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High-profile academics back legal scholar facing termination for questioning Biden SCOTUS quota

Former ACLU president warns Georgetown Law that University of Illinois got in trouble for similar revocation against anti-Israel scholar, who later got $600,000 settlement.

Published: January 31, 2022 5:21pm

Updated: January 31, 2022 10:26pm

Georgetown University's law school may dump another faculty member for speaking too candidly on racial issues, but not without strong pushback from a federal civil rights commissioner, former ACLU president and dozens of academics across the political spectrum.

With Supreme Court Justice Stephen Breyer's pending retirement, President Biden's pledge to only consider black women to replace him means his nominee "will always have an asterisk attached," libertarian legal scholar Ilya Shapiro wrote in a tweet thread Wednesday.

"Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart," the incoming executive director of Georgetown Law's Center for the Constitution tweeted. "Even has identify 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." 

Shapiro quickly deleted and apologized for the "inartful tweet," later issuing a longer statement that his choice of words "undermined my message" about identity politics.

On Thursday Dean William Treanor denounced the "appalling" tweets as "damaging to the culture of equity and inclusion that Georgetown Law is building every day," drawing protest for not revoking Shapiro's position.

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Treanor bent to the pressure Monday, putting Shapiro on administrative leave a day before he was slated to join the law school, including as senior lecturer. He'll face investigation for possible violations of "our policies and expectations on professional conduct, non-discrimination, and anti-harassment."

The dean said he was moved by the "pain and outrage of so many at Georgetown Law, and particularly from our Black female students, staff, alumni, and faculty."

Shapiro filed more than 400 friend-of-the-court briefs at the Supreme Court in his long tenure at the Cato Institute, including collaborations with humorist P.J. O'Rourke. One of those involved a federal labor investigation over an employer's sarcastic tweets.

Shapiro told Just the News "there's really not much to investigate," given that his tweet didn't violate any rule or policy "and indeed is protected by Georgetown policies on free expression."

He expects the investigation to be "fair, impartial and professional," and he looks forward "to joining my new colleagues in short order." His leave is "nonpunitive," Shapiro tweeted Monday.

Peter Kirsanow, a longtime U.S. Commission on Civil Rights member and former National Labor Relations Board member, made public his letter to Treanor in "strong support" of Shapiro.

The fact that he is black is usually irrelevant, Kirsanow said, but "this is a rare instance in which it is pertinent to the issue at hand." Most Americans agree with Shapiro's "inartfully" phrased point: It is "wrong and discriminatory" to exclude potential nominees by race and sex.

Kirsanow alluded to the Supreme Court's scheduled argument this fall on challenges to race-conscious admissions policies at Harvard and the University of North Carolina. "[M]illions of Americans have repeatedly voted to prohibit consideration of race in university admissions," and this opinion "deserves to be heard at a law school."

Nadine Strossen, a retired law professor and former ACLU president, said she asked Treanor to judge Shapiro consistent with "concepts of proportionality and restorative justice." She's had "extensive professional collaborations and personal interactions" with Shapiro for 14 years.

Georgetown Law should not follow the path of the University of Illinois, which revoked Steven Salaita's contract in 2014 after the scholar's crude tweets against "West Bank settlers" and Zionists drew wide denunciation, Strossen said. 

The American Association of University Professors censured the university for "one of the more significant violations of academic freedom this decade." Salaita later obtained a $600,000 settlement.

While their tweet content is "strikingly different," both situations involve "extra-mural social media posts about public issues" and "do not justify any retaliatory action by the university, specifically including the withdrawal of a job," Strossen wrote.

Shows academic freedom is 'empty'

More than 50 academics, mostly law professors and some high-profile social scientists, joined a public statement in support of Shapiro.

People who support race and sex quotas on the Supreme Court "can only have real confidence in that conclusion if they know that the contrary view can be freely supported and discussed" rather than silenced through threat of termination, they wrote.

Firing Shapiro will especially convey to untenured Georgetown faculty that "promises of academic freedom are empty" and minority views are "not tolerated," they warned. 

Signatories include Columbia's John McWhorter and Harvard Law's Randall Kennedy, who are black; Yale's Nicholas Christakis, himself the failed target of cancellation in 2015; and Georgetown professor Christine Fair, who was placed on "research leave" after calling for the deaths and castrations of Senate Republicans.

The Foundation for Individual Rights in Education told Treanor that Shapiro "must be free to argue" his remarks were misinterpreted "without fear of termination, just as his critics must not fear reprisal for their interpretations." 

Shapiro's work at Cato focused on "standing for marginalized individuals and communities facing the full weight of an unjust state," lawyer David French, FIRE's former president, wrote in a tweet thread asking Georgetown to clear Shapiro. 

It's Georgetown Law's second investigation in less than a year regarding faculty comments on race and merit. 

Treanor fired Sandra Sellers and suspended David Batson for a conversation they believed was private about the chronic inferior academic performance of their black students. Batson resigned pending a formal investigation.

Two weeks ago, with critical lawmakers at its doorstep, the University of Pennsylvania's law school launched a review of tenured professor Amy Wax for similar comments about black student performance but also her criticism of Asian immigration. It could end with her firing.

The Black Law Students Association at each school has been instrumental at whipping up demands to fire the professors. Comments by Shapiro, Sellers and Batson show that black students are still "defending their legitimacy at this institution and place in the law," the Georgetown BLSA said in response to Treanor's statement.

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The Center for the Constitution's faculty director and another libertarian legal scholar, Randy Barnett, previously welcomed Shapiro but did not respond to Just the News for comment. Barnett has fought for more viewpoint diversity in law school faculties.

Georgetown Law has shown skittishness over progressive speech as well. It shut down campus political activity by a student group supporting Democratic presidential candidate Bernie Sanders in 2016, claiming students were threatening its tax-exempt status. Virginia's Washington and Lee University shut down College Republicans' activity for now-Gov. Glenn Youngkin on seemingly the same basis last year.

The law school's media relations did not respond to Just the News queries about the criticism of its investigation and particularly how it differs from the University of Illinois's revocation of the Salaita contract.

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