U. San Diego Law Prof. Thomas Smith Harshly Criticized Chinese Gov’t, Now Faces False Claims Of Ethnic Bias (Update)
In a personal blog post, Professor Thomas Smith used colorful language to attack the Chinese government over the coronavirus, but student activists falsely claim he disparaged Chinese people as an ethnic group, and Dean Robert Schapiro has denounced the professor, who now faces law school and university bias investigations.
Thomas Smith, a corporate law professor at University of San Diego Law School since 1992, is the target of a malicious and dishonest smear campaign by students falsely claiming that in a blog post Prof. Smith disparaged the Chinese ethnic group.
In fact, any plain reading of the post demonstrates that the criticisms were directed at the Chinese government, not at Chinese people as an ethnic group. Nonetheless, Dean Robert Schapiro disgracefully denounced Prof. Smith and an investigation has been launched by the law school and university into alleged violation of anti-bias rules.
This another example of the student mob mentality that is sweeping academia and almost always directed at right-of-center professors. In almost all of these cases, the pattern is the same: Students weaponize their hurt feelings to demand destruction of a professional career over political comments with which they disagree, exploiting administrative weakness by falsely claiming bias against the professor. In the face of such contrived bias claims, administrators crumble and publicly shame the professor through ritual denunciations, occasionally leading to actual employment termination.
It is reminscent of the worst days of the Maoist Cultural Revolution, in which students were the most aggressive in demanding ideological obedience from professors, with public shaming one of the tools used to humiliate the target and scare others into silence.
Some of the cases we have covered include St. Joseph’s Math Professor Gregory Manco, Harvard Law Professor Adrian Vermeule, Cornell Chemistry Prof. David Collum, UCF Psychology Prof. Charles Negy, U. Chicago Geophysicist Prof. Dorian Abbot, McGill Univ. Anthropology Emeritus Prof. Philip Carl Salzman, U. Miami Law Prof. Dan Ravicher, USC Business Prof. Greg Patton, Princeton Classics Prof. Joshua Katz, several Skidmore College professors, University of North Texas Music Theory Prof. Gregory Jackson, Michigan State Physics Prof. Stephen Hsu, and of course, me.
Add Prof. Thomas Smith to the list.
The Right Coast Blog Post
Prof. Smith has run the The Right Coast blog for as long as I can remember. The blog is a traditional blog, mostly reprinting excerpts of news stories packaged with a little commentary added. Because Prof. Smith is viewed as right-of-center, he is watched. I’m pretty sure there was some prior kerfuffle involving his blog, though I can’t find a link to it. There are students who have spent a lot of time scrutinizing his writings.
On March 10, 2021, Prof. Smith ran this post excerpting a Wall Street Journal article, Wuhan Lab Theory a Dark Cloud on China – WSJ (emphasis added):
Wuhan Lab Theory a Dark Cloud on China – WSJ
By Tom Smith
Alas, the World Health Organization mission is turning into a case of disaster foretold. A credible inquiry requires China’s full cooperation, not just cooperation with those lines of inquiry that are consistent with its own propaganda. And couldn’t somebody have put Peter Daszak, team member from New York City’s EcoHealth Alliance, under permanent mouth quarantine?
To insist that human encroachment on nature is the great risk tells us nothing about what happened in this particular case. To insist, as he did on NPR, that China’s manhandling of the delegation with greeters in full hazmat garb, its forcing of the visitors into 14-day quarantine, was merely testament to China’s Covid rigor overlooks another possibility: China was seeking to intimidate and dominate the investigators because of the colossal importance it places on controlling the virus narrative.
If you believe that the coronavirus did not escape from the lab in Wuhan, you have to at least consider that you are an idiot who is swallowing whole a lot of Chinese cock swaddle. At least Peter Daszak has good personal and financial reasons, not to mention reasons of career preservation, for advancing what he must know is a facially implausible thesis. But whatever. Go Science!
UPDATE: It appears that some people are interpreting my reference to “Chinese cock swaddle,” as a reference to an ethnic group. That is a misinterpretation. To be clear, I was referring to the Chinese government.
Was the pejorative term “Chinese cock swaddle” a smear of the Chinese people as an ethnic group, rather than the Chinese government? There is no plausible claim that Prof. Smith was disparaging Chinese people as an ethnic group, as UCLA Law Professor Eugene Volokh points out through a plain reading of the text:
In context, it seems clear that the post’s reference to “Chinese” is indeed a reference to the Chinese government, not to people of Chinese extraction….
