The Volokh Conspiracy
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Academic Freedom and Debate About Race-Based Appointments, Hiring, Admissions, Etc.
What do you think Georgetown faculty should be free to say in the public debate about such matters?
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.
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The proposed rule should be:
“Georgetown Law upholds the principles of free speech. The remedy to speech you find abhorrent is speech that refutes the speech you reject. If you cannot handle that simple truth, you have no right to be a lawyer.”
Georgetown Law School must be defunded, and disaccredited. They are indoctrinators of woke not educators. Zero tolerance for indoctrination. Zero tolerance for woke. All PC is case, and the lawyer profession, the punk ass bitches, must be crushed to save this nation.
Mr. Chocolate:
Do graduates of Ave Maria, Regent, and Liberty have the right to be lawyers?
Should schools that impose routine censorship, impose speech codes, enforce dogma, suppress science to flatter dogma, require statements of faith, collect loyalty oaths, and the like be accredited? Do the graduates of such schools — essentially every conservative-controlled campus in America –have the right to be lawyers?
Thank you.
For what it’s worth, I’d fully support the closure of the worst 50% of law schools, which would of course include the three on your list.
I would applaud a market-based closure of a number of lousy law schools, but not an imposed closure.
I believe the American mainstream should decline to accredit schools whose teaching is tainted by nonsense (unless those schools improve their conduct).
Or, just get rid of the school requirement all together. You can learn almost everything you need to pass school – from YouTube (or other legal related sources). If they keep the bar, why shouldn’t someone, if they haven’t been to school, but can pass the bar – not be a lawyer?
I’ve been waiting for professors to call for the firing of the dean. Remove the real problem to current and future academic freedom please. Don’t have to remove the dean from the university – just from the dean position.
To cancel him, if you will?
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)
shouldcould potentially be be a firing offense.(I edited #5 to make my position clear – it was closest overall)
I have argued the case that Professor Shapiro could potentially be dismissed on other grounds; namely, as a VP of a non-profit and the Executive Director of a GU organization he is an executive manager, not some shmoe or stunod. Professor Shapiro is a legal luminary. Executive managers who have epic brain-farts (like that tweet) generally do not stay executives. Boards dismiss them. In the real world, different rules apply when you’re at that level. Before you say Professor Shapiro is not an exec….does he fund raise at all or give any public speeches in his capacity as VP/Exec Dir? If yes, then he is an executive.
Professor Volokh, when I consider this through an ‘academic freedom’ lens, it is a no-brainer. Professor Shapirio’s tweet is absolutely protected. And in fact, pretty much any tweet on any topic is protected, the way I see it. That protection would mean (to me), that Professor Shapiro would not lose tenure (assuming he is tenured) at GU.
His executive positions, OTOH, are fair game. To me, it remains a very, very close call on cutting him loose. You might think that unjust, or unfair. Perhaps so. The world is full of unfair and unjust outcomes. Professor Shapiro doesn’t get special breaks just because he has JD after his name.
Just because you have free speech does not mean you also have absolute freedom from any consequence for clearly idiotic speech.
It is great that the anti-freedom types have found this giant loophole that allows them to pursue “truth” through censorship.
I found it rather ironic that many on the left and a smaller number on the right view Trump as some sort of threat to democracy while simultaneously undermining the core principle of democracy. To have a real democracy, people must feel that they have the practical ability to express the opinions on matters of public concern.
But the “speech has consequences” left wants to increase the costs of self-expression so much that people will not express their opinions freely.
What then, is the point of democracy? If people cannot handle offensive speech, surely we have also overestimated their capacity to govern themselves. The premise of democracy is that citizens can also be adults and do not need to be protected from information and opinions they disagree with or find offensive. It sounds like we need an elite class of people who can actually function as adults in the world to govern.
In other words, it would be good if the cancel culture left actually believed in freedom of speech in practice rather than seeking loopholes based on premises that are fundamentally incompatible with democracy.
The point of democracy is to put the left in power.
/sarc
“It is great that the anti-freedom types have found this giant loophole that allows them to pursue “truth” through censorship.”
I doubt Prof. Volokh appreciates your attempt to redirect this discussion toward conservatives and religious schools, Mr. Welker.
Georgetown is a private institution. In the name of freedom, your view is that private institutions, corporations, organizations, small businesses, etc., cannot fire or otherwise discipline an executive based on something stupid the executive says that causes economic harm or injures the reputation of that private institution. Because that certainly isn’t a rule applied almost anywhere.
Georgetown, last time I checked, claimed to be a university. Whose faculty and students were supposed to have the freedom to 1.) freely debate in order to arrive at truth and 2.) freely debate in order to participate in democracy.
That Georgetown disagrees that people in American society are mature enough to handle hearing ideas that they consider offensive or wrong is rather bothersome.
By the way, that is a nice loophole you have found with respect to the ability of people to participate in democracy. As long as it is a private party censoring thought and expression on matters of public concern, the First Amendment doesn’t apply.
I suppose then, that the only people who should be free to express themselves are those who don’t have employers. People like Joe Rogan.
The new left: “Free Speech is a luxury good reserved for the independently wealthy.”
If that is the case, perhaps we should reintroduce property ownership requirements for voting? After all, the only people who should feel free to express themselves according to the implications of the the left’s favorite loophole to free speech principles are the independently wealthy.
