO. ”

A peashooter from a sailboat (S.S. Federalist, a Minnow-class vessel) aimed at the aircraft carrier that is the victorious modern American liberal-libertarian mainstream.

The good news for conservatives is that preliminary reports indicate Prof. Volokh might have nipped an ankle.

[Noscitur a sociis]

Prof. Volokh isn’t saying that punishing Shapiro for the tweet would be political discrimination.

He’s saying that if the tweet is found to violate the university ban on racial discrimination, then tweets or other comparably derogatory comments about political groups would need to be punished in the same way, since they would violate the same policy.

At least if Georgetown were going to be consistent about it, which seems like a dubious assumption.

[loki13]

That’s, again, a terrible and stupid point.

GULC and Georgetown have a lot of policies, including professional conduct and harassment.

And this should go without saying, but apparently I need to say it- a policy that prohibits an employer from discriminating on the basis of a protected class when it comes to employment is DIFFERENT THAN the policies it applies when it comes to the professional conduct of its employees.

[David Welker]

It is not a stupid point at all. It is saying that if there is consistency across these protected categories, this would be the result.

[loki13]

Well, since I know nothing about this area of the law, why don’t you try and explain EV’s post to me like I was a slightly dumb golden retriever?

If (for example) they terminate the position because it violates their policies on professional misconduct, you would say that this is actually taking an adverse action against him based on …. race?

Or are you saying that terminating someone for professional misconduct (let’s use the example of shouting the N word repeatedly in the workplace) is, in fact, not possible because the employer shouldn’t terminate based on a protected category … and this is …

Seriously, explain this to me. I’d love to know.

PS- By the way, I don’t think having the signatories to the letter trying to threaten Georgetown is going to have the desired response.

[David Welker]

Golden retriever’s aren’t dumb!

I think you understand EVs post perfectly well and have a rather sophisticated reason for disagreeing with it.

Perhaps you should explain that to me like I am a dumb black labrador.

[loki13]

I thought I had?

Go back to the N word example. Imagine you have an employee at a place (it could be Georgetown, or any other employer). Now, the employee is shouting the N word over and over again at other employees and customers, and gets terminated.

Why was he terminated? What was the cause of the adverse employment action? I mean, we could say that the employee was racist, but the employer isn’t terminating the employee because of the employee’s race- it’s because of professional conduct (misconduct). The legitimate business reason that the employer has is that you don’t want employee shouting the “N word” at customers and co-workers.

It has nothing to do with a prohibition on discriminating on the basis of race. *shrug*

This is such a simple distinction that I cannot understand why I have to keep reiterating it. What’s worse is that I know that EV should know these distinctions, given that he wrote a law review article in 1996 regarding freedom of speech in the workplace.

[Noscitur a sociis]

This is such a simple distinction that I cannot understand why I have to keep reiterating it. What’s worse is that I know that EV should know these distinctions, given that he wrote a law review article in 1996 regarding freedom of speech in the workplace.

I’m also a little curious why you’re repeating it, because it’s been pointed out several times that that isn’t the point Prof. Volokh is making.

[loki13]

I see exactly what he’s saying, and even with the update it is still incorrect.*

This is such a stupid point that he might as well be saying, “Ahem, I see that you don’t allow discrimination on the basis of family responsibilities. Wouldn’t want anything bad to happen to your discrimination policy!”

Perhaps EV would have been better off if he looked at the provisions of faculty misconduct, instead of this very weird post.

*Charitably, it could be said to be the same as my original statute of limitations example. If something doesn’t apply, then it doesn’t apply, so I’m not sure what threatening them with “fairness” is going to do.

[David Welker]

Ok, but in this example of yours, the employee could be fired whether or not the N-word was used. Repeatedly shouting at employees and customers is, as you say, unprofessional conduct (at least in ordinary circumstances). It should be pointed out that using a racial slur (even if not shouted), also would be considered to be unprofessional conduct. Either way, such behavior could be considered “discriminatory” and/or “harassment.” Shouting at someone repeatedly is certainly a form of harassment. Using the N-word might be discriminatory. (I think we understand context with respect to that; some people, right or wrongly, use the N-word as a way to greet each other in a casual and friendly manner.)

I don’t think that EV is here arguing that Georgetown is considering taking an adverse action against Shapiro because of his race. Instead, he is arguing that Shapiro’s tweet shouldn’t be interpreted as “harassment” or “discrimination” (which I presume under his contract is grounds for discipline) otherwise many other tweets could be considered “harassment” and “discrimination” and not just those related in some way to gender or race but also those related to political party.

[loki13]

“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.”

There is a reason the first thing is listed first.

Second, and just as an FYI, instead of just looking at what he wants to, normally a person would look at the procedures in toto; for example, there is a specific provision regarding private speech by faculty (only as it substantially affect s teaching, research, University service).