Even without the UPDATE, it’s clear that the reference to “Chinese cock swaddle” must be a reference to the government of China, not to Chinese-Americans or to people of Chinese extraction. The title of the post is about China, and the quote refers four times to China (“China’s full cooperation,” “China’s manhandling of the delegation,” “China’s Covid rigor,” “China was seeking”). Though “Chinese” sometimes refers to the government, sometimes to the nation, and sometimes to the ethnic group, here the referent is clear, and it isn’t to Chinese-Americans or to USD law students from China or anything like that….
Yet I stress again that the blog post is not “disparaging language” or “epithets, derogatory comments, or slurs based on race or national origin” towards any “members of the [USD] community” (students, faculty, or staff). It is disparaging language towards China, in context referring to the government of China.
Student Petition for Termination
There does not appear to have been any reaction or complaint immediately after the blog post was published. Just in the past couple of days, however, law school students launched into a campaign to get Prof. Smith fired over the comment.
The Asian Pacific American Law Students Association (APALSA) delivered a lengthy, heavily footnoted demand letter (pdf.) to Prof. Smith dated March 19, 2021, which requested “an Apology on Behalf of All the Affinity Groups You Have Harmed”:
You are now likely aware of the tremendous amount of reaction and response that this post has generated from the student body, our school’s various organizations, our school’s alumni, and the larger community of San Diego. We are extremely hurt by your words. We want this letter to educate you on how your words have a greater, adverse impact on your own students at USD and the community at large. Specifically, we are writing to express the depth of hurt and disappointment you caused to the Asian Pacific Islander (API) community….
Your blog post promoting a conspiracy theory that COVID-19 originated in a lab from Wuhan, China, has detrimental consequences for students you teach and beyond. Based on your update to the blog post, you still have not grasped the severity of the issue or its wider implications for the community that you inhabit. At this point, the origins of COVID-19 are still largely speculative. We are not here to say that any conclusion about the origins of COVID-19 is right or wrong. That deflects from the point. The point is that your speculation of COVID-19 originating from a lab in China only perpetuates an “us versus them” mentality that negatively impacts the API community….
We came to law school hoping we could arm ourselves against such indignities, and yet we are asked to endure them from our own professors under the guise of academic and scholarly debate….
Please consider your position as a community leader who represents the law school. Please consider the diverse students at USD Law and how unsafe they may feel learning from you. Please recognize the difference between intent versus impact. We recognize it may not have been your intent to cause harm, but you did. Take ownership, listen, learn, and do better. All law students are required to take an oath of professionalism prior to law school and our professors must be held to the same standard….
While APALSA did not call for Prof. Smith’s termination in the letter, a student petition does just that. It reads:
Petition for USD School of Law to Terminate Contract with Professor Tom Smith
To the Leadership at the University of San Diego and the School of Law,
The legal field demands from its professionals an ethical obligation to comply with the requirements and standards of both their institution and the greater field of law. Law professors are subject to the regulations of the institutions at which they teach and to professional guidelines that are more generally applicable to attorneys as a whole. Their responsibilities extend beyond the classroom. We as future legal professionals recognize our ethical obligation to understand how our words and our actions will reflect upon our profession, and the institutions we represent.
Law professors are charged with molding the next generation of attorneys, imparting a strong ethical code, and abiding by the same Oath of Professionalism every USD Law student is asked to adhere to on our first day of law school. However, it seems that USD Law has decided students must be held to a higher standard than the professors they employ to teach.
This Oath of Professionalism asks law students to recite:
“ . . .I commit to serve my community and to study law with diligence and integrity. I will uphold the highest standard of ethics and conduct myself with dignity befitting an advocate and counselor in this noble profession. I will be a zealous advocate, but will engage collegially and respectfully with students, faculty, staff, and other members of my community. In all I do, I will honor the shared values of the legal profession.”
As such, Professor Tom Smith is responsible to and for the students at USD Law and should have a strong sense of the obligations that attach to this calling. Rather than recognizing his responsibility to serve others, Professor Smith’s actions demonstrate that his vocation is limited to the pursuit of self-interest. His words in his blog and his conduct in the classroom have time and time again fallen short of the obligation he owes to the students that he teaches, the law school that employs him, and the legal profession that he claims to represent. Professor Smith demonstrates an unwillingness to engage collegially, respectfully, or conduct himself with dignity as an advocate or counselor.