An alternative is maybe we seek to cancel Georgetown. Maybe make it a social norm for powerful private actors to respect the free speech that it critical to democracy.
” I suppose then, that the only people who should be free to express themselves are those who don’t have employers. ”
That statement is wrong, perhaps even silly.
There are many schools that would embrace Mr. Shapiro and his intolerant, backward conservatism (especially if it is steeped in superstition).
These schools do not attract much attention in many circles — consequent to low quality, low rankings, nondescript faculties, mediocre students, undistinguished alumni, lousy scholarship, downscale research, backwater locations, and similar factors — but they exist. By the hundreds.
Good luck leading the right-wing charge against strong, successful, reason-based, mainstream institutions, Mr. Welker. I may follow your progress, ready to sound the alarm if better American institutions need to purchase ankle armor to withstand the attacks of the clingers.
Ah, the First Amendment clearly doesn’t apply here. Georgetown is not a state actor. That’s hardly a “loophole.” Read the Constitution.
Property ownership restrictions on voting would be imposed by the government; hence, state action. Not the same.
And stop with this nonsense about the left. There is censorship on both the left and the right.
Tell me, if private actors made regular people feel as though they could not express themselves by imposing high costs on them for doing so, would deliberative democracy be possible?
I think the answer is no. People need to be able to feel safe expressing their opinions for democracy to work properly.
I think that early in American history when property requirements were imposed the view was that those who are not able to support themselves could not be expected to exercise independent decision-making.
In my view, enabling everyone to feel comfortable expressing themselves, not just those with large amounts of wealth to shield them from retaliation is necessary for democracy WITHOUT property requirements for voting.
You cannot really say that society is democratically deliberating if people are punished for “saying the wrong thing” when offering an opinion on public affairs.
The point, by the way, is not necessarily what the First Amendment protects or does not protect. The point is the way that the left pushes and celebrates cancel culture, and in doing so, infantilizes adults who supposedly aren’t capable of hearing offensive ideas, and yet are supposedly capable of governing themselves.
The spirit of cancel culture is antithetical to both human equality (since censorship and cancellation is an act of pure domination) and democracy (since censoring speech prevent democratic deliberation).
A loophole that cancels democracy is quite a loophole indeed.
Hearing clingers complain about the practices of liberal-libertarian mainstream institutions — while ignoring the rampant censorship, mockery of academic freedom, suppression of science, imposition of conduct codes, and teaching of nonsense that marks just about every campus conservatives get their hands on — is intriguing.
Are conservatives impervious to self-awareness?
There are plenty of very wealthy people who feel that they cannot just spout any nonsense without consequences. Free speech does not mean freedom from the consequences of that speech. As @Commenter_XY said when he started this thread, many companies would fire (and have fired) a CEO who said something like this.
I can’t help but wonder if you have ever watched a single Senate Judiciary Committee hearing on a judicial nomination. Almost the entire hearing revolves around grilling the nominee for past statements. I mean, all Republicans on the Committee recently voted against a nominee essentially because he had tweeted mean things about Republicans. Does this somehow chill free speech? Undermine democracy?
To the extent that is causes people who see themselves as potential Supreme Court nominees from expressing themselves, yes, this practice does in fact decrease democratic discourse. I think your question has a rather obvious answer. In fact, the present day has seen the rise of the “stealth nominee” for precisely this reason.
But the analogy is also ridiculous. We aren’t “cancelling” presidential candidates when we vote for one over the other based on their ability to formulate and articulate policy ideas. In fact, to choose who should be President or a Supreme Court Justice is the very essence of democracy.
You may think it is “just fine” to censor professors and students and everyone who isn’t immune, (including affluent people unwilling to pay the price) like Joe Rogan. But that is just a disaster for the truth and a disaster for democracy and a disaster for freedom of conscience.
And who will be the censors and who will be the censored? How are these two classes of people in anyway equal? Who will be immune to censorship? And shouldn’t those who are afraid to speak (and thus who are afraid to engage in the deliberation upon which democracy depends) also be forbidden to vote? After all, a person who is deprived of the ability to speak is also deprived of the ability to deliberate and learn from others.
This is grievance politics at its worst. You can say whatever you want, but other people have a right to shun you if you’re an asshole. There’s no constitutional right to social acceptance. I looked it up!
“There’s no constitutional right to social acceptance.”
That’s what that baker believed. The government explained that he was wrong.
This seems exactly right to me. I disagree with the claim, but it is and should be protected. The carelessness of his phrasing, however, was appalling for a legal professional.
Academic freedom doesn’t allow faculty to say absolutely anything, consequence-free.
One thing they can’t say is “all black people are worse than white people.” Or Indian people.
Ilya’s tweet can be read that way. I don’t think it’s the best reading, but it’s a close call. That’s why he’s in trouble.
But he’ll be exonerated, don’t worry
He’s not allowed to have the opinion that one person is the best and everyone else is therefore “lesser”?
Yeah, I know. He’s allowed to have that opinion but the feelings of the special people are sacrosanct beyond any other considerations — even life itself. His feelings? Don’t matter at all. Do your feelings matter? Depends on your ranking in the hierarchy of the most holy aggrieved. Are you a first class individual or a third or fourth class individual in this ranking? We must know that before we can know whether you matter. (Spoilers: you probably don’t. You should have had more diverse parents if you wanted to matter.)
