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San Diego Law School “Must Immediately Cease Its Investigation” Into Prof. Thomas Smith Over China Criticism, Demands Free Speech Group

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.

We covered the details in U. San Diego Law Prof. Thomas Smith Harshly Criticized Chinese Gov’t, Now Faces False Claims Of Ethnic Bias (Update).

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.

* * *

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.

* * *

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….

We will continue to follow this case.


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JusticeDelivered | March 22, 2021 at 10:19 pm

It is about time that there is pushback. Now there are a bunch of other cases requiring intervention.

The dean needs termination

Marx supposedly said, “Always accuse your enemies of doing what you do while you are doing it. It confuses the issue.” It doesn’t matter, really. It’s not profound; you see it played out on any grade school playground.

The important point is that if leftists had an official sport it would be projection. When they accuse others of doing what they either are doing or intend to do, these garbage people who intend to impose their garbage ideology really do believe that “everyone does it.” If they don’t seize power through lying and cheating first, then somebody else will.

Here we see them claiming that this prof didn’t just denigrate a government but he vilified a racial group. Of course they would; that’s what they do when they denigrate Israel. They claim that they don’t hate Jews; just the Israeli government. This persecution of this professor is the mask slipping. Since they’re the Joooo haters they obviously are, these self-serving racists see criticism of the governing CCP through the same racist prism through which they see everything.

    Craig in reply to Arminius. | March 25, 2021 at 3:11 am

    Re: What Marx said… There were so many similarities between the way the left and the media treated Israel in the past 25 years and they way they treated President Donald Trump.

    A few years ago I read a very hard to find story in an early Vietnam era Naval Aviation survival manual about how the communists separated American P.O.W.s during the Korean War to brainwash them. It is essentially the same thing that the American media did to half of this country brainwash them. The Russian Hoax, the fake news stories, calling the other side “stupid” or uninformed for the choices they made, etc.

    I would love to post this story here in it’s original print because it is essential to understanding the mindset of those who wish to divide us.

I’m so upset that I am in no position to help our fellow Americans in these situations!!!!! It wasn’t long ago I was under the impression that our vote is how me make change.
I just pray that when truth comes back into style that this dean is found to be a bought ccp traitor and is punished according to the law.

I see that the commenter above is like minded. I was typing my comment below when I noticed the similarities.

If this had been a professor that was critical of Israel or Jewish people, the school would be silent or say “What they do on their own time is none of our business”.

Totally off-topic but I’m wondering if any legal minds have advice on this:
Years ago, I bought a small personal recorder and a few minutes ago I found an old recording that someone made when they accidentally left the device running. I own the device. Can I post the recording online? I don’t know who the person was.

In another case I found some recordings on discs that someone made of a phone call prior to filing a lawsuit against a company (I looked up the case, and the guy who made the recordings apparently won his case against a company that scammed him and other people.)

Can I upload these and post them online?

    ipolitics in reply to Craig. | April 2, 2021 at 8:27 am

    “If this had been a professor that was critical of Israel or Jewish people, the school would be silent or say “What they do on their own time is none of our business”.”

    What makes it more ironic is that the Dean’s name is “Schapiro.”

    I wonder if he thinks the alligator will eat him last, or what?

As faculty, I have watched other Deans overreact or jump the gun (or the shark, your choice….) in terms of instigating action against other faculty who held and publicized opinions that students did not like. Medical students are just as disaffected, callow, superficial and ignorant of the real world as any other students in higher education—but they tend to complain and whine more. They justify their actions on their emotions and not on the prevailing principles which, if the tables were turned, they would be screaming like a cat being put through a pencil sharpener.

I have zero interest in educational leadership these days. They act solely to maintain their popularity and compete with students to see who can be more radical. They’re boring, insipid and incompetent all rolled into the same rotten package. Ugh….