In Professor Smith’s offensive blog post on March 10th, he noted “If you believe that the Coronavirus did not escape from the lab in Wuhan, you have to at least consider that you are an idiot who is swallowing [a whole lot of] Chinese cock swaddle.”
This corrosive blog post mirrors the same unfounded conspiracy theory peddling that has contributed to the nearly 4000 hate incidents reported against Asian Americans and Pacific Islanders in the United States over the last year. The egregiousness of Professor Smith’s rhetoric transcends its profanity; it expresses a fundamental disconnect from the realities that our API law students encounter during every moment of their personal and professional lives.
Over the last several years, USD Law students have raised formal complaints with our law administration about offensive commentaries included on Professor Smith’s blog, which until last year was linked directly to the USD Law’s website on a webpage showcasing faculty scholarship and achievements. USD Law students have confronted Professor Smith about previous commentaries in class and in private meetings, but none of our previous efforts compelled a disciplinary response from our leadership that could have prevented the vulnerability and helplessness that so many in our law community have experienced this week.
Accordingly, it is crucial to acknowledge this truth: Professor Tom Smith works for us. We pay his salary. We demand better from the institution we pay to educate us.
The University of San Diego prides itself on developing “Changemakers” who are willing to bravely step into discomfort to meet the needs of our world and our communities. USD Law students continue to take on the weight of this advocacy absent concrete action and support from our institution, recognizing its implications on our mental health, our capacity to balance our studies, and our ability to prepare for our futures in the legal profession.
To the salaried faculty, salaried administration, salaried staff, and alumni of the University of San Diego who claim to be willing to support USD Law students when they are at their most vulnerable: It is your turn to be brave. It is your turn to make change.
We stand behind the API students within our law and university communities who have already experienced great fear of xenophobic violence and discrimination because of the influx of racist rhetoric and conspiracy peddling in communities across our country this year.
Professor Smith must either resign or have his contract with USD Law terminated. Any other response from the University and School of Law is shameful and performative, and protects neither the safety of our students nor the integrity of our institution.
USD Law Student Bar Association President, 2020-2021
USD Law Student Bar Association President, 2021-2022
Denunciation By Dean And Investigation
The law school Dean Robert Schapiro issued a denunciation of Prof. Smith. While the denunciation did not mention Prof. Smith’s name, it clearly was about him and would have been so understood by the law school community.
In an email to the community (via 10 News report), Dean Schapiro asserted that the statements by Prof. Smith are directed at “people from China” and reflect “bias” that “demeans a particular national group” possibly in violation of USD policies (emphasis added):
Dear Law Students,
It has come to my attention that a faculty member made a blog post concerning the origin of COVID-19, using offensive language in reference to people from China. As I wrote to you in a previous message, COVID-19 has been associated with an alarming increase in hate crimes directed against the Asian and Pacific Islander (API) community, with racist commentary relating to the virus and its origins. While the blog is not hosted by the University of San Diego, these forms of bias, wherever they occur, have an adverse impact on our community. It is especially concerning when the disparaging language comes from a member of our community.
Scientists are investigating the exact origins of COVID-19. Whatever the realm for debate by experts about this scientific question, there is no place for language that demeans a particular national group. Such language undermines our shared commitment to creating an inclusive, welcoming community.
A core value of the University of San Diego School of Law is that all members of the community must be treated with dignity and respect. University policies specifically prohibit harassment, including the use of epithets, derogatory comments, or slurs based on race or national origin, among other categories. I have received formal complaints relating to the faculty member’s conduct, and in accordance with university procedures, there will be a process to review whether university or law school policies have been violated.
I will be meeting as soon as possible with leaders of the Asian Pacific American Law Students Association and the Student Bar Association to discuss further steps. In addition, I will continue to work with faculty, students, staff, and alumni over the course of this spring and beyond to develop and implement plans to promote diversity, equity, and inclusion at the law school. This occurrence reminds us again of the importance and urgency of this project. I will be sending you more information about plans as they develop.
It is clear that we have much work to do together to repair and enhance our community. That work must begin by acknowledging the harm caused by this kind of demeaning language.
