The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Ilya Shapiro, as many of you know, was suspended and investigated by the Georgetown law school—where he had been about to start a job as a lecturer and as executive director of the Georgetown Center for the Constitution—for tweeting the following about the Ketanji Brown Jackson nomination:
Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart. Even has identity politics benefit of being first Asian (Indian) American. But alas doesn't fit into the latest intersectionality hierarchy so we'll get lesser black woman. Thank heaven for small favors?
Because Biden said he's only consider[ing] black women for SCOTUS, his nominee will always have an asterisk attached. Fitting that the Court takes up affirmative action next term.
Last week, the Georgetown dean announced that Shapiro wouldn't be disciplined for this Tweet, on the grounds that "As Mr. Shapiro posted the tweets on January 26, 2022, but his employment did not start until February 1, 2022, IDEAA and HR concluded that Mr. Shapiro was not a Georgetown employee at the time of his tweets." Shapiro then quit, saying he didn't want to work in such an environment.
But whatever you might think about what happened to Shapiro, this incident also produced a report from the IDEAA office that deals with all of Georgetown, not just the law school. (I've received a copy, on condition that I can quote it but can't post it.) And this tells us about much more than just the Shapiro incident: It gives us a good sense about what all Georgetown professors are, at least ostensibly, forbidden from saying. I'd like to use this post to explore that.
[1.] The "harassment" policy does ban public expression by professors. Here's the key paragraph (emphasis added):
As detailed in this report, Respondent's conduct had a significant negative impact on the Georgetown community. However, as the Respondent was a third party and not an employee at the time he posted the comments on Twitter, consistent with IDEAA's Grievance Procedures to Investigate Allegations of Discrimination and Harassment, IDEAA refers this matter to the Dean to consider and implement appropriate corrective measures to address the impact of the Respondent's objectively offensive comment. It is important to note that, given the Respondent's role in the Law Center, if he were to make another, similar or more serious remark as a Georgetown employee, a hostile environment based on race, gender, and sex likely would be created.
Or, elsewhere (emphasis added):
As the Respondent was a third party and not an employee at the time that he posted the comments on Twitter, IDEAA makes no determination as to whether his actions violate IDEAA policy. Instead, consistent with IDEAA's Grievance Procedures to Investigate Allegations of Discrimination and Harassment, IDEAA refers this matter to the Dean with a recommendation of appropriate corrective measures to address the impact of the Respondent's objectively offensive comments and to prevent the recurrence of offensive conduct based on race, gender, and sex.
Shapiro thus apparently avoided a finding that he had violated the harassment policy only because he hadn't yet started at Georgetown; and "Respondent's role" (which is what would make similar comments as an employee likely prohibited) would be shared by anyone who teaches classes or runs programs—the IDEAA report's rationale had to do with Shapiro's role as teacher and not just as a program administrator.
[2.] The policy bans expression of views in social media, op-eds, conferences, scholarship, and more. The restriction on professors' speech isn't limited to the classroom, or for that matter to the campus. It obviously extends to social media, and the same logic would apply to any other public speech that might be have "a significant negative impact" because students will hear about it and be upset by it (again, more on the specific details below).
That logic thus extends to scholarship and other professional work, as well as op-eds, radio and television appearances, and the like, and not just to quick sound bites on Twitter. And of course it extends to the viewpoint being expressed, and not just the particular words that are used to express it. Georgetown professors could thus be disciplined for "prohibit[ed]" "harass[ing]" viewpoints they express in their research, as well as of course in their public political commentary.
To quote the IDEAA report,
[T]he [Georgetown] Speech and Expression Policy clarifies that its provision of free speech is not unfettered. The Speech and Expression Policy cautions that "[t]he freedom to debate and discuss the merits of competing ideas does not mean that individuals may say whatever they wish, whenever they want." Instead, Georgetown prohibits speech and expression that "violates the University's Harassment Policy," among other exceptions.
[3.] The policy extends to any speech that expresses views that sufficiently offend "reasonable" students "in the impacted individual's position" based on their identity group membership. Here are some key paragraphs:
However, IDEAA has significant concerns about the Respondent's comments, particularly as they could have the effect of limiting Black women students' access to courses taught by the Respondent and undermine Georgetown Law's commitment to maintain inclusive learning and working environments. The Respondent's comments also may discourage Black women and their allies from seeking internships and employment at the Center….
Here, the actual impact of the Respondent's conduct has been profound. More than 1,000 students and student organizations signed a letter "to condemn his racist tweet" and to give voice to the "hurt felt today by the Black community, and in particular Black women." … [M]any faculty, staff, alumni, and prospective students expressed their outrage, concern, and hurt. The evidence establishes that the Respondent's conduct adversely affected the Law Center's environment.
[4.] The policy "prohibit[s]" similar speech that relates not just to race or sex, but also to "age, … disability, family responsibilities, gender identity and expression, genetic information, marital status, national origin and accent, personal appearance, political affiliation, pregnancy, … religion, … sexual orientation, source of income, veteran's status or other factors prohibited by federal and/or District of Columbia law."
Harassment is verbal or physical conduct that denigrates or shows hostility or aversion to an individual because of a Protected Category as specified above, when such conduct has the purpose or effect of: unreasonably interfering with an individual or third party's academic or work performance; creating an intimidating, hostile, or offensive educational or work environment; or otherwise adversely affecting an individual or third party's academic or employment opportunities.
And from the IDEAA report, we know that even isolated expressions such as Shapiro's can qualify, at least so long as enough people convey that they are offended, and the administration views their reaction as reflecting "the perspective of a reasonable person in the impacted individual's position, considering all the circumstances."