Funny how often this “lesser” bullshit appears the instant there’s a square inch of black skin involved. Sure, some people briefly commented on Amy Coney Barrett’s thin résumé when her nomination was rushed thru the Senate, but not with the same shrill hysterical concern about the “less qualified over the more qualified” (Volokh above), or with any talk of a “lesser (white) woman” (Shapiro). Did anyone believe Barret was the most qualified candidate available? No. Did anyone care? No. But she’s white so the subject never came up.
Shapiro puts an “asterisk” to Biden’s choice for all history before the nomination is even made – but maybe that’s more of the poor guy’s “ill-phrasing”. Strange how this fumble-tongue problem with clarity didn’t appear with Barret’s nomination or those before. Personally I don’t want to see him fired for one ignorant tweet (despite the hint of a double standard). But I also remain skeptical. When McConnell said black people vote at similar rates as “Americans” he also “misspoke” – but only because he forgot to filter-out what he really thought.
Oh, stop. This is such a complete cop out. Kavanagh, someone who’s as white as a lily, was not only raked over the coals, but blamed for something that never happened and almost ruined over it. So spare me your BS about how this doesn’t happen unless there’s a “square inch of black skin involved.” This happy horseshit is getting old.
The usual ‘I’m angry with something the liberals did, and this justifies any bad behavior.’
I Callahan: “….Kavanagh…. (irrelevant babble)….”
I bring up the hypocrisy of the Right suddenly talking about “the most qualified” only when there is a black face involved, and blithely ignoring “the most qualified” when there isn’t. I Callahan responds by saying the Dems were meanies to Brent Kavanagh once. Methinks IC lacks even the most rudimentary reading comprehension skills.
Though since you bring it up, Kavanagh can stand as an relevant example after all. I’m sure the man was qualified to receive a SCOUS nomination, just as I’m sure Biden’s nominee will be as well. But I doubt very seriously he was the most qualified candidate at the time. What got Brett the nod was that significant part of his life spent as a gross amoral partisan hack (for example, see: Investigation, Foster – or Riot, Brooks Brothers)
Maybe Shapiro should come “asterisk” for that. Or maybe an asterisk to explain why we have seven Catholics on a nine person court. Somehow I don’t believe the “most qualified candidate” is always to be found in that faith. Do you?
Of course I don’t care. But then I’m not among the hypocrites up & down this post/comments who suddenly “discovered” politics plays a part in Supreme Court nominations – and the theoretical optimal candidate rarely is named.
7. Georgetown (and most other universities) should just admit that academic freedom is a long dead fiction, and that anything you say, and anything fainting students allege, can and will be used against you.
“Academic freedom was a high value as long as it protected us taking pot shots at the establishment. Now that we are the establishment, aided by Congressional threats to pull fundng, and so can do the firing, it has little value anymore.”
6. Academic freedom protects academic discussions, whether they are wise or otherwise. That is as true with regard to racial subject matter as it is for any other subject. The standard for accountability in every case should be an academic standard.
Academic freedom does not protect ill-considered, non-academic foolishness, which the speaker publishes world-wide to the detriment of his institution’s reputation. In cases such as those, the standard for accountability will be an administrative standard.
What rule should guide the administrative standard? If the published foolishness cannot be defended as written, but must instead be reworded before a forthright argument in its defense can be offered, it has gone too far.
Administrators responding to such offenses should think first of their professional responsibilities to their institution. With those responsibilities satisfied, administrators may weigh the advantages of forgiveness for the offender.
In all such administrative cases, offenders should expect the same degree of consistent enforcement which conveniences administrators of sports teams, as they ponder what correctives to apply to errant superstars vs. what discipline they apply to others.
As long as the speech that is forbidden is socialist speech, as defined by Tucker Carlson, I have no problem with your standard.
You should have to get forgiveness from Tucker Carlson if you say something he believes is socialist or foolish.
People who love censorship, like you, always imagine yourself as the censors, deciding who is to be “forgiven” and who is not, rather than the people censored.
The power to censor is the power to dominate without resistance.
What is your opinion concerning The Volokh Conspiracy’s repeated imposition of censorship?
The same as my opinion about velociraptors.
What’s wrong with velociraptors? Are you an evangelical Young Earther?
Or are you saying that because Prof. Volokh has engaged in censorship for a couple of years (at least so far as we are aware) his earlier record of repeated, hypocritical, admitted likely partisan censorship should be ignored?
Welker, you have no idea what censorship is, because you have no idea what publishing is.
Prior to the internet, not one person on earth had power to publish world-wide without constraint whatever came into his head. That state of affairs was never called, “censorship,” by anyone.
Who could have imagined such a thing? Not people who did not publish, that’s who. The fact is that prior to the internet most people had never published anything at all, not a syllable. So they knew nothing of pre-internet constraints on what got published—not what they were, not how they worked, not what purposes they served. Previous non-publishers mostly did not for a moment imagine such constraints existed.
That ignorance caused few problems until those previous non-publishers started trying, post-internet, to publish stuff, and thus become authors. Then they encountered for the first time in their lives constraints on published speech. Not censorship constraints, mind you, but editing constraints, and practical constraints. Those baffled the would-be authors.
