The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
There's a hot debate in the country about expressly race-based and race-influenced decisionmaking in judicial appointments, hiring, university admissions, and the like (see, e.g., here and here). The function of academic freedom is generally to help promote free debate by letting faculty and students discuss various subjects without fear of (among other things) losing their jobs.
Academic freedom principles often come up in concrete disputes about what someone has said. But their purpose, of course, is to make people feel free to say things in the future. So with an eye to that, let me pose a question to people who think Georgetown can rightly fire or otherwise discipline Ilya Shapiro, consistently with its stated academic freedom principles, for his tweet about race-based appointments—or who are considering the possibility that Georgetown can rightly do that:
What criticisms of such race-based decisionmaking do you think academic freedom still protects, so that people at Georgetown would feel free to make such criticisms?
Please choose one, and post your answers and explanations in the comments or Tweet them:
- Academic freedom doesn't protect criticism of such race-based appointments, hiring, admissions, and the like (at least so long as the decisions favor one or another racial minority group).
- Academic freedom protects such criticism—but only if Georgetown administrators, who likely disagree with the criticism, nonetheless think the criticism is well-reasoned, thoughtful, consistent, etc. (If so, would you apply this criterion to all views on all subjects, or only to criticism of race-based decisionmaking?)
- Academic freedom protects such criticism—unless it leads to enough controversy and condemnation among various groups that the Georgetown administration finds especially important. (Again, would you apply this criterion to all views on all subjects, or only to criticism of race-based decisionmaking?)
- Academic freedom protects such criticism—except for arguments that such race-based decisionmaking promotes the less qualified over the more qualified. Opponents of race-based decisionmaking must defend their positions without making those arguments.
- Academic freedom protects such criticism, including a hypothetical statement such as "Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart…. But alas doesn't fit into the latest intersectionality hierarchy so we'll get [less-qualified] black woman." But writing "we'll get lesser black woman" (which is what the tweet in this case actually said) instead of "we'll get less-qualified black woman" (as in the hypothetical) should be a firing offense.
- Something else, but then please tell us what rule you suggest Georgetown should announce on such matters.