Moreover, there is nothing even attempting to see if this is tracked for that (which is separate from professional misconduct).

This is just poor research; when you are dealing with the protective provisions that would apply to faculty, you actually need to read it, not just pull out isolated examples that are not appropriate.

[David Welker]

OK.

Maybe you have identified a research deficiency. Or maybe EV isn’t sharing the entirely of his research in this blog post.

Even if you are right (and I agree with you about considering all three words… and we don’t know that EV isn’t considering all three words just because he posted about the last two) that there is a research deficiency here, I still wouldn’t use the words “terrible and stupid” to describe the post. But maybe that is because I have already had my morning coffee.

I feel bad for golden retrievers before you are fully caffeinated!

[MarkLastname]

Institution: “discriminating against people on the basis of race or political affiliation is contrary to our values.”

A: “This Indian judge is more qualified than any of the black judges under consideration.”
Institution: That violates our above rule, you’re fired.

B: “Republicans are morons.”
Institution: “…”

Under the rule, if A is in violation, then B definitely is (and I guarantee you plenty of Georgetown faculty have met that standard in their comments on Republicans, conservatives, even white people and men for that matter).

[Tilted]

No, I don’t think that is what Professor Volokh is arguing. He isn’t, it seems to me, arguing that Georgetown might be discriminating based on political affiliation if it fired Professor Shapiro. Rather, he’s arguing…

(1) Georgetown has policies prohibiting discrimination based on political affiliation just as it has policies prohibiting discrimination based on, e.g., race.

(2) If Georgetown interprets its anti-discrimination policies as forbidding tweets which are seen as offensive or derogatory to a particular race (i.e., being seen as offensive or derogatory based on X = discriminating based on X), then it follows that Georgetown’s anti-discrimination policies forbid tweets which are seen as offensive or derogatory based on political affiliation.

(3) That being the case, if Georgetown interprets its anti-discrimination policies thusly, there might be a lot more Georgetown faculty members who should also be fired because they tweeted something derogatory to, e.g., Democrats or Republicans.

The professor can, of course, correct me if I misunderstand his point (and he sees this comment).

The larger point, I think, is that interpreting anti-discrimination policies thusly is untenable – unless we’re willing to throw all pretense of fairness out the window.

[Armchair Lawyer]

Indeed.

[DIsrobing]

Eugene Volokh was close friends with a perverted serial sexual harasser Kozinski who had to resign his judgeship in disgrace.

I guess I am not surprised that he is here defending the right of some mediocre white guy to refer to all black women as “lesser.”

Disgraceful.

[David Welker]

EV presumably did not about or approve of Kozinski’s behavior. Why not address the substance of EV’s post instead of engaging in ad hominem?

[Rev. Arthur L. Kirkland]

” EV presumably did not about or approve of Kozinski’s behavior. ”

Does evidence support your presumption that Prof. Volokh neither knew about nor approved former Judge Kozinski’s behavior?

If Prof. Volokh didn’t know or disapproved, for example did he mention that at any point over a period of years at the blog to which he contributes thousands of words each week?

[AmosArch]

Funny, Biden is outright being the classical definition of racist by explicitly picking on race and bragging about it and he’s getting applause. Yet the tweet calling him out on it is the one getting the controversy for racism. We truly live in Backwards World.

[ThePublius]

I agree, wholeheartedly. It’s no longer the race card they throw, it’s race bullets from a machine gun.

[Leo Marvin]

Were Ronald Reagan and Donald Trump “the classical definition” of sexist when they announced they would nominate women for the SCOTUS seats which they then filled with Sandra Day O’Connor and Amy Coney Barrett? Are you under the impression race had nothing to do with George H.W. Bush’s nomination of Clarence Thomas to take Thurgood Marshall’s seat? Did you accuse Reagan, Bush and Trump of sexism and/or racism?

How about the system that just happened to result in every SCOTUS Justice for 178 years being white and male? Was that not “the classical definition” of racist and sexist? Did that not call proactive remediation, or was it only the remediation you consider racist and sexist?

[TwelveInchPianist]

“Are you under the impression race had nothing to do with George H.W. Bush’s nomination of Clarence Thomas to take Thurgood Marshall’s seat?”

What’s the evidence that it did? IMO Clarence Thomas was the most desirable confirmable potential candidate. YMMV.

[Leo Marvin]

What made him desirable and confirmable? Are you telling me that the selection of Thomas, a hyper-conservative, anti-affirmative-action African-American on no one’s short list of the most qualified candidates, to replace the first African-American Justice, a civil rights icon, had nothing to do with Thomas’ race?

I don’t believe it. I doubt you do either.

