This post has been languishing on Curmie’s computer, half-written, for too long…
The Ilya Shapiro case at Georgetown Law School is one of those stories that mostly played out while this blog was dormant. The proverbial fecal matter interfaced the whirling rotors in January; Curmie didn’t write any blog posts between November and April.
So… a little background. Shapiro had been recently hired as senior lecturer and executive director at the law school’s Center for the Constitution. In January, with the announcement of the imminent retirement of Justice Breyer, Shapiro criticized President Biden for signaling his intention to keep his campaign promise to nominate a black woman for any SCOTUS opening.
Shapiro’s admittedly inelegant tweet has been taken down, but there are lots of screenshots, etc., out there:
OK, so there’s much to unpack here, not least of which is wondering what the hell Georgetown thought they were getting when they offered a senior position to someone who’d put in over a decade at the Cato Institute. Moreover, Biden’s campaign promise was stupid, pandering, and politically naïve. Who, exactly, was going to change their vote from Donald Trump to Joe Biden on the basis of that pledge? And whereas politicians in general (and Biden appears to be no better or worse than most) casually forget what they said in the campaign by, well, the day after the election, Biden picked this vow as one to keep.
Moreover, the stated reason for the exclusion from consideration of anyone except black women, diversity, is rather strained. True, there’s a long history of white men on the court, due in large part to the fact that for a good deal of American history, they were indeed the only ones qualified. The eight returning members of SCOTUS after Breyer’s retirement include a black man and three women (one of them “of color”), just not a black woman.
Plus, of course, Shapiro is right that Judge Srinivasan, as an Asian-American, would also represent a first for SCOTUS. Equally importantly, let’s look at religion, certainly a category that might shape a justice’s perspective, perhaps to roughly the same degree as race or gender. According to a Pew Research Center report from a few years ago, Protestants outnumber Catholics in this country by more than a 2:1 ratio, and Jews by nearly 25:1. Yet even after Justice Jackson replaces Justice Breyer, there will still be six Catholics and a Jew on the Court, as opposed to two Protestants. If we lump together “atheist,” “agnostic,” and “nothing in particular: religion not important,” we get a figure more than eight times greater than the Jewish population, yet since 1916 there have been two or more Jewish Justices more often than there have been none; there has never been a Justice (or as far as Curmie can tell, a nominee) from that “unaffiliated” group.
Does this make the court “less like America”? Perhaps. But Curmie believes in meritocracies. The NBA sure has a lot fewer white or Asian players than their populations would suggest. So what? The goal is to win basketball games, and if the best players available to help the team win are black, so be it. Same with SCOTUS. No, I’m not suggesting that every SCOTUS choice was divinely inspired—few of us will have abundant respect for both Clarence Thomas and Sonia Sotomayor—but drafting Sam Bowie before Michael Jordan might not have been the brightest move ever, either.
Shapiro is correct, too, in another tweet in which he suggests that the nominee, who turned out to be Ketanji Brown Jackson, would be regarded as an “affirmative action” choice. The wording might be a little harsh, but it’s not inaccurate. One could argue with some justification that the two Justices just mentioned, Thomas and Sotomayor, may also have been chosen for their demographic profiles. But Jackson was considered the best option not merely from a specifically and intentionally delimited field, but from a delimited field that had been publicly trumpeted by the administration. The fact that she’s at least as qualified as any of President Trump’s nominees fades to the background: she will be perceived by many people not as the best choice for the job, but as the best available black woman. And that does add what Shapiro calls an asterisk to her status.
Obviously, though, it’s the penultimate sentence, especially its last three words, in Shapiro’s tweet that has garnered all the attention. More on that in a moment. But let’s talk for a moment about what everyone else seems to overlook: that first word. This guy is a high-ranking administrator at a prestigious law school and he tosses out his opinion as “objective”? Precision in writing ought to be very high on his list of priorities. The “lesser black woman” phrasing was inelegant, but any objective observer (see what I did there) reading those words in the context of the rest of the tweet knows what he meant, and it wasn’t racist. On the other hand, suggesting that objectivity in deciding the “best pick” is even possible, let alone that he alone can recognize that fact is an expression of both delusion and arrogance.
But, let’s return to that phrase that caused all the furor: “lesser black woman.” Taken in context, all Shapiro is saying is that if Srinivasan is the best available candidate, then literally anyone else is “lesser.” It was, after all, President Biden, not Shapiro, who limited the field to black women. The phrasing was, as Shapiro was to admit, “inartful”—“a less qualified black woman” would make the point clearer and less problematically—and yes, he should have known better. Still, if we were to fire everyone who ever said, “inartfully,” something that wasn’t intended to be offensive but could be interpreted that way, the unemployment rate in the country would be pretty damned close to 100%.
Georgetown, of course, suspended Shapiro almost immediately, with law school dean William Treanor writing that “The tweets’ suggestion that the best Supreme Court nominee could not be a Black woman and their use of demeaning language are appalling.” Let’s look at the two halves of that statement. The first part is technically true: if Shapiro thinks the best candidate is an Asian-American man, that pretty much means anyone else—black woman, white man, even a different Asian-American man, is “lesser.” But “demeaning language”? Clumsy, sure, but demeaning? Only if he meant it to be. (Curmie clings to the vestiges of modernism.)
Lost in the furor, of course, is the fact that Shapiro’s comments about an “intersectionality hierarchy” are, alas, pretty accurate. There are those, traditionally disenfranchised, whose omission in the past must be compensated for in the present… and those who, irrespective of skills and qualifications, we in our Wokeness can still cheerfully ignore.
