The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

David Cole (of the ACLU and Georgetown Law) on the Ilya Shapiro Matter


David Cole, longtime Georgetown law professor who's now the National Legal Director of the ACLU, writes in the New York Review:

Shapiro's message was offensive, but if academic freedom is to mean anything, [Shapiro's] two tweets can't be a firing offense. And without academic freedom, the voices suppressed are as likely to be those of critical race theorists as opponents of affirmative action.

The concept of academic freedom was initially advanced in the United States by universities and professors as a defense against political intrusions aimed at perceived anarchists, Communists, and other critics of the status quo. Universities argued that because a robust exchange of ideas and free inquiry are essential to the academic enterprise, state officials must respect the independent judgments of universities and the free speech rights of their employees. The Supreme Court's academic freedom cases have all involved government efforts to banish Communists from campus….

If universities do not respect this principle [of academic freedom] within their own institutions, how will they resist the political encroachments of outsiders? …

Doing what the vocal majority demands in this instance [i.e., firing Shapiro] would be a huge mistake. I unequivocally reject Shapiro's contention that it is improper to seek to rectify the shameful fact that no Black woman has ever served on the Court—just as there was nothing wrong in Ronald Reagan's commitment to appoint the first woman, or President Trump's statement that he would pick a woman to fill Justice Ruth Bader Ginsburg's seat. And Shapiro's tweet was, in my view, offensive.

But that doesn't mean he should lose his job—or that the Georgetown community will be better-off if it banishes him. Expressing one's position on affirmative action, or any other matter of public debate, even in an offensive manner, cannot be the basis for termination if academic freedom is to be respected.

The principle of academic freedom, like the freedom of speech generally, is not absolute. It does not protect those who engage in targeted racial harassment or threats, or speech that creates a pervasively hostile environment. But Shapiro's tweets do not come close to crossing those lines. And in an instance such as this, in which he immediately responded by deleting the tweets and apologizing, the commitment to academic freedom demands tolerance for those with whom we disagree. Some have raised concerns about whether students of color will feel comfortable taking Shapiro's classes. But his primary role will be running a conservative institute on campus, and as a lecturer he would not teach any compulsory courses.

Georgetown has also said it is investigating whether Shapiro's tweets violated its rules of "professional conduct," but if that open-ended term can be invoked to terminate a teacher for expressing a controversial view in a provocative manner, off-campus and outside of his employment, no professor's free speech rights will be safe.

Most importantly, if universities start policing controversial speech within their own intellectual community, they will undercut their standing to object to others' efforts to police them….

Academic freedom is especially important in today's toxic political environment. The survival of our vast, multicultural democracy demands a commitment to pluralism. Our society is afflicted by deep polarization, in which both left and right have grown more strident and increasingly intolerant, opinions have ossified into identities, and many of us rarely talk to, or hear from, those with whom we disagree. The university has the potential to be a critical antidote. At its best, it provides a place in which people with widely divergent opinions live and learn together. But it can do so only by practicing the tolerance for disagreement that is too often missing elsewhere.

As a private university, Georgetown is not bound by the First Amendment. But like virtually all institutions of higher learning, it has committed itself to respecting the free exchange of ideas. Its policy protects even speech that "most members of the University community [consider] offensive, unwise, immoral, or ill conceived." That so many faculty, students, and student organizations have demanded Shapiro's ouster will make Georgetown's adherence to its own standards extraordinarily difficult. Nothing is more challenging for leaders than to stand up to the will of the vocal majority. But it is moments like these that test our commitment to the values of tolerance and diversity. Condemning the message is the right response; firing the speaker is not.

(For my own view on the matter, see this post; see also this faculty letter.)