Among former non-publishers it was a painful shock to discover constraint where they had imagined license. Dumbfounded, they started howling about censorship. They have been howling ever since. The uproar has not got most of them a bit closer to insight. Their campaign against imaginary, “censorship,” is effort wasted. They are shaking their fists at heaven.
No one has power to make their frustration go away. No matter what media you consider, there is always necessity to assemble an audience for it. Whoever undertakes that task of assembling an audience (a “publisher”) must always go about it by coordinating media content with audience interest, and doing it in some way that pays the tab for the considerable effort required. Power to reject some would-be publications, and publish others, must be inherent in that activity to bring together media with audience. Without that power, there can be no audience, no author, no publishing. Censorship has nothing to do with any of that.
If you feel thwarted by that advice, consider becoming a publisher yourself. That activity comes with freedom to choose what gets published, if not quite freedom to choose at pleasure. Practicality demands its say. Opportunity to practice publishing is open to all. People can become rich doing it.
A multiplicity of publishers creates a media universe which is proof against government censorship—which is otherwise a threat at all times. You, and so many others, have conflated that genuine threat of government censorship with other activities—non-government, private activities—including editing prior to publishing—which are not only not threatening, but actually indispensable to the existence of media and publishing.
I stopped reading when you said I had no idea what censorship is.
Your premise is so ridiculous, that any conclusions that you derive from it must be equally invalid.
Thank you for saving me some time.
SL,
Your reply is so rambling that it is difficult to make out what your central point is. Don’t reply with “learn to read” as my response will be “learn to write.”
Use fewer words; you can say more.
Nico, your criticism is taken in good spirit. It is accurate, as far as it goes. I write better when I am more concise. The problem is time. Only rarely can you expect anything but a first draft from me on this forum. I do not have time to edit as much as I should.
You wrote what you wrote because your first reaction was emotional, and emotion clouds judgment. Not to be flippant, but this is often your pattern.
Callahan, please illustrate.
Nico, on the other hand. What you got in the comment you complained about amounts to about 8 typical VC comments, each one paragraph, each making focused points without by themselves doing more than giving a bit of nudge to an overall argument (just like most VC comments). Feel free to read them one by one, and see what they tell you when considered in concert.
That was not a small effort in too many words. It was a large effort in too few words. It was a too-compact presentation of points sufficiently complicated that it might have taken ten times more words to make them clear to readers unfamiliar with them. So my bad again, I guess. But I did hope brighter readers like you might catch the drift.
That’s certainly a position, but why do you trust administrators to do it fairly or well?
tkamenick, I thought I made it clear that I do not trust administrators to do it fairly or well. I expect them to be all over the map, with a tendency toward being arbitrary and incompetent. The one real advantage to letting such questionable authorities make important decisions is that it enhances the freedom of private parties who establish businesses and other institutions. Those private parties thus get freedom they could not otherwise have to pursue their private purposes. Do you suppose government should step in and put an end to that?
Fewer words… much better.
6. Academic freedom protects academic discussions, whether they are wise or otherwise. That is as true with regard to racial subject matter as it is for any other subject. The standard for accountability in every case should be an academic standard.
Sounds good.
Academic freedom does not protect ill-considered, non-academic foolishness, which the speaker publishes world-wide to the detriment of his institution’s reputation. In cases such as those, the standard for accountability will be an administrative standard.
Well, that didn’t last long.
Fuck off, failed wanna-be censor/editor.
But the university hired Shapiro (or said it did) based on his prominence as a public commenter. If academic freedom doesn’t extend to such statements then the uni shouldn’t be making it a consideration for academic hiring.
Besides, if we adopted that rule public unis in red states could fire virtually every liberal Prof on Twitter.
Here’s a proposed 6, which I don’t agree with but I think is not totally implausible for certain types of institutions:
6. You’re paid (in part) for your professional ability to attract, retain, and satisfy students. You can say any damn thing you want to, but you’ll be judged (in part) by whether students like you and you are generating lots of complaints.
I realize that’s pretty much the opposite of academic freedom, and don’t think what this particular guy said comes even close to being enough. But there are cases where a professor is so obnoxious that her/his classes are empty and students are changing majors, and the prof ends up being paid a full salary to do no teaching. I don’t have a good answer but it’s a problem that actually exists.
With the thin-skinnedness of the kids going to school today, nothing that hurts their feelings could ever be talked about. The college’s job is prepare these kids to become functioning adults in the work world. This would decimate that idea.
Arguing at the level in this post is tilting at windmills.
If the faculty is serious about these things, the faculty need to reclaim the hire/fire/discipline authority in the university. Administrators (up to and including the President) work at the pleasure of the faculty.
Georgetown gets to take whatever lawful action they feel is in the best interests of the university, as they would with any other employee. Academics are not entitled to special treatment.
There seems to be considerable resistance to that notion, particularly among said ‘academics’. 🙂
I tend to feel that all people ought to be given what is called academic freedom, and not just academics.
That said, it seems rather obvious that if a person cannot speak their mind on issues without worrying about whether what they are saying is politically correct, we are less likely to reach the truth. Reaching the truth is supposed to be the primary goal of academia. But the truth is not always going to win a popularity contest.
David, speaking your mind, and speaking your mind absolutely free of any consequence are two different things.
This was the conservative position of Mr. and Mrs. America for generations. Fire those “anti” bastards!
