Opinion | Georgetown Law did the right thing on 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 legal scholar Ilya Shapiro, a few days before starting his new job heading 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 responded swiftly and unequivocally.

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

But on Thursday, Dean William Treanor announced that Shapiro would not be sanctioned for his speech, and will assume his job.

The decision will not please the many students and faculty who called for dismissal. There may well be demonstrations when classes resume in the fall. But in this case, the difficult path was the right one.

In his statement to the Georgetown community, Treanor acknowledged that Shapiro’s tweets — arguing that Sri Srinivasan, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, was objectively the best pick for the Supreme Court, but that because of Biden’s pledge, the president would select a “lesser Black woman” — were offensive and demeaning. That is hardly in dispute; Shapiro himself acknowledged that his statement was “recklessly framed,” promptly deleted the tweets and apologized.

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

But Georgetown’s decision also implicated a fundamental principle of university life: freedom of inquiry and speech. Because free inquiry is so central to the academic mission, Georgetown has adopted a strong free speech policy asserting that “it is not the proper role of a university to insulate individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.”

Punishing Shapiro for his tweets would have violated that policy. If scholars can be dismissed for expressing views that many find offensive, free inquiry will be captive to the sentiments of the majority. And while discrimination and harassment are not protected, the tweets expressing an opinion on the propriety of Biden’s pledge could not remotely qualify as either.

As a technical matter, the dean concluded that because Shapiro posted the tweets before starting his job, they could not be the subject of discipline. Some will worry that, as a result, the decision does not make sufficiently clear that Shapiro could not have been fired for his tweets even if they had occurred after he started work.

But surely that is true: Offensive speech on an issue of public concern cannot be grounds for punishment. As the dean’s statement said, “Georgetown Law is committed to preserving and protecting the right of free and open inquiry, deliberation, and debate.”

Still, defending free speech is not sufficient in a context like this. As Treanor noted, the law school has “an equally compelling obligation to foster a campus community that is free from bias, and in which every member is treated with respect and courtesy.”

To that end, the dean reported, Shapiro, like all members of the academic staff, would engage in trainings “on implicit bias, cultural competence, and non-discrimination.” Shapiro has agreed to meet with 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 broadly, the law school has doubled down on its commitments to equity in concrete ways. It recently named the first associate dean for equity and inclusion and 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 one-quarter of its full-time faculty. Its entering class is the most diverse in the school’s history, with 40 percent of the class identifying as non-White.

In 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 the dean’s constituents to dismiss Shapiro. But it is precisely in such moments that principles of academic freedom are essential to uphold. A “free speech policy” is mere words on a page unless individuals in authority are willing to act against the crowd.