[TwelveInchPianist]

“What made him desirable and confirmable? Are you telling me that the selection of Thomas, a hyper-conservative, anti-affirmative-action…”

And there you go answering your own question. So tell me, who were the other hyper-conservative, anti-affirmative-action candidates who could have been confirmed?

[Leo Marvin]

Of course I was answering my own question. That was the point. So why did you cut it off right before the answer to my question also answered your question?

[benji]

Donald Trump, at least, seems to be a little bit sexist and racist.

[Leo Marvin]

Lol, ya think?

[AmosArch]

Yup, that was sexist of them. The real kind not all that other garbage that made the outrage page.

[TwelveInchPianist]

“Did you accuse … Trump of sexism and/or racism?

Uh, we were pretty sure you already knew.

[Archibald Tuttle]

Wise men have no Twitter accounts.

[Rev. Arthur L. Kirkland]

How could Mr. Shapiro attempt to own the libs as he hurtles toward irrelevance and replacement if he had no Twitter account?

[santamonica811]

Yup

[Sebastian Cremmington]

The precedent was set in 2005–Bush nominated the greatest lawyer in history to be a justice that just happened to be a super hawt woman. Frist wanted a justice with a penis and so he blocked the greatest most qualified lawyer in history from being on the Supreme Court. It’s stare decicis that too good a lawyer on the Supreme Court could upset the balance between good and evil light and dark Christ and Satan.

[santamonica811]

Can’t tell. Sarcasm or crack-smoking???

[Lochner was Based]

I think that if you read what he said in the most charitable light there really is nothing to see here. It seems to me that he should have been more careful with his words insofar as it leaves him vulnerable to people looking for outrage.

[AmosArch]

Human communication is inherently fuzzy. Thats why the standard since the dawn of time has been the meaning of a particular piece of communication is the most logical one based on context and structure. Without this society could not function. A few years ago some Communist decided that the standard for bigotry (against favored groups) should be moved from that standard to ‘the meaning is whatever the worst possible interpretation is if the target is conservative’.

Obviously even a kindergartner could tell you how ridiculous this is but we have an entire society of supposedly intelligent grown adults playing along as if this is all rational while sneering and acting all superior to creationists and flatearthers.

[Mitch]

It is worth recalling that in 2018 a member of the GL faculty tweeted re Kavanaugh: “Look at this chorus of entitled white men justifying a serial rapist’s arrogated entitlement. All of them deserve miserable deaths while feminists laugh as they take their last gasps. Bonus: we castrate their corpses and feed them to swine? Yes.”

Georgetown’s response: “The views faculty members expressed in their private capacities are their own and not the views of the university. Our policy does not prohibit speech based on the person presenting ideas or the content of those ideas even when those ideas may be difficult, controversial or objectionable.”

But if Ilya opposes race-based hiring he loses his position.
Hoya hypocrisy at its worst.

[Sebastian Cremmington]

And Trump wanted to pull Kavanaugh’s nomination because he didn’t like his comments about drinking beer. So that and the Miers debacle shows many people are qualified for these openings and if Senator Frist wants a justice to have a penis then god dammit the president better nominate a judge with a penis AND two balls!!!

[Noscitur a sociis]

But see https://www.insidehighered.com/quicktakes/2018/10/08/professor-who-tweeted-about-castrating-corpses-gop-senators-no-longer-teaching .

[TwelveInchPianist]

So you think they’re gonna give Shapiro a year of research leave before he starts teaching?

(And according to GU’s class schedule, she is back to teaching.)

[swood1000]

then I think it would be bound to apply the same rules to future tweets that are seen as offensive or derogatory to people who belong to or endorse any political party as well

They will answer that the amount of injury caused by a tweet should also be considered and disparagement of political parties causes little injury.

[Bruce Hayden]

And who gets to determine the amount of harm done?

[swood1000]

Those in charge of PC enforcement.

[Rev. Arthur L. Kirkland]

A White, male, right-wing blog that (1) is a magnet for bigots, (2) publishes a vile racial slur regularly, and (3) engages in hypocritical censorship is offering vague, stilted pointers on discrimination, harassment, political affiliation and expression to a strong, liberal-libertarian, mainstream university?

Because one of its right-wing pals said something objectionable and the clingers are circling their wagons at the disaffected political fringe?

Carry on, clingers. Thanks for the laughs. Bonus chuckles for getting a reference to superstition in there.

[Rev. Arthur L. Kirkland]

How much would it twist the clingers’ pretzel logic if Georgetown claims its religious beliefs obligate it to disassociate itself from Mr. Shapiro? Would the clingers stick with defense of bigoted (or “often bigoted”, or “bigotedish”) statements, or would they reflexively bow at the alter of their expansive view of religious liberty?

[TwelveInchPianist]

So Heidi Feldman said that Georgetown profs shouldn’t support students’ applications to clerk for judges appointed by Trump?

Now that sure sounds like a violation of the policy.