WSJ, June 6, 2022
“The freedom to speak is no freedom at all if it makes an exception for speech someone finds offensive or counter to some nebulous conception of equity.”
After a four-month investigation into a tweet, the Georgetown University Law Center reinstated me last Thursday. But after full consideration of the report I received later that afternoon from the Office of Institutional Diversity, Equity and Affirmative Action, or IDEAA, and on consultation with counsel and trusted advisers, I concluded that remaining in my job was untenable.
Dean William Treanor cleared me on the technicality that I wasn’t an employee when I tweeted, but the IDEAA implicitly repealed Georgetown’s Speech and Expression Policy and set me up for discipline the next time I transgress progressive orthodoxy. Instead of participating in that slow-motion firing, I’m resigning.
IDEAA speciously found that my tweet criticizing President Biden for limiting his Supreme Court pool by race and sex required “appropriate corrective measures” to address my “objectively offensive comments and to prevent the recurrence of offensive conduct based on race, gender, and sex.” Mr. Treanor reiterated these concerns in a June 2 statement, further noting the “harmful” nature of my tweets.
But IDEAA makes clear there is nothing objective about its standard: “The University’s anti-harassment policy does not require that a respondent intend to denigrate,” the report says. “Instead, the Policy requires consideration of the ‘purpose or effect’ of a respondent’s conduct.” That people were offended, or claim to have been, is enough for me to have broken the rules.
IDEAA asserts that if I “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.” All sorts of comments that someone could find offensive would subject me to disciplinary action. Consider the following hypotheticals:
• I laud Supreme Court decisions that overrule Roe v. Wade and protect the right to carry arms. An activist claims that my comments “deny women’s humanity” and make her feel “unsafe” and “directly threatened with physical violence.”
• After I meet with students concerned about my ability to treat everyone fairly, as Mr. Treanor asked me to do, one attendee files a complaint calling me “disingenuous” and the “embodiment of white supremacy.”
• When the Supreme Court hears the Harvard and University of North Carolina affirmative-action cases this fall, I opine that the Constitution bans racial preferences. Hundreds of Georgetown stakeholders sign a letter asserting that my comments “are antithetical to the work that we do here every day to build inclusion, belonging, and respect for diversity” (borrowing the language from Mr. Treanor’s statements of Jan. 31 and June 2).
• In a class I’m teaching, a student feels uncomfortable with his assigned position in a mock oral argument in 303 Creative v. Elenis, a case that considers whether a designer can be compelled to create a website for a same-sex wedding. “To argue that someone can deny service to members of the LGBTQIA+ community is to treat our brothers and sisters as second-class citizens, and I will not participate in Shapiro’s denigrating charade,” he writes on the student listserv.
I could go on, but you get the idea. It is the Georgetown administrators who have created a hostile work environment for me.
Fundamentally, what Mr. Treanor has done—what he’s allowed IDEAA to do—is repeal the Speech and Expression Policy that he claims to hold dear. The freedom to speak is no freedom at all if it makes an exception for speech someone finds offensive or counter to some nebulous conception of equity.
Georgetown’s treatment of me shows how the university applies even these self-contradicting “principles” inconsistently depending on ideology. Contrast my case with these recent examples:
• In 2018, Prof. Carol Christine Fair of the School of Foreign Service tweeted during Justice Brett Kavanaugh’s confirmation process: “Look at this chorus of entitled white men justifying a serial rapist’s arrogated entitlement. All of them deserve miserable deaths while feminists laugh as they take their last gasps. Bonus: we castrate their corpses and feed them to swine? Yes.” Georgetown held this to be protected speech.
• In 2020, Prof. Heidi Feldman of the Law Center tweeted that “law professors and law school deans” should “not support applications from our students to clerk for” judges appointed by President Trump. “To work for such a judge,” Ms. Feldman continued, “indelibly marks a lawyer as lacking in the character and judgment necessary for the practice of law.” These comments could threaten the careers of all conservative and libertarian students, or anyone who clerks for duly confirmed but disfavored judges. But Georgetown took no action.
• In April of this year—months after my tweet—Ms. Feldman tweeted: “We 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.” She went on: “The only ethically and politically responsible stance to take toward the Republican ‘party’ is to consistently point out that it is no longer a legitimate participant in U.S. constitutional democracy.” Unlike me, Ms. Feldman teaches first-year law students in mandatory courses. This pattern of remarks created a hostile educational environment for Republican students—a protected class under District of Columbia antidiscrimination law. The tweets were quietly deleted without apology or disciplinary action.
• Last month, law professor Josh Chafetz tweeted: “The ‘protest at the Supreme Court, not at the justices’ houses’ line would be more persuasive if the Court hadn’t this week erected fencing to prevent protesters from coming anywhere near it.” He added, “When the mob is right, some (but not all!) more aggressive tactics are justified.” Later, he invited “folks” to “snitch tag @GeorgetownLaw” and taunted that the school was “not going to fire me over a tweet you don’t like.”
Mr. Chafetz was surely right about the last point. Apparently it’s free speech for thee, not for me.
It’s all well and good to adopt strong free-speech policies, but it’s not enough if university administrators aren’t willing to stand up to those who demand censorship. And the problem isn’t limited to cowardly administrators. Proliferating IDEAA-style offices enforce an orthodoxy that stifles intellectual diversity, undermines equal opportunity, and excludes dissenting voices. Even the dean of an elite law school bucks these bureaucrats at his peril.
What Georgetown subjected me to, what it would be subjecting me to if I stayed, is a heckler’s veto that leads to a Star Chamber. “Live not by lies,” warned Aleksander Solzhenitsyn. “Let the lie come into the world, let it even triumph. But not through me.”
I won’t live this way.
Mr. Shapiro is a former executive director of Georgetown Law’s Center for the Constitution and author of “Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court.”
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