The denunciation and investigation have received widespread local news coverage, including in The San Diego Union Tribune:
A student brought the post to the attention of the Asian Pacific American Law Student Association at USD, and the group filed a formal complaint with the help of the Student Bar Association. The groups met with school officials Thursday [March 18].
“In law school we come here to be taught to be wordsmiths and to make educated arguments,” said Ashley Thompson, a second-year law student and board member of the Asian and Pacific Islander association. “He did the opposite. He stooped to use dangerous rhetoric. That is part of reason this so disturbing and hurtful.” …
A USD spokesperson said the conduct of the professor — who wasn’t named in the [Dean’s] letter — would be reviewed to determine if university or law school policies were violated.
“A core value of the University of San Diego School of Law is that all members of the community must be treated with dignity and respect,” the spokesperson said. “University policies specifically prohibit harassment, including the use of epithets, derogatory comments, or slurs based on race or national origin, among other categories.”
Some time after the original blog post went up, an update was added to Smith’s commentary: “It appears that some people are interpreting my reference to ‘Chinese **** swaddle,’ as a reference to an ethnic group. That is a misinterpretation. To be clear, I was referring to the Chinese government.”
Smith did not respond to a request for comment in emails sent to him and his assistant Friday.
For Benjamin Cope, a first-year law student representative of the Asian and Pacific Islander student association, the impact of the words outweighs the intent.
“Maybe it wasn’t his intent, but he chose very, very specific, unique, colorful language,” Cope said. “I know everyone will have their opinion, but as someone who will and has been affected by people’s words like this, I feel comfortable saying it was racist, it was offensive.”
The student groups are asking for Smith to be terminated, or that he issue a formal apology and that students be allowed to opt out of his courses. Other requests include the university hire more diverse faculty. The students also wrote an open letter to Smith asking for an apology.
San Diego News 7 further reports:
USD Student Bar Association President Robert Ponce … said such remarks are among those causing concerns about Asian discrimination.
“I would describe it as xenophobic in nature. I certainly think there is a line of bigotry that underlies that statement and similar statements made across the country,” Ponce said….
“This statement is conspiracy peddling like we have seen around the country and it’s ugly and egregious,” Ponce said.
In part of an emailed statement from the University, spokesperson Elena Gomez told NBC 7 the school is aware of these comments.
“These forms of bias, wherever they occur, have an adverse impact on our community. It is especially concerning when the disparaging language comes from a member of our community,” Gomez said.
Ponce said the Student Bar Association and the Asian-Pacific American Student Law Association are preparing a list of disciplinary demands for the university.
“We respect, that tenured professors are able to publish what they want about any topic of their choosing. However, they have a responsibility to the university, the student body and to uphold a set of standards that are not met now,” Ponce said.
The school received formal complaints about the blog and is reviewing whether university or law school policies have been violated.
Questions That Remain Unanswered
I sent the following request to Dean Schapiro:
Dear Dean Schapiro,
I have read about the investigation of Professor Thomas Smith, including your email to the community which has been published online. I will be writing about this incident, and the school’s response, for my website, Legal Insurrection.
I’d like to understand the impetus for you issuing a community email as well as the content. If you could provide me with a response to these questions by 7 p.m. Eastern today, that would be appreciated so I can include your position when I write this up for publication tonight.
1. What role did the student petition and complaints play in your decision to issue the community email? Had there been no petition or complaints, would you still have issued the community email?
2. You say that the blog post used “offensive language in reference to people from China” and compared it to “language that demeans a particular national group.” Do you believe that the language in question (“cock swaddle”) was directed at Chinese as a people, or China as a government? Does that make a difference in your view? If the language in question had said “Chinese government cock swaddle” instead of “Chinese cock swaddle” would you have issued the community email and still criticized Prof. Smith?
3. In an Update to his blog post, Prof. Smith writes: “UPDATE: It appears that some people are interpreting my reference to “Chinese cock swaddle,” as a reference to an ethnic group. That is a misinterpretation. To be clear, I was referring to the Chinese government.” Do you accept that clarification? Does it make a difference in your view?
3. In your view, is the use of the language in question (“cock swaddle”) in itself, if used not in any way regarding an ethnic group, sufficiently objectionable for a professor to be condemned to the community by the law school?
