Counter Speech with Speech, Not Suspension

America's political poles have at least one value in common: a lack of respect for academic freedom.

The sun rises above the campus of the Georgetown Law School (by Phil Roeder)

It’s been a remarkable week in American higher education — with attacks on academic freedom coming from both the left and the right. On Monday, the day before he was due to assume his new role as executive director of Georgetown Law’s Center for the Constitution, Ilya Shapiro was put on administrative leave. Why? Because of the following tweet, in which he criticized Biden’s decision to choose a Supreme Court nominee from among Black women candidates exclusively:

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?

In another tweet that followed, Shapiro noted that Biden’s nominee “will always have an asterisk attached” because of the racially circumscribed nature of the selection.

In short order, Georgetown’s Black Law Students Association wrote a letter “to demand the revocation” of Shapiro’s contract, stating that:

At Georgetown Law, Black students are haunted by the shadow of impostor syndrome. Shapiro reinforced this phenomenon by reducing Black women’s accomplishments to “small favors” from “heaven.”

This despite the fact that Shapiro apologized for his “inartful” tweet, noting that he did not intend to “cast aspersions on the qualifications of a whole group of people, let alone question their worth as human beings. A person’s dignity and worth simply do not, and should not, depend on any immutable characteristic.”

Following an organized sit-in, Georgetown Law Dean William M. Treanor wrote a letter informing students that — having “heard the pain and outrage of so many at Georgetown Law, and particularly from our Black female students, staff, alumni, and faculty” — Shapiro would be placed on administrative leave while the school investigated whether his tweets violated official policies. He said also that Shapiro’s tweets were “antithetical” to the school’s work “to build inclusion, belonging, and respect for diversity.”

Shapiro’s use of the word “lesser,” as opposed to “less experienced” or “less qualified,” and the lack of a specific Black woman are what make the tweet inartful or worse. One can certainly debate whether his words indicate something more akin to racism, knowing or unknowing, though given his apology — and the fact that the character-limited constraints of twitter lead many down the path of imprudence in a quest for brevity — we should perhaps lean more toward dialogue than condemnation.

Whatever Shapiro’s ineloquence or intent, any action by Georgetown Law to punish him for social media posts would be a flagrant violation of his academic freedom. For more than 80 years — ever since the American Association of University Professors’ 1940 Statement of Principles on Academic Freedom and Tenure — the academy has agreed on three basic tenets: Teachers are 1) “entitled to full freedom in research and in the publication of the results”; 2) “entitled to freedom in the classroom in discussing their subject” as long as the material introduced is relevant to the subject matter; and 3) when they “speak or write as citizens, they should be free from institutional censorship or discipline.”

As a private institution, Georgetown Law is not bound by the First Amendment. But as former ACLU President Nadine Strossen noted in her public statement on this issue, the school is “contractually, as well as morally, bound to respect the same general free expression and academic freedom rights by virtue of its commendably strong pledges to do so.” (Georgetown’s Faculty Handbook expressly adopts the AAUP 1940 Statement on Academic Freedom.)

But the issue is bigger than just Shapiro’s academic freedom.