San Diego Law School “Must Immediately Cease Its Investigation” Into Prof. Thomas Smith Over China Criticism, Demands Free Speech Group
In letter to Dean Robert Schapiro, the Foundation for Individual Rights in Education writes: “Smith’s post on his personal blog is an exercise of extramural expression, a right USD Law expressly provides to its faculty…. Accordingly, we call on USD Law to immediately disband its investigation into Smith.”
On March 20, 2021, we wrote about the campaign by law students at University of San Diego Law School to get conservative Professor Thomas Smith fired allegedly for demeaning Chinese people in a post at his personal blog, The Right Coast. It was a lie, as Smith’s writing in question clearly was a criticism of the Chinese government’s handling of coronavirus, not an attack on Chinese people as an ethnicity.
Nonetheless, Dean Robert Schapiro denounced Smith in an email to the community, falsely accusing Smith of “bias” and “using offensive language in reference to people from China” which “demeans a particular national group.” Based on student complaints, the Dean also announced that the law school and USD were investigating possible anti-bias policy violations.
Several USD law professors, including but not limited to Larry Alexander, Maimon Schwarzschild, Steve Smith, Chris Wonnell, and Gail Heriot, bravely and honorably objected to Dean Schapiro’s actions, writing to him:
We have read your email to the law school community as well as your email to one of us. Here is our reaction.
The faculty member in question made a political comment in forceful language. He has the right and perhaps the obligation as a citizen and an academic to comment on matters of public concern such as the Chinese government’s handling of COVID, and to do so in evocative and forceful language. No fair, much less lawyerly way of reading what he wrote would conclude anything other than that “Chinese cock swaddle” was referring to propaganda of the Chinese government and surely not denigrating people of Chinese origin or descent. The context makes this perfectly clear.
Blog posts by academics fall within the bounds of academic freedom as defined by the AAUP. Student concerns about discrimination should always be considered soberly. Yet, an academic institution committed to free inquiry cannot allow misplaced accusations of bigotry to become an all-purpose tool for silencing critical comment. To allow such accusations to undermine academic freedom ultimately ensures an environment of fear and suspicion for all members of the academic community, undermining rather than ensuring a welcoming and respectful discourse. Describing the disputed comments in this case as “offensive language in reference to people from China” of a piece with “hate crimes directed against the Asian and Pacific Islander (API) community [and] racist commentary” inevitably creates the impression that judgment has been rendered in advance and the outcome of the promised review has been predetermined.
We are concerned that treating these complaints the way you are doing validates student reactions and strained interpretations that are misguided, that reflect a lack of critical thinking, and that will chill faculty members’ teaching and scholarship. We sincerely hope it will be possible to work together to find a better way.
Prof. Glenn Reynolds writes:
Frankly, this looks like a libel case, a political-discrimination case under California law, and a federal civil rights conspiracy case all rolled into one.
The Foundation for Individual Rights In Education (the FIRE), the premier national organization protecting free speech, free expression, and academic freedom on campuses has sent a letter (pdf.) to Dean Schapriro calling the investigation a breach of contract and demanding the investigation cease immediatey. The FIRE letter reads, in part:
FIRE is concerned by the University of San Diego School of Law’s (“USD Law’s”) investigation into Professor Thomas Smith over a post on his personal blog. While this blog post may be offensive to some, it is an exercise of Smith’s right to “speak or write as [a] citizen . . . free from institutional censorship or discipline” promised to him as a faculty member at USD Law. Accordingly, we call on USD Law to cease its investigation.
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Smith’s post on his personal blog is an exercise of extramural expression, a right USD Law expressly provides to its faculty. Because it does not amount to harassment or other unprotected speech, USD’s investigation into Smith represents a breach of its commitment to its faculty members’ expressive rights….
As USD Law is a private institution, the First Amendment does not compel it to grant faculty expressive freedoms. Nevertheless, USD Law has made clear commitments promising its faculty freedom of expression and academic freedom. These commitments represent not only a moral obligation, but a contractually-binding legal duty on the part of the college.
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As evidenced by students submitting complaints, some who saw Smith’s blog post found it offensive. However, whether speech is protected is “a legal, not moral, analysis,”22 and Smith’s blog does not fall into an unprotected category of speech, as there is no exemption for speech on the basis that others find it disagreeable, offensive, or outrageous….
If, instead, Smith’s post was—as his update affirms—intended as a criticism of the Chinese government’s response to the COVID-19 pandemic, USD’s response is all the more unfortunate and unacceptable, penalizing a professor on the pretense that his criticism of a foreign government is interchangeable with criticism of its constituents. Whether Smith or his critics have the better argument is of no moment, as Smith’s post is— under any interpretation—firmly within the bounds of protected extramural expression guaranteed to him by USD Law….
The chilling effect created by the initiation of an investigation into Smith is not speculative. Multiple USD law professors contacted FIRE to bring this situation to our attention, sharing their concerns that the university’s response imperils the institution’s commitment to freedom of expression. One such professor specifically noted that USD’s investigation into Smith has created a chilling effect for a number of faculty. That is an unacceptable result at an institution that promises its faculty academic freedom rights.
Accordingly, we call on USD Law to immediately disband its investigation into Smith….
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