“No! We need protection! Tenure! Academic freedom!”
Now Mr. and Ms. America have changed. The violation wears different clothes but is the same insideous fellow.
They’ve even modified the meme cover story by starting the most insideous theme of all: “How dare you speak of things outside your specialty!”, meaning political things of our own interest, so silence you, or be fired!
Meet the new boss, same as the old boss.
I don’t actually object to academic freedom as a principle, only to limiting it to academics. Why shouldn’t everyone with an opinion have an equal right to express it?
Academic freedom (and Freedom of Speech for public universities and colleges) protects all non-criminal speech unless the speaker spefically and deliberately implies or states that his/her positions reflect the positions of the university or college.
It espcially protects stupidity and ignorance, which is the situation in the Georgetown controversy.
” Academic freedom (and Freedom of Speech for public universities and colleges) protects all non-criminal speech unless the speaker spefically and deliberately implies or states that his/her positions reflect the positions of the university or college. ”
Not on conservative-controlled, religious campuses.
I beg to differ.
https://www.realcleareducation.com/articles/2022/02/02/yes_religious_colleges_are_better_on_free_speech__but_not_by_much_110696.html
That article (from the clingerverse) appears to limit its attention to the view of students (and disregards the practices and policies of the institutions).
Other than that, though, that’s a great attempt at commenting, especially from a half-educated, superstitious bigot.
I think that you have that correct Sidney particularly the “unless the speaker specifically and deliberately implies or states that his/her positions reflect the positions of the university or college.
Did Shapiro tweet from a personal, or work account?
I don’t think that it matters from the point of view of substance, BUT it is a very poor practice (worthy of reprimand) to use a work account for such purposes.
I’m with Sidney.
#5. The concept of “academic freedom” is meaningless without the ability to speak on a subject, even rudely, without constant self-checking.
Lasciata, where did you come up with that crackpot idea? The concept of haphazard utterance, performed without self-checking, has no place at all in the notion of academic expression.
SL,
where did you get that idea?
Academics do it all the time, even in their area of specialization.
” There’s a hot debate in the country about expressly race-based and race-influenced decisionmaking ”
. . . particularly at a blog that has decided to be strikingly White and astonishingly male (especially in the context of the legal academy in modern America).
an astonishingly dumb comment, strikingly so
Yes, because the validity and logic of one’s arguments are weighted by the color of one’s skin.
Don’t forget genitalia too, even though those are social constructs.
Right-wingers want to ignore the point that this conservative blog engages in discrimination favoring Whites and males . . . while screaming about how offensive it is to contemplate a (once-in-a century-or-two) Black female on the Supreme Court.
Carry on, clingers. Your betters will let you know how far and how long.
Thank you for your continuing compliance.
Its a debate about saying anything that upsets black people. Even if its the truth it can’t be said if it upsets black people.
Its not about “race” in general because ANYTHING can be said to disparage white people based on race.
Yeah. The feelings of special people are sacred. One would hope the second and third and fourth class people in these rankings would wise up and start arguing for themselves, their friends, and their families.
forgive my ignorance, but what is the legal foundation of “academic freedom”? It appears to be a philosophical construct, and as such, subject to any interpretation one wishes to impose upon it.
gU,
It is often a contractual obligation of universities toward their faculty and students. I don’t ever recall it being applied to purely administrative staff
But it has to be defined, and boundaries established, for it to be meaningful. With no actual legal definition, it appears to be meaningless.
Agreed, and that is usually the province of the faculty senate to establish with the provost. I am sure that the office of the general counsel makes sure that it is written (at least in most places)
Depends. Can you tell me which oxen are about to be gored and the politics of their particular owners?
In all seriousness, I’d have to vote for #6. I’m close to #5, but if you consistently write or say things that could be construed as demeaning to a particular class of people, it’s fair to conclude you’re at best a jerk and at worst harboring prejudices. I’m not saying that happened here. But I also don’t want to create an out for people to repeatedly use a bunch of code-words and then claim they are insulated because each instance was innocuous. At some point, the collective carries substantial weight.
See if we were arguing anything other than racial preference for blacks there would be no articles written it would be dismissed out of hand as discrimination and unlawful.
Its only allowed or even considered because its preferential to blacks
Right now men are under represented at Universities. Would it be OK for admissions to give men preferential treatment to bring it back to 50/50?
Of course not, these principles and preferences only work in one direction.
You laugh, but some undergraduate institutions have been considering preferential treatment of male students, in order to try to attract more of them and thereby remedy the growing imbalance in the percentages of men and women enrolled.
Getting back to Shapiro of course he’s right. Lets say the NFL decided that white running backs are under represented in the league. They are. So next year each NFL team would have to choose a white running back. Would that end up with the best running backs being chosen
But the Flores controversy shows that we don’t apply that logic to coaches.
Perhaps no one noticed the results of the last election. Academic freedom, like personal freedom, no longer exists.
I’m in the camp that Georgetown can NOT rightly fire or otherwise discipline Ilya Shapiro.
Agreed, but Cato should can his ass.
As a descriptive matter, isn’t it clear that academic freedom protects the right to express left/liberal views, and no others? Certainly Dean Cosgrove at Yale has made it clear that academic freedom does not protect membership in the Federalist Society, which might in fact be reported as a negative to the committee on character and fitness in the case of a student.
