Reviews | Georgetown Law did the right thing with Ilya Shapiro

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David Cole, national legal director of the American Civil Liberties Union, is a professor at Georgetown University Law Center.

When jurist Ilya Shapiro, days before starting his new job as head of a conservative constitutional law institute at Georgetown University Law Center, posted tweets in January criticizing President Biden’s pledge to appoint the first black woman to the Supreme Court, the school community reacted quickly. and unequivocally.

The law school dean condemned the tweets and placed Shapiro on administrative leave. More than 1,000 students have signed a statement calling for Shapiro’s ouster. The path of least resistance was clear. Shapiro’s dismissal would have been warmly applauded by most members of Georgetown’s legal community.

But on Thursday, Dean William Treanor announcement that Shapiro would not be disciplined for his speech and will assume his position.

The decision will not please the many students and professors who have called for the dismissal. There may well be protests when classes resume in the fall. But in this case, the hard way was the right one.

In his statement to the Georgetown community, Treanor acknowledged that Shapiro’s tweets – arguing that Sri Srinivasan, Chief Justice of the United States Court of Appeals for the District of Columbia Circuit, was objectively the best choice for the Supreme Court, but that because of Biden’s promise the president would choose a “lesser black woman” – were offensive and demeaning. This is hardly disputed; Shapiro himself acknowledged that his statement had been “recklessly framed”, quickly deleted the tweets and apologized.

The Dean rightly expressed concern on Thursday that Shapiro’s remarks were particularly damaging to black and female members of the community and could interfere with Shapiro’s ability to do his job.

But Georgetown’s decision also involved a fundamental tenet of academic life: freedom of inquiry and expression. Because free inquiry is at the heart of the university mission, Georgetown has adopted a strong free speech policy asserting that “it is not the role of a university to insulate individuals from ideas and opinions which they find unwelcome, distasteful, or even deeply offensive.”

Punishing Shapiro for his tweets would have violated this policy. While academics can be fired for expressing views that many find offensive, free inquiry will be trapped in the feelings of the majority. And while discrimination and harassment wouldn’t be protected, tweets expressing an opinion on the merits of Biden’s pledge wouldn’t qualify either.

Technically, Dean concluded that because Shapiro posted the tweets before he began his work, they were not subject to disciplinary action. Some will worry that, therefore, the decision does not make clear enough that Shapiro could not have been fired for his tweets even if they occurred after he started work.

But it is surely true: offensive speech on a matter of public interest cannot be grounds for punishment. As the Dean’s statement states, “Georgetown Law is committed to preserving and protecting the right to free and open inquiry, deliberation and debate.”

However, defending freedom of expression is not enough in a context like this. As Treanor noted, the law school has “an equally compelling obligation to foster a campus community free from prejudice and in which every member is treated with respect and courtesy.”

To that end, the dean reported, Shapiro, like all academic staff, would participate in trainings “on implicit bias, cultural competence and non-discrimination.” Shapiro agreed to meet with the students to address concerns about his ability to be fair to all and to consult with his center’s faculty director about appropriate professional conduct.

More generally, the law school has doubled down on its equity commitments in concrete ways. He recently appointed the first Associate Dean for Equity and Inclusion and the first director of a program that works with students from disadvantaged backgrounds. Forty-three percent of its new tenure-track hires are people of color, as are 37 percent of its adjunct faculty and a quarter of its full-time faculty. Its entering class is the most diverse in school history, with 40% of the class identifying as non-white.

By refusing to fire Shapiro, Georgetown has shown that a university can simultaneously uphold its commitments to free inquiry and equality. It would have been far more popular with the vast majority of Dean’s voters to fire Shapiro. But it is precisely at such times that the principles of academic freedom are essential to uphold. A “free speech policy” is just a few words on a page, unless people in positions of authority are willing to act against the mob.

About Michael Murphy

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