[5.] And this can of course cover a wide range of expression about these topics. Consider some hypotheticals:
[a.] "The Republicans could have nominated a serious candidate, but instead they nominated an evangelical Christian, who adheres to a bigoted and irrational belief system." That would "denigrate" the person based in part on his religion, and "could have the effect of limiting [evangelical Christian] students' access to courses taught by the [professor] and undermine Georgetown Law's commitment to maintain inclusive learning and working environments," as well as "discourag[ing evangelical Christians] and their allies from seeking internships and employment at [programs the professor helps run]."
After all, the IDEAA report takes the view that the "lesser black woman" statement (which in context seems to me to have simply meant "lesser than Sri Srinivasan, and chosen because she is a black woman") could be read as an insult to black women generally:
His plain words not only explicitly identified the race, sex, and gender of a group of individuals (i.e., Black women) but also categorized Black women as "lesser."
Well, in the hypothetical, one can even more easily say that the professor's "plain words not only explicitly identified the [religion] of a group of individuals (i.e., evangelical Christians) but also categorized evangelical Christians as 'bigoted and irrational.'" That speech would thus be "prohibit[ed] harassment," at least so long as it creates enough of an outcry. (Certainly a reasonable evangelical Christian could view these words as denigrating and showing hostility.)
[b.] "[W]e have only one political party in this country, the Democrats. The other group is a combination of a cult and an insurrection-supporting crime syndicate." (This one isn't actually a hypothetical, but a Tweet from an actual Georgetown law professor.)
That would "denigrate" Republicans based on their "political affiliation" (which D.C. law and thus the Georgetown policy defines as meaning party affiliation). It could deter Republican students from taking the professor's classes, or seeking internships at programs the professor runs. The plain words categorize Republicans as cultists and criminals, or at least people who support cultists and criminals. They too would ostensibly be "prohibit[ed]" as "harassment," at least so long as they create enough of an outcry.
[c.] "'With the exception of traditionally black law schools, the median black law school grade point average has been at the 6.7th percentile of white law students,' at least based on 1990s data, and 'only 7.5% of blacks have grades that are higher than the white median.' Why is that, and what can we do about it?" That would be equally "prohibit[ed]," it seems to me (at least assuming it leads to enough of an outcry), and the Georgetown Sellers/Batson incident may offer some evidence about how Georgetown administrators might react to it. Indeed, to quote a professor with whom I corresponded about that incident, some at Georgetown think it's wrong for professors even to think this:
In my experience, it is factually incorrect to say [that the bottom of the Georgetown class contains a disproportionate number of black students]. It is also in my view wrong for faculty to be thinking—not just speaking—along those lines, because it will tend to create the very facts that it purports to describe.
[d.] "I believe in the Bible / Torah / Koran, and they tell me that homosexuality is a sin." That would be at least as harsh towards gays and lesbians as the "lesser black woman" statement was towards black women. Indeed, it would in my view be much more harsh, since the hypothetical statement about homosexuality does condemn all gays (and likely lesbians, though that might be more complicated); Shapiro's statement, I think, didn't deride all black women (and derided one just as being lesser than the best candidate).
[e.] "Judge Johnson got his position because he is an unfairly privileged white male." This too denigrates and shows hostility to the judge—and, following the IDEAA's analysis, to the group to which he belongs—by condemning a particular demographic's accomplishments as being the result of unfair privilege. (Some might argue that this is an accurate condemnation, but the harassment policy and the IDEAA's logic don't turn on whether the assertions are accurate.)
[f.] "I don't approve of all this respect we show for veterans (at least of the post-draft era), who willingly involved themselves in the military's killing machine." This expressly denigrates and shows hostility based on "veteran's status," one of the categories forbidden by the Georgetown harassment policy.
[g.] "Trust fund babies; they're the worst. Whenever I hear of them, I think of all their unearned privilege, and how they're taking up spots at universities that could be used by the poor and the hard-working." That expressly denigrates and shows hostility based on "source of income," another forbidden category; and it could lead such people to worry that they're going to be graded unfairly, and treated unfairly in applications for jobs, internships, and the like.
[h.] "Israelis are complicit in their government's crimes against Palestinians." This expressly denigrates and shows hostility to Israelis, and it seems to me quite plausible that "a reasonable person" of Israeli extraction (for instance, one who was born there, or whose parents were born there) would view this as also showing hostility based on "national origin" to people like him or to those to whom he is an "all[y]."
[i.] "Hate killings and unjustified killings by police, bad as they are, are a much smaller problem for the black community than are black-on-black murders." Now I don't think this shows denigrates or shows hostility based on race; and I think it's likely an accurate statement that is an important element in thinking about how to save black lives (and see this recent study).
But if you were a professor at Georgetown, would you feel sure that the IDEAA wouldn't interpret this statement as covered by the harassment policy—especially if the statement yields massive protests at which "many faculty, staff, alumni, and prospective students expressed their outrage, concern, and hurt," which the IDEAA could view as "establish[ing] that [such a statement] adversely affected the [university] environment"?
[* * *]
The list could go on. It doesn't matter whether you care about Ilya Shapiro's career. The important thing here, I think, is just how much speech is now in peril, going forward, for Georgetown professors generally (especially ones who lack tenure, but even the tenured ones).
(To be sure, one might speculate that Georgetown wouldn't actually read the policy as covering some of these examples, such as the ones about the "unfairly privileged white male," or veterans, or trust fund babies, or Israelis, or evangelical Christians. But that's not consistent, I think, with the policy, as interpreted using the logic of the IDEAA report. And if such speculation is accurate, it seems to me it would make the situation at Georgetown worse, not better.)