It’s important to note here that the central issue here is not constitutionality: as a private university, Georgetown is not required to allow freedom of expression. Rather, the question is whether they uphold their own proclamations—that, for example, “To forbid or limit discourse contradicts everything the university stands for.” To say that Georgetown failed to abide by their own pieties is to err rather more on the side of understatement than of hyperbole.
Anyway, after innumerable headlines, tweets, memes, and other forms of pseudo-argumentation, Shapiro was re-instated… but on a technicality. He wasn’t actually working at Georgetown yet, you see, when he had an original thought defied Woke orthodoxy tweeted something that should be protected by the university’s claim to academic freedom expressed his heinous opinion. Therefore, he couldn’t really be terminated. Sure.
It is a decision born of cowardice, stupidity, ideological tunnel vision, and a willingness to make up some implausible rationale to avoid (the university hoped) an inevitable lawsuit… people who can be offered leadership positions at Georgetown Law tend to be aware of legal remedies to problems, after all.
Of course, less than a week after the suspension was lifted, Shapiro quit. Of course, he didn’t just resign: he sent a four-page, single-spaced letter to the dean and—oh, yeah—made sure to send a copy to FIRE (at the time, the acronym stood for the Federation for Individual Rights in Education; it’s now the Federation for Individual Rights and Expression, expanding the organization’s scope beyond the boundaries of academe).
That letter is quite a read, with passages like “the IDEAA [Office of Institutional Diversity, Equity, and Affirmative Action] Report—and your own statements to the Law Center community—implicitly repealed Georgetown’s vaunted Speech and Expression Policy and set me up for discipline the next time I transgress progressive orthodoxy” and “no reasonable person acting in good faith could construe what I tweeted to be ‘objectively offensive.’”
What’s really problematic is that he’s right, even about condoning even more “objectively offensive” tweets by liberal faculty: it’s difficult to find Shapiro’s tweet more problematic than this one from Christine Fair about the Kavanaugh hearings: “Look at this chorus of entitled white men justifying a serial rapist’s arrogated entitlement. All of them deserve miserable deaths while feminists laugh as they take their last gasps. Bonus: we castrate their corpses and feed them to swine? Yes.” Yet Georgetown invoked their “free expression” policy for that one (as they should have, as both Ilya Shapiro and Curmie agree).
Of course, Shapiro promptly got another gig; he was hired as Director of Constitutional Studies at the Manhattan Institute less than a week after his grand-standing departure from Georgetown. Someone of cynical disposition might suspect that this change of employment was a). precipitated precisely by the Georgetown kerfuffle and b). in the works long before his suspension at Georgetown was announced. One suspects that the move, described by one libertarian columnist as “failing upwards,” will provide Shapiro with enough income that he can supersize his #3 combo meal from time to time.
Of course, conservative writers pounced all over this incident, claiming it demonstrates the chilling of free expression on university campuses. And they’re right… sort of. Curmie would refine that critique a little, to suggest that university administrators are increasingly narcissistic and hypocritical: anyone who disagrees with their divinely inspired religio-political beliefs is disruptive, and therefore subject to disciplinary action, irrespective of pesky little obstructions like the US Constitution or official university policies.
Whereas many, probably most, of these incidents involve censorious asshats on the left imposing their will on those of the right (Curmie does recommend a piece written by FIRE intern William Harris for a well-written, interesting, and important overview of the historical relationship between free speech concerns and progressive politics), the converse is also true, as a glance at FIRE’s “recent cases” list demonstrates.
There, we see attempts to suppress dissent from the left or to withhold support from organizations reasonably linked to liberal ideologies: politics and sexual identity at Hood College, criticism of alleged anti-Semitism at San Diego Community College, complaints about including works by BIPOC and queer authors at Soka University of America, revoking sponsorship of a popular student drag show at Texas A&M... and that’s just in the last six weeks or so.
But there’s another take-away that gets lost in the partisan finger-pointing, a variation on a theme Curmie wrote about over a decade ago in discussing the cases of University of Wisconsin-Stout professor James Miller and Nacogdoches (TX) high school soccer coach Farshid Nourimand. Both were disciplined by idiot administrators after having done literally nothing wrong. Both were eventually restored to their positions. But both had an advantage: not only fans of the short-lived but much-beloved TV series “Firefly” and two of its stars—Nathan Fillion and Adam Baldwin—but also a good many of the 1.6 million Twitter followers of popular novelist Neil Gaiman rallied behind Miller. Similarly, Clint Dempsey, surely one of the half dozen or so greatest American-born soccer players of all time, made a trans-Atlantic phone call in support of Nourimand.
Ilya Shapiro has already landed on his feet. But he was already a big deal, and his case got a lot of press in national media. But if you’re merely very good at what you do and your case doesn’t get national attention except in places like the Chronicle of Higher Education or Inside Higher Ed, if you’re just someone who criticizes your school’s COVID policy or dares to suggest that the DEI folks are over-reacting to a stimulus that isn’t really even there at all (Curmie wrote about both these stories last October), then you might be in real trouble.
Not so long ago—well into Curmie’s career, in fact—the presumption was that faculty had the same rights to freedom of expression as everyone else, provided that they didn’t masquerade their opinions as facts and expect their students to agree with them. Curmie remembers the Political Science department at a place he once taught. One professor was the county chair of the Republican Party; another successfully ran for Congress as a Democrat. As far as Curmie could tell, they liked each other, and both were apparently great in the classroom. That’s what is supposed to happen.
But we have now entered the age of the Infallible Administrator (just ask them), and of imposed orthodoxy and homogeneity. That’s not good for universities, and it’s certainly not good for the country. Curmie misses his students, but is kinda glad to no longer be working full-time in a profession that has so demonstrably lost its way.
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