Read this article. This explains the “racial discussion” in our country these days.
https://anncoulter.com/2022/01/26/desantis-shocker-its-not-ok-to-hate-whites/
Does anybody think that academic freedom protects Georgetown Law Prof. Heidi Feldman’s tweets that the school would not support applications from students to clerk for judges appointed by Trump?
The University of Michigan disciplined a professor for refusing to write a letter of recommendation for a student to study in Israel. I tend to think that this is the correct approach.
See in the “what about” arguments you have to judge what was said based on its merits to some degree.
Does limiting your SCOTUS choices to 7% of the population potentially mean you won’t get the best candidate?
Of course
Oh good grief. It is already far more limited than to 7% of the population. And there is ONE POSITION. Your argument only works if you think it is not possible to find one equally qualified nominee for this position who is a black woman. Based on your posts here, it doesn’t surprise me that you think that is no possible.
Let’s assume that potential judges can be tiered according to qualifications, but perhaps not rank-ordered. (ie, the tiers only include potential judges among whom we cannot distinguish on the basis of qualifications).
Now, how big do you think the top tier is relative to all reasonably potential candidates? Probably pretty small. Top 1% would likely be an exaggeration (by orders of magnitude), but let’s go with 1% for a nice round number.
I don’t know what the frequency of any particular demographic among judges is, but I’m going to guess that most minority demographics are smaller than in the general population.
Your math problem for today: What are the odds that a top 1% candidate will be found in, say, 10% of the candidate pool?
Is it possible? Yes. Is it likely? Maybe. (Depends on the exact percentages involved). Is it certain? Absolutely not. There’s going to be a substantial chance your pre-selected group doesn’t include any of the best candidates.
There are numerous factors that go into a president’s selection of a Supreme Court nominees. Some of them are arguably related to job performance–e.g., the nominee will likely be a lawyer; the nominee will likely have graduated from a top law school; the nominee will likely be a current judge; the nominee will likely have had a prestigious legal career.; etc. Other factors commonly considered do not seem to directly relate to job performance–e.g., the nominee will likely be older than 40 but younger than 60; the nominee will likely share the president’s general ideology; etc. Presidents also commonly consider a number of other factors that help the president politically, including geography, race, sex, etc.
Who would make the best justice is also not a question that can be answered with objective and transparent measures; unlike, for example, who would make the best sprinter. There is no “one” most qualified candidate.
So the problem with these arguments is that there are, in fact, actual black women who can quite plausibly be viewed as top tier. The press has identified four or five of them. No one seems to be questioning that these are actually outstanding candidates. All of them went to top schools, have had prestigious legal careers, are current judges, etc. I don’t see how anyone can view any of them as less “top tier” than Gorsuch, or Kavanagh, or Barrett were–their records are remarkably similar. So even if it were true that there are more white men than black women with these same top tier qualifications, why does that matter when we only need one nominee? Biden is not picking random names out of some larger population pool. He is picking one nominee.
I don’t disagree with any of the statements in your last paragraph; the problem with it, though, is that it asks the wrong question.
Let’s assume I am hiring a new associate for my law firm. Beforehand, I announce that I am only hiring a white male. I hire a guy who was in the top 10% of his class at HLS, with a prestigious clerkship under his belt. Is he qualified? Yes. Is he one of the most qualified? Yes. Is he an objectively good choice? Yes. Can we definitively say that anyone is better than him? No. Is there anything wrong, in the abstract, with hiring this person? No.
But when a recent black graduate, or female graduate, or black female graduate, complained about the hiring process, would anyone accept — morally or legally — the response, “Why are you complaining? I picked a fully qualified top tier candidate. You can’t prove you’re better than this guy.”
I wouldn’t accept the response because there isn’t any reason to limit the position to a white man. In contrast in this case, there are at least three plausible good reasons for limiting the appointment to a black woman: 1) a history of intentional discrimination, 2) recent and on-going recent subconscious discrimination and 3) diversity.
None of those 3 reasons are plausible good reasons. This thinking should be rejected right out of the gate. The way to fix discrimination is to, you know, stop discriminating in all forms.
You’ve changed the argument. Illa’s and wreckinball’s argument was that we would get a less qualified candidate. You’re now objecting on fairness grounds. I think there are responses to that (e.g., black women are 0 for 115), but it is a different argument.
It’s simple, white nationalists such as Ilya Somin should not be employable, period. Until Trump Supporters are driven out of society completely our multiracial democracy is in danger and extreme measures are necessary to protect it. Not that it should be considered extreme to keep white nationalists away from people they could harm, freedom of speech should never allow anyone to express dangerous points of view.
This is of course not to say that Democrats are ideal, as they refuse to outlaw the white supremacy as practiced by Republicans, Machin and Sinema which leaves our democracy hanging by a thread.
The universities would do well to outline clear principled statements like this especially in the middle of the ongoing emergency for democracy that we currently face.
jk lol
Poor Prof. Somin. He is targeted for ire by Volokh Conspiracy fans even as a bystander.