4. Do you consider Prof. Smith raising the possibility that the coronavirus leaked from a lab in Wuhan (something widely reported as a possibility by Chinese university researchers, the mainstream press in the United States, and the U.S. government) in itself unacceptable, or is it the specific language in question that was used on his blog?
5. What is the process at USD now that complaints have been filed? Is it the law school or university’s intention to seek termination of Prof. Smith?
6. Do you consider Prof. Smith’s writing at his blog, including this particular post, protected by academic freedom? If not, why not, since it is an extramural writing on a matter of public importance? If so, why isn’t that the end of the school’s inquiry?
7. What is the current status of the investigation and possible employment action against Prof. Smith?
I hope that you will provide answers to these questions. If there is any other statement you wish to provide, you can do so as well.
The Dean did not respond, instead I received the following from Media Relations:
The University of San Diego School of Law is aware of the blog post of the faculty member. While the blog is not hosted by the University of San Diego, these forms of bias, wherever they occur, have an adverse impact on our community. It is especially concerning when the disparaging language comes from a member of our community. A core value of the University of San Diego School of Law is that all members of the community must be treated with dignity and respect. University policies specifically prohibit harassment, including the use of epithets, derogatory comments, or slurs based on race or national origin, among other categories.
We have received formal complaints relating to the faculty member’s conduct, and in accordance with university procedures, there will be a process to review whether university or law school policies have been violated. Here is more information on the review process: https://www.sandiego.edu/law/about/consumer-information/student-complaints.php
Associate Director of Media Relations, Media Communications
University of San Diego
Ms. Gomez followed up:
I wanted to send an update to my email. The complaints reference both law school and university policies. The process for addressing complaints relating to law school policies is here. The process for addressing complaints relating to university policy is here.
Possibly Illegal Treatment of Prof. Smith
Prof. Volokh, in the post linked above, notes the illogical and possibly illegal conduct of the law school:
To the extent people who feel some connection to China find it offensive, that is no basis for the university to prohibit such speech, or even investigate a faculty member for such speech—just as a university has no business investigating a faculty member for sharp criticism of the government of Israel (or of other Israeli institutions), or of Russia or, back in the day, South Africa or whatever else.
I’ve heard some suggestion that such harsh condemnation of the Chinese government might increase the risk of hate crimes against Asians. I’m skeptical that this is likely so, especially in a blog post such as this.
But in any event, faculty or student speech like this can’t be suppressed simply because it has a supposedly bad tendency to inflame a few of its readers in a way that might cause them to commit crimes:
Harsh criticism of the police might lead to violent attacks on the police.
Harsh criticism of the Israeli government (or of “Israel” generally) may lead to violent attacks on Jews.
Harsh criticism of the U.S. government might lead to criminal attacks on government institutions, whether from the Right (as with the Capitol riot) or from the Left (as with the riots in Portland).
Yet such speech remains protected by academic freedom and free speech principles. In particular, besides the promises of academic freedom (which I think covers public commentary and not just scholarship) that USD, alongside most other private academic institutions, provides, the California Labor Code protects “political activities” even by private employees ….
Conclusion: Post-Truth World
We have seen this movie before.
At many universities and law schools, we live in a post-truth world. The truth here is that Prof. Smith was disparaging the Chinese government, not Chinese people as an ethnic group. But the truth doesn’t appear to matter to the students seeking Prof. Smith’s dismissal because they obviously have been taught that what matters most is their feelings, not reality.
There can be no such excuse for Dean Robert Schapiro and other senior adminstrators at the law school and university. They know better.
We will continue to follow this case.
Shortly before this post went live Prof. Volokh posted the text of a letter he says was sent by “several” USD law professors to the Dean. I had not seen it when my post went live, so I’m adding it now:
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.
It is very good to see that several professors took a principled position and spoke up.
That stands in contrast to what happened to me at Cornell Law School, where some professors colluded with students targeting me, and not a single faculty member spoke out against the misrepresentations of my writings by then-Dean (and soon-to-be President of Seattle University) Eduardo M. Peñalver and 21 colleagues who signed a statement against me. While George Washington U. Prof. Jonathan Turley and the National Association of Scholars wrote scathing takedowns of the actions by faculty and the Dean, respectively, there was faculty silence as I was maligned by other faculty and the administration, and students organized a boycott of my course (the boycott failed).
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