Mr. Shapiro was being hired as an administrator, not a right-wing gadfly. Administrators are supposed to be capable of displaying good judgment all the time. Mr. Shapiro is obviously hungry for attention, like not a few lawyers, liberal and conservative alike, and an administrator is wiser to display a passion for anonymity. It’s about Georgetown, not about you, Mr. Shapiro. I wouldn’t call this a firing offense, but it’s certainly worthy of a reprimand. Jay Nordlinger remarked that when Thurgood Marshall died, “everyone” knew that President Bush would replace him with another black jurist. How many people insisted at the time that he should pick the “best” judge, regardless of skin color? Earlier, there used to be a “Jewish” seat on the Court, going back to the time that that famous racist Woodrow Wilson appointed Louis Brandeis to the Court. Was that “wrong”?
So basing your selection on race is not racist as long as you are selecting a black person?
The rules seem complicated
Rules often are complicated. It is wise to learn them well before acting.
Boy sure doesn’t seem complicated now does it. When folks get caught they state its “complicated” or “nuanced” rather than answering
” So basing your selection on race is not racist as long as you are selecting a black person? ”
From the conservative perspective, basing your selection on race (for example, as a contributor of posts to a right-wing blog such as the Volokh Conspiracy) is not racist so long as the blog is selecting White persons . . . oops, make that White males.
I think the Left’s rules should be applied ruthlessly to these Lefty institutions.
Ruthlessly.
By whom? Ankle-biting clingers whining at a fringe blog?
This seems exactly right to me. I disagree with the claim, but it is and should be protected. The carelessness of his phrasing, however, was appalling for a legal professional.
“Academic freedom” applies only if the speech is in his role as a professor – which I would say means in class or in formal papers. I would say that it does not apply here – because if it applies here, I am hard pressed to find any area in which it does not apply.
The First Amendment does not apply. Georgetown is a private university and can require whatever it likes of its employees.
The GU Faculty Handbook *does* apply; it is part of the employment agreement.
—
11. Professional Conduct
[…]
c. Private Speech and Action
A Faculty member has rights and responsibilities common to all citizens, free from institutional censorship. In furtherance of this principle, a Faculty member may be held accountable by the University for his or her private acts only as they substantially affect teaching, research or University service. A faculty member should not, however, speak or act for or on behalf of the University, or give the impression of doing so, unless appropriately authorized.
[…]
—
Does this tweet “substantially affect teaching, research or University service”?
That’s true GU is private but should receiving federal funds be contingent on respecting 1A?
No.
Jordan,
Your interpretation is far too restrictive in the eyes of most university faculty.
As for the question of “substantially affect teaching, research or University service” that would be for GU to prove IF Shapiro is a member of the faculty, teaching staff or research staff.
“Does this tweet “substantially affect teaching, research or University service”?”
Apparently the tweet is forcing the school to set up a designated space for students to cry, so I guess so.
He made the comment one day before his appointment was to begin. Did he have a previous relationship with Georgetown that would be governed by the terms of the faculty handbook?
How about this is America and we’re not really interested in being conscripted into the thought police?
A great many are eager to setup their own thought police precinct. They mark their worth by accusing others of thoughtcrimes.
Many of them are right here in these comment threads. At a blog that discusses the US Constitution, of all places.
1. No
2. No
3. No
4. No
5. No
6. See below
Georgetown, a Catholic institution, partakes of the general corruption of the Church. Part of the way to recovery is for Catholic colleges and universities to actually be Catholic –
https://www.vatican.va/content/john-paul-ii/en/apost_constitutions/documents/hf_jp-ii_apc_15081990_ex-corde-ecclesiae.html
One point I noticed is this:
“Article 4. The University Community…
Ҥ 3. In ways appropriate to the different academic disciplines, all Catholic teachers are to be faithful to, and all other teachers are to respect, Catholic doctrine and morals in their research and teaching. In particular, Catholic theologians, aware that they fulfil a mandate received from the Church, are to be faithful to the Magisterium of the Church as the authentic interpreter of Sacred Scripture and Sacred Tradition(50).
“§ 4. Those university teachers and administrators who belong to other Churches, ecclesial communities, or religions, as well as those who profess no religious belief, and also all students, are to recognize and respect the distinctive Catholic identity of the University. In order not to endanger the Catholic identity of the University or Institute of Higher Studies, the number of non-Catholic teachers should not be allowed to constitute a majority within the Institution, which is and must remain Catholic.”
I hardly think it *necessarily* violates Georgetown’s identity for a professor (Catholic or not) to assess who, in his/her opinion, is best qualified for a public office, and to express regret that the President’s public commitments stop him from appointing that person. If the professor is accused of denying the unity of the human race (eg, by positing superior and inferior races), then an investigation should make sure that this isn’t what the professor said (and I don’t think he did here).
Another issue is whether this Judge Sri fellow supports Roe v. Wade or its progeny. If a professor endorsed such a judge, that might be a problem.
It may well be that Georgetown has contractual and statutory obligations which don’t allow it to be truly Catholic, in which case it should disaffiliate from the Church and the Church should disaffiliate from them.
Is Catholicism your preferred flavor of childish superstition, Cal Cetin?
You can’t seem to make up your mind – when making lists of the awful forms of bigotry which this enlightened country has outgrown, you include anti-Catholicism along with racism, sexism, heteronormativity, etc. Yet of course you reserve the right to denounce religions, races, sexes (and regional characteristics) which you don’t like, without thinking anyone will call you on your inconsistency.
If Shapiro was within his rights to say what he did, why couldn’t you and the other professors defend him without denouncing what he said?
Witch trials are like that. Some will risk urging mercy, but almost none will fully side with the accused witch and risk being burned at the stake.
Seems to me that we have two instances of people not doing right by the University:
– We have a new executive late-night-tweeting some really loose, inartful talk, which makes the University look like it hires people who shoot from the hip; and
– We have the head of the University plus a significant crowd of its students demanding cancellation, which makes the University look like it won’t take a principled stand to defend free speech.
Both of these make the University look bad. Both hurt the reputation of the institution. The real calculus, then, doesn’t involve issues of freedom, it’s merely the very practical question of which error does the most harm, especially in the long run.
It’s merely an executive decision, that’s all.
Sorry, I know everyone wanted to make this abstract and philosophical.
Bingo! = The real calculus, then, doesn’t involve issues of freedom, it’s merely the very practical question of which error does the most harm, especially in the long run.
DaveM, people get pissed when they get a reality bath.
The rule should read:
“Academic freedom protects such criticism.”
That’s really all that’s needed.
GMU should fire Ilya Somin as well.
While it’s true that he had nothing to do with the remarks, that doesn’t make the pain felt by people who confuse the two any less real.
Maybe Ilya Somin could apologize for being so associated and renounce his name.
It’s like asking what the ideal free speech rules should be in China. Totalitarians laugh in response and do whatever they want.
Academic freedom is for institutions who might say no to totalitarian demands. Let’s see whether Georgetown is such an institution. So far it looks like totalitarian ideals are firmly in charge there and any talk of any sort of freedom at Georgetown can be regarded as propaganda. But they still have an opening to make the right choice instead.
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.
Ilya is being attacked because his enemies assert that a correct interpretation of what he meant to say was that all black women are lesser. You have to also ask whether academic freedom should include saying that. Otherwise, it comes down to whether the objector’s interpretation is reasonable or what the standard of proof should be on the matter.
No they aren’t.
The feelings of the special people must always be solicited and catered to. Even the possibility that feelings might not be 100% positive is sacrilege. Is there any interpretation that creates that possibility? Yes. So the question is settled.
What Ilya did appear to say was, “I am not aware of any black woman who has shown legal acumen equal to or greater than that of the candidate I am proposing.” What if he had said, “Black women, by virtue of their race, would never be the proper choice”?
This is exactly the problem. What Ilya said is just stupid when the press had already identified candidates like Jackson and Kruger. Maybe Ilya thinks they’re not somehow “as qualified” as his preferred candidate, but I suspect he would have a difficult time articulating why that is the case using any sort of objective metric. Instead, he just said “lesser black women.”
What Ilya said is just stupid
I agree with this, given the number of people (on both sides) who are just waiting to pounce on any statement that could be interpreted against a speaker whose positions they abhor, and given that race is probably the most combustible of issues.
but I suspect he would have a difficult time articulating why that is the case using any sort of objective metric
But what is an “objective metric”? How about “I think that person’s legal reasoning does not show rigor”?
As I said above in a longer post, I don’t think there are many “objective metrics” here. That’s what makes this all so silly. But there are many conventional qualifications that seem to come up for these nominations, and Jackson and Kruger clearly have them, just as Gorsuch, Kavanaugh, and Barrett did. Beyond that, sure, someone could try to argue whether one candidate’s legal reasoning shows more rigor than another, but Illa did not even attempt that.
I think the judicial confirmation process is seriously broken. Count me as someone who thinks every single current Supreme Court Justice was exceedingly well-qualified for the position when nominated. As are all the candidates I have heard mentioned now. We don’t know whom Biden will nominate yet, but my guess is that she will be exceedingly well-qualified.
sure, someone could try to argue whether one candidate’s legal reasoning shows more rigor than another, but Illa did not even attempt that.
That seems obviously to be the meaning of what he did say. What else could he have meant? Has anybody pointed to something else he has ever written or said that implies that he is racist? If not, then why isn’t he entitled to the benefit of the doubt here?
We don’t know whom Biden will nominate yet, but my guess is that she will be exceedingly well-qualified.
But the question is whether it is important to nominate the most-qualified, or if anyone above a certain level is as good as anyone else above that level.
“If not, then why isn’t he entitled to the benefit of the doubt here?”
Because the feelings of the special people matter more than everything else. Someone with genuine goodwill would obviously give him the benefit of the doubt, but that’s heresy in this case because the special people might not have 100% positive feelings with regard to what he said.
How would clingers respond if Georgetown were to declare that its treatment of Ilya Shapiro in this context were motivated by its religious mission?
What would be the controlling religious doctrine?
What would be the controlling religious doctrine?
‘ Don’t say bigoted, unwarranted things, especially when associating your belligerently ignorant right-wing nuttery with the institution that employs you. ‘
I think that one is ascribed to St. Obvious the Modern.
Plus, the clingerverse insists that the religious institution is entitled to identify its religious principles, policies, practices, and beliefs with second-guessing from reasoned, modern, educated, citizens or anyone else.
One of the issues here is whether they have applied their claimed principles consistently. I guess the doctrine you propose would raise additional questions in that area.
I pick liberalism is the core problem and please tell me how I’m wrong…..
What do you mean by liberalism?
Lefties, hippies, cultural marxists, communists, and regressives.
No. 5 is closest to my viewpoint